Friday, May 20, 2016
The South Dakota Supreme Court - while highly critical of the prosecutor's conduct - affirmed the conviction of a man accused of the third-degree rape of his wife's maid of honor on his wedding night.
The crime occurs when the victim cannot consent as a result of intoxication.
The jury in this case heard evidence that Janis married Jamie Moreno on August 23, 2013, in Hot Springs, South Dakota. J.E., the victim in this case, was Moreno’s maid of honor. After the ceremony, J.E. consumed a large number of alcoholic drinks at the reception. At approximately 1:00 a.m., J.E. received a ride to the home of Janis and Moreno, where she was staying the night. At the time, her speech was quite slurred and she appeared very intoxicated. She did not remember how she made her way to the spare bedroom or how she made it into bed.
About an hour after J.E. left the reception, Janis and Moreno returned to their home. Janis was intoxicated. Wedding guests stated that Janis had consumed a large number of alcohol drinks at the reception. When Janis and Moreno arrived, J.E. was already asleep in the spare bedroom. Janis continued to drink champagne. At some point, he wanted a cigarette and left his bedroom.
J.E. was awakened by someone lying in bed behind her, placing his penis into her anus. She did not know who the person was, asked “who is this?” and followed the question by repeating the words “stop” and “no.” J.E. remembered being somewhat awake, but testified that she was “frozen” during the assault. She recalled passing out again sometime later.
In the morning, J.E. awoke to find Janis in her room, clothed only in his boxers. When he attempted to have sex with her, J.E. rejected his advance and asked him if he knew who had sex with her the night before. He told her that he thought there had been a tall stranger in the house, and that it may have been him. However, Janis did admit to the authorities early in the investigation that he had sex with J.E., but alleged that it was consensual.
The claims of prosecutorial misconduct
While reversal is not warranted, we do not endorse the prosecutor’s approach in this case. His questioning and the record suggest that he was knowingly attempting to elicit expert testimony without prior disclosure. While the circuit court’s sustaining of the defense’s objections salvaged what could have otherwise merited reversal on appeal, we nonetheless emphasize that the prosecutor’s approach was inappropriate...
The prosecutor’s most egregious conduct was his repeated reference to Janis breaking his wedding vows and to Janis’s character. These comments culminated in the prosecutor’s closing, when he asserted that the case was about Janis’s character. The prosecutor inexplicably stated in closing that “[t]his goes to the character of the person that took the vows, and that is essentially what I’m asking you to judge is, I’m asking you to judge Cleve Janis and his character when he took those vows.” (Emphasis added.) We have previously disapproved of a prosecutor referring to a defendant’s character in closing argument.
...this case did not turn on Janis’s character but rather on the victim’s consent and her level of intoxication. There was evidence that she was “super drunk” and barely able to hold a conversation. She also could not eat without spilling. With respect to consent, Janis concededly lied the morning after the incident when he claimed that he did not have sex with the victim. On the other hand, the victim immediately and consistently asserted that the sex was nonconsensual to her mother, to Moreno, and to the hospital staff. Janis also testified that the victim said to stop and he did. Yet, DNA evidence indicated that Janis proceeded to the point of ejaculation. In light of both testimony and physical evidence supporting conviction, as well as proper jury instructions, Janis has not shown that the outcome would have been different had the prosecutor not engaged in misconduct. He therefore has not met his burden under plain error analysis and is not entitled to a new trial on this issue.
There is a concurring/dissenting opinion of Justice Kern
I respectfully disagree that this does not reach the threshold of a federal constitutional violation warranting reversal. In my view, the State’s conduct was so improper that it seriously affected the fairness and integrity of the judicial proceedings, depriving Janis of his substantial right to a fair and impartial jury. I would reverse and remand for a new trial...
The improper references to Janis’s character only began with voir dire. Throughout opening statements, questioning, and both closing arguments, the State continued to inject Janis’s character into the trial tying it to Janis’s infidelity to his wedding vows. The State’s comments were not limited to those provided in the majority opinion. In its opening statement, the State directed the jurors, “Now, when you look at this case and you evaluate it, look at the credibility and the trust and the vows.” Again, when cross-examining Janis, the State directed the focus to Janis’s marriage vows asking, “Those marital vows that you took at Chautauqua Park are only as strong as the character of the person taking those vows. Do you agree with that?” The State also asked Janis, “Okay. So let’s talk about your character. Because we talked about your character and what you thought of [your wife] the day after your wedding, but let’s walk through the night after the reception.”
While even defense counsel admitted that Janis’s conduct was morally reprehensible, Janis is nevertheless entitled to a fair trial. The State’s uninterrupted strategy to interject Janis’s character into the case from beginning to end so tainted the integrity of the judicial proceedings as to violate Janis’s basic right to due process and a fair trial. There is a reasonable probability that but for the statements made by the prosecution, the jury may have acquitted. The conviction should be reversed.
The Florida Judicial Ethics Advisory Committee has opined on the ethics of a judge handling tobacco-liability litigation where a relative may have a claim.
The inquiring judge is a circuit judge assigned to the circuit’s civil division that includes presiding over Engle Progeny cases. Engle Progeny lawsuits reference the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), where the ruling allowed Florida smokers who were members of the class to file lawsuits of his or her own on an individual basis and use the liability findings from the class action trial. "Engle Progeny" lawsuits stem from the Engle case filed in 1994, when six Florida smokers, including Dr. Howard A. Engle, filed a class action suit alleging that members of the class estimated at over 100,000 Florida smokers had been injured by cigarette usage by the tobacco industry.
The inquiring judge learned that in 2008 a late uncle, as the personal representative of the inquiring judge’s grandfather’s estate, filed an Engle Progeny case regarding the grandfather’s death. (Hereinafter, “2008 case.”) The 2008 case was filed within the inquiring judge’s circuit, assigned to another circuit judge and ultimately dismissed as being time-barred in 2016. The inquiring judge was not a beneficiary and there was no recovery by the estate. The inquiring judge was not aware of the case while it was pending, but learned of the family’s 2008 case when it was dismissed in 2016.
In 2014, the inquiring judge presided over one Engle Progeny trial which is final and disposed, and another in 2015 which is currently on appeal. The inquiring judge will preside over a third Engle Progeny case that will be proceeding to trial in 2016. The inquiring judge will be assigned future Engle Progeny cases as part of the assigned case load.
In reviewing this Committee’s prior precedents, this inquiry is the first involving an Engle Progeny case. However, we have addressed and found that neither prospective involvement as a plaintiff in a mortgage foreclosure, nor current involvement as a tenant/defendant in a mortgage foreclosure, mandated recusal by a judge in all cases concerning residential mortgage foreclosures. See Fla. JEAC Â Op. 15-14.
Nor was the inquiring judge required to recuse in all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure unless the judge determines that the judge had a personal bias or prejudice against the lawyers, lenders, or assignees. In Florida Judicial Advisory Committee Opinion 97-12, the Committee advised that the decision to recuse, from cases involving a lawyer who represented defendants in a case where the judge was a plaintiff, was a “personal and case specific” decision.
Applying the applicable canons and case law to this inquiry, disclosure of the 2008 case would be advised on future Engle Progeny cases assigned to the inquiring judge.
If the same attorney that represented the inquiring judge’s family member’s case appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance of impropriety and the perception of being in a favorable position to influence the inquiring judge contrary to Florida Code of Judicial Conduct, Canon 2B which states a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.” On the other hand, if the same attorney(s) that represented the tobacco company defendant in the 2008 case also appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance that the attorney(s) could be in an unfavorable position before the inquiring judge.
The Maryland Court of Appeals has issued its opinion in the Freddie Gray matter
On April 12, 2015, Freddie Gray suffered an injury while in police custody; one week later, he died from those injuries. The State charged six Baltimore City police officers with crimes in connection with the events leading up to Mr. Gray’s death—Officer William Porter, Officer Caesar Goodson, Sergeant Alicia White, Lieutenant Brian Rice, Officer Edward Nero, and Officer Garrett Miller. The first of those officers to face trial was Officer Porter. His trial began on November 30, 2015, and, after the jurors could not reach a verdict, it ended in a mistrial on December 16, 2015. At the heart of this appeal is whether Officer Porter, who the State has indicated it will retry, can now be compelled by the State, before his retrial, to provide immunized testimony against the remaining officers. In the cases of Officer Goodson and Sergeant White, the trial court granted the State’s motion to compel Officer Porter’s testimony. In the cases of Lieutenant Rice, Officer Nero, and Officer Miller, the trial court denied that same motion.
On March 8, 2016, we issued two Per Curiam Orders affirming the judgments of the Circuit Court in Officer Goodson’s and Sergeant White’s cases; reversing the judgments of the Circuit Court in the cases of Lieutenant Rice, Officer Nero, and Officer Miller; and lifting the stays in each case to allow the trials to move forward. We now explain our reasons for those Orders. We hold that the State’s compelling Officer Porter to testify in the trials of his fellow officers, under the grant of use and derivative use immunity, does not violate Officer Porter’s privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights. We further hold that the trial court lacks the discretion to deny a properly pled motion to compel immunized testimony and that the denial of such a motion constitutes a final judgment from which the State can appeal immediately. ..
To summarize, we hold that Officer Porter is the proper party to the State’s appeal because he, not the defendants in the underlying trials, is the party interested in the subject matter of the State’s motion to compel the witness’s immunized testimony. Accordingly, we hold that, because a motion to compel immunized testimony concerns only the State and the witness whose testimony is sought, the denial of the State’s motion constitutes a final appealable order. We further hold that a trial court is required to grant a motion to compel immunized testimony that complies with the statutory pleading requirements; consequently, the court lacks the discretion to question the State’s Attorney’s public interest determination. Finally, we hold that compelling Officer Porter’s testimony in exchange for use and derivative use immunity is coextensive with the scope of his Fifth Amendment privilege against compelled self-incrimination, as well as that privilege also guaranteed by Article 22 of the Maryland Declaration of Rights. For these reasons, we entered Per Curiam Orders on March 8, 2016, affirming the judgments of the Circuit Court in the cases of Officer Goodson and Sergeant White and reversing the judgments of the Circuit Court in those of Lieutenant Rice, Officer Nero, and Officer Miller.
The opinion is authored by Judge Judge Barbera. (Mike Frisch)
The Iowa Supreme Court has admonished (not reprimanded) a judge for an ethics violation
The Iowa Commission on Judicial Qualifications filed an application for discipline of a judicial officer recommending this court publicly reprimand a district court judge. See Iowa Code § 602.2106 (2015). Because we conclude the judge violated the Iowa Code of Judicial Conduct, we grant the application for judicial discipline. Rather than publicly reprimand the judge, however, we publicly admonish the judge.
The issues related to the judge presiding over cases in which the attorney who represented her in divorce and post-divorce matters was counsel
There can be no serious doubt a reasonable person who knows an attorney appearing before a judge currently represents the judge in a personal matter would have a reasonable basis for questioning the judge’s impartiality...
Notably, Judge Howes recognized she could not preside over any matter in which an attorney who was currently representing her represented a party. Judge Howes and Ms. Pauly testified that no attorney–client relationship existed between them on July 25 when Judge Howes signed the order granting the temporary injunction Ms. Pauly sought on behalf of Mr. Khawaja.
Despite this testimony, the Commission concluded Judge Howes was obligated to disqualify herself from any case in which Ms. Pauly was representing a party when she signed the order even if Ms. Pauly was not currently representing her. More precisely, the Commission determined that under either approach described above, Judge Howes was obligated to disqualify herself from deciding whether to grant the temporary injunction because Judge Howes and Ms. Pauly admitted they had an attorney–client relationship in May 2013...
Judge Howes does not dispute that Ms. Pauly represented her in two highly confidential personal matters within the two years preceding the date on which she signed the ex parte order granting the temporary injunction that Ms. Pauly sought on behalf of her client. Nor does Judge Howes dispute that she and Ms. Pauly shared an attorney–client relationship when Ms. Pauly sent the letter to Mr. Kepros on her behalf just two months before she signed that order. Furthermore, Judge Howes does not deny that she did not pay for the legal services Ms. Pauly provided.
Given these facts, we agree with the Commission that it is unnecessary to decide the precise standard that governs determinations as to whether disqualification is required under rule 51:2.11(A) based on a former attorney–client relationship between a judge and an attorney appearing before the judge in this case. Instead, we conclude a reasonable person with knowledge of all the facts on July 25 might have had a reasonable basis for questioning Judge Howes’s impartiality when she signed the ex parte order even if Judge Howes did not have an ongoing attorney–client relationship with Ms. Pauly on that date.
The court rejected a "rule of necessity" defense.
As to gratis legal services
Though Judge Howes offered to pay Mr. Jasper and Ms. Pauly for their legal services, the record indicates she accepted free legal services from both attorneys when they refused her offers for payment. The Commission concluded Judge Howes violated rule 51:3.13(A) because it found her acceptance of free legal services from Mr. Jasper and Ms. Pauly would appear to a reasonable person to undermine her independence, integrity, or impartiality.
The Commission recommended Judge Howes be publicly reprimanded, rather than temporarily suspended, in light of a consideration it found to mitigate the severity of her misconduct. In particular, the Commission concluded the legal culture in which Judge Howes works likely contributed to her apparent confusion regarding the applicable standards for identifying conflicts that warrant judicial recusal and the appropriateness of judges accepting free legal services from attorneys likely to appear before them. We give respectful consideration to the Commission’s recommendation regarding an appropriate sanction, but we are not bound by it...
We agree with the Commission that additional circumstances are relevant to selecting the appropriate sanction in this case. Based on the testimony of the other judges who appeared before the Commission on her behalf, it is evident Judge Howes was not alone in her mistaken beliefs concerning her ethical obligations. But we are mindful that judges are responsible for assuring that they understand the parameters of their ethical duties. Because avoiding even the appearance of impropriety is of paramount importance to maintaining the public trust and respect for the judiciary, judges should conduct themselves especially cautiously whenever those parameters appear to be unclear or debatable. Accordingly, we conclude the apparent lack of clarity concerning the rules violated counsels only slightly in favor of a lighter sanction.
In addition, Judge Howes has reassured us that she did not intentionally or knowingly disregard her ethical obligations. Rather, it is clear that, were it not for her mistaken beliefs concerning the rules governing her conduct, she would have conducted herself differently to avoid violating them. Judge Howes acted in good faith and took care to assure she honored what she understood those requirements to be. Moreover, we are firmly convinced Judge Howes did not intend to give Ms. Pauly or her client any advantage by granting the application for a temporary injunction. Rather, the order she signed was merely a temporary order maintaining the status quo pending a further hearing, and she believed that an emergency warranting immediate action existed. We conclude these facts also counsel in favor of a lighter sanction...
...we conclude this court has the power to admonish, rather than reprimand, suspend, or remove, a judge when the Commission files an application for judicial discipline for the following reasons. First, section 602.2106(4) states that this court may “render the decree that it deems appropriate” when it finds an application for judicial discipline “should be granted in whole or in part.” Iowa Code § 602.2106(4). Second, the Iowa Constitution grants this court “supervisory and administrative control over all inferior judicial tribunals throughout the state.” Iowa Const. art. V, § 4. Thus, we conclude that when the Commission makes an application for discipline of a judicial officer to this court, upon deciding to grant the application this court has the power to admonish rather than reprimand, suspend, or remove a judicial officer.
Thursday, May 19, 2016
The Utah Supreme Court has held that the system of compensating attorneys in workers' compensation claims is unconstitutional
In Utah, attorneys representing injured workers in workers’ compensation claims receive their fees out of the compensation awarded to the worker. By statute, the legislature delegated the authority to regulate these fees to the Utah Labor Commission. UTAH CODE § 34A-1-309. The Labor Commission created a sliding-scale fee schedule and an overall cap on the maximum amount of attorney fees for attorneys representing injured workers. UTAH ADMIN. CODE R602-2-4(C)(3).
The Injured Workers Association of Utah and several of its member attorneys (collectively, IWA) challenge the statute and the Labor Commission’s fee schedule as unconstitutional. IWA argues that under the Utah constitution, the Utah Supreme Court is vested with exclusive authority to regulate the practice of law, and that this authority extends to the regulation of attorney fees.'
We agree with IWA and hold that the regulation of attorney fees is included within the power to govern the practice of law. Because the Utah Supreme Court is vested with exclusive inherent and constitutional authority to govern the practice of law—and the court cannot under the separation-of-powers doctrine delegate the regulation of attorney fees to the legislature or the Commission—we hold both the Commission’s fee schedule and its authorizing statute unconstitutional.
We are persuaded at this time that the absence of a fee schedule will allow injured workers the flexibility to negotiate appropriate fees with their attorneys. For very simple cases, the attorney and injured worker can negotiate a small fee, perhaps even less than that mandated by the current fee schedule. For more complex cases, the attorney and injured worker can come up with an appropriate fee that will not cause the lawyer to lose money by taking on the case and will still give the injured worker the representation needed to receive an adequate award. Fears about unscrupulous attorneys preying upon unsophisticated injured workers are exaggerated, as attorneys are still constrained by rules of professional conduct.
And those constraints are sufficient. (Mike Frisch)
An attorney already serving an indefinite suspension for failure to cooperate has been disbarred by the Indiana Supreme Court.
Attorney Elton Johnson was admitted in 2010.
"Client 1" pleaded guilty in federal court to transferring obscene materials to a minor. Upon his release from prison in 2011, Client 1 paid $10,000 to the Terani Law Firm ("Terani") to evaluate his legal options regarding the requirement that he register as a sex offender. Terani forwarded the case to Respondent, paying him a few thousand dollars for a legal memorandum. Client 1 was not informed how the fee was split; in fact, the contract between Terani and Respondent forbade such disclosure.
Respondent, in turn, delegated the work to an individual who was either attending law school or a recent graduate. This individual drafted, and Respondent forwarded to Terani and Client 1, a four-and-one-half page legal memorandum recommending a three-part plan that had virtually no chance of providing any relief to Client 1. In fact, if the plan had worked as intended, Client 1 could have been retried and required to serve additional prison time.
Respondent did not inform Client 1 of this possibility, and Client 1 previously had told Respondent he did not want to pursue any legal avenue that potentially could result in additional prison time.
Client 1 hired Respondent to pursue the plan. Client 1 paid Respondent a total of $32,800 in several installments, not all of which were deposited into Respondent’s trust account. Respondent did no additional work on the case. Client 1 eventually fired Respondent and hired replacement counsel, who requested an accounting from Respondent of time spent and disbursements made on Client 1’s behalf. Respondent either could not or would not provide such an accounting.
Respondent billed Client 1 at attorney rates for clerical work, and even did so at a rate higher than the attorney rate specified in his fee agreement with Client 1. Respondent also invoiced Client 1 for services rendered after Client 1 fired Respondent, including for time spent responding to the disciplinary grievance filed against Respondent. Respondent made knowingly false statements to the Commission during its investigation, including that he had worked 425 hours on Client 1’s case and that the individual who drafted the memo was an attorney when he worked on the case. Respondent has not refunded any money to Client 1.
There were several other counts of misconduct.
During his short-lived legal career Respondent has demonstrated a continuing pattern of serious misconduct, much of it predicated upon efforts to unjustly enrich himself at his clients’ expense. In exercising our disciplinary authority, we have an obligation to protect the public and the profession from the tactics of unscrupulous lawyers...Respondent’s neglect, incompetence, dishonesty, conversion of client funds, noncooperation with the Commission, and failure to meaningfully participate in these proceedings all persuade us that disbarment is the appropriate sanction here as well.
Reinstatement of a convicted attorney has been denied by the New York Appellate Division for the Third Judicial Department.
In December 2009, respondent pleaded guilty to the federal felony of disclosure of classified information, in violation of 18 USC § 798 (a) (3), and admitted to providing classified information gained in his role as an FBI linguist to an individual who hosted a public Internet blog. This Court determined that respondent had committed a "serious crime" (see Judiciary Law § 90  [d]; 72 AD3d 1190 ) and, by decision entered October 21, 2010, suspended respondent from the practice of law for a period of three years.
Upon review of the submissions and in consideration of the circumstances in the record before us, we conclude that respondent has not established by clear and convincing evidence that he has fully complied with the provisions of the order suspending him...
Details on the criminal matter from the Federation of Concerned Scientists. (Mike Frisch)
An attorney who engaged in criminal contempt by violating a consent decree to cease his family business operations was suspended for one year by the New Jersey Supreme Court.
The court followed the recommendation of a majority of the Disciplinary Rrview Board.
This matter stems from respondent’s activities as an employee of a sports supplement manufacturing company, Quality Formulation Laboratories, Inc., and its related entities, American Sports Nutrition, Inc., and Sports Nutrition International, LLC (collectively QFL), which were owned and operated by respondent’s father, Mohamed Desoky, respondent’s brother. On July 12, 2010, the United States Attorney’s Office filed a petition in the District Court for an order to show cause why defendants QFL and Mohamed Desoky, and contemnor defendants Omar Desoky and respondent, should not be held in criminal contempt. On April 26, 2011, the United States Attorney filed an amended petition.
The contempt led to a prison sentence.
Here, respondent’s misconduct was not complicated. He continued to work at his father’s food supplement plant, knowing that the consent decree required its operations to cease. Respondent blamed himself for having advised his father in a manner that resulted in violations of the consent decree. Respondent ultimately received a twenty-four month prison term for his crimes.
Also there was an incident of domestic violence
According to police records, [respondent] and his wife had a verbal disagreement which quickly escalated into a physical altercation. The offender yelled at his wife and called her names. He then grabbed her, laid her over his knees, and slapped her buttocks repeatedly before dropping her on the living room floor. When the wife tried to call for help, the offender dragged her to the bedroom and covered her mouth to prevent her from yelling. [Respondent] was arrested and transported to police headquarters, where he admitted the conduct described above. On January 14, 2014, in the West Paterson Municipal Court, the charge was dismissed.
A dissent from the DRB favored disbarment
Before us, respondent contended by way of defense/ mitigation that, despite respondent’s advice to the contrary, his father moved the family business to New York to bypass the prohibition of the consent decree. In short, before us respondent disavowed his testimony at the time of his sentencing before Judge Brown.
Respondent cannot have it both ways. Either he was untruthful before Judge Brown or he was untruthful in his presentation before us. Regardless of when he was untruthful, that untruthfulness, taken together with his criminal conviction, warrants disbarment.
A misdemeanor conviction for permitting drug use on premises has drawn a stayed six-month suspension from the Ohio Supreme Court.
In 2011, while in law school, Glaser leased a house in Cincinnati. Her minor daughter and then long-time boyfriend, Jackie Sanders, lived in the home with her, although Sanders’s name was not on the lease. Glaser claims that while she was in school, her relationship with Sanders began deteriorating: he was not permanently employed, he was drinking heavily, and he could be abusive to her at times. In 2013, after graduating from law school, Glaser began working at the Hamilton County Public Defender’s Office. She claims that at that point, she and Sanders were essentially living in separate areas of the house and that she planned on moving out.
However, in January 2014, the police conducted a search of the home and found various illegal drugs, two digital scales, and a gun registered in Glaser’s name that was stuffed with heroin. Sanders was later charged with and pled guilty to several felonies, including trafficking in and possession of heroin, trafficking in cocaine, and having a weapon while under a disability. He was sentenced to 24 months in prison. Glaser was charged with knowingly permitting drug abuse on her premises, a fifth-degree felony, but she ultimately pled guilty to the lesser attempt charge. Following her plea, she was sentenced to pay a $100 fine.
At her disciplinary hearing, Glaser acknowledged that she had had concerns about the number of people that Sanders was permitting to come into the basement area of her home and about whether those individuals were engaging in any criminal activity. But she further testified that she had not known that Sanders had cocaine or heroin in the home, that she had not placed the heroin in her gun, and that she had never seen the digital scales in her house. She also testified that she has no plans to continue her relationship with Sanders once he is released from prison.
The court found no aggravating factors.
Six-month suspension but
with the entire suspension stayed on the conditions that she (1) submit to an assessment for domestic abuse by a professional affiliated with the Ohio Lawyers Assistance Program or by another qualified professional and comply with any recommendations made as a result of that assessment, (2) submit to monitoring by an attorney due to Glaser’s new-lawyer status, (3) refrain from any further misconduct, and (4) pay the costs of these proceedings. If Glaser fails to comply with the conditions of the stay, the stay shall be lifted and she shall serve the full six-month suspension.
The Ohio Supreme Court imposed a stayed one-year suspension for an attorney's ethics violations in several matters.
One stands out
In February 2013, Bennett met with Brittany M. Wilson (“Brittany”) to discuss the possibility of representing her in a marital dissolution or divorce proceeding. During that meeting, Bennett and Brittany discussed the documents that she would need for a dissolution, the issues that were most important to her, and what she had hoped to achieve. After the meeting, Brittany decided to retain a different attorney.
Less than four weeks later, in March 2013, Brittany’s husband, Charles Joseph Wilson (“Joe”), retained Bennett to represent him in the same matter. Bennett, however, failed to inform Joe that he had previously met with Brittany. Nor did Bennett discuss the potential conflict of interest with Brittany or Joe or obtain written waivers from them of the conflict. Instead, Bennett called Brittany and informed her that Joe had retained him. During that telephone conversation, Brittany advised Bennett that she had since hired other counsel, but he continued to discuss the dissolution proceeding with her. Indeed, he noted that based on his previous discussion with her, he believed that she and her husband were close to reaching a dissolution agreement.
The Wilsons, however, could not reach an agreement, and in October 2013, Bennett filed a complaint for divorce on Joe’s behalf. Bennett later recognized that because of his prior consultation with Brittany, he had to withdraw as Joe’s counsel. Bennett also agreed to refund the unearned portion of Joe’s retainer, which amounted to $327.50. However, at his disciplinary hearing, Bennett explained that because his former law firm had issued the refund check, he could not confirm whether Joe had actually received it.
The sanction is stayed on compliance with a number of conditions. (Mike Frisch)
A 60-day suspension was imposed by the Wisconsin Supreme Court for an attorney's misconduct in handling his mother's estate.
The attorney had defaulted on the charges and had faced a recommended suspension of two years but a majority of the court ratcheted the sanction down
We note, too, that the three counts of misconduct at issue here do not evince an extensive pattern of indifference to our ethical rules. Finally, we note that our knowledge of Attorney Roitburd's misconduct is limited to the facts alleged in the OLR's complaint and established by Attorney Roitburd's default. As a result, there is much we do not know about his work as personal representative of his mother's estate, and about the estate itself. For example, while we know that certain assets went unaccounted for, we do not know whether any mistakes Attorney Roitburd made in the administration of the estate rose to the level of dishonesty or bad faith. We do not know whether Attorney Roitburd was an heir to the estate, such that he might otherwise have been entitled to receive some amount of the assets at issue. We do not know whether his actions affected the rights and realization of payments to creditors of the estate...
In light of our resolutions of prior disciplinary actions, and in light of the unique circumstances of this case, we deem the OLR's and the referee's recommended two-year suspension to be excessive. To be clear, Attorney Roitburd should not construe this opinion as a vindication of any aspect of his misconduct or his failure to appear at any stage of these disciplinary proceedings. We simply conclude that, while Attorney Roitburd violated his ethical duties as an attorney, a 60-day suspension will be sufficient to accomplish the objectives of the lawyer disciplinary system.
Justice Abrahamson dissented and stated
(I) I disagree with the four justices joining the OLR per curiam blocking release of Justice David T. Prosser's separate writing and insisting that his writing be released at a later time. No basis exists for this action. Indeed, the four justices have violated the Supreme Court's Internal Operating Procedures (IOP).
(II) I disagree with the length of suspension imposed by the per curiam opinion. The per curiam grants Attorney Roitburd a 22-month reduction in the sanction requested in the OLR complaint to which he defaulted. There is no justification for this significant downward departure.
On Wisconsin. (Mike Frisch)
The Wisconsin Supreme Court has reversed and remanded a matter in which the Board of Bar examiners declined to recommend admission.
This is a review, pursuant to SCR 40.08(7), of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Joshua E. Jarrett, has satisfied the character and fitness requirements for admission to the Wisconsin bar set forth in SCR 40.06(1). The Board's refusal to certify that Mr. Jarrett satisfied the character and fitness requirements for admission to the Wisconsin bar was based primarily on Mr. Jarrett's conduct following his second year in law school, when he committed academic misconduct by misrepresenting law school grades and information to a prospective employer. After careful review, we reverse and remand the matter to the Board for further proceedings.
We appreciate the Board's concern regarding this candidate, and we appreciate the thorough investigation the Board conducted into Mr. Jarrett's background and past conduct. Mr. Jarrett's academic misconduct raised a significant question about his fitness to practice law. The duty to examine an applicant's qualifications for bar admission rests initially on the Board, and this court relies heavily on the Board's investigation and evaluation. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating admission to the Wisconsin bar.
The applicant attended the University of Wisconsin Law School and been successful in the school's Innocence Project clinic.
But he made false statements in a summer job application
The resume and unofficial transcript that Jarrett submitted to the New York City Law Department were both false. The resume contained two falsehoods. It showed Mr. Jarrett's grade point average (GPA) to be 2.75, when it was actually 2.72. It also listed him as a staff member of the Wisconsin Law Review, when, in fact, he was not a member. The unofficial transcript listed three false grades for his coursework. It indicated that he had "B" grades, when, in fact, he had "B-" grades for all three courses.
The matter came to light when he applied for admission based on Wisconsin's diploma privilege.
a majority of this court has determined that denying Mr. Jarrett admission to the bar is simply too harsh a penalty under the circumstances presented. We appreciate the time-consuming and difficult job the Board performs in conducting its character and fitness investigations. Indeed, we find no fault with the Board's findings or reasoning in this case. The Board serves the critically important role as a gatekeeper to admission to the bar. Ultimately, however, we are persuaded that, subject to the imposition of certain conditions, Mr. Jarrett may safely be admitted to the practice of law...
...we direct the Board to certify Mr. Jarrett's admission to practice law in Wisconsin. Mr. Jarrett's admission to the practice of law in Wisconsin is contingent on his compliance with certain requirements set forth in this order as well as certain conditions on his license to practice law. Specifically, we direct the Office of Lawyer Regulation (OLR) to identify and appoint a practice monitor to serve as a mentor to Mr. Jarrett and to supervise and oversee Mr. Jarrett's practice of law and related professional activities for a period of two years following the practice monitor's appointment.
There are concurring and dissenting opinions.
PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). I would affirm the final decision of the Board of Bar Examiners (Board) declining to certify Joshua E. Jarrett's character and fitness for admission to the Wisconsin bar. I am persuaded by the Board's finding that Mr. Jarrett's conduct in connection with his efforts in 2012 to secure summer employment with the New York City Law Department was both dishonest and deceptive and that such conduct demonstrates that Mr. Jarrett has acted in a manner that is not honest, diligent, or reliable. Coupled with the Board's finding that Mr. Jarrett was not credible at the evidentiary hearing before the Board and when claiming he forgot to disclose three fairly recent separate speeding violations from Georgia, Kentucky, and Wisconsin, I conclude that there are simply too many incidents in which Mr. Jarrett considered the truth optional when it was not to his advantage.
Based on the record before this court, I am not persuaded that Mr. Jarrett has demonstrated the requisite moral character and fitness "needed to assure to a reasonable degree of certainty the integrity and the competence of services performed for clients and the maintenance of high standards in the administration of justice." SCR 40.06. I would affirm the Board's decision.
I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.
Wednesday, May 18, 2016
The Maryland Court of Appeals has ordered the interim suspension of an attorney as a result of a judgment entered in the City of Charlottesville, Virginia.
The Daily Mail had this story.
A former Virginia high school teacher who police say attacked the wife of a state legislator was indicted by a grand jury on Monday on three felony charges of entering a house armed, abduction and malicious wounding, according to court documents.
Police say Claire Ogilvie, 36, attacked Nancy Tramontin, the wife of David Toscano, a member of the Virginia House of Delegates, in their Charlottesville home on Feb. 24 and struck the woman several times in the head.
Tramontin said in a statement released February 27 that she and Ogilvie were friends prior to the attack.
The legislator's wife said she met Ogilvie in 2010 at a program called Semester at Sea, which allows students to take college courses on a cruise ship, and ended the relationship in 2012.
On board, 'befriended Nancy and David's son, tutoring him during the voyage,' according to the statement.
'The Toscanos and Ms. Ogilvie became friends over the course of the voyage, and after they returned Claire moved to Charlottesville early in 2011,' her statement said. 'Nancy helped Ms. Ogilvie settle in, including her in family holidays, and community events and generally trying to welcome her to the community. She was part of the local fall 2010 Semester at Sea community.
'In 2012, Nancy became concerned that Ms. Ogilvie had developed an unsettling interest in the Toscano family. The family reduced their contact, beginning in the early summer, and saw her for the last time in fall 2012. Before the attack, Nancy and the Toscanos had not seen Ms. Ogilvie in over a year.'
Ogilvie attended both Yale University and George Washington University Law school - and even competed on both 'Jeopardy!' and 'Who Wants to Be a Millionaire,' Roanoake.com reported. She also reportedly worked as a lawyer for Foley & Lardner.
Until her arrest, she was a teacher at William Monroe High School in Stanardsville, outside Charlottesville.
Ogilvie remains in jail without bond.
Ogilvie's next court date is set for Sept. 17 in Charlottesville Circuit Court.
The Daily Progress reported that the attorney received a four-year prison term in January 2015. (Mike Frisch)
The Ohio Supreme Court has ordered a stayed six-month suspension in a case involving conflicts of interest and related charges against two attorneys.
Relator alleged that a co-counsel arrangement between Cannata and Phillips, which included the representation of limited-liability companies in which Cannata was a member, created conflicts of interest and falsely created the impression that the two attorneys were practicing law in a partnership, in violation of the Rules of Professional Conduct.
The court's findings
After graduating from the United States Air Force Academy, serving on active duty in the Air Force, and obtaining a master’s degree in business administration from Rensselaer Polytechnic Institute, Cannata returned to Cleveland in 1993 and started a construction business. He branched out into housing and commercial real-estate development before he attended and graduated from the Cleveland Marshall College of Law in 2002. He continued his business career after completing law school and devoted only 20 to 30 percent of his professional time to his solo legal practice. Because of his business contacts, Cannata was able to attract legal business that required more legal experience and expertise than he possessed, so he began to refer certain matters to Phillips, a more experienced lawyer, and worked with him as co-counsel.
In 2009, Cannata and Phillips entered into a written co-counsel agreement that established how they would divide their fees on their co-counsel cases, provided that they would maintain their separate practices of law in their separate offices, and stated that nothing in about the co-counsel relationship would “establish * * * any other relationship, including without limitation a partnership, a professional association, or a law firm.” At the same time, they filed articles of organization for a limited-liability company called Cannata Phillips, L.P.A., L.L.C., in which they represented that they were a law firm, and Cannata created a website for the company that appeared to represent that he and Phillips were members of a law firm. Phillips testified that they did not intend to operate as a law firm and that he intended for the filing to provide public notice that he would not be bound by Cannata’s other liabilities. From 2009 through 2011, Cannata and Phillips shared approximately $140,000 in legal fees.
The attorneys violated conflicts of interest rules. However, because they were not in fact partners, Rule 1.10 was inapplicable.
The court concluded that a stayed suspension with the requirements of no future violations was the appropriate sanction. (Mike Frisch)
Tuesday, May 17, 2016
The Illinois Administrator has filed a complaint alleging systematic unauthorized practice by a New York attorney who resided in Illinois.
In December 2003, Respondent moved to Illinois and leased a single-family house located at 7400 Choctaw Road, Palos Heights, Illinois ("the Choctaw Road house"), from Said and Nancy Ghusein ("the Ghuseins"), for one year. Respondent agreed to pay monthly rent to the Ghuseins in the amount of $1,650. Respondent and the Ghuseins thereafter agreed to extend the term of the lease each year, until 2013.
At all times alleged in this complaint, the Ghuseins owned and operated a retail bridal clothing business located in Oak Lawn, Illinois, which operated under several trade names, including the names, "Eva’s Bridal" and "Exclusives for the Bride."
In September 2004, Respondent and the Ghuseins agreed that Respondent would represent them and their business in pending and future Cook County legal matters relating to their business. At that time, Respondent and the Ghuseins agreed that the Ghuseins would pay Respondent’s legal fees by waiving his $1,650 monthly rent obligation for the Choctaw Road house and allow Respondent to reside in the Choctaw Road house.
The complaint alleges that his efforts to gain Illinois admission foundered on the shoals of concerns about unauthorized practice and that he improperly represented the clients in a host of legal matters.
Respondent’s business cards...are false and misleading because they identify Respondent as an attorney at an Illinois address and do not state that Respondent is not authorized to practice in Illinois or that the only state in which Respondent was licensed was New York.
Between January 1, 2010 and at least June 2014, Respondent provided the business cards... to attorneys, judges, and others to lead them to believe that he had been generally admitted to the Illinois bar and that he had been authorized to practice law in Illinois without limitation.
Between at least January 1, 2010 and April 20, 2016, the date a complaint was voted by an Inquiry Panel of the Commission, Respondent has maintained a law office, and has maintained a continuous and systematic presence within the State of Illinois, by practicing state law from offices in his residences at the Choctaw Road house and 6201 West 124th Street in Palos Heights and identifying himself as an attorney at the UPS facility address without disclosing that his sole law license was from New York.
It is further alleged that he made false statements to judges and the ARDC. (Mike Frisch)
A lawyer who married a CPA named Jill St. John (presumably we are not talking about the actress who married Robert Wagner) sought relief from the judgment based on the claim that his ex-wife was having an affair with her boss.
Ms. St. John "vehemently denied" the allegation.
The Tennessee Court of Appeals held that relief was properly denied
In asserting that the trial court erred, Husband states that the alleged romantic relationship between Mr. Peterson and Wife "would have created a direct conflict of interest, which goes to the overall weight that Peterson‟s testimony should have been given." It must be emphasized, as the trial court stated in denying the motion, that the court had "credibility issues" in this case. In its memorandum opinion, the trial court made specific findings regarding Husband‟s lack of credibility:
I accept the testimony and the proof that shows at a time [Husband] represented to the Tennessee Supreme Court that he had voluntarily suspended his law license, he still was earning money from practicing law, which I don‟t think they would like. He knows he needs to have an IOLTA account. He does not have one. The Supreme Court would not like that, I do not believe. . . .
The specific finding of the Court of Appeals in Maryland was under MRCP 8.4B, C and D. They did not find it to be criminal under B. . . . They found it to be C, that he had engaged in conduct involving dishonesty, fraud, deceit and misrepresentation and also D, he engaged in conduct that is prejudicial to the administration of justice.
The trial court specifically stated in its decision to deny Husband‟s motion to set aside the judgment that credibility was a factor...
Thus, even if there were a conflict of interest, the trial court could still rely upon Mr. Peterson‟s testimony, and the trial court in this case expressly found that the knowledge of a romantic relationship between Mr. Peterson and Wife would not have changed the outcome.
We have concluded that the trial court did not abuse its discretion in denying Husband‟s Rule 60 motion.
As to other issues raised
The judgment of the trial court is affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. In particular, the trial court is to divide the debentures in accordance with the statutory factors and recalculate the attorney fees without including work done regarding the motion for a stay. Costs of appeal are assessed against the appellant, Virgil Duane Parker, and execution may issue if necessary.
Dan Trevas reports a case decided today by the Ohio Supreme Court
When attorney-fee billing statements with detailed information about the tasks undertaken by a law firm representing a city are intertwined with summaries of the legal work performed, the detailed information is not a public record, the Ohio Supreme Court ruled today.
The Supreme Court voted 5-2 to affirm a Ninth District Court of Appeals decision to release redacted copies of invoices from a law firm representing Avon Lake to James E. Pietrangelo II. The records are connected to pending litigation between Avon Lake and Pietrangelo. In a per curiam decision, the Court majority reasoned that Pietrangelo may acquire information useful in his litigation strategy against the city if provided more details than what the Ninth District permitted to be released.
In a dissenting opinion, Justice Sharon L. Kennedy wrote that only the narrative summary portion of the bills describing the work the firm did can be withheld and that Pietrangelo is entitled to more information as well as damages from Avon Lake.
Detailed Information Sought
Pietrangelo requested from the city and its law director the invoices from a law firm for services it rendered concerning his lawsuit. The city provided copies of invoices with the name of the firm, the general matter for which services were provided, the date of the invoice, the total fees billed for the period, and itemized expenses.
The city redacted the remaining information on the invoices citing exemptions for attorney-client privilege and attorney-work product. The information that was redacted included narrative descriptions of the particular legal services rendered, the name of each attorney in the firm providing services along with the service provided, the time spent, the billing rate, the total number hours billed, and the total fee attributed to each attorney.
Pietrangelo filed a writ of mandamus with the Ninth District to compel the city to provide unredacted invoices and requested statutory damages and attorney fees. Pietrangelo and Avon Lake both filed for summary judgment, but the Ninth District determined it could not side with a party without more information and ordered the city to file unredacted copies of the billing statements for the judges to review under seal.
After review, in March 2015 the Ninth District concluded the city disclosed all the records not exempt from disclosure by the Ohio Public Records Act, which is R.C. 143.43, except for one portion. The Ninth District found the part of the invoice titled “professional fee summary,” that described the hours, rates, and money charged for services was not exempt. It ordered the city to provide Pietrangelo with copies of the billing statements that included the professional fee summary.
The Ninth District denied Pietrangelo’s request for the fully unredacted records plus damages and attorney fees. He appealed to the Supreme Court, which agreed to hear the case.
Extent of Attorney-Client Privilege at Issue
Citing its 2011 State ex rel. Dawson v. Bloom-Carroll Local School Dist. decision, the Court’s opinion explains that narrative portions of itemized attorney billing statements containing descriptions of legal services are protected by attorney-client privilege and are not public records.
Pietrangelo argued that based on the Court’s 2012 State ex rel. Anderson v. Vermillion decision he is entitled to all the dates legal services were performed along with the hours and rates of services, which is more than what is provided in the professional fee summary. The Court in Anderson stated that “the general title of the matter being handled, the dates services were performed, and the hours, rates and money charged for the services,” on an attorney billing statement need to be disclosed.
The Court explained that Anderson was the former mayor of Vermillion and was seeking the billing statements regarding the legal services provided to the new mayor. His entire request was denied. The Court ordered Vermillion to turn over all of the billing statements, ruling only the narrative portions were exempt from the public records act by attorney-client privilege.
Avon Lake argued the situation with Pietrangelo is similar to the Dawson case where a parent sought billing statements for legal services provided to the school district regarding pending litigation between the district, the parent and her children. The district provided summaries with the attorney’s name, invoice total, and the matter involved, but withheld the actual invoices because they contained confidential information.
The Court allowed the district to withhold the invoices because the information in the invoices was “either covered by attorney-client privilege or so inextricably intertwined with privileged materials as to also be exempt from disclosure.”
“Like Dawson, the records that Pietrangelo seeks relate to the pending litigation between the parties. If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote and speculative,” the Court stated. “To the extent that Pietrangelo requests the dates, hours, and rates not identified in the professional-fee summary, they are inextricably intertwined with the narratives of services that are privileged materials. Such information is exempt from disclosure.”
Pietrangelo also sought $1,000 in statutory damages and attorney fees because the Ninth District found the city did not fully comply with the public records law. The Court affirmed the Ninth District’s denial of Pietrangelo’s request because Avon Lake reasonably believed it was entitled to withhold the information it did.
Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill joined the opinion.
More Disclosure Required, Dissent Maintains
In her dissent, Justice Kennedy stated she would order the redaction of only the narrative services information and release all the other information on the billing statements to Pietrangelo in accordance with the Ohio Public Records Act.
She further disagreed with the majority’s conclusion that the relevant distinction between Dawson and Anderson regarding what information is subject to disclosure is whether litigation is pending between the record requestor and the government entity. Instead, Justice Kennedy wrote that the fact the records requestor is involved in litigation against the government body should have no bearing on whether the records are public.
“Whether a public-records requestor and a government entity are engaged in litigation is irrelevant to the question of whether the information in an itemized attorney-fee billing statement is privileged and exempt from disclosure. Instead, our case law mandates the proper focus is on the information sought and whether that information is privileged,” she wrote.
The relevant distinction between the two cases was that the school board in Dawson reduced the nonexempt information to a summary and released it, whereas the city in Anderson denied the request and failed to provide an alternative record.
Justice Kennedy recognized that the narrative portions of a billing statement containing descriptions of legal service are protected by the attorney-client privilege and not subject to disclosure. She explained that the billing statements at issue contain summary information on the first two pages, and that all subsequent pages contain four independent columns divided into the categories of date, name, services, and hours. Each billing statement concluded with the total number of hours invoiced, a professional fee summary, disbursements and expenses, and a total invoice amount.
She wrote the majority’s reliance upon Dawson to conclude that the date, name, and hours information was inextricably intertwined with the narrative of the services was disingenuous. She noted that Dawson offered little discussion of how the billing statements were constituted, whereas the format used in the statements to Avon Lake separated the information about the attorneys providing the services and the hours billed so that they “are not intertwined with the narrative services column.”
Justice Kennedy reasoned that the ability to redact the narrative services column mandated all remaining portions of the billing statements be released. By affirming the appellate court's decision not to release the remaining non-exempt portions of the billing statements the majority created a new “redundancy” exemption not authorized by the General Assembly she concluded.
Justice Kennedy would have also granted Pietrangelo damages because after Anderson decision it should have been clear to Avon Lake what information in a billing statement was privileged and what must be disclosed.
“Subsequently, no well-informed public office could reasonably believe that any portion of an attorney-fee billing statement, other than the narrative description of the legal services performed, is subject to redaction,” she wrote.
Justice Judith L. French joined the dissent.
The Maine Supreme Judicial Court affirmed a conviction for fleeing from arrest on these facts
After the boyfriend opened the door, Dorweiler appeared in the doorway. The officer told her that he had a warrant for her arrest, and she “advised [him] she was aware.” At that point, the officer told Dorweiler that she was under arrest. The officer then asked Dorweiler “if there was anything she would like to take with her to the jail,” and she told him “that she wanted to put on a bra.” The officer and Dorweiler walked through the living room and the kitchen to the doorway of the bedroom. They “discussed some paperwork she had,” and Dorweiler asked the officer “what was going to happen.” The officer responded that they “were going to go down to the [Penobscot County Jail].”
Dorweiler went into the bedroom and closed the door behind her. After some time, the officer could not hear any noise coming from the bedroom, so he opened the door and discovered that the bedroom window was open and Dorweiler was gone. The officer learned from Dorweiler after she was apprehended that she had exited through the bedroom window, gone to a friend’s house, called her father, and had him drive her to Madawaska.
On this record, we conclude that the trier of fact rationally could have found beyond a reasonable doubt that Dorweiler had submitted to arrest: Dorweiler acknowledged that the heard the officer’s statement that she was under arrest, and said that she wanted to put on an item of clothing in response to the officer asking her if there was anything she would like to take with her to jail. Based on Dorweiler’s show of submission, the officer “asserted as much control over [Dorweiler] as the situation reasonably permitted or necessitated,” Donahue, 420 A.2d at 937, and did not need to accompany Dorweiler into the bedroom while she changed in order to effect the arrest.
We are not persuaded by Dorweiler’s argument that the court could not have found that she had submitted because she did not subjectively intend to submit and instead “manipulated” the officer in order to carry out her flight. To accept Dorweiler’s argument that her subjective intent controls the determination of whether she submitted to arrest would add a factor to the arrest analysis not previously considered by us or required by the escape statute and could lead to increased use of physical force by law enforcement to arrest defendants no matter their demonstrations of acquiescence
She got 14 days in jail. (Mike Frisch)
The Wisconsin Supreme Court upheld 45 counts of ethical misconduct and ordered a suspension of three years.
The attorney's contentions
Attorney Gatzke strenuously argues that the referee's recommendation for license revocation is wholly unwarranted. He points out that none of the counts asserted by the OLR allege that Attorney Gatzke's legal representation was deficient in any matter. He asserts the fact that he has not been previously disciplined, that his entire career has been an effort to benefit his community, and that he has been extremely cooperative with the OLR throughout the disciplinary process are significant mitigating factors that the referee should have weighed in determining what discipline is appropriate. He suggests that a suspension of less than five months is the maximum discipline warranted. He agrees that it would be appropriate for the court to require him to have his trust account reviewed by an accountant on a quarterly basis for a period of one year.
On the other hand
The OLR asserts there is overwhelming evidence in this case that Attorney Gatzke converted client funds systematically over a period of years and the misconduct cannot be explained away by ignorance or sloppy recordkeeping. The OLR says the referee appropriately noted that the ABA standards for imposing lawyer sanctions provide that "disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client," and where "a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice." ABA Standards, §§ III.C.4.11 and III.C.5.11(b). The OLR says in concluding that the multiple instances of conversion of client funds required revocation, the referee pointed to aggravating factors, including a pattern of misconduct, multiple offenses, refusal to acknowledge wrongdoing, the vulnerability of the victims, together with Attorney Gatzke's substantial experience in the practice of law and his indifference to making restitution. Thus, the OLR argues that revocation is an appropriate sanction.
The court split the baby
Much more troubling than the recordkeeping and trust account deficiencies are Attorney Gatzke's failure to obtain written conflict waivers before entering into business transactions with P.S. and his conversion of P.S.'s funds. We acknowledge that Attorney Gatzke's lack of previous disciplinary history warrants some consideration. However, the number of counts of misconduct at issue in this case requires a serious sanction... In Cooper, an attorney who was found to have committed multiple violations of SCR 20:8.4(c) as well as multiple trust account violations received a three-year suspension. We find a three-year suspension to be an appropriate sanction in this case as well.
The court also ordered restitution with a dissent on that point from Justice Gableman
I concur in the portion of the opinion suspending Attorney Gatzke's license to practice law for three years, imposing full costs, and requiring him, upon reinstatement, to submit to trust account monitoring. I dissent from the portion of the opinion ordering Attorney Gatzke to make restitution to P.S. and A.S. I believe the issue of restitution should be addressed in a separate civil proceeding.
I am authorized to state that Justice REBECCA G. BRADLEY joins this concurrence/dissent.
A decision issued today is summarized by Dan Trevas on the web page of the Ohio Supreme Court
A Toledo woman, who is not a licensed attorney, admitted she was wrongfully practicing law in Ohio when advising clients on how to reduce resources in order to qualify for Medicaid’s long-term care coverage. The Ohio Supreme Court today ordered her to stop advising individuals and marketing herself as an advisor and to return nearly $7,300 to a former client.
The Supreme Court unanimously found Raye-Lynn Abreu engaged in the unauthorized practice of law when operating under the trade names of A.I.M.S. (All Inclusive Medicaid Specialists), Personalized Long Term Consulting & Medicaid Specialists, and Medicaid Solutions. The Court accepted a consent decree Abreu entered into with the Toledo Bar Association that was approved by the Court’s Board on the Unauthorized Practice of Law.
Assisting With Medicaid Qualification Strategy
In a per curiam decision, the Court explained that Abreu contracted with Susan Heasley for $7,975 and with Howard Williamson Jr. for $8,975, representing she would “create a strategy specific to your family’s needs,” and that “the strategy will define the exact amount of resources you will be able to retain and the date Medicaid eligibility will exist.” Williamson elected to terminate his contract with Abreu, and she returned his payment.
The bar association brought a complaint against Abreu to the board. Abreu admitted to the board that when she marketed and represented to Heasley and Williamson that she was a Medicaid specialist who could create a strategy for the appropriate way to reduce resources to become Medicaid eligible, she was engaging in the unauthorized practice of law.
In the board’s report to the Court, it noted that prior to starting A.I.M.S., Abreu worked for the Ohio Department of Job and Family Services for 12 years and at an Area Office on Aging where she helped clients with Medicaid applications. She began circulating brochures at Lucas County nursing homes offering estate planning.
As part of the consent decree, Abreu agreed to immediately stop rendering advice or providing strategies to reduce resources to achieve Medicaid eligibility, including strategies for spending down and arranging assets and income to meet Medicaid requirements. She also agreed to stop marketing or advertising in any fashion that she will provide advice or strategy for spending down and arranging assets to become Medicaid eligible. She consented to pay Heasley $7,275 in restitution. The Court did not to impose any civil penalties on Abreu but did assess $1,877.90 against her to pay the board’s costs for the matter.