Saturday, July 23, 2016

Informal Admonition For Switching Sides In Divorce Case

The District of Columbia Office of Disciplinary Counsel has informally admonished an attorney who engaged in a conflict of interest by representing the husband in a divorce case after a consultation with the wife.

You met with W for about three hours at your home to discuss the divorce. W states that you advised her to file for divorce in the District of Columbia, rather than in Maryland. You also provided information to W regarding "safe house and women's shelter information." At the conclusion of the meeting, you informed W that you could not represent her because of your social and business relationship with H.

Approximately one year after her consultations with you, W filed her pro se divorce action in the Superior Court of the District of Columbia, Family Division. Shortly thereafter, you entered your appearance in the matter on behalf of H. About two weeks later, W filed a motion with the court that she entitled, "Notice of a Conflict of Interest." In her motion, she informed the court of her prior consultations with you, and she asked the court to disqualify you from representing H. The court granted W's motion and removed you from the matter.

Disciplinary Counsel rejected the suggestion that there had been no attorney-client relationship with the wife.

When W spoke with you on the telephone and subsequently met with you, she did so for the purpose of seeking legal advice regarding her divorce from H. W states that she disclosed confidential information during the course of the conversations with you, before you advised her that you could not represent her. While you claim you do not remember the confidential information, both you and W agree (i) that you consulted with W, and (ii) that you provided W with advice regarding how and where to file for divorce from H. Based on these facts, we find that there was an attorney-client relationship between you and W.

The case is In re Roquelle Jeri, Bar Docket No, 2015 - D234 and can be found at this link.

The conduct likely violated the rule governing duties to a prospective client even if a full attorney-client was not formed. (Mike Frisch)

July 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 22, 2016

Moonlighting By Disabled Police Officer Not Dishonest

The Illinois Review Board finds that no misconduct was proven and recommends that ethics charges be dismissed in a matter involving an attorney already suspended in an unrelated matter.

This matter arises out of the Administrator's one-count complaint charging Respondent with engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Respondent, a Cook County Sheriff's Office police officer, suffered an injury while on duty. He filed a workers' compensation claim and eventually collected temporary total disability benefits for a period of over two years. While on disability, Respondent continued to work and receive income from two other jobs, as a private-practice attorney and as a McHenry County commissioner. For most of the time at issue, he did not have approval to work these two other jobs, as required by workplace rules. He was eventually terminated from the sheriff's department for working secondary employment without approval and while receiving disability benefits.

Based on this conduct, the Administrator filed its complaint against Respondent. Following a hearing, the Hearing Board found that Respondent had engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while on disability so that he could continue to collect full disability payments while also earning other income. It recommended that Respondent be suspended from law practice for one year.

Both parties appealed. On appeal, the Respondent challenged the Hearing Board's finding that he had engaged in dishonest conduct and asking that the proceedings against him be dismissed. The Administrator agreed with the one-year suspension but asked the Review Board to specify that it should begin at the conclusion of a suspension of three years and until further order that Respondent was currently serving based on a prior disciplinary proceeding.

The Review Board reversed the Hearing Board's finding of misconduct, finding that the Administrator failed to prove that Respondent had engaged in dishonest conduct because he did not show by clear and convincing evidence that Respondent knew his disability benefits would or could be reduced by his secondary employment, or that his benefits, in fact, could have been reduced by his secondary employment. It thus recommended that the case be dismissed.

(Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Silly" Contempt

An attorney's resignation was accepted by the New York Appellate Division for the First Judicial Department.

In September 2015, the Committee brought 20 charges against respondent alleging that he committed professional misconduct by, inter alia, neglecting clients' legal matters, repeatedly threatening criminal prosecution to gain an advantage in a civil case, using a client's resources without permission or authorization, and engaging in conduct that adversely reflects upon his fitness to practice law. In March 2016, the Committee served respondent with a notice of supplemental charges. Those eight additional charges arose out of respondent's purported improprieties in which he allegedly, inter alia, neglected a client matter, made false statements to a tribunal, and asserted frivolous claims in litigation.

During the course of the Committee's investigation, it became aware of two court orders sanctioning respondent. One order was based on his failure to appear in court for oral argument and untimely opposition to a contempt motion in which he stated that the court was "silly" to consider holding him in contempt. Respondent was also sanctioned in another action, after the court determined that respondent made false representations about and engaged in ad hominem attacks against opposing counsel in another client's civil matter. At an examination under oath conducted by the Committee, respondent admitted sending an email to his adversary in which he threatened to dispatch law enforcement agents to act on his behalf and against his adversary's client. Respondent additionally admitted that he defaulted while representing a client in a guardianship proceeding and told a third party that he would expose his extra-martial affair if he did not agree to pay a client's legal fees.

The attorney's affidavit complied with the requirements for resignation. (Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 21, 2016

Judge's Facebook And Web Pages Not Unethical

The Maine Supreme Judicial Court has sanctioned a judge charged with misconduct in

statements he made in a letter to counsel regarding a court proceeding in which he was a party, and based on his judge-related Internet and social media activity.

The letter violated canons of judicial conduct; the social media activity did not.

...because of the seriousness of this violation, we impose a public censure and reprimand, and a thirty-day suspension from the performance of his duties as judge of the York County Probate Court.

The social media issues

Two of the charges filed by the Committee are based on information that Judge Nadeau posted on the Internet—specifically, a website and a Facebook page—in association with his 2012 election campaign. We address those allegations in turn.

After Judge Nadeau was re-elected to judicial office in 2012, a marketing and media consultant retained by Judge Nadeau either created a new website or modified an existing one so that it was entitled, “York County Probate Judge Robert Nadeau.” That website, which showed Judge Nadeau wearing a judicial robe, was his personal website and not an official website of the York County Probate Court. It also provided a link to the website of his private law office. By using that link, a person who viewed Judge Nadeau’s personal judicial website could then move directly to the website for Judge Nadeau’s private law office. In Count 1 of its report, the Committee alleges that Judge Nadeau violated Canon 2(B), see supra n.8, by using the judicial office for personal gain...

As the Hearing Justice found, Judge Nadeau provided the link to the website of his private law office on the judicial website for the purposes of eliminating confusion within the general public and preventing instances where a person who wanted to contact him in his capacity as a lawyer mistakenly contacted the Probate Court. The link did not actually generate any business for Judge Nadeau’s law office. Further, Judge Nadeau promptly removed the link to his private law office as soon as a complaint was made, effectively resolving the Committee’s concerns about the issue. In this matter of first impression, these circumstances weigh against a formal finding of judicial misconduct.

Word to the wise

When a part-time judge, acting in a judicial capacity, establishes a pathway on a judicial website for a user to contact the judge with the prospect of a remunerative benefit to the judge, the judge may create the perception of using the judicial office held in public trust as a means to create a private, commercial advantage. Any such conduct by a judge must be preceded by a careful and sensitive consideration of the requirements of the Canons and the critically important goals they are designed to achieve.

The letter

In 2013, while a judge but in his personal capacity, Judge Nadeau commenced an action in the Maine District Court for protection from harassment against his former girlfriend, who lived in Massachusetts. Judge Nadeau was not represented by counsel in that proceeding, but an attorney represented his former girlfriend. In his complaint for protection from harassment, Judge Nadeau alleged that the former girlfriend improperly disclosed confidential or otherwise private medical and other information about him. While the case was pending, Judge Nadeau wrote a letter to the former girlfriend’s attorney of record, stating,

You know that, putting aside your training and evident desire to simply argue and advocate, you need to advise your client to pull her book and internet advertising immediately, at a minimum, under the circumstances. This is a matter of, at the minimum, clearly protected medical privacy. The consequences of not doing so can be devastating, not only for her and her best friend, but probably even for you, and their former or current [Massachusetts] lawyer. . . . You can posture all you want in the interest of advocacy. But absent immediate, legitimate responsibility and cooperation designed to achieve amicable, nonmonetary resolution of whatever issues your client and I apparently have, I respectfully submit this is going to become very bad for your client, you and your law firm.

A footnote in the letter

I am incidentally in possession of a hard copy of an email from [an attorney] of your firm to [York County Probate] Register Lovejoy in which [the attorney] snidely referred to me as “his eminence.” If that was not meant to be pejorative or disrespectful of me as a jurist and an ethical violation, I request [the attorney’s] full explanation within 10 days from the date of this letter.

His comments about the judge did not violate judicial ethics

we conclude that because Judge Nadeau’s disparaging comment about another Maine judge was not public and concerned a case in which he was a litigant, it was not prohibited by the Code. We acknowledge, however, the concerns underlying the Committee’s argument.

The judge had been sanctioned both as an attorney and a judge

this is now the third time that Judge Nadeau has been found to have violated professional ethical standards. In Judge Nadeau’s capacity as a lawyer, a Single Justice of this Court determined that he violated the Maine Bar Rules by making “discourteous and degrading” statements to a judge. Bd. of Overseers of the Bar v. Nadeau, BAR-05-03 (March 2, 2006) (Alexander, J.). The Justice publicly reprimanded Judge Nadeau and ordered him “to conduct himself in the future so as to avoid further occasions of professional misconduct.” Id. Then, in a judicial disciplinary proceeding, we found that Judge Nadeau violated the Code of Judicial Conduct by lying about an electoral opponent during a campaign for judicial office. See In re Nadeau, 2007 ME 21, ¶¶ 2, 18-19, 26, 914 A.2d 714.

The same court issued an opinion in the judge's divorce case that did not shower praise on him

In a detailed and strongly−worded decision, the [lower] court found that Robert had a “self-centered and insensitive world outlook” and had engaged in “self-destructive behavior that has caused the break-up of his marriage, the break-up of his law firm, and a significant amount of litigation.”

...Robert contends that the court’s criticism of him in its findings rises to a sufficient level to constitute bias. The court’s findings that were critical of Robert were based on competent evidence, are not clearly erroneous, and do not establish improper bias. In addition, the record reflects that the trial judge demonstrated evenhandedness and patience with both parties throughout a highly contentious trial process.

(Mike Frisch)

July 21, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Ignoring Court Order Leads To Disbarment

The Utah Supreme Court has affirmed the  disbarment of an attorney who had engaged in a conflict of interest, failed to adhere to the requirements of an injunction in accepting and misusing fees.

Gilbert represented clients when he had a direct personal interest that conflicted with his representation of those clients, he disregarded the Injunction, and he facilitated his client’s violation of the Injunction by accepting funds subject to that order. And Gilbert, to this day, has disregarded the district court’s order requiring that he disgorge the attorney fees he received from his clients. Regardless of the validity of the Injunction and disgorgement order, the Utah Rules of Professional Conduct require that Gilbert not knowingly disregard those orders without making his intentions known to the district court and opposing counsel. While we recognize that disbarment is a severe punishment, it is appropriate here. We affirm the district court’s order and conclude that disbarment is the proper sanction for Gilbert’s misconduct.

The fees involved the attorney's representation of the Utah Down Syndrome Association against the Utah Down Syndrome Foundation. 

At the time he accepted the checks, Gilbert knew, or should have known, that the funds he received were the subject of litigation and that the bank accounts from which the funds were taken were subject to the Injunction. Nevertheless, Gilbert did not deposit the monies into a trust account or otherwise hold the funds pending the resolution of the dispute between his clients and the Foundation. Nor, as the district court found, did Gilbert “notify the court . . . of his intention to accept the . . . checks based on his position that [the Injunction] was invalid, void, had expired, [and] did not apply to the [funds] he received.” Rather, Gilbert simply cashed the checks and kept the funds.

The Foundation eventually learned that Gilbert had received payments from the bank accounts subject to the Injunction. The Foundation filed a motion to disgorge and requested an order requiring Gilbert to return the funds he had received from the Chapters’ bank accounts. After a hearing on the Foundation’s motion, the district court ordered Gilbert to return the attorney fees to the Foundation.

Despite the district court’s order, Gilbert did not return the legal fees he had received. The Foundation eventually filed a second motion for disgorgement of funds. The court granted the Foundation’s second motion and entered judgment against Gilbert for $30,000, interest, and associated attorney fees. To date, Gilbert has not returned the funds to the Foundation.

The court makes clear the obligations of an attorney subject to a court order who believes the order to be flawed

rule 3.4(c) stands, at a minimum, for the proposition that an attorney must either obey a court order or alert the court that he or she intends to not comply with the order. An attorney may not, as Gilbert did here, ignore a court order while secretly hoping to have a trump card to play if non-compliance later becomes an issue...

Although Gilbert may have harbored reservations about the order’s validity, he, in the district court’s words, “had a duty to openly contest the order by filing a request to stay the order in court, notify the court of his receipt of the . . . checks and at least hold the monies in trust until the court ruled on the issue.” The district court interpreted and applied rule 3.4(c) correctly.

He failed to safeguard the fee

The district court concluded that Gilbert violated rule 1.15(e) in two ways. First, Gilbert failed to place any of the $30,000 in attorney fees in a trust account despite knowing that both the Foundation and his clients claimed ownership of the funds. And second, Gilbert violated rule 1.15(e) by failing to return the $30,000 to the Foundation when ordered to do so by the court.

His subjective good faith as to the validity of the court order was irrelevant 

That comment does not, however, provide an attorney carte blanche to ignore court orders. As explained above, the Utah Rules of Professional Conduct contemplate the situation in which Gilbert found himself: subject to an order he believed to be flawed. The rules instruct an attorney in that situation to either comply or openly refuse to comply. An open refusal permits the district court to assess the attorney’s argument and allows opposing counsel to take action to protect her client from the opposing attorney’s noncompliance. An attorney cannot, consistent with the rules of professional conduct, unilaterally and surreptitiously flout a court order. To the contrary, willful disregard of a district court’s order without an open objection constitutes conduct prejudicial to the administration of justice.

The attorney's procedural objections also failed to persuade the court that disbarment was not appropriate in these circumstances.

In a related matter also decided today, the court denied Gilbert's petition for extraordinary relief.

In 2012, the court denied his petition to bring a third-party complaint against the Foundation in his disciplinary case. (Mike Frisch)

July 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 20, 2016

Madoff of the Midwest: Hoosier Hugh Hefner Wannabe Gets Disbarred

The Indiana Supreme Court has disbarred an attorney who went from the 30,000 square foot high life to decidedly smaller accommodations

In March 2011, Respondent was indicted in federal court on twelve felony counts rooted in a complex scheme of securities and wire fraud. Respondent was convicted on all counts following a jury trial in June 2012 and later was sentenced to fifty years in prison. Respondent’s convictions on ten of the twelve counts were affirmed on appeal. U.S. v. Durham, 766 F.3d 672 (7th Cir. 2014), cert. denied. On remand, the district court again imposed a fifty-year sentence. With his criminal proceedings now having come to rest, Respondent stands convicted of eight counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire and securities fraud. All told, over a period of several years Respondent and two co-defendants defrauded thousands of investors of over $200 million...

The Court concludes that Respondent violated the Rules of Professional Conduct by defrauding thousands of investors of over $200 million. Respondent already is under an order of interim suspension in this case as well as a separate suspension order for nonpayment of dues. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state, effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

Details from WTHR.com

Tim Durham will spend the rest of his life in prison. Durham was convicted of cheating his clients out of $200 million in a Ponzi scheme, and on Friday, a judge sentenced him to 50 years behind bars.

U.S. District Judge Jane Magnus-Stinson sentenced Durham, a former chief executive of National Lampoon who was profiled in CNBC's "Rise of the Super-Rich" report in 2008, following his convictions in June on charges of securities fraud, conspiracy and 10 counts of wire fraud.

Durham, who ran the investment business Fair Finance, was sentenced to 50 years. Prosecutors had asked for life, while Durham wanted just three...

Prosecutors wanted life sentences for all three men. They say the three stripped Akron, Ohio-based Fair Finance of its assets and used the money to buy classic cars and other luxury items and to keep another Durham company afloat.

Attorneys for both Cochran and Snow asked the judge for less substantial sentences than Durham claiming they did not have control of operations at Fair Finance.

Bloomberg Business Week called him the Madoff of the Midwest and reported on his 45th birthday party

More than 1,000 people showed up at his 30,000-square-foot mansion in Fortville, an exurb of Indianapolis. Members of the Indianapolis Colts arrived, as did Kato Kaelin. Durham dressed like Hugh Hefner, in a plush robe. When he went to blow out the candles, his cake was frosted with his likeness in the center of a million-dollar bill.

 Later, as reported in the Indianapolis Star, Durham posted photographs of the party to his Myspace page, including one of him getting a lap dance and two of the models kissing, nude. He dubbed it his “Fantasy Pajama and Lingerie Party.”
 
And
Durham had long attracted attention in Indianapolis, and not just for his parties. He was also one of the state’s biggest backers of Republican politicians. “Tim Durham was somebody who came out of nowhere in the late ’90s and kind of declared himself a very rich guy,” says Greg Andrews, managing editor of the Indianapolis Business Journal, who has covered Durham extensively. “He established himself as a player by being a tremendously large donor to candidates.” Those included Governor Mitch Daniels. Durham gave $105,000 to his 2004 campaign, making Durham the governor’s second-biggest individual donor that cycle. Over the years, he made some $800,000 in political donations, according to public records. The perceived gap between Durham’s private behavior and his support for conservative candidates led Matthew Tully, a columnist for the Indianapolis Star, to chastise Durham for his conspicuously libertine lifestyle. The column went viral, likely because of its link to those Myspace photos.

Bloomberg further reports that he made his initial fortune the old fashioned way: he married it.  

More here on the hubris before the fall from the Indianapolis Monthly in April 2011 under the title Outrageous Fortune. 

Few people have been better at acquiring “stuff” than Durham. The 45-year-old founder of Obsidian Enterprises, a leveraged-buyout firm in Indianapolis, he claims to be worth $75 million. At last count, he owned or co-owned more than 70 classic and exotic cars, three private jets, the yacht, numerous Picassos and Renoirs, two restaurants (Touch and, in Indy, Bella Vita), a nightclub (GELO Ultra Lounge in Castleton), two limousines, a magazine (Car Collector), a plastic-surgery center, a cigar store, and—most strangely—the storied comedy brand National Lampoon. That’s to say nothing of the profitable but less glamorous manufacturing companies that fall under the umbrella of Obsidian...

Durham’s taste for the extravagant has widened his circle of friends lately. He pauses the tour at a photograph of him and Ludacris, rapper and star of the 2004 film Crash. “Luda” stopped by one of Durham’s lavish parties before the Indianapolis 500 last year, and the two instantly became pals. Durham sees nothing strange about a relationship between a rapper and a Hoosier investor, and the feeling is mutual. “Tim can kick it in my crew anytime and blend right in,” Ludacris said by phone from his Atlanta estate this fall. “He knows how to have fun, and we share a lot of the same interests as far as cars and expensive tastes.” Ludacris invited Durham to the 2007 MTV Music Video Awards, where they sat with Paris Hilton and Pamela Anderson. Durham’s regular trips to hang out at the Playboy Mansion with Hugh Hefner have led to a few Hollywood friendships as well. “Hef is a smart guy, a real trendsetter,” he says. “He blazes a lot of trails—a lot like I feel I’m blazing here in Indiana.” Durham should know. His current girlfriend, Jami Ferrell, was Miss January 1997 and dated Hefner (and Jack Nicholson) before making it back to her New Castle home.

(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Lawmaker, Lawbreaker

Criminal conduct led to prison and disbarment for a former South Carolina lawmaker.

The Palmetto State reported

The S.C. Supreme Court on Wednesday disbarred former State Rep. Thad Viers, Republican of Horry, for lawbreaking actions committed in 2012 in connection with his ex-girlfriend, as well for a federal money laundering charge.

Viers is now serving time in a federal prison in Hopewell, Va., on money laundering charges that bore no relation to his personal problems. He is due to leave prison in June 2017.

Once Viers, 38, of Myrtle Beach, had punched all the right tickets to ascend the Republican ladder of success.

As a young teen, he was a page to the late Sen. Strom Thurmond, R-S.C., graduated from The Citadel in 1999, did research for the conservative Heritage Foundation think tank, was a member of the Sons of Confederate Veterans and was elected to the S.C. House of Representatives in 2003.

He took the anti-big government positions that resonate with his party’s base – for example, suing the city of Myrtle Beach over its law that required motorcyclists to wear helmets within city limits.

In 2012, as he was readying a bid for Congress, Viers was arrested on charges of harassing and stalking a 28-year-old woman. That came six years after he was charged with threatening to assault a man who was dating his estranged wife. He pleaded no contest in that case.

Before the 2012 harassment and stalking case was disposed of, Viers was also indicted for burglary and larceny – again, a charge connected with the 28-year-old woman Viers had once dated. In 2014, Viers pleaded guilty to harassment 2nd degree and was sentenced to 60 days in jail. The related charges were dismissed.

Later in 2014, a federal grand jury indicted Viers on multiple felony charges including money laundering and making false statements to the IRS.

In August of last year, Viers pleaded guilty to federal money laundering charges in a plea deal that dismissed other charges. He was sentenced to 37 months in prison and to pay a fine of $875,000. Upon release from federal prison, he will be on supervised release for three years.

At some point, Viers will be able to apply for a law license again. But that is at least five years in the future, after he completes his supervised release from prison.


(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

E-Discovery Company Co-CEO Sanctioned For Gross E-Discovery Violations And Other Misconduct

The Delaware Court of Chancery imposed significant sanctions for destruction of evidence and lying under oath in a partnership dispute

 Elizabeth Elting and Philip Shawe are the co-founders and co-CEOs of TransPerfect Global, Inc. (“TPG” or the “Company”). As chronicled in a post-trial decision issued last year, their management of the corporation devolved into a state of dysfunction. Emblematic of the deep divisions and fundamental distrust between them, virtually every aspect of this litigation has been turbulent, with each side filing motions for sanctions against the other. This decision resolves the sanctions motion Elting filed against Shawe based on an evidentiary hearing that was held earlier this year. 

As explained below, clear evidence adduced at the sanctions hearing establishes that Shawe acted in bad faith and vexatiously during the course of the litigation in three respects: (1) by intentionally seeking to destroy information on his laptop computer after the Court had entered an order requiring him to provide the laptop for forensic discovery; (2) by, at a minimum, recklessly failing to take reasonable measures to safeguard evidence on his phone, which he regularly used to exchange text messages with employees and which was another important source of discovery; and (3) by repeatedly lying under oath—in interrogatory responses, at deposition, at trial, and in a post-trial affidavit—to cover up aspects of his secret deletion of information from his laptop computer and extraction of information from the hard drive of Elting’s computer.

Shawe’s actions obstructed discovery, concealed the truth, and impeded the administration of justice. He needlessly complicated and protracted these proceedings to Elting’s prejudice, all while wasting scarce resources of the Court. Accordingly, Elting’s motion for sanctions is granted. Shawe will be required to pay a significant portion of her attorneys’ fees and expenses...

Some background

In October 2013, Elting hired Kramer Levin Naftalis & Frankel LLP to try to negotiate a resolution of the increasingly acrimonious disputes that had been brewing between Shawe and Elting for some time over their management of the Company. This enraged Shawe. Rather than hire his own counsel and engage in a mature dialogue, Shawe undertook a campaign to spy on Elting in pursuit of what had become a personal battle in which Shawe was determined to get his way over Elting at all costs, even if (to use Shawe’s words) it meant “shutting down” or “dismantling” the Company.

Shawe initially directed employees to intercept Elting’s regular mail, including her correspondence with Kramer Levin, and to monitor her phone calls. By the end of December 2013, Shawe’s surreptitious monitoring of Elting had expanded to include her private emails, including those with her counsel.

What follows is a tale of corporate espionage that is almost cinema-worthy and which, among other things, led to improper access to over 12,000 privileged emails.

12,000!

The record also shows that Shawe has a demonstrated propensity to use subordinates firmly under his control to do dirty work for (and with) him in secret, off the grid, and usually late at night. He turned to Wudke late on New Year’s Eve (and other occasions) to extract files from Elting’s hard drive and told him not to document what he was doing even though he insists it was part of a legitimate “corporate” investigation. He hired Richards as his “personal paralegal” at the princely rate of $30,000 per month despite having a number of reputable law firms with vast resources at his disposal, and immediately tasked him with photographing Elting’s office and removing documents from it in the wee hours of the morning. When it came to his iPhone, he turned to another trusted subordinate, Campbell, who sits next to him in the same office in New York. Given Shawe’s modus operandi and Campbell’s farcical explanation of what happened to the phone when Elting was pressing for discovery of Shawe’s text messages, it is more likely that Shawe told or otherwise made it clear to Campbell to get rid of the phone. In any event, whether Shawe did so or not is of no moment because, at a bare minimum, he recklessly failed to take appropriate measures to preserve the phone so that genuine efforts to recover information from it could have been utilized.

One rather notable aspect of this mess

Shawe is the co-CEO of a company specializing in e-discovery, which employs personnel qualified to conduct forensic recovery of damaged devices, and which has relationships with other professionals who can assist if needed.  Shawe was represented by an able team of counsel, who engaged a forensic computer expert and who easily could have engaged an expert in data recovery if Shawe had been genuinely interested in trying to recover evidence on his phone. Faced with an embarrassment of riches in terms of professionals to whom he could turn to recover data from his phone, Shawe instead inexplicably chose to give the phone to a subordinate under his control who had no forensic training in retrieving data from a phone. Campbell’s sole experience is that his own phone once fell into a toilet and it worked after he let it dry. To top it off, Shawe gave the phone to Campbell without providing him even minimal instructions about why he wanted him to attempt to revive the phone, the need to preserve the evidence given the pending litigations, or even about ensuring an appropriate chain of custody.

Crain's New York Business provides details on the co- CEO relationship and its fallout, which they called The TransPerfect Storm

Shawe and Elting started the company in 1992 in their New York University dorm room. In 1996, the pair got engaged, but Elting called it off a year later and married someone else in 1999. (Shawe married in 2011.) The two split their business 50-50 and built one of the nation’s leading translation companies, with 92 offices in 86 countries housing 3,500 full-time employees, plus a network of 10,000 translators, editors and proofreaders working in about 170 languages.

All was sweetness and light in public between Shawe and Elting, but behind the scenes the former lovers came to loathe one another. They frequently cursed each other out in f-bomb-laden emails, and Elting once ended a meeting by dumping a pitcher of water onto Shawe. "Don't call me in ... and start f--king with me for no reason!" Shawe growled in one email to Elting, who fired back, "If sharing feedback on a potential acquisition is no reason, you’re a f--king idiot." People who know them say Elting and Shawe cursed each other out as their way of communicating.

(Mike Frisch)

July 20, 2016 in Current Affairs | Permalink | Comments (1)

DOJ Manual Exempt From FOIA Disclosure

The United States Court of Appeals for the District of Columbia Circuit has held that the Blue Book manual for federal prosecutors is exempt from disclosure under the Freedom of Information Act.

The Blue Book is a manual created by the Department to guide federal prosecutors in the practice of discovery in criminal prosecutions. It contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.

Judge Sentelle concurred but only because precedent compelled the result

There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people. The government certainly has the power to claim a FOIA exemption to hide its internal manuals describing how it goes about that awesome undertaking. But if it chooses to exercise that power, then the people might be forgiven for cynically asking “what is it you have to hide?”

...I cannot help but wonder if an insurance defense attorney had written a secret treatise passed around among his bar on how to defend—for example—defective product cases, would we, if that treatise became relevant in specific litigation, afford the protection of the attorney-client privilege to a document not prepared for a particular client or a particular case, but only to educate attorneys of a particular sort in the litigation of a particular kind of case? I think not. But even if we did, I do not think this would justify stretching the FOIA exemption to the point of protecting the departmental tactics and strategies in criminal prosecution from discovery by the citizenry. I cannot help but recall the words of Justice Sutherland for the Supreme Court in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice. In short, I join the judgment of the majority, not because I want to, but because I have to.

Senior Judge Edwards concurred with Judge Sentelle. (Mike Frisch)

July 20, 2016 | Permalink | Comments (0)

Partially Bailed Out

A decision issued today by the New Jersey Appellate Division should be of interest to bail bondsmen in that jurisdiction.

While released on bail, defendants Cesar Mungia, Christian Rodriguez, and Alexis Melendez separately fled from the United States. The State apparently did not seek extradition. The sureties who posted their bail, appellants U.S. Specialty Insurance Company (U.S. Specialty) and American Reliable Insurance Company (American Reliable) (collectively the sureties), appeal the trial court's orders forfeiting 70% of each defendant's bail and remitting 30% to the sureties.

We hold that if a defendant becomes a fugitive and flees to a foreign country, there is a presumption against remission. The surety must make every effort to assist in the reapprehension of the defendant, including by locating the defendant in the foreign country. The failure to extradite a located defendant does not excuse the sureties from their contract with the State, and generally does not justify remission if the State has no ability to obtain extradition of the defendant. However, if the surety locates the defendant in a foreign country, and extradition is possible, but the State elects not to request that the federal government seek extradition, there is no absolute bar against remission. In that situation, the trial court should consider the general factors governing remission. Finding no abuse of discretion in the trial court's consideration of those factors in these cases, we affirm.

(Mike Frisch)

July 20, 2016 | Permalink | Comments (0)

Reciprocal Suspension For Frivolous Litigation

The Wisconsin Supreme Court has imposed reciprocal discipline based on an attorney's suspension by the Minnesota Supreme Court.

The attorney had accumulated a record of disciplinary sanctions in both jurisdictions.

In Wisconsin, he had one private and two public reprimands as well as a prior one-year suspension.

In Minnesota

In the Minnesota proceeding giving rise to this reciprocal discipline case, the Minnesota Supreme Court noted that Attorney Selmer had been disciplined in Minnesota on four prior occasions.

Here, the misconduct in Minnesota led to findings

that Attorney Selmer filed ten separate lawsuits in two different counties, the court of appeals, and a Minnesota federal district court, and then repeatedly failed to obey court orders, appear for hearings, or otherwise respond to pleadings and discovery requests. All ten lawsuits were dismissed based either on the frivolity of Attorney Selmer's arguments or because he failed to comply with court rules. The court noted that two of Attorney Selmer's four prior Minnesota disciplinary proceedings were for similar conduct, engaging in a pattern of harassing and frivolous litigation.

The court here rejected his contentions against reciprocal discipline

Attorney Selmer has wholly failed to provide any claim predicated upon the grounds set forth in SCR 22.22(3) indicating that imposition of the identical discipline or license suspension by this court would be unwarranted.

Finally, notwithstanding Attorney Selmer’s unsupported and conclusory denials, the record supports the OLR’s assertion that Attorney Selmer failed to timely notify OLR of his suspension in Minnesota, which constitutes misconduct pursuant to SCR 22.22(1).

The court imposed a 12-month suspension. (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Convicted Attorney Faces Bar Discipline

The North Carolina State Bar has filed ethics charges arising from an attorney's mortgage fraud conviction.

The Chicago Tribune reported on the criminal case

A former national radio host found guilty of mortgage fraud last year left a federal courthouse Tuesday appearing grateful after being sentenced to probation instead of prison time.

Prosecutors have said Warren Ballentine, 44, formerly of Country Club Hills, acted as the real estate lawyer at closings involving more than two dozen fraudulent loans that bilked lenders out of almost $10 million. A jury in October found him guilty of six counts of mail, wire and bank fraud as well as making false statements to financial institutions.

But at Tuesday's sentencing hearing, U.S. District Judge Matthew Kennelly said the evidence presented at trial proved Ballentine's criminal wrongdoing in only three of those deals. Kennelly sentenced Ballentine to three years of probation and 300 hours of community service.

"He was a relatively new attorney, a relatively inexperienced attorney," Kennelly said. "He was basically chasing fees wherever he could find them. … I view Mr. Ballentine as a relatively minimal participant in this."

The judge also ordered Ballentine to pay $140,940 in restitution.

At its peak, Ballentine's three-hour daily radio show featured a wide range of issues affecting the African-American community and was syndicated on Radio One in 37 media markets, including Chicago. He billed himself as "the people's attorney."

Assistant U.S. Attorney Jason Yonan said Ballentine played a significant role in a serious offense.

"The overlooked aspect of this is the damage it causes to communities," Yonan said.

In his own remarks to the judge before the sentencing, Ballentine described his personal narrative of rising up from an impoverished and fatherless childhood on Chicago's South Side and eating "sugar sandwiches."

Despite those challenges, Ballentine said he stayed out of trouble — until being convicted of fraud.

"I'm guilty, but I'm guilty of being ignorant," said Ballentine, his voice wavering with emotion. "I'm guilty of not paying attention. … Your honor, of course it breaks my heart that I'm going through this, but what hurts me the most is about my kids not having their father."

After the sentencing, Ballentine said he was planning to appeal his conviction and told reporters he was grateful to the judge for sparing him time in prison.

"I was portrayed as the one doing all this, but I wasn't," Ballentine said.

The attorney was suspended in September 2015.

The Root had the story of the jury verdict. (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A $250 An Hour Paralegal Gets Suspended Again

The Arizona Presiding Disciplinary Judge approved a consent two-year suspension of an attorney who had been suspended and not sought reinstatement.

While employed as a paralegal, he impersonated an attorney and was paid a $250 hourly fee

In summary, Mr. Lerch was working as a paralegal on an at will verbal status by a law firm and two licensed attorneys were to supervise his bankruptcy work. He was referred a client by Chuck Fennimore. That client was involved in complex litigation in Texas. The law firm and its principal was not aware of this case. Notwithstanding, Mr. Lerch verbally contracted with the client that the law firm would represent client, her father and their company. Client agreed to pay Mr. Lerch $20,000.00 for the review and evaluation of her case. Client paid those funds as directed by Mr. Lerch to his then defunct law firm’s bank account and another $2,500.00 to Fennimore. Only Mr. Lerch could disperse funds from the account. During the pendency, none of the attorneys in the law firm spoke with or received copies of the emails between Mr. Lerch and client.

None of the communications between Mr. Lerch and client indicate that Mr. Lerch acted as a paralegal. The emails Mr. Lerch sent regarding the litigation used the email account from his defunct firm, not the law firm he was otherwise working for. He billed the client $250.00 per hour. None of his assistants were lawyers. While his itemized fee statement listed the law firm’s name he was working for as a paralegal, he intentionally listed his defunct email account on the document rather than the email of the listed law firm.

As to sanction

  But for the hiring of a Texas lawyer to mediate the agreement, the actions of Mr. Lerch would probably have remained hidden, encouraging him to continue to pretend he was a licensed lawyer and defraud other members of the public. Two central tenants of lawyer discipline is the protection of the public and to deter similar conduct by other attorneys. A two (2) year suspension is fully warranted. The PDJ finds the proposed sanction of suspension meets the objectives of attorney discipline and the Agreement is therefore accepted.

 (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 19, 2016

Porn Conviction, Bar Charges

An Illinois attorney has been charged with ethical violations based on his criminal conviction

Prior to June 2015, Arlington Heights police began investigating Respondent after receiving tips that had been submitted to the National Center for Missing and Exploited Children that child pornography had been downloaded via multiple Twitter accounts from an Internet service provider address belonging to Respondent.

In June 2015, Arlington Heights police searched Respondent’s home and seized a laptop computer, several external hard drives, jump drives, CDs and DVDs, containing more than 500 images and 50 videos of child pornography, including images of children under the age of 13 engaged in sexual activity.

On July 22, 2015, a Cook County grand jury indicted Respondent on 31 counts of the offense of child pornography in the matter of People of the State of Illinois v. James Crowley, docket number 15 CR -11467. Count one of the indictment charged that Respondent, with knowledge of the nature or content thereof, possessed any film, videotape, photograph or other similar visual reproduction or depiction by computer, to wit: moving depiction by computer, of any child whom Respondent knew or reasonably should have known to be under the age of thirteen, where such child is actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person, in violation of Chapter 720 Act 5 Section 11-20.1(a)(6)(i)/(c-5) of the Illinois Compiled Statutes.

Count two of the indictment charged that Respondent, with knowledge of the nature or content thereof, possessed any film, videotape, photography or other similar visual reproduction or depiction by computer, to wit: moving depiction by computer, of any child whom Respondent knew or reasonably should have known to be under the age of thirteen, where such child is actually or by simulation engaged in any act of sexual penetration or sexual conduct involving the sex organ of the child and the mouth of another person, in violation of Chapter 720 Act 5 Section 11-20.1(a)(6)(ii)/(c-5) of the Illinois Compiled Statutes.

On May 19, 2016, Respondent entered into a voluntary plea of guilty to Counts one and two of the indictment. Respondent was sentenced to serve six months in the Cook County Department of Corrections, 48 months of sex offender probation, and fined $1,199. The State’s Attorney nolle prossed counts three through 31 of the indictment upon Respondent’s plea of guilty.

The Chicago Tribune reported on the criminal charges. (Mike Frisch)

July 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Pillager: "So When Is A Lawyer Lying?"

sunEthics has the story of a criminal appeal decided by the Florida Third District Court of Appeal.

Guy Bailey, Jr., appeals his conviction for grand theft, the act of theft being the pillage of $700,000 held by him in trust for his clients. The State cross-appeals the downward departure sentence imposed by the trial court, which spared Bailey jail time for his infraction. On these two appeals, we affirm the conviction but reverse the downward departure sentence with the direction to the trial court to impose a guidelines sentence on Bailey of between twenty-one months and thirty years, as calculated on his Criminal Punishment Code Scoresheet. A fortiori, we also reverse the more recent order of the trial court revoking Bailey’s probation and imposing sentence, upon a determination that Bailey violated a condition of his probation by failing to pay restitution to the victims of his theft.

The issue on appeal involved the prosecutor's rebuttal argument

So where is the misunderstanding?

It’s simply an attempt, ladies and gentlemen, it’s an attempt by the Defense to use the word, misunderstanding.

And, ironically, you will find that word in an Instruction in this case, and it is more legal mumbo-jumbo.

So if there was an Agreement, then what is the misunderstanding?

Lawyers take money, and they lie. So when is a lawyer lying? It’s when they open their mouth. These are terms that we hear all of the time.

MR. PERTIERRA: Judge, it’s totally improper.

THE COURT: State your objection.

MR. PERTIERRA: It’s totally improper, Judge, Counsel’s comments.

THE COURT: Thank you. Please be seated. No reference is being made to any lawsuit. These, again, are just comments by an attorney and not considered by you to be evidence. Please, let us proceed.

MS. DUNNE: Lawyers are often the butts of jokes. They are the recipients of phrases and this happens because of the fact that we have a bad reputation.

So, Mr. Bailey exemplifies that because of the actions that he did in this case to the Levrants.

The argument was improper but did not warrant reversal

The evidence of Guy Bailey’s guilt was substantial and enabled the jury to easily reject Bailey’s defense that the entire episode was a “misunderstanding” between him and his clients. More than five years passed from the time Attorney Bailey stole $700,000 from his clients to the date of his trial. Repayment was promised – many times promised – but not a farthing was offered.

Daily Business Review reported that he is disbarred an was recently jailed for failure to pay restitution.

Good," said Hugh Culverhouse Jr., a real estate entrepreneur and Coral Gables attorney who is a former friend and colleague of Bailey's. "The man is the essence of contempt for humanity."

Culverhouse, son of former Tampa Bay Buccaneers owner Hugh Culverhouse Sr., and Bailey were co-counsel in the mid-1980s when Bailey converted almost $100,000 in client settlement funds but was never charged criminally.

Prosecutor Colleen Dunne said, "It's unfortunate that Mr. Bailey didn't take advantage of the court's leniency when he was placed on probation." Dunne was brought in from Monroe County to try the case because local prosecutors recused themselves, citing Bailey's close ties to the legal community.

Bailey, a Yale Law graduate, was admitted to practice in 1966 and rose to "the very pinnacle of the commercial litigation bar in this community," Hirsch said in his 2014 sentencing order.

(Mike Frisch)

July 19, 2016 | Permalink | Comments (0)

Hot Blooded And Reprimanded Rather Than Suspended

An attorney who was suspended for three years in New York got a reprimand as reciprocal discipline in New Jersey.

He had failed to supervise an employee who had threatened his client, leading to the 2003 suspension.

The story

On or about January 7, 1998, respondent sent or caused his office to send a letter to his client, Sulaiman Ahmad concerning a fee dispute. The letter was written on respondent’s office letterhead, identified as "The Law Offices of Jay Chatarpaul." The purported signature on that letter was that of Robendranauth (Rob) Ramphul, who was identified in the letter as a law graduate. Mr. Ramphul had graduated from law school, but was not admitted to the practice of law in the State of New York. In an effort to collect payment for legal services purportedly rendered on Mr. Ahmad’s behalf, the letter implied that confidences and privileged information would be used against Mr. Ahmad as follows:

'We will give you until January 15, 1998. This will be our last contact with you. We are trying to avoid you the pain and suffering of going through all of this. Mr. Ahmad, what you have done is very stupid. We are still your attorney. Your case is not over yet. Your case is still open. Your fingerprints will come to us within a few months. We have your rap sheet. We have your arrest record. We have your social security number. By the time you receive this letter, we will know where you work. We can subpoena your financial information from your credit card company. Where will you turn and hide. If you honestly believe that moving to another state will keep you safe, well you are really stupid.’

At or about the same time, respondent’s sister, Parbatie Ramdat, a nonlawyer employee in respondent’s office, went to Mr. Ahmad’s home address at the request of respondent. Mr.[sic] Ramdat affixed to Mr. Ahmad’s door, an unsigned letter containing similar implied threats. On or about January 19, 1998, respondent sent a letter to Martha Sherman of the First Savings Bank to which respondent annexed documents pertaining to Mr. Ahmad’s criminal court complaint, his interview prepared by the Criminal Justice Agency (CJA), and motion papers pertaining to his criminal matter. Mr. Ahmad’s case was still pending and was scheduled to be dismissed and the record sealed. On January 16, 1998 Mr. Ahmad filed a complaint against respondent with the petitioner Grievance Committee and enclosed the above mentioned January 7, 1998 letter. Respondent provided the petitioner Grievance Committee with a written answer dated January 24, 1998. He also enclosed a copy of the above mentioned January 19, 1998 letter. In respondent’s answer to the petitioner Grievance Committee he stated that it was his employee, Mr. Ramphul, who sent the letter dated January 7, 1998 to Mr. Ahmad because Mr. Ramphul had been outraged by the client’s failure to pay his fee. In an examination under oath before the petitioner Grievance Committee, on March 5, 1998, respondent testified that it was he and not Mr. Ramphul, who had drafted the January 7, 1998 letter and that respondent had directed Mr. Ramphul to sign it

The New Jersey Disciplinary Review Board

Although we were troubled by respondent’s conduct, we were not persuaded that a suspension is required in this case. Compelling mitigating circumstances convinced us that a reprimand adequately addresses the seriousness of respondent’s ethics transgressions and, at the same time, preserves the confidence of the public in the profession. Specifically, as pointed out in respondent’s February 25, 2002 letter to the OAE, respondent was a new and inexperienced attorney at the time, whose "young hotbloodedness’’ motivated his actions. Respondent has expressed regret for "each and every single act with respect to that client" and acknowledged that "he threw away all my humbleness and humanitarian beliefs out the window. I shamed myself, my client, and caused great grief to my self [sic] and those in this great profession." Respondent claimed that, since these incidents, he has learned a lot and has become a mature individual. We also noted his recent humanitarian efforts toward police officers and firefighters following the tragic events of September 1 1, 2001.

The court agreed.

In a second matter, the court ordered that ethics charges against the same attorney be dismissed.

The court held that the dissemination of public record information did violate violate the duty of confidentiality and that there was a lack of precedent that the failure to preserve web page information violated Rule 7.2(b). 

The DRB had proposed a reprimand for 

respondent’s conduct in (1) publishing, on his law firm’s website, an article about a discrimination case that he had instituted on a client’s behalf and in which he made comments about the judge who had presided over the trial, (2) failing to remove the article from the website, as required by the terms of the settlement agreement executed by the parties, and (3) failing to comply with the RPCs governing attorney advertisements. 

There was a dissent in favor of dismissal of the charges

Like the special master who heard this matter, I do not think that re-publishing confidential information that has already been made public should be considered an ethics violation or that one should need a client’s permission to use already-public information in an article. cited by the majority Nor do I think that the legal authority (at p. 61) supports such a holding...

Although RPC 7.2(b) requires attorneys to keep a copy of "an advertisement or written communication" for three years "after its dissemination," no prior case has found a violation of this rule or addressed this issue, and I disagree with the majority that failure to keep this type of record is comparable to violations of RPC 1.15(d) requiring attorneys to maintain financial and banking records. It is not even clear that RPC 7.2(b), adopted in 1984 before the wide use of the internet that exists today, requires attorneys to keep all versions of easily-changed websites that are often frequently updated. Moreover, this issue arose in this case only because a settlement agreement required respondent to remove his article from the internet and his failure to keep a copy of the various iterations of his website under these circumstances seems to be unintentional and, at most, a de minimis violation.

(Mike Frisch)

July 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 18, 2016

Decades-Old Conviction Reversal Sustained On Appeal Due To Brady Violation

The Rhode Island Supreme Court affirmed the grant of habeas relief to a convicted defendant as a result of the prosecution's failure to disclose evidence in the notorious Raymond "Beaver" Tempest, Jr.  murder case.

Seventeen days before trial, [witness] Carrier provided the state’s former prosecutor with two novel statements: (1) that [defendant] Tempest’s brother, Gordon Tempest (Gordon)—who was a detective with the Woonsocket Police Department at the time of the murder—hid the murder weapon (a pipe) in a closet on the first floor at 409 Providence Street in an effort to conceal it so as to protect his brother; and (2) that, on the day of the murder, Tempest’s children were “excited” about getting a puppy.  In response to receiving these statements from Carrier, the former prosecutor wrote in his notes: “more new info re: [Gordon Tempest] putting pipe in closet + dog for the kids—too late—don’t volunteer new info—will cause big problems.” Tempest argues that the former prosecutor deliberately failed to disclose this favorable evidence, and that such a deliberate nondisclosure automatically entitles him to a new trial...

it is our opinion that the “high value” of Carrier’s new statements to the defense could not have escaped the former prosecutor’s attention; thus, for this reason as well, his failure to disclose the statements constitutes a deliberate nondisclosure.

The court

As we have already pointed out, the suppressed statements could have been used to impeach Carrier’s testimony even further. Carrier was one of four less-than-stellar witnesses (and arguably the most credible of the four) who testified that Tempest confessed to the murder. Had her testimony been further undermined, and her credibility perhaps crushed altogether, certainly there is, at the very least, a reasonable probability—one “sufficient to undermine confidence in the outcome”—that the verdict against Tempest would have been different. See Wearry, 136 S. Ct. at 1006 (holding that “[b]eyond doubt, the newly revealed evidence suffices to undermine confidence in [the] conviction” when a witness’s credibility, “already impugned by his many inconsistent stories, would have been further diminished” by the revelation). Contrary to what the dissent suggests, whether the defense would have actually used the statements is not relevant to our analysis—the bottom line is that it should have been defense counsel’s choice to make...

In coming to our decision today, we are cognizant of the fact that, thirty-four years ago, two young women were brutally beaten, and we remain mindful of the impact that this ordeal has had on the victims and their families. Yet, our justice system requires that the state bear the burden of proving every element of a crime beyond a reasonable doubt, see, e.g., State v. O’Brien, 774 A.2d 89, 100 (R.I. 2001), and it must do so within the confines of the law. When the state exceeds those confines, it must suffer the consequences.

Justice Goldberg dissented

The 1982 brutal murder of Doreen Picard (Picard)—not unlike the attempted murder of Martha “Sunny” von Bulow, see State v. von Bulow, 475 A.2d 995 (R.I. 1984)—ranks as one of the most infamous crimes committed in this state during the last century. The fact that no arrest was made for several years was a festering sore in the community, compounded by a cover-up by sworn police officers. The majority affirms the hearing justice’s grant of postconviction relief—which vacates a twenty-four-year-old conviction for this murder—solely on the basis of the prosecution’s deliberate nondisclosure of two statements (the Carrier statements) of Donna Carrier (Carrier), one of four trial witnesses to whom Raymond Tempest Jr. (Tempest) confessed. In his seventy-eight-page decision, the hearing justice devoted a grand total of two-and-a-half pages to this issue, including the factual background, the governing legal standard, and his analysis relating to this evidence. This issue demanded more than the cursory treatment it received in the Superior Court and by the justices of this Court on appeal, such that I can only conclude that this decision is a manifest injustice.

After conducting a thorough examination of the relevant factual background and analysis of the issue within this Court’s deliberate-nondisclosure framework, I am convinced that the hearing justice clearly erred in finding that the nondisclosure of the Carrier statements was a deliberate nondisclosure as that concept is defined under our law. Moreover, I am of the opinion that the majority, in reaching a contrary conclusion, improperly supplements the inadequate factual findings of the hearing justice with findings of its own in order to reach a result that is not supported by our jurisprudence and is a marked departure from well-settled law. It is not the business of this Court to make factual findings in a nonjury case. Therefore, I respectfully dissent...

Tempest received a fair trial. His conviction should not be disturbed. The Picard family has been deprived of what little justice they received in 1992, ten years after they buried their young, innocent daughter.

The Call called the earlier decision to grant relief the local story of the year and noted

Tempest is the brother of former Woonsocket police detective Gordon Tempest, who was fired following his conviction on perjury charges related to sworn statements he made about his brother’s involvement in the homicide. He is also the son of the late Raymond Tempest Sr., who was the former second-in-command of the Woonsocket police and the sitting high sheriff for Providence County when the murder took place.

The court had affirmed the conviction in 1995. (Mike Frisch)

July 18, 2016 | Permalink | Comments (0)

Indiana Wants Me, Lord I Can't Go Back There

An attorney who was reciprocally suspended in Indiana in 2000 after a Kentucky suspension was reinstated in Kentucky in 2009 but not in Indiana.

He did use his Indiana license after suspension

 Respondent admits practicing law in Indiana while suspended but asserts, without verification or any supporting evidence, that he believed he had been readmitted to practice in Indiana.

Respondent’s professed belief, even if credited, was not reasonable under the circumstances. Accord Matter of Ayres, 51 N.E.3d 1139 (Ind. 2016). Respondent tendered a request for readmission in 2010 in DI-101, but that request was noncompliant with our disciplinary rules and, accordingly, was rejected by the Clerk for filing and never considered or ruled upon by this Court. Respondent took no further action in DI-101 and took no action whatsoever in DI-509. In short, Respondent had no reasonable basis for believing he had been reinstated in Indiana.

Moreover, the case records before us reflect that Respondent’s suspended status was called to his attention by the judge in a Hendricks County case in August 2013. Even assuming Respondent had believed up until that point that he had been reinstated in Indiana, he was put clearly on notice in August 2013 that he remained in suspended status, and indeed he acknowledged in a notice filed with the court the need to "either resolve the licensure issue or secure substitute counsel." Yet, several of the remaining cases referenced in the Commission’s verified petition involve actions by Respondent unquestionably constituting the practice of law that occurred later in 2013, in 2014, and even as late as September 2015. Accordingly, we find that Respondent has violated this Court’s orders suspending him from the practice of law in Indiana and that he is guilty of indirect contempt of this Court.

 He was fined $1,000 and the reciprocal suspension was converted into a two year suspension with proof of fitness. (Mike Frisch) 

July 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Landmark Wisconsin Disciplinary Decision Comes Almost Four Years After Oral Argument

The Wisconsin Supreme Court has publicly reprimanded an attorney for misconduct in representing an attorney in a reinstatement hearing.

After our careful review of this matter and the legal issues it presents, a majority of the court has agreed that Attorney Riley committed professional misconduct, that he should be publicly reprimanded, and that he should be required to pay the full costs of this disciplinary proceeding, which were $16,961.70 as of November 6, 2012. This is, therefore, the mandate of the court. A majority of the court, however, does not agree as to a single rationale for reaching that result. Three justices, Chief Justice Roggensack, Justice Ziegler, and Justice Gableman, agree with the reasoning set forth in this lead opinion. Justice Abrahamson and Justice Ann Walsh Bradley concur in the mandate, but do not join this opinion. Each of them sets forth her views in a concurring opinion. Justice Prosser dissents.

The case is notable for a number of reasons and was characterized as a "landmark" decision in Justice Prosser's dissent.

One notable factor - the oral argument was held on October 23, 2012.

This case involves the intersection of the careers of two attorneys, Attorney Riley and Attorney Brian K. Polk. An understanding of Attorney Polk's employment history is necessary to an understanding of the charges of professional misconduct against Attorney Riley.

The intersection was a dangerous one indeed.

Polk had practiced personal injury law for a firm headed by attorney Alan Eisenberg while administratively suspended

Attorney Polk was made part of the personal injury "team" that was led by Attorney Eisenberg. He solicited individuals to become personal injury clients of the firm, he met with and gave legal advice to clients about their claims, he did property damage settlements, and he corresponded with third parties using firm letterhead and identifying himself in the signature block as an "attorney at law." During the time that Attorney Polk worked for the new Eisenberg firm, he spent approximately 50 hours per week or more in the firm's offices. Attorney Polk was given his own office and telephone extension, and his extension was listed on the firm's telephone extension list. Because the firm was reluctant to use Attorney Polk's real name over its intercom system, for a while the firm used the pseudonym "James Pearson" for Attorney Polk when paging him over the firm's intercom system.

 Riley came to know Polk at the Eisenberg firm and represented Polk in an unsuccessful effort at reinstatement from suspension.

Attorney Riley did not have any role in the preparation or filing of Attorney Polk's reinstatement petition. Attorney Polk represented himself during most of the reinstatement proceeding. Prior to the evidentiary hearing scheduled by Judge Flynn, however, Attorney Polk spoke with Attorney Eisenberg about concerns he had with the upcoming hearing. Attorney Eisenberg then spoke with Attorney Riley and directed him to assist Attorney Polk with the reinstatement hearing. The initial understanding among the three lawyers was that Attorney Riley would act as "second chair" for the hearing, meaning that Attorney Polk would still be primarily responsible for presenting evidence, examining witnesses, and making argument.

OLR had opposed reinstatement

due to a number of concerns about Attorney Polk's character and fitness to practice law, including his receipt of a citation for loitering-illegal drug activity, his multiple citations and convictions for operating after revocation of his driver's license and for other traffic offenses, and his failure to pay multiple civil judgments. The OLR's response did not mention any concerns regarding Attorney Polk's employment history or his unauthorized practice of law during his administrative suspension, presumably because it was not aware of Attorney Polk's employment at the new Eisenberg firm.

Worse for Riley

In the course of an investigation in 2008, the OLR learned that Attorney Polk had been employed by the new Eisenberg firm in 2005-06 while Attorney Riley had also worked there. When the OLR asked Attorney Riley about that fact, he indicated that he had not known that. Attorney Riley claims that he then investigated whether Attorney Polk had been employed by the new Eisenberg firm. Although he asserts that this was the first time he learned of Attorney Polk's work at the law firm, he never advised the OLR, Judge Flynn, or this court at that time that Attorney Polk's testimony at the September 6, 2006 hearing had been false or misleading because of the omission of his employment at the new Eisenberg firm.

The attorney continued to deny knowledge at his own disciplinary hearing and persisted in a number of arguments on appeal

We conclude that the omitted information regarding Attorney Polk's employment with the new Eisenberg firm was material to the task this court gave to Judge Flynn and to this court's consideration of Attorney Polk's reinstatement petition.

We do not, however, base this determination on a belief that every subject was material under the catch-all provision in our June 23, 2006 order. We agree with Attorney Riley that the rules of professional conduct do not make an attorney a guarantor of the accuracy of each statement in a client's testimony, nor do we believe that the rules require an attorney to interrupt depositions or court hearings repeatedly if the attorney thinks there might be some trivial discrepancy between what a witness said under oath and what the attorney understood to be the truth. We also do not find this omitted information to be material only because Attorney Polk subsequently admitted years later that he had practiced law at the new Eisenberg firm. In other words, it is not necessary that Attorney Riley knew that Attorney Polk was practicing law (as opposed to simply working) at the new Eisenberg firm, in order for Attorney Riley to have violated former SCR 20:3.3(a)(4).

From the lead opinion

In our view, a public reprimand is an appropriate sanction for Attorney Riley's professional misconduct. We believe that a public sanction is necessary to impress upon Attorney Riley the wrongfulness of his conduct, as well as to deter both him and other attorneys from engaging in similar conduct in the future. Allowing false evidence to be presented to a tribunal when the attorney knows it is false is a serious ethical violation that undermines the truth-seeking function of the entire judicial system and contradicts the ideal of an attorney being an officer of the court as well as an advocate for a particular client.

The lead opinion concludes that the attorney failed to take reasonable remedial measures when confronted with the client's false omission of his law-related employment. He argued that Polk had not made enough money to pay  judgments against him.

No bad deed goes unpunished - Polk was the key witness against the attorney in proving that he had failed to correct Polk's own false testimony!

Justice Abrahamson has been on record in past cases with her concerns about self-regulation of the legal profession in Wisconsin

The lead opinion is overly lengthy, and gratuitously addresses too many issues that have not been fully briefed or carefully studied. The issues are difficult and of the utmost importance to attorneys and disciplinary proceedings. The issues need more consideration.

 This is a landmark case in attorney discipline, as Justice Prosser has pronounced. But its landmark status, from my perspective, is the length of time the instant case has lingered in this court. I think it wins the prize for taking longer to decide than any other OLR proceeding I can remember or find. It is a prime example of significant, unnecessary delays in completing a disciplinary matter. Delay appears to exist at every level of the disciplinary proceedings, but the final delay at this court in releasing the lead opinion is outrageous.

The attorney's conduct that is the subject of this proceeding dates back to 2006. The OLR complaint was filed on December 1, 2010. The referee held hearings in February 2012 and issued her report on April 18, 2012.

On October 23, 2012, this court held oral argument in the instant case. More than 10 months elapsed before staff circulated a draft per curiam opinion. Justice David T. Prosser circulated the first draft of his dissent to the court on July 31, 2015, almost three years after oral argument and almost two years after the per curiam was circulated. The first draft of my concurrence was circulated on September 14, 2015, almost two months after the dissent was circulated. The writings have been subject to discussion and revision, and this opinion is being released almost four years after oral argument, almost six years after the complaint was filed, and almost 10 years after the conduct at issue.

I favor the court's spending the time needed for each matter and giving utmost care to each matter. Opinions and orders in cases, rule matters, and disciplinary proceedings are important to the people directly involved in each case and to the public.

 I strongly support the court's longstanding practice of honoring a justice's hold and giving a justice time to study and write separately, but I disfavor the court's inconsistent treatment of requests to hold. Consistency in the court's practice of allowing, disallowing, and limiting holds is important for collegiality and fairness to the litigants and public...

To foster transparency and fairness, as well as to encourage promptness and uniformity in the court's decisions in discipline cases, I renew my request that the court require the Clerk of the Supreme Court to make available on the court's website information about the dates of the relevant steps in each disciplinary matter, from the filing of the complaint, to its passage through the component parts of the lawyer regulatory proceeding, assignment to a court commissioner, assignment for oral argument or on-brief consideration, and the court's ultimate decision. 

Justice Prosser

This is a landmark case in attorney discipline. It addresses the issue of an attorney's ethical responsibilities when the attorney's client - or a witness called by the attorney - provides false testimony that the attorney knows is false at the time of the testimony or learns is false sometime after the testimony...

...this notable case will be associated with an attorney who was caught in the middle of a mess he did not create, whereas the two attorneys who are responsible for the mess have been able to walk away with inadequate discipline or no discipline.

...the lead opinion is a little light in discussion about the serious tension between privileged information, confidentiality, and loyalty to a client, on the one hand, and an attorney's obligation to the court, on the other.

Finally, the lead opinion is almost 50 pages in length because the court finds it necessary to resolve several close questions about the respondent attorney, but it reads as though the respondent attorney should have resolved all these subtle questions the same way the lead opinion has resolved them...without much difficulty. We ought to ask: Has the court provided sufficient guidance for the Wisconsin Bar to avoid in the future the same pitfalls that the attorney faced in this case?

...To me the lead opinion raises sufficient questions about its impact on the law and its fairness to the respondent that I feel bound to respectfully dissent. It should be noted that the court has not been able to muster a majority of justices for the lead opinion. It should also be noted that the rule of lenity seems to be missing from the Rules of Professional Conduct for Attorneys.

The story of attorney Eisenberg, one of the two mentioned in the dissent, is recounted here by the Milwaukee Wisconsin Journal Sentinel

Wisconsin's Supreme Court finally had enough of Alan D. Eisenberg, the veteran Milwaukee lawyer who maintained a high profile both because of and despite his rude, abrasive and over-the-top style.

The court on Thursday revoked the flamboyant barrister's license to practice law, citing Eisenberg's long history of professional discipline, and his apparent inability "to conform his conduct to the standards expected of all members of the Wisconsin bar."

Eisenberg, 68, who invoked his age to avoid disbarment in a 2004 discipline case, could petition for reinstatement after five years, but that seemed unlikely Thursday.

"It's a death sentence," Eisenberg said of the ruling, "a disaster that reaches in to every aspect of my life."

He said he suffers from serious health problems and has been under extreme emotional, physical and financial distress.

I am in strong agreement with Justice Abrahamson's call for transparency in how long it takes to discipline attorneys. (Mike Frisch)

July 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Rule Number One

Rule Number One for any attorney who is the subject of a bar complaint: respond and participate in any and all proceedings.

This lesson is apparent in a recent Louisiana disciplinary matter in which a hearing committee recommends permanent disbarment of an attorney for a single instance of neglect, misrepresentation and failure to return an unearned fee exacerbated by total non-participation in the bar proceedings.

The underlying matter involved a filiation claim

Howard Austin died on April 29, 2015, and [client] Auzenne sought representation to establish filiation. On February 19, 2015, Auzenne signed a contractual agreement for legal representation by Respondent and provided Respondent with a money order (No. 103603), dated February 19, 2015, in the amount of $2,000. The fee agreement set forth a $175 hourly rate for attorney fees, as well as the requirement that Auzenne provide a $2,000 deposit. There is no indication that this advance deposit against fees to be earned was placed in Respondent's client trust account. Auzenne advised Respondent that time was of the essence, and Respondent told Auzenne that the petition would be filed within one week of receipt of DNA test results.

Auzenne submitted a sample for the needed DNA test, but the test had to be re-done. A second sample was submitted, and the DNA test results were in by March 10, 2015. Auzenne called and texted Respondent for four days before receiving a reply. When Respondent contacted Auzenne, she assured him that the petition would be filed no later than Monday, March 16, 2015; however, the petition was not filed.

Because time was of the essence, Auzenne hired attorney Arthur Boudreaux to do the work for which Respondent originally was hired. Auzenne called Respondent and advised Respondent that her services no longer were needed. Auzenne asked Respondent to provide him with an accounting and to return his unearned fee. Respondent told Auzenne that she had filed the petition for filiation, but had failed to submit the necessary filing fee.

In many if not most jurisdictions, a cooperating attorney with a remorseful attitude probably would not get suspended for like misconduct. (Mike Frisch)

July 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)