Monday, November 24, 2014
An Illinois Hearing Board has proposed a suspension of three years of an attorney who it found had
made false statements concerning the integrity of the judges, knowing they were false or with reckless disregard for their truth or falsity, and engaged in dishonest conduct and conduct prejudicial to the administration of justice. The Hearing Board found, while Respondent had accused judges and other attorneys of criminal conduct, there was not clear and convincing evidence that she presented or threatened to present criminal charges, in order to obtain an advantage in a civil matter.
As set forth below, the statements involved a guardianship matter and were made on a blog
Beginning in November 2011, Respondent wrote and administered an Internet blog about the Sykes case. The blog consists of a series of writings, by various persons, including Respondent. Respondent made numerous blog posts over time. Some of those writings concern probate court and the probate system in general. Other writings relate specifically to the Sykes case and persons involved in it. The blog alleges corruption, in probate court in general and the Sykes case in particular. For a time, there were two blogs, one of which described itself as "(a)n attorney blog concerning corruption and greed in the Probate Court of Cook County," because Respondent used hosting sites which offered different features. (Tr. 318-19, 606-610, 820-21, 1026-28, 1647; Adm. Exs. 17-32, 34-49). For simplicity, we designate them as the blog.
Respondent testified she produced the blog as a private person not as an attorney. (Tr. 384). Respondent also testified her knowledge and skill as an attorney was required to post and author the statements on the blog. (Tr. 410). On the blog, Respondent stated she published the blog primarily from a legal standpoint and it took an attorney to make the comments appearing on the blog. (Tr. 411-12). When Respondent began keeping track of time she spent on the blog, she calculated its value using her hourly rate as an attorney. (Tr. 410; Adm. Ex. 17 at 20). As admitted in Respondent's Summary, the blog was open to the public. Respondent estimated, by the time of the hearing, her blog had an audience of about 40,000. (Tr. 318).
The blog includes allegations of wrongdoing by specific individuals involved in the Sykes case. (Tr. 608-610, 821, 1026-28). These allegations are summarized in a "Table of Torts." While those persons are referenced by initials, the Table identifies the persons to whom the initials refer. Respondent prepared the Table of Torts. Because Respondent periodically added material to the Table of Torts, more than one version is in evidence. Respondent acknowledged the exhibits fairly represent snapshots of the Table of Torts. (Tr. 288-91, 303, 1594-95, 1611-14; Adm. Exs. 33, 34).
On the blog, Respondent described the Table of Torts as "TEN PAGES of questionable behavior, corruption, misfeasance, malfeasance, perpetration of misdemeanors and felonies," occurring in the Sykes case, (Adm. Ex. 24 at 16), and as a "Summary of the Case! - 90%+ of the wrongful conduct all in one convenient place." (Adm. Ex. 21 at 10). We begin, therefore, with the Table of Torts, for the purpose of providing an overview of the blog and context for the statements with which Respondent is charged.
The hearing board
Respondent was licensed to practice law in 1986, nearly thirty years ago. She has no prior discipline.
While Respondent acted with reckless disregard for the truth of her accusations, based on our impressions of Respondent, we do not believe she was acting out of a deliberate purpose of harming the judges and attorneys involved. Respondent genuinely, though unreasonably, believed something was wrong with the proceedings in the Sykes case. Respondent knew Mary and Gloria before the guardianship. While Respondent used decidedly misguided means, we believe she was acting out of a sincere desire to help Mary. We were also convinced Respondent truly believes there are abuses in the probate system and the system needs to be changed, to protect persons who are the subject of adult guardianship proceedings. From our perspective, it appears Respondent has genuine concern for senior citizens and perceives the senior population as vulnerable, especially to financial exploitation. This concern, as a general matter, is a legitimate one, even though Respondent had no reasonable basis for believing the judges or attorneys in Mary's case were corrupt.
We do not believe Respondent acted with a self-serving motive. The evidence did not support a theory that Respondent was reaping a significant financial benefit from her activities including operation of the blog.
The proposed suspension will, if adopted, continue until reinstatement is ordered by the court. (Mike Frisch)
The Maryland Court of Appeals has agreed with the trial judge that an attorney engaged in no misconduct in his alleged solicitation and representation of a client.
The attorney first met the client in a courthouse where she was filling out papers for a protective order.
They became Facebook friends and subsequently entered into an attorney-client relationship. They then stopped being Facebook friends.
The court found that none of Bar Counsel's array of charges were proven.
As to the alleged solicitation of business
Although Respondent initiated a conversation with Ms. Coates, informed Ms. Coates that he was an attorney, handed her his business card, discussed her case, and the two exchanged telephone numbers, Petitioner has failed to show, clearly and convincingly, that Respondent’s motive in doing so was for pecuniary gain. Indeed, the hearing judge found that Respondent declined to represent Ms. Coates in October 2008, when the two first met. That Respondent sent Ms. Coates an email two months later in which he detailed a case strategy does not indicate clearly that he was attempting to solicit business from Ms. Coates when the two individuals met. Moreover, Respondent and Ms. Coates did not enter into a retainer agreement until fifteen months after meeting in-person. The hearing judge made no finding that the circumstances were overwhelming or unduly influential for Ms. Coates. Respondent’s conduct appears to have arisen from his desire to provide Ms. Coates with information, as opposed to a desire to represent her. Where an attorney refuses initially to represent the prospective client, does not insist that he be retained immediately, and the circumstances do not indicate that the prospective client felt undue pressure to seek representation, the facts do not support the conclusion that MLRPC 7.3(a) has been violated.
As to an allegedly improper romantic motive
To bolster the contention that Respondent sought to develop a romantic relationship with Ms. Coates, Petitioner relies on several alleged interactions between Respondent and Ms. Coates, specifically: (1) Facebook communications; (2) Respondent’s offers to have Ms. Coates use his rental property; (3) Respondent’s unexpected, late-night visit to Ms. Coates’s home; (4) Respondent’s request for a back massage; (5) Respondent’s comments about Ms. Coates’s attire; (6) Respondent’s offer to help Ms. Coates move out of her marital home; and (7) Respondent’s lying on Ms. Coates’s bed following the move–which Bar Counsel refers to as “the culmination of months of his subtle prodding to become closer to [Ms. Coates].” Petitioner avers that each of these instances are supported by evidence contained in the record below, however, many of the allegations upon which Bar Counsel relies were not established as true by the hearing judge. Moreover, many of the allegations Bar Counsel relied upon, both before this Court and before the hearing judge, were in dispute. With regard to the allegations not in dispute, Bar Counsel failed to demonstrate how those facts were indicative of Respondent’s attempt to develop an improper, romantic relationship with Ms. Coates.
...a lawyer has discretion to communicate with clients or prospective clients through social media. Likewise, assisting or offering to assist a client or prospective client in obtaining shelter or in moving from one residence to another is not per se violative of the Maryland Lawyers’ Rules of Professional Conduct. Whether or not the attorney violates the Rules of Professional Responsibility will depend upon the facts and circumstances of each case. When a lawyer, in the exercise of discretion, involves him or herself in conduct that is unnecessary to the attorney-client relationship or exceeds the bounds of the attorney-client relationship, however, he or she runs the risk that his or her exercise of professional judgment may be found to be both unreasonable and subject to the disciplinary process.
Judge Watts (joined by two colleagues) dissented and would find conduct prejudicial to the administration of justice
Specifically, evidence offered by Bar Counsel indicated that Merkle, among other things: (1) “commented on” Coates-Black’s attire while she was visiting him in his office, and later described Coates-Black’s attire as having a “plunging neckline” and being “quite revealing from the middle”; (2) sat on the same side of his desk as Coates-Black while she was visiting him in his office and asked her to rub his shoulders, prompting Coates-Black to decline and move to the opposite side of Merkle’s desk “to keep [him] away from” her; (3) attempted to visit Coates-Black at her apartment after 10:00 p.m.; and (4) offered, on multiple occasions, to let Coates-Black use an apartment in a building that he owned. Despite this evidence, and despite the serious allegations of improper conduct that Coates-Black raised at the hearing, the hearing judge inexplicably failed to make any findings of fact whatsoever concerning these matters. The allegations were well-detailed and described Merkle’s alleged improper and unseemly conduct toward Coates-Black, yet the hearing judge did not address or even mention them.
She further would find that the trial judge's conclusion that the client was not vulnerable was clearly erroneous.
The dissent also expressed concern about the attorney's characterization of himself as a "father figure" to the client. (Mike Frisch)
A stayed two-year suspension with six months actual suspension and probation is the appropriate sanction for an attorney who had violated a previously-imposed probation, according to a recommendation of the California State Bar Review Department.
The original probation was as a result of threatening messages sent by the attorney after his removal as co-executor of his father's estate
Thereafter, in 2004 and 2005, he left a total of 53 threatening and abusive voicemail messages for the successor administrator, the attorney for the administrator, and the ex officio judge of a North Carolina court.
The probation has not gone well and the attorney's explanations for his lapses did not persuade
Elkins has demonstrated that he fails to grasp the importance of strict compliance with probation conditions, despite reminders and warnings from Probation. Timely filing quarterly reports plays an important role in the rehabilitative process "because it requires the attorney, four times a year, to review and reflect upon his professional conduct . . . [and ] to review his conduct to ensure that he complies with all of the conditions of his disciplinary probation." (In the Matter of Wiener (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 759, 763.) Of equal importance is Elkins’s failure to timely attend and report completion of Ethics School. This information assures the State Bar that the attorney has reviewed and considered anew his professional responsibilities. Elkins’s failures constitute willful, repeated, and serious probation violations.
A disbarred attorney who persisted in notarizing documents after hid disbarment has been permanently disbarred by the Louisiana Supreme Court.
The [Disciplinay B]oard also found respondent’s claim that he was unaware he could not act as a notary public following his disbarment was not credible. The board determined the hearing committee correctly applied the Rules of Professional Conduct. Additionally, the board noted that respondent violated La. R.S. 35:14 by continuing to act as a notary public following his disbarment.
The former attorney defaulted on the charges. (Mike Frisch)
A fourth brush with the disciplinary system drew a public censure from the New Jersey Supreme Court.
The attorney and his former client had a fee dispute that went to arbitration.
The attorney had not kept records of his time as reported by the Disciplinary Review Board
At the ethics hearing, respondent admitted that the invoices that he had compiled for the fee arbitration proceeding did not reflect contemporaneous time records and that he had no such records. He told the panel that he had re-created the time spent on the case by reviewing the file, as well as some documents and information on a laptop computer and on an "electronic calendar." He explained that he had no "supporting documents" or "records from the computer" because of a September 2011 computer crash. He added that, for certain periods between September 2006 through January 2009, he had been unable to recreate the time spent on the file, either because he had found nothing on the file to back it up or because, as a sole practitioner, he had had no time "to look hard enough."
this is not the first time that he has run afoul of the recordkeeping rules. His 2007 reprimand stemmed from recordkeeping violations and were responsible for his negligent misappropriation of client’s funds. Having been disciplined for deficient accounting practices, respondent should have been especially attentive to the proper maintenance of his attorney records.
The attorney also failed to supervise non-lawyer assistants and pursued frivolous claims in seeking to challenge the arbitration award. (Mike Frisch)
Friday, November 21, 2014
The Ohio Supreme Court has denied an application to sit for the July 2014 bar examination but will permit the applicant to reapply at a later date.
The problem involved the applicant's law school admission non-disclosure of alcohol-related incidents in the applicant's application to DePaul Law and his original and transfer applications to the Ohio State University, Moritz College of Law.
The court noted that the Board of Commisioners on Character and Fitness was "troubled by his ongoing efforts to hedge his responsibility and minimize the importance of candor" in bar admissions.
The applicant was remorseful and had stated that his "drinking days were over." (Mike Frisch)
Thursday, November 20, 2014
The Florida Supreme Court has denied admission to an applicant who received his law degree in April 2005 and passed the bar exam in February 2006.
The court rejected the recommendation of the Board of Bar Examiners to admit the applicant on a conditional basis.
The applicant reported that he had defrauded his former employer, Florida State University, to the tune of $54,046.
He served a jail sentence and had his civil rights restored shortly before graduation from law school.
He also filed for bankruptcy and discharged over $40,000 in debt.
The bar investigation revealed that he had failed to disclose to an employer, Axia College of the University of Phoenix, that he was a convicted felon.
The court here found that he was not rehabilitated
J.R.B. has demonstrated a lifetime of dealing in falsehoods. He lacks the ability to be truthful and his conduct over the years demonstrates that he has no respect for the law. J.R.B. engaged in embezzlement, stealing funds from his employer on numerous occasions. Further, the funds he stole included funds for a university debate team, so his misdeeds could have directly impacted students who were working to achieve important goals in their lives. J.R.B. was adjudicated guilty on five felony counts of Grand Theft and he pled no contest to forty-fivecounts of misdemeanor Petit Theft. This is a significant criminal history, which is based on untruthful conduct. In addition, J.R.B. had to resign from his position with the university in disgrace; people who have left one profession in disgrace cannot find a haven by seeking to become a member of The Florida Bar.
The bad news
... the underlying facts of the instant case impact so adversely on the character and fitness of J.R.B. that the misconduct mandates that he not be admitted to The Florida Bar now or at any time in the future.
The Maryland Court of Appeals has disbarred an attorney for misconduct described in the headnote to the case
The Court of Appeals disbarred attorney who gave incorrect advice to a client in an immigration matter, told the client that he did not need to appear at an immigration hearing and then did not appear himself (with the result the client was ordered in absentia removed from the United States), accepted payment from the client, and then stopped responding to all inquiries from the client as to the status of the case. Respondent also did not respond to lawful inquiries from Bar Counsel for information concerning the complaint.
The case is particularly interesting in its discussion of the fact finding below.
The attorney had defaulted but the hearing judge was nonetheless unimpressed by the evidence and the "casualness" of Bar Counsel's presentation.
Bar counsel, on appeal, contended that the trial judge had impeoperly made credibility findings that were contradicted by the default.
The court noted that the default was "neglected, but not ignored" and went on to find that the violations charged by Bar Counsel had been established by the default.
Judge McDonald concurred
This is one of those cases where no good deed goes unpunished. Bar Counsel attempts to put a face on a cold record of default and the defaulter prevails. The hearing judge conscientiously sifts the evidence provided, making the credibility determinations on which we normally rely, and that effort is found unnecessary. I concur in the Court’s disposition and write simply to make a suggestion.
The Majority opinion provides, in footnotes 17 and 26, some helpful advice to Bar Counsel and hearing judges on how to deal with situations, not uncommon, in which an attorney accused of misconduct fails to respond to the charges. Perhaps it is worth incorporating some of that good advice in our rules or in the standard referral order to hearing judges to make it more readily accessible than a Westlaw search
Footnote 26 suggests that the presentation of evidence may be problematic in a default situation and concludes
Although Bar Counsel may be correct that the evidentiary hearing may be important sometimes in putting a “face” on a complaint, as well as developing the effect of attorney misconduct on clients, such hearings may do more harm than good ultimately, as appears to have been the case here, by attempting to apply too many additional layers of gloss to already-established facts, so as to obscure and bring into doubt the clarity of the thorough and well-pleaded facts from a PDRA [charging document].
As we have noted in the past, one of the most significant peoblems in the D.C. disciplinary system is its hostility to any concept of default.
Literally, an accused attorney can entirely fail to participate and reasonably hope that the BPR will find him his defense, excuse and/or justification for the misconduct. (Mike Frisch)
Wednesday, November 19, 2014
An attorney who had provided a firearm to a convicted felon has been suspended for six months by the Maryland Court of Appeals.
The court had previously remanded the matter
On January 24, 2014, in Reno I...we held that Sandra Lynn Reno (“Reno”), Respondent, a member of the Bar of Maryland, violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice) and 8.4(a) (Violating the MLRPC) by circumventing the law and giving a handgun to a former client who, as Reno should have known, could not legally possess a regulated firearm, despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved the former client’s application to buy the same kind of handgun. “Instead of determining an appropriate sanction on our own initiative, we g[a]ve Reno and the [Attorney Grievance] Commission [(“the Commission”), Petitioner,] the opportunity to recommend a sanction[.]” Reno I, 436 Md. at 512, 83 A.3d at 786.
As to sanction
Reprimanding Reno would not suffice to protect the public and deter other lawyers from similar misconduct. Reno potentially endangered the public by giving a deadly weapon to a convicted felon. Although the hearing judge found that Reno did not know that Stevens could not legally possess a regulated firearm, the hearing judge found that Reno should have known. Despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved Stevens’s application to buy a handgun, Reno circumvented the law by intentionally giving the same kind of handgun to Stevens, who, as Reno should have known, could not legally possess a regulated firearm. We cannot take lightly a lawyer’s failure to obey the law that the lawyer swore to uphold. Nor can we ignore the potential for danger that Reno caused.
The former prosecuting attorney for Washakie County has been suspended for 30 days by the Wyoming Supreme Court.
The ethics issues arose as a result of an earlier stipulated private reprimand for a violation of Rule 3.8(b)
The Board of Professional Responsibility issued a private reprimand to a prosecuting attorney who met with several minors and their parents following an incident in which law enforcement persoimel discovered the minors after hours on school property, mixing toilet bowl cleaner with balls of aluminum foil in plastic bottles, which led to a chemical reaction that caused the bottles to burst or explode, making a loud noise. The prosecutor told the minors and their parents that they could be charged with felonies or misdemeanors and perhaps federal charges and may be subject to incarceration. The minors cooperated fully with the prosecutor and freely admitted their involvement. School district officials were contacted but declined to pursue school district discipline actions...
The prosecutor agreed to pay an administrative fee of $500 and costs of $50 to the Wyoming State Bar, and to obtain an additional three hours of CLE in ethics.
The problem here was the $550 fee and costs.
She sought to have the county pay the assessment without disclosing that it involved a penalty against her. She failed to communicate with her client (the county), engaged in a conflict of interest and dishonesty.
Here, the attorney was remorseful and acknowledged the misconduct.
She must pay the $550 and attend a bar seminar called Pathways to Professional Conduct. (Mike Frisch)
An attorney who allowed a suspended attorney to practice law has been suspended for one year by the Delaware Supreme Court.
The web of the matter is a somewhat tangled one.
The attorney suspended here was on disciplinary probation as a result of problems with tax obligations.
He also had served as practice monitor for the suspended attorney who engaged in the unauthorized practice.
After the two-year suspension of the attorney
Martin testified that, although he knew Feuerhake was suspended, he never read the Court’s suspension order. The record reflects that Feuerhake researched and drafted briefs in several of Martin’s employment cases. For those cases, Feuerhake would submit an invoice, and Martin would pay him an hourly rate as a paralegal. Feuerhake also continued to work as a paralegal on the Burns and the Barkes litigation, which he and Martin had been co-counsel on prior to his suspension. For those two matters, Feuerhake did not receive compensation on an hourly basis. According to an email Feuerhake sent to Martin in September 2011, the two men were continuing, with respect to those two cases, to operate in accordance with the fee agreement they had reached when Feuerhake was licensed to practice law, namely that Martin would receive 60% of the fee and Feuerhake would receive 40%. For the Burns litigation, the email reflected that David Facciolo would receive 20% of the fee because he had referred the Burns matter to Feuerhake. Therefore, Martin’s and Feuerhake’s percentages were to be reduced to 48% and 32%, respectively.
Feuerhake met with clients and participated in proceedings.
In this case, there is substantial evidence in the record to support a finding of Martin’s knowing misconduct. First and foremost, Martin knew that Feuerhake was suspended, yet he willingly allowed Feuerhake to move into his office space and continue to work on cases for him as a paralegal without reading the Court’s suspension order and determining the restrictions on Feuerhake’s ability to work for Martin as a paralegal. A lawyer with Martin’s experience, especially one with Martin’s own recent disciplinary history, would have known that the Court’s suspension order was publicly available and should have consulted it, which is precisely what Martin did when he was asked to hire another suspended lawyer, Ron Poliquin, to work for him as a paralegal.
The court rejected the Office of Disciplinary Counsel's call for disbarment, concluding that the misconduct was insufficiently grievous to warrant that sanction. (Mike Frisch)
The Oklahoma Supreme Court has suspended an attorney for two years and a day for convictions in a series of criminal matters.
He pled guilty to a felony and multiple misdemeanors.
One offense drew particular concern from the court
Hart's guilty pleas to multiple charges of violating a victim's protective order reflects a willful indifference for judicial orders, and therefore, a disregard for the rule of law. The remaining charges, although not directly related to following a court order or Hart's professional practice, nevertheless reflect an air of contempt for the rule of law.
An attorney convicted of felony possession of child pornography has been indefinitely suspended by the Ohio Supreme Court without credit for time served since his 2007 interim suspension.
The court described the facts
Over the course of his legal career, Ballato was fired on three separate occasions for using office computers to view internet pornography. He voluntarily enrolled in a six-week residential treatment program for sexual addiction in 2002—although he did not believe that he had a problem at that time—in an effort to save his first marriage. After the marriage ended the following year, he struggled to cope with the divorce and his former wife’s efforts to curtail his visitation with their young son.
Although Ballato participated in some group counseling, he continued to view pornography and remained in denial of his addiction. In 2004, he responded to an online advertisement for “amateur pornography for sale,” and in the course of an e-mail exchange, the seller revealed that the offer was for child pornography. Ballato placed an order and mailed a partial payment for the magazines. Although he testified that he later decided not to complete the transaction, he did not cancel the order. On October 4, 2004, the magazines were delivered by an undercover postal inspector to Ballato’s home while he was at work. Shortly thereafter, federal officers arrived and conducted searches at both his home and office.
The officers found an abundance of adult pornography and three images of child pornography on Ballato’s office computer. At the panel hearing, Ballato testified that he had requested and received the images of child pornography online by instant message. He deleted them shortly after receiving them and reports that he did not use the images for sexual gratification. He reported that his sexual preference is adult women. Although he acknowledged that he developed a curiosity about teenage girls in pornography, he denied having any sexual interest in prepubescent children.
The attorney served 43 months for the ensuing conviction.
He is involved in a twelve step recovery pregram called Sex and Love Addicts Anonymous.
One dissenting justice would grant credit for time served; two would disbar. (Mike Frisch)
Tuesday, November 18, 2014
A three-year suspension has been imposed by the Rhode Island Supreme Court for an attorney's serious misconduct in four family law matters.
The attorney was admitted in 1987, had no prior discipline and admitted the violations.
Among the violations was his obtaining an ex parte order to permit a client to remove items from a family home on the false representation that the opposing party agreed to the relief.
We do find many aggravating factors. The respondent committed multiple acts of misconduct in four separate cases. There is a persistent pattern of deceiving judges before whom the respondent appeared, doing so without the knowledge of or notice to opposing parties and their attorneys, and obtaining orders to benefit his clients which they were not entitled to receive. The respondent did not just prejudice the administration of justice, he sabotaged it. By all accounts the respondent is an experienced member of the bar and a zealous advocate for his clients. However, in this matter we find that his substantial experience is an aggravating rather than a mitigating factor. The respondent is well-aware of the proper procedures to follow to represent the interests of his clients without violating the rules. He chose a course of action to win at all costs, and he repeatedly disregarded the procedural and ethical rules designed to provide fair hearings in our courts.
The court noted that the attorney offered no explanation for his ethical violations. (Mike Frisch)
Monday, November 17, 2014
A Louisiana Hearing Committee has recommended that former Congressman William J. Jefferson suffer permanent disbarment as a result of his criminal conviction.
He is presently serving a prison sentence for his crimes.
On the merits
The Committee does not dignify Respondent's contention that his conduct was undertaken in good faith with a response. The Jury Verdict is an adequate response of its own.
The committee on sanction
Respondent's long history as a member of the bar, his obvious intelligence, success as a practicing attorney, his election and re-election by his constituents twelve times, and his distinction as both an attorney and public servant was an unparralled success story for an African-American, all as noted by Respondent in mitigation point 7. His failure to adhere to his own personal accomplishments, maintain his reputation, the damage occasioned upon his constituents, as well as our profession, has resulted in immeasurable damage, destruction, and division among us all.
The Pennsylvania Supreme Court has imposed a two-year suspension nunc pro tunc to February 2013 and probation for two years on reinstatement of an attorney with a prior disciplinary record.
The Disciplinary Board found the prior and present misconduct was caused by Attention Deficit Hyperactivity Disorder
Without question the most disturbing aggravating factor in this case is Respondent's prior record of misconduct. Respondent received two informal admonitions in 1988, a private reprimand and probation for one year with a practice monitor in 2005 and most seriously, a Public Censure in 2009. All of Respondent's prior discipline resulted from acts of misconduct similar to those that are the subject of the instant case, including failure to file briefs, failure to communicate with clients and failure to diligently pursue client matters.
Unfortunately, the underlying psychiatric disorders that caused Respondent's urrent misconduct were first diagnosed long after his prior misconduct. In retrospect it s obvious that the disorganization and lack offocus that resulted in Respondent's prior cts of misconduct were caused by his then undetected ADHD and depression. In fact, Respondent testified that on prior occasions he was counseled to work harder and be more responsible. Of course, without proper medical treatment for his underlying psychiatric disorders, Respondent was basically incapable of changing his behavior. Even so, we cannot overlook Respondent's prior record, especially his censure by the Supreme Court, and consider it a substantial aggravating factor.
The board noted that an "army" of favorable witnesses tesrtified on the attorney's behalf. He must meet several conditions including treatment. (Mike Frisch)
Justice Benjamin has now filed his concurring and dissenting opinion from a decision of the West Virginia Supreme Court of Appeals last month to deny a writ of prohibition to the state Attorney General.
The holding of the majority
In this proceeding, we have determined that the Attorney General lacked standing to have this Court determine the enforceability of an informal advisory opinion issued by ODC. We also have determined that this Court could not address the merits of the informal advisory opinion because to do so would result in this Court issuing an advisory opinion. As a result of a collateral issue being raised in this proceeding, regarding the authority of the Attorney General to prosecute criminal offenses, we took the extraordinary measure of addressing this issue in this opinion because of its widespread implication to our criminal justice system. In this regard, we have determined that county prosecutors do not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the Attorney General as a special prosecutor. We further conclude that under West Virginia Constitution article 9, § 1 and W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010) the common law criminal prosecutorial authority of the Attorney General was abolished. After resolving the collateral issue raised in this opinion, the writ of prohibition prayed for is denied.
The result inspired the following tale from Justice Benjamin
ONCE upon a time, there was a village by the sea. Some villagers fished the sea in their trawlers. Others were content to cast their lines in a vast freshwater inland lake where fish were abundant. Yet other villagers were farmers, who worked the land and who used the lake to water their livestock. All the villagers were happy. Food was plentiful. No one went hungry. Villagers enjoyed recreational time at the beach, at the lake, and at the parks. Life was good for the village by the sea.
One day, the lead sea captain of the sea trawlers noticed that sea conditions had become such that he now had more fishermen than needed to meet his quotas for fish. At the same time, he noticed that the lake anglers were often unable to meet their quotas. The lead sea captain proposed that several of his fishermen be transferred to the lake, on an as-needed basis, to assist the lake anglers.
Upon learning of this, the farming boss immediately objected, maintaining that sea fishing was sea fishing and lake fishing was lake fishing. He asserted that it was simply not proper for the chief lake angler to supervise sea fishermen who, though competent fishermen, had been trained their entire lives by others in the net-method of fishing, not the line-method of fishing. The farming boss warned that if the lead sea captain insisted on the transfer, the farmers would construct irrigation ditches to their fields from the lake, thereby reducing the lake’s fish population to a level compatible with the quota abilities of the lake anglers.
A conflict having arisen in the village, the matter was taken before the village elders. Determined to get to the bottom of the controversy that was disturbing the village’s customary calm, the Elders asked if any sea fishermen had yet been transferred to the lake. The lead sea captain and the chief lake angler assured that such was not the case. The Elders then inquired whether digging had commenced on the irrigation ditches. The farming boss responded that construction of irrigation ditches had not begun, being merely in the planning stages. The Elders exchanged glances among themselves, and then proclaimed—partly in exasperation and partly in relief—"There is no current conflict here! Everything is running along smoothly, just as it always has been."
The representatives of the various occupations heeded the Elders’ proclamation, and, indeed, all the villagers in attendance were constrained to admit that the sea might thereafter grow less jealous of its bounty, such that no fishermen need ever be transferred and no irrigation ditches need ever be dug. Indeed, everything probably had been premature. Just as the proceedings were about to adjourn, however, the Elders conferred among themselves and announced that a fence would be built all the way around the lake, with but two gates for which the farming boss and the chief lake angler would be given the only keys. At this, the lead sea captain leapt to his feet and exclaimed, "But this is unnecessary. Our fishermen will have no place to take their families on the weekends! Other villagers will no longer be able to enjoy the lake. With all respect, learned Elders, why would you insist upon such an unnecessary and extravagant thing when there is no current need?" A reverential hush fell as the question lingered in the room. "Because," the Elders replied nonchalantly, "we know what is best for all of you, we know what you need, we are quite good at building fences, and this is what is needed for life to be good in our village by the sea."
He concurs in the result but notes
Notwithstanding the unassailable case it makes that it has no authority to render an advisory opinion, the majority proceeds to embark on that very journey. The trip is justified, according to the majority, because the scope of the Attorney General’s authority is "collateral" to what it describes as the ultimate issue before us, i.e., whether the exercise of such authority would violate the ethics rules. With all respect to my colleagues in the majority, the ultimate issue before us has been revealed as whether we have jurisdiction of the Attorney General’s petition. Having answered that question in the negative, we are bound to answer no others.
The Pennsylvania Supreme Court accepted the consent sanction of a stayed suspension with probation for two years in a case in which the attorney had neglected cases over a two-year period, had money sanctions imposed upon him and paid the sanctions (roughly $65,000) out of firm accounts without telling his partner or the client..
The attorney concealed his conduct from his partner and the client, Wachovia Bank. Wachovia found other counsel when the defaults and sanctions came to light. Also later revealed were additional misuses of the firm operating account.
The attorney has repaid the firm about a third of the amount that he misused.
The disciplinary board
The instant matter does not involve the misappropriation of client funds; rather it involves the "misdirection" of operating funds and subsequent misrepresentation to Respondent's partner of the true purpose of the use of the operating funds, which was to satisfy sanctions orders resulting from Respondent's neglect. Furthermore, Respondent attempted to deceive the client, Wachovia, into believing that Respondent's billings were for services rendered rather than for services and sanctions.
Mitigating: The attorney self-reported the misconduct and suffers from depression.
Aggravating: The attorney had served as a member of a disciplinary hearing committee.
Justice Stevens dissented and would reject the consent discipline. (Mike Frisch)
Friday, November 14, 2014
In a rather unusual case, the Kansas Supreme Court has disbarred an attorney for ethical violations committed in the course of defending a client in a death penalty case.
Also unusual was the attire of the attorney in oral argument before the court. The Topeka Capital-Journal reported that he came dressed as Thomas Jefferson.
Dressed as Thomas Jefferson, 18th century Revolutionary War patriot, lawyer Ira Dennis Hawver faced the Kansas Supreme Court on Friday to answer disciplinary findings he provided ineffective assistance of counsel to a defendant sentenced to death.
The attorney had no prior experience in death penalty cases. He devoted approximately 60 hours to preparing the case and had not tried a murder in twenty years.
in the proceedings, he repeatedy referred to his client as a "professional drug dealer" and a"shooter of people."
He was also distracted by his campaign for Governor.
His claim that his conduct was protected by the First Amendment failed to persuade
Many of the deficiencies the panel found involved nonexpressive conduct, including Hawver's failure to investigate for the guilt and penalty phases of Cheatham's case, inadequately preparing for trial, failure to file an alibi notice, failure to seek out or accept financial assistance for trial preparation, and failure to devote sufficient time to the case. The free speech guarantee extends to the spoken and written word and to conduct "'sufficiently imbued with elements of communication . . . .'" Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). But whether conduct is so imbued depends on whether the actor intended to convey a particular message and whether "'the likelihood was great that the message would be understood by those who viewed it.'" Johnson, 491 U.S. at 404. The nonexpressive conduct in this case clearly was not intended to convey any particular message, so it is not protected speech. Imposing attorney discipline for this nonexpressive conduct does not implicate First Amendment concerns.
On the other hand, some of the deficiencies involved expressive conduct, including telling potential jurors that Cheatham was a drug dealer and had previously been convicted of voluntary manslaughter for shooting and killing another person; telling the jury during the guilt phase it would take "superhuman" efforts to see past Cheatham's criminal history to find him not guilty; and telling the jury during the penalty phase that it should execute the person who committed the crimes for which it had just found Cheatham guilty. But this expressive conduct also was not protected speech.
A lawyer who undertakes a duty to act only in the client's best interests possesses no First Amendment interest in such in-court speech.
In addition to the injury to the legal system found by the panel, it is important to note Hawver's misconduct actually injured Cheatham, who was "improperly advised by [an] unqualified lawyer[ ]" resulting in a deprivation of Cheatham's constitutional right to assistance of counsel... Moreover, Hawver's inadequate performance—particularly as to the penalty phase of Cheatham's trial—might have caused or contributed to the jury sentencing Cheatham to death.
In deciding that disbarment is the appropriate sanction under the circumstances, this court is mindful that one panel member recommended indefinite suspension, while the remaining two recommended disbarment. We also recognize there may be some tension in reconciling the panel's conflict of interest findings with its determination of a lack of selfishness as a mitigating factor.
But in this court's view the essentially uncontroverted findings and conclusions regarding Hawver's previous disciplinary history, his refusal to accept publicly financed resources to aid in his client's defense, and his inexplicable incompetence in handling Cheatham's case in the guilt and penalty phases of the trial are more than sufficient to require disbarment. See ABA Standard 4.51 (disbarment generally appropriate when a lawyer's course of conduct demonstrates "the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer's conduct causes injury or potential injury to a client"). We hold that disbarment is the appropriate discipline.
The client was granted a new trial last year.
From the order reversing the client's conviction
...we must determine whether this conflict adversely affected the adequacy of Hawver's performance. Cheatham maintains the financial disincentive under which Hawver labored was illustrated by his failure to adequately investigate and prepare the case and by his failure to withdraw and serve as an alibi witness for Cheatham. We agree.
Hawver estimated he spent around 200 hours in defense of Cheatham. This is appallingly low for a death penalty case defense and even more stunning when all but 60 of those hours, as Hawver testified, were spent in trial. In addition, Hawver failed to retain an investigator or to assemble a defense team to adequately present Cheatham's case due to an unwillingness to invest the resources this would take. As a result, potential defense witnesses were never interviewed and possible leads, such as an unexplained foot print at the crime scene, were never pursued. Hawver admitted openly that he had no intention of spending his own funds to prepare the case and no intention of taking time away from his other cases or his political activities. Hawver obviously realized the questionable nature of his inattention because he had Cheatham acknowledge it in writing. In sum, Hawver's representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy.
Hawver also failed to make himself available as an alibi witness for Cheatham by serving as his counsel. Cheatham notes that if called to testify, Hawver would have explained that on the day before the murders, Hawver had advised Cheatham to leave town because Hawver believed the police were looking for an excuse to arrest Cheatham. Similarly, Cheatham would have testified that he followed his counsel's advice and left for Chicago on the afternoon of December 13. And Hawver most certainly could have provided a measure of credibility to Cheatham's claim that he was in or on his way to Chicago at the time of the murders by taking the stand and recounting to the jury how he had advised Cheatham to get out of town. But that line of testimony was foreclosed because Hawver was serving as trial counsel.
Even so, Hawver attempted during closing argument to present this evidence by stating, “Now when I first got this case, I got a call from Phillip Cheatham in Chicago-“ but the State objected before he could finish because Hawver's argument was beyond the scope of admitted evidence. Clearly, Hawver recognized too late the contribution his testimony could have brought to the defense and attempted unsuccessfully to present it. But becoming an alibi witness would have required him to withdraw from the representation and forego any claim to a fee or the public attention garnered from serving as trial counsel in a double homicide trial.
We hold that under the circumstances presented the fee arrangement in this death penalty case created a conflict of interest for Hawver that adversely affected the representation of Cheatham in multiple respects. And we hold further that it is not necessary for Cheatham to show that he was actually prejudiced by Hawver's failure to adequately pursue his defense or withdraw and provide alibi support. Cheatham's convictions, therefore, must be reversed and the case remanded for a new trial.
The California State Bar has been sued by its former executive director Joseph Dunn.
The complaint alleges that Senator Dunn filed a series of whisteblower notices last November that disclosed serious ethical breaches, prosecutorial lapses and fiscal improprieties committed by State Bar President Craig Holton. "certain members" of the Board of Trustees and Chief Trial Counsel Jayne Kim.
The complaint was filed in the Superior Court of the County of Los Angeles. Dunn is represented by Geragos & Geragos. (Mike Frisch)