Friday, April 21, 2017

Core Values

The District of Columbia Board on Professional Responsibility has reprimanded an attorney who in the course of defending a client in a bar disciplinary hearing violated his duty of confidentiality to another client.

The Board agrees with the Hearing Committee that a Board reprimand is appropriate because the record reflects that Respondent disclosed obvious client secrets, and still fails to appreciate the wrongfulness of his conduct. Instead, he attempts to minimize his misconduct by arguing that Disciplinary Counsel already knew the information Respondent disclosed, there was no disclosure outside the parties and the Hearing Committee in the Vohra matter, and Respondent obtained a good result for the client at issue. None of these arguments excuse Respondent’s conduct. Thus, the Board issues this reprimand to Respondent to encourage him, and other Bar members, to focus on the importance of safeguarding client secrets, and to exercise due care when making statements that might result in the disclosure of client secret.

Before the board

Respondent disputes the entirety of the Hearing Committee’s Report and Recommendation, arguing that he did nothing wrong and that no sanction should be imposed. Disciplinary Counsel does not except to the Hearing Committee’s findings of fact and conclusions of law, but urges the Board to adopt a more severe sanction than a Board reprimand “in light of Respondent’s continued refusal to understand his confidentiality obligations.” The Board heard oral argument on February 23, 2017.

At the oral argument, an issue of confidentiality (the point of the exercise) arose that drew footnote 4

 Disciplinary Counsel argues that the sanction should be more severe than a reprimand because Respondent made additional disclosures of client secrets in its brief to the Board. However, the Board cannot engage in the fact-finding necessary to determine whether Respondent disclosed additional client secrets. We note that Respondent made client-related disclosures during oral argument before the Board that caused the Board Chair to remind Respondent that the argument was a public proceeding. However, as with the disclosures in his brief, there has been no adjudication that these disclosures were unauthorized disclosures of client secrets, and thus, we cannot find that Respondent made unauthorized disclosures in his brief or at oral argument.

With all due respect, I'd call that cramped view of the board's role as exalting form over substance.

The board is free (if not obligated) to take into account the attitude of an attorney to proven misconduct in fixing an appropriate sanction.

If the Board Chair felt the need to "remind" the attorney about the core ethical obligation of the profession in reviewing a matter involving that very offense, that can and should be taken into account.

If the brief to the board violated confidentiality (and was not filed under seal), same same. 

Disciplinary Counsel need not prove a separate, free-standing violation for the board to do so.

The board has the authority to impose a reprimand. Disciplinary Counsel (and presumably the Respondent) can appeal the reprimand to the Court of Appeals. If good sense prevails, neither will.

The case is In re Timothy Battle and can be found at this link. 

April 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Overbilling And Low Testosterone

A two year suspension has been imposed by the West  Virginia Supreme Court of Appeals in matters that include neglect of duties to infant clients and billing misconduct.

The court found that the billing issues amounted to dishonest conduct, rejecting the contrary conclusion of the Hearing Panel Subcommittee.

Concerns about the attorney's bills led to a complaint from the Executive Director of the West Virginia Public Defender Service.

Upon careful review of the somewhat limited adjudicatory record,  it appears that during the time period of January 21, 2014, through September 18, 2014, Cooke billed more than fifteen hours a day on thirty-seven different days. On five of those days, he billed in excess of twenty hours and on two of those days, he billed greater than twenty-four hours. Cooke maintains that during that period of time he was billing the time of the contract attorneys working for him, as well as his own.  However, per Cooke’s own testimony, this would have occurred for only some portion of the time period at issue inasmuch as his “full-time” contract attorney quit in late-March, leaving only the part-time contract attorney, who likewise quit at some point later that year.

Moreover, during this time period, Cooke contends that he was suffering from diagnosed “low testosterone” which caused him to sleep between ten and sixteen hours a day; medical records introduced into evidence do in fact support such a diagnosis in June, 2014. Cooke maintains that this fatigue continued throughout the time frame in which the guardian ad litem matter was “pending” and continued until November, 2014.

Therefore, giving Cooke the benefit of every doubt, this purported fatigue and reduced working capacity would have existed from approximately February until November, 2014—the exact time period under scrutiny for overbilling. Per Cooke’s own testimony, therefore, during this time there would have been between only eight and fourteen hours of the day in which he could even be awake to perform work.

...for three different dates during this period— March 6, April 17, and August 18—Cooke provided a letter of explanation attempting to account for all the time billed to PDS and ferreting out the time that was billed by others. However, despite purportedly being awake only eight to fourteen hours a day, Cooke still ostensibly billed 15.7, 19.4, and 13.3 hours, respectively, after deducting the time which he attributed to other attorneys. Moreover, Cooke’s itemization of the work he performed on those dates does not fully account for these billed hours.

The court 

This Court considers the protection of the public and the State coffers of paramount importance, particularly as pertains to lawyer disciplinary matters. “[A]ttorney disciplinary proceedings are primarily designed to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice[.]” Comm. on Legal Ethics of the W. Va. State Bar v. Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994). Moreover, the discipline meted out by this Court should serve the equally important purpose of deterrence:

In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession. Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

In view of the foregoing, we find that Cooke’s misconduct warrants a two-year suspension from the practice of law. Cooke’s defrauding of the State through overbilling, gross mishandling of a client matter and funds, his dereliction of duty to his infant clients as a guardian ad litem—all of which is compounded by his unrelenting pattern of unresponsiveness and empty reassurances of remediation—plainly justify this degree of discipline. 

The Hearing Panel Subcommittee had recommended a three month suspension; the Office of Disciplinary Counsel sought a suspension of 18 months.

Not enough

Cooke’s extraordinary overbilling was not only intentional and pervasive within the time period at issue, but long-standing. Given the state of the public fisc, the actual injury to the taxpayers of the State of West Virginia is all too real. As the Supreme Court of Ohio stated, overbilling the state for representing indigent clients “exploit[s] an already overburdened system designed to aid the poorest members of our society and lessen[s] public confidence in the legal profession and compromise[s] its integrity.” Holland, 835 N.E.2d at 366. Cooke’s misconduct in that regard, therefore, profoundly affects the public, the legal system, and the profession.

Moreover, while the bulk of the foregoing discussion has been dedicated to Cooke’s overbilling to PDS, by no means does this Court intend to minimize the seriousness of Cooke’s other violations. In particular, Cooke’s failure to timely file a guardian ad litem brief with this Court in an abuse and neglect matter is not only violative of the Rules of Professional Conduct, but in complete disregard of the countless warnings issued by this Court regarding the appellate obligations of guardians ad litem...

This Court has before it all matters of record, including the exhibits and a transcript of the evidentiary hearing conducted by the Board, as well as the briefs and argument of counsel and the pro se respondent. We agree with the twelve enumerated violations found by the HPS; however, based on this Court’s independent review of the record, we find that Cooke additionally violated Rule 8.4(c) of the West Virginia Rules of Professional Conduct by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation relative to the complaint filed by Public Defender Services (hereinafter “PDS”). We commensurately find that the recommended sanctions of both the HPS and ODC are inadequate to fully effectuate the goals of the disciplinary process.

The Hearing Panel Subcommittee report is linked here.

After considering all of the evidence in this case, the HPS would like to note a few concerns. First and foremost, Respondent's lack of responsiveness with both ODC, PDS and the Supreme Court is inexcusable. It is without question had Respondent responded more timely to all three of the complainants in this case, theses issues could have been resolved simply and without incident. The only viable excuse offered by Respondent was one involving a diagnosis of low testosterone. However, this diagnosis was not corroborated in any meaningful way which would have prevented him from practicing law or from meeting deadlines. Failure to meet deadlines or to respond to correspondence from other professional entities, especially after being given a courtesy extension, is intolerable in the practice of law. 

Second, based upon the testimony of Mr. Eddy, the HPS notes while there was no finding of fraud, dishonesty, misrepresentation or deceit, Respondent was clearly not conforming to the billing requirements as mandated in the PDS system. In addition, the hours he was billing well exceed those of any "super" attorney. Billing over two thousand, and two hundred (2,200) hours, every year, for the past 4 to 5 years is not just an extraordinary practice but could be seen as quite impossible. Based on the entirety of the evidence and testimony, HPS opines Respondent may not have the fundamental tools to run his law practice in an efficient and lawful manner. His unfamiliarity with an IOL TA account is just one more example of his lack of knowledge on a basic attorney issue. It is our hope the recommended CLE can shed some light on setting up and running a solo practitioner office to help avoid the appearance of impropriety as seen here in the future.

Respondent, however, did acknowledge his wrongs and appeared to portray genuine remorse for these situations...

Although Respondent contended he should only be subjected to an Admonishment or Reprimand as his sanction, the BPS opines his conduct warrants a more severe sanction; likewise, ODC's recommendation Respondent receive 18 months suspension, we believe is too harsh, especially in light of the fact there was no finding of fraud, dishonesty, deceit or misrepresentation. In addition, a long suspension may very well bankrupt Respondent who appears to be living day to day and is already deeply entangled with selling his vouchers to a finance company. His recent reduction for his PDS vouchers may have already proved troublesome in paying his finance company. While we are supportive of attorneys who represent indigent clients and acknowledge the difficulty in being a solo practitioner, we cannot ignore Respondent's lack of responsiveness and his careless law office practices.

(Mike Frisch)

April 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 20, 2017

Charges Include Sex With Client And Unauthorized Use Of Neighbor's Hot Tub

A complaint filed by Ohio Disciplinary Counsel alleges that the attorney represented a client in a domestic violence matter and thereafter "maintained an informal, but friendly relationship with [the client] and his girlfriend, J.B."

The client picked up forgery and receiving stolen property charges that also involved J.B.

On Friday, September 11, 2015, J.B. contacted respondent and requested his assistance in cooperating with law enforcement and the prosecutor's office.

On the same day, and without knowing all of the facts of J.B.' s case, respondent texted Assistant Hocking County Prosecutor, William (Bill) Archer, and inquired into whether he was interested in resolving J.B.'s case prior to indictment. Archer texted back the same day and stated that he would contact respondent "on Monday."

On September 12, 2015, respondent and J.B. met at a restaurant in Columbus to discuss J.B. 's case further. During dinner, respondent gave J.B. legal advice on her impending felony indictment.

It is alleged that

After dinner, respondent and J.B. engaged in sexual intercourse in respondent's SUV in the parking lot of the restaurant. Respondent then dropped J.B. off at her house and gave her approximately $50.

Charges were filed against J.B. the following Monday.

Respondent allegedly texted her on Tuesday and "told her to turn off her GPS on her phone because law enforcement could track her with it."

J.B. fled.

During this period of time, respondent was in regular contact with J.B. He visited her at least two times and gave her between $50 and $100 to pay for groceries and living expenses.

The forgery charges against J.D. were dismissed in mid-October but she was arrested shortly before.

Respondent was appointed as her counsel.

Between October 19, 2015 and February 25, 2016, respondent and J.B. engaged in sexual relations on at least seven more occasions. J.B. also sent respondent several sexually explicit pictures of herself.

Between October 19, 2015 and February 25, 2016, respondent and J.B. used a hot tub belonging to respondent's neighbor at least three times. Respondent did not request permission from his neighbor to use the hot tub, nor did he advise his neighbor that he and J.B. had used the hot tub.

Between October 19, 2015 and February 25, 2016, respondent took J.B. Christmas shopping, to the grocery store, and out to eat several times. He also bought her lingerie, groceries, and at least one phone card. In addition, he gave J.B. between $50 and $100 for rent and other living expenses.

By November 2015, there was a rumor going around town that respondent was engaged in a sexual relationship with J.B.

Then

In December 2015, respondent filed a petition to run as a candidate for Hocking County Prosecutor.

A judge confronted him about the rumors which he denied. He continued to represent J.B. who pled guilty to the charges against her.

J.B. then told a detective her story, which led to an 18-count criminal case against the attorney.

He was ordered to have no contact with J.B. but

On March 9, 2016, respondent and his wife attended their daughter's soccer practice at a local park where a number of other soccer practices were also being held. J.B. and her family were also at the park. J.B. informed a local police officer that respondent was staring at her, which made her feel very uncomfortable.

On March 10, 2016, and after verifying that respondent's GPS monitor had placed him in the same vicinity as J.B., respondent was arrested and charged with Intimidation of a Witness.

That case was later dismissed. Respondent pled guilty to some of the original charges and received two years probation.

J.B. also entered into a plea deal.

Charges

  1. Sex with J.B.
  2. dishonesty for using the hot tub without permission!
  3. false statement to a judge in denying the sex rumor
  4. conduct prejudicial to the administration of justice for advising J. B. to turn off her GPS.

The Logan Daily News reported on the bar charges. (Mike Frisch)

April 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

In His Own Words

The Cleveland Metropolitan Bar Association has filed a complaint alleging that an attorney deliberately ignored discovery obligations in a civil matter.

The evidence?

Respondent's client taped him without his knowledge when he said

"In this particular case, what I'd do is, because we are fighting a bank, I would fuck with this person in this case. She ... I know she's from out of town. She sends me a notice of deposition to take, and I know her schedule is tight ...didn't ask me when you were available, sends me a notice of deposition ... I willcompletely ignore her. She sends me interrogatories, requests for production ofdocuments ... I completely ignore her ass for a few months. [Laughter). And Imade her file a motion to compel and then I called her and said 'oh yeah I will getthem to you in two weeks, and then I completely ignored her ass again. So shefiled a motion to compel with the Court ... [Barrios: What's that?) ... a motion to make me answer the discovery. So we did a telephone conference with the Magistrate and I was like, 'Oh your honor, if only I had known' ... I ... you know, I moved my office this summer and I didn't know that she was ... she sent those things to the wrong address, but I' 11 get them out.' And I said, you know, 'this wasn't necessary' - so I wanted to make her seem like an ass. Now you got a Magistrate involved over something where all you had to do was pick up the phone. So I made her, you know ... she wanted to make me look like an ass, but then ... and I had to apologize to you because I kinda had to double-down on you, because then I was like 'ok, now I got to answer these things, and I have to set a deposition date', and I gave them that date, and that's why we couldn't change it."

It is alleged that his own words establish the misconduct and also

During his recorded December 19, 2015 meeting with Mr. Barrios, Respondent characterized defense counsel as an "arrogant bitch", and explained "that's why I did her like I did her." Audio Recording at 58: 15. Respondent's misogynistic words speak for themselves.

During his recorded December 19, 2015 meeting with Mr. Barrios, Respondent coached Mr. Barrios to lie during his deposition in response to potential questions concerning the discovery dispute that gave rise to the Motion to Compel Discovery. Specifically, Respondent urged Mr. Barrios to falsely testify that Respondent told Mr. Barrios that he was supposed to be present for his previously scheduled depositions. Audio Recording at 1 :31 :00.

The client terminated the representation on the day of his scheduled deposition. (Mike Frisch)

April 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Lawyer, His Spouse; A Client, His Spouse And Girlfriend

One of the 20 cases filed in Ohio alleges a rather complex web of relationships that led to charges against an attorney by the Warren County Bar Association.

The case started out as a dispute between the client's girlfriend and wife

[Respondent] was retained by Cynthia Hess (hereinafter 'grievant') to defend her in a criminal telecommunication complaint in the Mason, Ohio Municipal Court. The prosecuting witness in the case was Erin Bentley, 526 Walnut Lane, Mason, OH 45040, the wife of Hess' boyfriend.

Prior to the representation, Respondent had no existing personal relationship with Hess. Hess and Respondent had attended the same high school. Respondent successfully defended the criminal action, and later represented Hess in an action to seal her record of non-conviction.

Immediately following the conclusion of the action to seal her record, Respondent engaged in consensual sexual activity with Ms. Hess, to wit: by 'sexting' and by participating in sexually explicit telephone conversations with Hess.

Respondent thereafter represented Hess in reciprocal stalking actions that she and the client's spouse brought against each other.

It is alleged that the sexual activity between Respondent resumed after the stalking matters were dismissed.

But

 Respondent's wife, Michelle Meadows, who was his office manager, became suspicious he was having an affair. She had access to his private cell phone and examined its call history, text messages and e/mail correspondence. In doing so she became aware of the electronic communications between Respondent and Hess.

Michelle Meadows was able to access Respondent's cell phone contents because she had been given the password to it by Respondent.

 Michelle Meadows had access to thee/mails and text messages on Respondent's cell phone because they were not protected by additional password(s).

Michelle Meadows transferred the electronic communications between Respondent and Hess to her own personal e/mail account, which included personal messages as well as communications directly related to Respondent's representation of Hess. Michelle Meadows then disseminated the electronic communications between Respondent and Hess to Attorney Robert S. Fischer (OSC#0071640), who was representing Erin Bentley in the civil case filed against Hess,

The allegations do not involve the sex; rather, Respondent is alleged to have violated his duties of confidentiality to Hess, failed to properly supervise Meadows and failed to report professional misconduct. (Mike Frisch)

April 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Twenty Bar Cases Filed In Ohio

That model of bar discipline transparency - the Ohio Supreme Court - has links to 20 newly-filed matters

The Ohio Board of Professional Conduct today announced the certification of 20 cases from February through April for formal disciplinary proceedings.

In each case, a certified complaint has been sent to the respondent, and the respondent has been directed to file an answer to the allegations contained in the complaint. Once an answer is received, the case will be assigned to a three-member hearing panel of the Board, and the hearing panel will conduct further proceedings. If the respondent does not answer the allegations, the respondent’s failure to answer will be certified to the Ohio Supreme Court, and the Supreme Court may suspend the respondent’s license to practice law.

Typically, a public hearing is scheduled within four to six months after the case is assigned to a hearing panel. Please consult the Upcoming Hearings Schedule for a monthly list of Board hearings.

If the Board finds that a lawyer or judge has engaged in professional misconduct, the Board will file a report with the Court that includes a recommended sanction. The Court is responsible for reviewing the Board report and case record and imposing discipline.

To access the complaints in these cases, click on the individual case numbers below.

Cleveland Metropolitan Bar Association v. James Arthur Gay
Case No. 2017-003
Respondent’s counsel: Tyrone E. Reed

Akron Bar Association v. Jon David Tucker
Case No. 2017-004
Respondent’s counsel: None

Warren County Bar Association v. Jeffrey Charles Meadows
Case No. 2017-005
Respondent’s counsel: George D. Jonson

Columbus Bar Association v. David Paul Rieser
Case No. 2017-006
Respondent’s counsel: Jonathan E. Coughlan

Disciplinary Counsel v. Christopher Thomas Cicero
Case No. 2017-007
Respondent’s counsel: None

Cleveland Metropolitan Bar Association v. Steven Jerome Moody
Case No. 2017-008
Respondent’s counsel: Richard C. Alkire and Dean C. Nieding

Mahoning County Bar Association v. John Aloysius McNally IV
Case No. 2017-009
Respondent’s counsel: Lynn A. Maro

Cleveland Metropolitan Bar Association v. Alisa Carol Butscher
Case No. 2017-010
Respondent’s counsel: None

Cleveland Metropolitan Bar Association v. Debbie Kay Horton
Case No. 2017-011
Respondent’s counsel: None

Wood County Bar Association v. Sarah Ann Miller Driftmyer
Case No. 2017-012
Respondent’s counsel: None

Mahoning County Bar Association v. Michael Vincent Sciortino
Case No. 2017-013
Respondent’s counsel: John B. Juhasz Jr.

Dayton Bar Association v. Clinton Ralph Wilcoxson II
Case No. 2017-014
Respondent’s counsel: None

Disciplinary Counsel v. Jason Allan Sarver
Case No. 2017-015
Respondent’s counsel: None

Mahoning County Bar Association v. Martin Edward Yavorcik
Case No. 2017-016
Respondent’s counsel: John B. Juhasz Jr.

Columbus Bar Association v. John Joseph Okuley
Case No. 2017-017
Respondent’s counsel: None

Mahoning County Bar Association v. Dennis Armand DiMartino
Case No. 2017-018
Respondent’s counsel: John B. Juhasz Jr.

Columbus Bar Association v. Christopher William Striff Jr.
Case No. 2017-019
Respondent’s counsel: None

Disciplinary Counsel v. Brian William Benbow
Case No. 2017-020
Respondent’s counsel: None

Disciplinary Counsel v. Brian Wade Harter
Case No. 2017-021
Respondent’s counsel: None

Akron Bar Association v. Jeffrey Van Hawkins
Case No. 2017-022
Respondent’s counsel: None

(Mike Frisch)

April 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 19, 2017

Web And Facebook Claims Draw Reprimand

The South Carolina Supreme Court has publicly reprimanded an attorney for, among other things, inaccurate statements on her web page and on Facebook.

Respondent is licensed to practice law in South Carolina, New York, Maryland, and the District of Columbia. Prior to her admission in South Carolina in 2013, respondent was employed by three firms in other states, primarily conducting real estate closings. Since 2013, respondent has operated a solo practice, Emery Law, from an office in Myrtle Beach. Respondent also maintained office space for Emery Law in New York, but she performed little work there. Emery Law had no non-lawyer employees, but was, instead, staffed by contract paralegals employed by Precision Paralegal, a non-lawyer-owned company. Emery Law also used the support services of First Legal Net, a non-lawyer-owned company contracted through Precision Paralegals. During the times relevant to this Agreement, respondent had no partners or associates at Emery Law. Her practice in South Carolina has consisted of residential and commercial real estate closings and mortgage loan modification matters.

Web page issues

During the time relevant to these complaints, respondent operated a website for Emery Law. Respondent admits that she retained a website professional to prepare the content of her website without discussing the Rules of Professional Conduct with him or reviewing the website before it was disseminated. The website professional developed the website content by cutting and pasting from other law firm websites which resulted in a number of inaccurate representations and improper statements.

And on Facebook

Respondent maintained a law firm profile on www.facebook.com. Both respondent and a paralegal employed through Precision Paralegal created content for the Facebook page. Respondent did not adequately monitor the posts made by the contract paralegal. Respondent acknowledges the following errors on her Facebook page:

  1. the paralegal created Facebook posts congratulating respondent's clients after each real estate closing. Respondent did not have her clients' permission to post their names and other information about their legal matters on Facebook.
  2. the paralegal included unsubstantiated comparative descriptions of respondent and her legal services such as "best;" and
  3. the paralegal advertised special discounted rates for respondent's legal fees without disclosing whether or not those rates included anticipated costs.

The attorney admitted the above violations as well as misconduct in an array of client matters generated as a result.

In addition to the reprimand

respondent shall: 1) pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission no later than thirty (30) days from the date of this opinion and 2) provide proof of completion of the Legal Ethics and Practice Program Trust Account School to the Commission no later than one (1) year from the date of this opinion. Further, within ninety (90) days of the date of this opinion, respondent shall refund $2,995.00 to Client B, $2,995.00 to Client C, and $3,000 to Client E.

(Mike Frisch)

April 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Lighter Touch

The Oklahoma Supreme Court publicly reprimanded an attorney for violations committed in a matter "concerning his representation of an elderly client with whom he developed a close, familial, personal relationship."

The client was satisfied with her decisions to bestow benefits on the attorney

Ms. Brooks wanted Helton to handle everything, and she got exactly what she wanted, but because she was elderly and did not want to be bothered with details, everyone else determined that she should not have been allowed to do what she wanted with her money. Disposing of one's property is a basic right of every citizen.

Not your normal case

The Court recognizes the circumstances of this cause are very unusual. The respondent has no previous disciplinary history and after the Bar began communicating with him, he committed all of his agreements with Brooks to writing. Brooks continually expressed that Helton was doing exactly what she wanted him to do. Upon discovering the extent of his overpayment to himself from the Helton Properties, LLC., account, he ceased payments to himself for managing the properties and has since made up the difference. It is unquestionable from the evidence that Respondent and his family have developed a close personal, familial, relationship with Brooks and that they care for her and she cares for them. Helton was merely attempting to provide for Brooks and her future care. Brooks benefited from Helton's representation and Helton has fully complied with every aspect of the disciplinary process in this matter.

Complainant argues Respondent should be suspended from the practice of law for a minimum of six (6) months and be assessed the costs of these proceedings. The PRT recommends that Respondent receive a public reprimand, given the unusual facts and mitigating circumstances of this cause. Given the nature of the technical rule violations and the evidence in favor of mitigation, it is the determination of this Court that Respondent shall be publicly reprimanded, but not ordered to pay costs in the amount of $4,439.47.

Justice Wyrick dissented

During the course of his representation of an elderly client, Respondent Scott Robert Helton violated numerous rules of professional conduct, including Rules 1.1 (he was not competent), 1.3 (he was not diligent), 1.4 (he failed to adequately communicate), 1.8 (he had a conflict of interest), 1.15 (he did not safeguard his client's money), and 8.4 (he engaged in professional misconduct). For these violations, the Bar Association recommends that Helton's license be suspended for six months and he be forced to pay the costs of the investigation and prosecution of his misconduct. The majority is persuaded that a variety of mitigating circumstances counsel in favor of a lighter touch; it accordingly rejects the Bar Association's recommendation in favor of the public reprimand preferred by the Professional Responsibility Tribunal. Respectfully, I am not so persuaded, and would accept the Bar Association's recommendation.

(Mike Frisch)

April 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No License To Suspend

The Louisiana Supreme Court has enjoined the practice of an out-of-state attorney for misconduct in a federal case as a result of a Rule 4.2 violation and failure to participate in the bar proceedings

 On August 12, 2013, respondent was admitted pro hac vice in the United States District Court for the Western District of Louisiana specifically to defend Tyrone Thibeaux in the case captioned United States of America v. Rodriguez, et al. One of Mr. Thibeaux’s co-defendants was Glenn Charles.

On December 12, 2013, during Mr. Charles’ sentencing hearing, the judge learned that respondent had improperly contacted Mr. Charles outside the presence of and without the approval of Mr. Charles’ counsel. The judge then ordered respondent to show cause why he should not be sanctioned for this conduct. During the show cause hearing, respondent admitted he improperly contacted Mr. Charles. On April 11, 2014, the judge sanctioned respondent and referred the matter to the court’s chief judge, as well as the attorney disciplinary authorities in Texas and Louisiana. On July 23, 2014, the chief judge suspended respondent from the pro hac vice practice of law in the Western District of Louisiana for eight months.

The attorney did not respond to the Louisiana inquiry.

The court

Turning to the issue of an appropriate sanction, we agree with the board that respondent’s misconduct would warrant a one-year suspension from the practice of law if he were a member of the Louisiana bar. In In re: Williams-Bensaadat, 15-1535 (La. 11/6/15), 181 So. 3d 684, an attorney communicated with a party known to be represented by counsel and mishandled a fee dispute. For this misconduct, we suspended the attorney from the practice of law for one year, with six months deferred, followed by a two-year period of supervised probation. In In re: Fahrenholtz, 09-0748 (La. 10/2/09), 18 So. 3d 751, an attorney knowingly, if not intentionally, failed to cooperate with the ODC in two investigations and failed to fulfill his professional obligations. For this misconduct, we suspended the attorney from the practice of law for one year and one day. Taken together, this case law indicates a one-year suspension is appropriate for respondent’s misconduct. However, as the board noted, respondent does not have a Louisiana law license to suspend. Nevertheless, based on our holding in In re: Cortigene, 13-2022 (La. 2/14/14), 144 So. 3d 915, we may sanction respondent by enjoining him from "seeking the benefits of a full or limited admission to practice in this state."

(Mike Frisch)

April 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 18, 2017

Canadian Supreme Court Upholds Automatic Suspension For CLE Lapses: Attorney Admitted In 1955 Retires Rather Than Take "No Value" Courses

The Supreme Court of Canada held that the rule of mandatory suspension for CLE (called CPD in the Great White North) non-compliance was reasonable.

The attorney

G was called to the Bar in 1955 and has been a practising lawyer and member of The Law Society of Manitoba (“Law Society”) for over 60 years. Despite the Law Society’s mandatory rules requiring all practising lawyers to complete 12 hours of continuing professional development (“CPD”) a year, G did not report any CPD activities for 2012 or 2013. Over a year after G’s failure to report the completion of any CPD hours, the Law Society notified him that if he did not comply with the rules within 60 days, he would be suspended from practising law. G was also invited to correct any errors in his CPD record and was informed that it was possible for the 60‑day delay to be extended. G did not reply, nor did he apply for judicial review of the decision to suspend him. Rather, he challenged the validity of certain provisions of the Rules of The Law Society of Manitoba (“Rules”) with respect to CPD, by applying for declaratory relief. The application judge dismissed G’s application, concluding that the impugned rules fell squarely within the Law Society’s legislative mandate. The Court of Appeal dismissed the appeal for similar reasons.

The court majority

In this case, the impugned rules are reasonable in light of the Law Society’s statutory mandate. It is reasonable for the Rules to expose a lawyer to a suspension as a consequence for non‑compliance with the CPD program. The Act provides clear authority for the Law Society to create a CPD program that can be enforced by means of a suspension, and the overall purpose of the Act, the words used in it and the scheme of the Act show that the impugned rules are reasonable in light of the Law Society’s statutory mandate. A suspension, the purpose of which relates to compliance, not to punishment or professional competence, is a reasonable and effective way to ensure consistency of legal service across the province and to guarantee that even lawyers who are not interested in meeting the educational standards will comply. The right to practise law is not a common law right or a property right, but a statutory right that depends on the principles set out in the Act and the Rules.

Moreover, imposing a suspension on members for failing to comply with the impugned rules without giving such members a right to a hearing or a right of appeal is not unreasonable in light of the Law Society’s statutory powers. Rather, it is entirely consistent with the Law Society’s duty to establish and enforce educational standards. The suspension at issue is administrative in nature, and the impugned rules reasonably include no right to a hearing or right of appeal because lawyers are solely in control of complying with the rules in question at their leisure. Only they can end the suspension by complying with the requirements. Further, the rules permitting a suspension are not self‑applying. In addition to a lawyer’s common law procedural rights, the rules permitting a suspension expressly vest the chief executive officer of the Law Society with discretion to ensure that the effect of the Rules is not overly harsh. A lawyer’s failure to comply with the impugned educational rules, even after having been warned and given an opportunity to seek an extension, provides clear justification for the Law Society to impose a temporary suspension.

Dissent

In this case, the Law Society’s rule that members who fail to complete 12 mandatory hours of continuing professional development activities in a calendar year are automatically suspended is unreasonable, because it is inconsistent with the Law Society’s mandate to protect the public’s confidence in the legal profession. When a lawyer is suspended, so is public confidence in him or her. That is why the Law Society takes such care in its investigation of complaints regarding professional misconduct or incompetence — it helps ensure that a suspension is imposed only after at least some minimal procedural protections have been provided, and then only after a range of lesser penalties has been considered. When a suspension is the result of such a process, the loss of public confidence is warranted. Where, however, a suspension is imposed automatically for the least serious disciplinary breach possible — failing to attend 12 hours of classes — the Law Society is in breach of its duty to protect the public from the needless erosion of trust in the professionalism of lawyers.

The economic costs of the suspension are manifest, as are the reputational ones, especially since the rules require the chief executive officer to notify every member of the Law Society and each of the chief justices of the courts in Manitoba of the name of a member who is suspended. This is the only competence matter regulated by the Law Society that has no procedural protections, no range of remedies, and no discretionary leeway on the part of the chief executive officer, and it alone attracts an automatic suspension, regardless of justificatory circumstances. This makes it arbitrary. The absence of discretion, procedural fairness or remedial options stands in stark contrast to other provisions of the Act or Rules furthering the Law Society’s mandate to establish standards for the competence of lawyers. It also stands in stark contrast to the regulations, policies and by‑laws of the continuing professional development requirements of most other Canadian provinces and territories.

 The lack of discretion in this case is fatal. A rule that leads to an automatic suspension for failing to attend 12 hours of continuing professional development is so far removed  from ensuring the public’s confidence in lawyers that it is manifestly unjust, and therefore, unreasonable.

Legal Feeds reported on his recent retirement.

For his part, Sidney Green has decided to retire — at age 87, after 62 years of practising law that has included arguing successfully before the Supreme Court of Canada — rather than take mandatory CPD courses.
 
“I’m being forcefully retired,” Green told Legal Feeds. “But I have no intention of being required to go to a program which is of no value to me.
 
“The program was voluntary for many years; I participated for many years,” says Green, who practised mostly civil litigation. “I not only attended, I delivered presentations at these programs . . . But there was no legislation that empowered the law society to make the program compulsory, and there was no legislation which gave the law society the right to suspend an honest and competent lawyer because he didn’t go to a lecture.”
 
Unlike Ontario, for example, where continuing professional development is mandated in provincial legislation, Manitoba has no such legislation.
 
“There were several sections of [The Legal Profession Act of Manitoba] that permit the law society to suspend a member,” says Green. “In each case, the member is entitled to a hearing or an appeal. To my knowledge, I am the only lawyer in Canada who has been suspended by the law society without a hearing or without a right to appeal.
 
“I consider that I am being honorably discharged.”

(Mike Frisch)

April 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Not Worthy Of Admiration

The New York Appellate Division for the First Judicial Department affirmed the  grant of a new trial due to the misconduct of defense counsel

We all admire the work of an advocate who performs his or her duties with competence and diligence on behalf of a client. Competent and diligent representation, however, does not mean a lawyer should strive to "win" a case at all costs, if that means harming adversaries and their clients unreasonably and unnecessarily in the process and undermining the authority and integrity of the court. In this case, as fully explained below, defense counsel extended himself far beyond the permissible bounds of advocacy, on many occasions throughout the trial. Given defense counsel's woefully improper conduct, the trial court providently exercised its discretion in granting a new trial in the interest of justice.

The plaintiff had claimed injuries "sustained during a pedestrian knock down accident."

Supreme Court granted plaintiff's motion for a new trial on the ground of improper conduct by defense counsel in the interest of justice. It denied the remaining requests for relief as moot. In ordering a new trial, the trial court concluded that defense counsel's conduct was "so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial." Also, such conduct "occurred in front of the jury, created a hostile atmosphere and persisted despite the court threatening to impose sanctions and to hold counsel in contempt."

The court then cited the multiple instances of defense counsel's misconduct: "frequent assertions of personal knowledge of facts in issue in violation of Rules of Professional Conduct, Rule 3.4(d)(2)"; his many speaking objections, with one of them flagrantly misstating the law; his motion for a mistrial twice in front of a jury; his unfair and false denigration of Dr. Davy as not being a "real surgeon"; his pattern of interrupting and speaking over the court despite the court's directions to stop; and his interruption of the trial by demanding that plaintiff's counsel move a chart she was showing to the jury to accommodate his refusal to move from his seat. The court further noted that, although not reflected in the record, defense counsel would use a "sneering, denigrating tone" while cross-examining Dr. Davy and plaintiff's other witnesses. The court also noted as not reflected in the record the "tone of voice" directed at plaintiff's counsel, witnesses, and the court, or the "volume of his voice"; the court noted that it had admonished counsel "not to scream" on several occasions. The court continued that not fully reflected in the record was the extent to which defense counsel would continue talking after being directed to stop.

The trial court clarified that where the transcript showed the court saying "stop" or "overruled" multiple times in succession, it was because defense counsel had continued to speak despite the court's direction. The court concluded that the improper comments about Dr. Davy and Dr. Guy could not be deemed harmless, as the nature and extent of plaintiff's injuries were in significant dispute. It also determined that this case did not present a situation where there was overwhelming evidence in favor of defendants and where an isolated comment could be deemed harmless. In light of the foregoing, the court ordered a new trial in the interest of justice. This appeal ensued.

We now affirm. We are mindful that a counsel's objection to improper conduct, but failure to timely move for a mistrial before a jury returns a verdict, renders the error unpreserved and "may limit appellate review" (Rivera v Bronx-Lebanon Hosp. Ctr, 70 AD2d 794, 796 [1st Dept 1979]). However, pursuant to CPLR 4404(a), the court, upon the motion of any party or on its own initiative, may set aside a verdict "in the interest of justice." This "is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein" (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 NY2d 376, 381 [1976]). In this regard, the trial court must decide, based on " common sense, experience and sense of fairness,'" whether "it is likely that the verdict has been affected" by the alleged misconduct (id.; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.11). The trial court's determination is "discretionary in nature" and should not therefore be reversed absent an abuse or improper exercise of discretion (see Micallef, at 381-382)

In this case, we find that the trial court properly considered plaintiff's posttrial motion and granted a new trial in the interest of justice (see CPLR 4404[a]), as defense counsel's misconduct constituted fundamental error that deprived plaintiff her of substantial justice and likely affected the verdict (Micallef, 39 NY2d at 381; Selzer v New York City Tr. Auth., 100 AD3d 157, 162 [1st Dept 2012]). On these facts, this was not a close question. The record shows a pervasive pattern of misconduct that permeated the month-long trial. As pointed out by the trial court, the more egregious examples include the denigration of Dr. Davy and Dr. Guy; counsel's unsupported assertions that doctors provided unnecessary treatment as part of a money-making conspiracy; and counsel's assertion of his personal view that plaintiff was pursuing the lawsuit only because she wanted to "take the rest of her life off."

Moreover, like the trial court, we are convinced that defense counsel's denigration of plaintiff's witnesses and unsupported inflammatory comments throughout trial "appear[] to have been calculated to influence the jury by considerations which were not legitimately before them, and cannot be dismissed as inadvertent, thoughtless or harmless" (Kohlmann v City of New York, 8 AD2d 598, 598 [1st Dept 1959]). Indeed as noted by the trial court, this was not a case of an isolated or inadvertent comment. Rather, the improprieties permeated the entire trial, in a continuing pattern of misconduct. The remarks were persistently made over the recurring and almost constant objection of counsel for plaintiff, and were repeated even though the trial court sustained the objections. Defense counsel even persisted after the trial court explicitly reprimanded him for his misconduct. Under the circumstances, counsel's persistent speaking objections, interruptions, "screaming," refusals to heed the court's admonishments, and use of a "sneering, denigrating" tone toward opposing counsel, plaintiff's witnesses, and the court, created a climate of hostility that so obscured the issues as to have made the trial unfair (cf. Duran v Ardee Assoc., 290 AD2d 366, 367 [1st Dept 2002]). The cumulative effect of defense counsel's remarks undoubtedly served to leave the intended, indelible impression upon the minds of the jurors.

Justice Friedman concurred

It is only in the rare case where the misconduct of opposing counsel was so wrongful and persistent as to constitute a fundamental error and a gross injustice that a trial court may providently exercise its discretion under CPLR 4404(a) to set aside the verdict on the grounds of such misconduct, in spite of the aggrieved party's failure to make a timely mistrial motion (see Boyd, 79 AD3d at 413; Heller v Louis Provenzano, Inc., 257 AD2d 378, 379 [1st Dept 1999]). Although the instant appeal presents a close question, my ultimate conclusion is that this one of those rare cases. I therefore concur in the affirmance of the order under review.

(Mike Frisch)

April 18, 2017 | Permalink | Comments (0)

Unintelligible Transcript

The Florida Third District Court of Appeal reversed a conviction noting that the trial transcript was a hot mess

Appellants raise a number of claims in this appeal, including: errors allegedly made during jury selection, in evidentiary rulings by the trial court regarding central witness testimony and key exhibits, insufficiency of the evidence, and improper closing argument by the State. We need not belabor this opinion with a recitation of the lengthy history of these 2005 prosecutions and 2011 trial. Regrettably, the transcripts of the trial are, in numerous and substantial passages throughout the proceedings, inaccurate, incomplete, contradictory and indecipherable.

This appeal was formally stayed or otherwise delayed for more than four years as a result of the pervasive errors, omissions and inadequacies of the transcripts. During this four-year hiatus, the parties and the trial court attempted valiantly to reconstruct these portions of the record, without success. After several hearings on the matter, the trial court determined that there was no “means to reliably correct substantial defects in the trial and hearing transcripts” based upon “the extent and nature of the errors, the inability of the parties and the court reporting firm to locate the court reporter, the existence of equivalent errors and omissions in the court reporter’s original notes such that no new transcript would be different than the present version, and the passage of time that make any attempt to recall any substantial portion of the record unrealistic.

 But even with the transcript issues the court warned about the improper arguments of the prosecutor

The most egregious of these improper comments included the following argument by the prosecutor in rebuttal:

[PROSECUTOR]: You know there is an old saying among lawyers probably older than I am. When the facts are against you argue the law. When the law is against you argue the facts. When they are both against you blame the prosecutor.1 The evidence in this case, the law in this case both clearly lead you, and your common since (sic) to the escapable (sic) conclusion that these defendants committed grand theft. The defendants want to talk about everything accept (sic) the evidence.

You know as a prosecutor I take an oath and have an obligation— affirmative obligation everyday I work. I work everyday I walk into court to only argue those things that I know are in good faith are (sic) true. The defense lawyers in this case didn’t find themselves so bound.

The highlighted paragraph of the prosecutor’s closing argument is clearly improper, as it attacks and denigrates defense counsel, implying at the very least that defense counsel is not acting in good faith, and suggesting at the very worst that defense counsel lied to the jury—and that defense counsel was free to do so because he is not bound by the same obligation and professional oath as the prosecutor.

Hat tip: sunEthics. (Mike Frisch)

April 18, 2017 | Permalink | Comments (0)

Trial Tax?

Dan Trevas has a summary of a case decided today by the Ohio Supreme Court

If a criminal defendant gets a harsher sentence than one offered in a plea bargain, any allegation that the judge imposed the sentence as a “trial tax” must be supported with evidence  that clearly and convincingly demonstrates the judge acted vindictively, the Ohio Supreme Court ruled today.

A Supreme Court majority found Malik Rahab failed to prove a Hamilton County Common Pleas Court judge’s six-year sentence for burglary was based on vindictiveness after Rahab informed the judge he was rejecting a three-year sentence offered by prosecutors. The judge told Rahab he would most likely receive a longer sentence if he lost at trial.

In the Court’s lead opinion, Justice R. Patrick DeWine wrote that any claim that a judge is acting vindictively must be based on the entire record of the trial court proceeding. The Court ruled Rahab’s sentence was based on the facts of the case and his criminal past, not on vindictiveness on part of the trial judge.

Justice DeWine also noted Ohio will not adopt a presumption that a judge is acting vindictively when a defendant rejects a plea bargain and receives a harsher sentence when convicted.

In a partial dissenting opinion, Fourth District Court of Appeals Judge Maria M. Hoover, sitting on the Court by assignment, agreed with the majority’s position about how to evaluate a vindictiveness claim. But she concluded the judge threatened Rahab to forgo his right to a trial or suffer a longer sentence.

Rahab, Judge Discuss Impact of Plea Rejection
Rahab was charged with the 2014 burglary of the home of Christina Hewitt. Hewitt noticed her living room window was open and her purse was missing. A fingerprint from the window implicated Rahab. At a pretrial hearing, Hamilton County prosecutors informed the trial judge that Rahab was offered, and rejected, their recommendation of a three-year sentence.

The trial judge asked Rahab if he understood the potential sentence for the crime was a prison term ranging from two to eight years. The judge also informed Rahab that the court does “not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty.” The judge added that a conviction would most likely result in more time than the plea offer.

Hewitt testified at Rahab’s trial, and he was convicted. At a sentencing hearing, Rahab claimed he wanted to admit to the crime all along, but his attorney made him go to trial. When asked by the judge why he did not accept the plea, he replied he thought his crime did not justify a three-year prison term. The judge responded that Rahab’s logic was confusing because he refused to take the plea even as he admitted to the crime and after he was informed that he could be sentenced to eight years.

The judge then said to Rahab: “So I don’t know what you talked about with your attorney, but—too late. You went to trial. You gambled, you lost. You had no defense. And you even admit that you did it, and yet you put this woman through this trial again.”

Rahab apologized to the judge, and his brother addressed the court detailing Rahab’s difficult childhood. His brother asked the court not to sentence Rahab to eight years for one bad decision.

In delivering the six-year sentence, the judge told Rahab: “Well, guess what, you lost your gambling. You did this. You had no defense, and you wouldn’t take responsibility. You wanted to go to trial. All right, big winner you are.”

Rahab Claims Vindictiveness
Rahab appealed his sentence to the First District Court of Appeals, arguing the judge increased his sentence for exercising his constitutional right to a jury trial, and that the judge’s comments support the inference that the judge was acting vindictively when determining the time in prison. The First District affirmed the conviction and Rahab appealed to the Supreme Court, which agreed to hear the case.

Citing the Ohio Supreme Court’s 1989 State v. O’Dell decision, the opinion explained that a sentence vindictively imposed because a defendant sought a jury trial is invalid, but defendants are faced with the difficult task of proving vindictiveness. Rahab sought to reduce the burden by asking the Court to adopt a standard that would infer vindictiveness based on the trial court’s statements, the ruling explained. A judge would then have to make an “unequivocal statement” that the decision to go to trial was not considered as part of the sentence to demonstrate the lengthier sentence was not prompted by vindictiveness.

The opinion noted that the concept of a presumption of vindictiveness stems from the 1969 U.S. Supreme Court decision in North Carolina v. Pearce in which the defendant successfully appealed a conviction, then when retried and convicted again, the same trial judge gave the defendant a more severe sentence for the exact same conviction as the first one. Justice DeWine wrote that the U.S. Supreme Court has sharply limited the Pearce ruling and that subsequent development of the law has allowed judges to consider leniency for those accepting a plea bargain. He noted that a presumption of vindictiveness would apply only in those limited situations when there was a “reasonable likelihood” that the sentence was a product of actual vindictiveness.

Plea Bargains Must Be Bargains to Be Effective
The ruling noted there are legitimate reasons why a defendant who forgoes a plea bargain might get a harsher sentence, including the fact that courts can consider whether the accused accepted responsibility for the crime. The Court also explained that to be effective, a plea bargain must be a bargain, where in exchange for sparing the government the time and expense of a trial, the defendant has a reasonable expectation that the offered sentence in a plea deal would be less than what would be imposed following a trial conviction.

Because there is not a reasonable likelihood that a sentence harsher than what was offered during plea negotiations is a result of vindictiveness, no presumption applies. The defendant must prove actual vindictiveness, and Rahab did not, Justice DeWine concluded.

“The (trial) court’s intemperate statements are troubling. No court should give the appearance that it is chiding a defendant for exercising his constitutional right to a jury trial. But the statements can’t be read in isolation,” he wrote.

The Court held that the judge’s statement allowed Rahab to intelligently evaluate his options because the prosecution was suggesting a sentence near the minimum term while the judge was informing Rahab that he could face up to eight years. The opinion also noted that in the context of the sentencing hearing the judge expressed concern that Rahab did not admit or express remorse for his crime until after he was found guilty, and that Rahab subjected the victim to the trauma of a trial even though he knew he committed the crime.

Justice DeWine also wrote the trial judge had  a great deal of information to consider before imposing sentence, including a report from Rahab’s drug treatment program case manager who testified Rahab had not fared well in treatment and was not complying with program rules. The judge also learned at sentencing that Rahab, who was 19 years old when convicted, had been adjudicated delinquent 22 times as a juvenile, including once for robbery.

“In short, the trial court had a great deal of information to consider before it imposed the sentence—Rahab’s lack of genuine remorse, the impact of his conduct on the victim, his poor performance in treatment, his lengthy juvenile record, and his difficult upbringing,” the opinion stated. “No doubt it would have been better had the court’s words not hinted at a frustration with Rahab’s rejection of the plea bargain. But given the record before us, we are not convinced that the court sentenced Rahab based on vindictiveness, rather than on the evidence of his prior record, insincere remorse, and the impact of his crime on the victim.”

Justice Judith L. French joined Justice DeWine’s opinion. Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy concurred in judgment only.

Dissent Finds Judge Acted Vindictively
Judge Hoover, who joined the Court for the case after Justice Patrick F. Fischer recused himself, wrote that she found the judge clearly and convincingly sentenced Rahab vindictively. She noted the record included several “intemperate statements” from the trial judge and that they were made to express the judge’s dissatisfaction with Rahab’s choice to go to trial.

“Of particular concern are the trial court’s remarks made prior to trial. At that time, the trial court had not yet had the benefit of hearing evidence, nor did it know of Rahab’s prior criminal history or apparent lack of remorse; yet it had already determined that Rahab would receive a harsher sentence if he rejected the state’s offer and exercised his right to a jury trial,” she wrote.

Judge Hoover disagreed with the lead opinion that the trial judge was attempting to ensure Rahab understood his options, and interpreted the remarks as a threat to Rahab for not taking a plea.

“The majority’s conclusion that the trial court did not act vindictively in this case creates a nearly impenetrable barrier to proving actual vindictiveness. If the trial court’s actions in this case do not amount to vindictiveness, then what behavior would satisfy that burden?” she wrote.

Judge Hoover wrote the decision may have a chilling effect on criminal defendants’ willingness to exercise their constitutional rights to a jury trial.

Justice William M. O’Neill joined Judge Hoover’s opinion.

2015-1892. State v. Rahab, Slip Opinion No. 2017-Ohio-1401.

Video camera icon View oral argument video of this case.

(Mike Frisch)

April 18, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, April 17, 2017

A Blind Spot

The New York Appellate Division for the Second Judicial Department imposed a public censure for neglect of a probate matter.

Charge one alleges that the respondent neglected a legal matter entrusted to him, in violation of former Code of Professional Responsibility DR 6-101(a)(3) (22 NYCRR 1200.30[a][3]) and/or rule 1.3 of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: the respondent was retained in or about 2002 to represent the estates of Sydney Math, who died in 1995, and Math's sister-in-law, Lilly Weinberg, who died in 1996. In June 2011, the complainant Jonathan Stone filed a grievance against the respondent, alleging that he had neglected his representation of the estates of Math and Weinberg. In or about July 2012, the Grievance Committee for the Ninth Judicial District admonished the respondent for his neglect of the Math and Weinberg estates. In June 2014, Jonathan Stone filed a complaint, alleging, inter alia, that the respondent had still failed to offer Lilly Weinberg's will to probate.

A stipulation

On February 4, 2016, the parties entered into a stipulation. With respect to charge one, it was stipulated that the respondent began representation of the Math and Weinberg estates in or about 2002; that in June 2011, the complainant filed a grievance against the respondent alleging that he had neglected the matter; that in or about July 2012, the Grievance Committee admonished the respondent for his neglect of the Math and Weinberg estates; and that a complaint dated June 19, 2014, alleged, inter alia, that the respondent had still not filed Weinberg's will for probate. It was further stipulated that, in his answer to the complaint dated September 10, 2014, the respondent did not deny the allegation that he had not yet filed Weinberg's will for probate, and acknowledged "in retrospect, and being objective as possible, I recognize that for some reason not entirely clear to me, I have not pursued this matter with the same level of diligence I believe I typically do in my practice . . . I have had a blind spot when it comes to this file. I can't really explain the why of it. I will endeavor to remove the blind spot and do whatever has to be done to bring this matter to a close." It was also stipulated that on February 10, 2015, the respondent appeared, voluntarily, at the Grievance Committee's office for an examination under oath; that the respondent offered no explanation as to why he was unable to bring the Weinberg estate to a conclusion; and that the respondent testified: "I don't know and it's very disturbing to me and as I said it does not meet my own personal standards from what I ought to be doing for people who come to me. And this is a very, very troubling thing to me, not really having a grip on why, why it has gone on in this fashion."

The attorney was suspended for two years in 1988 and had practiced without incident until this matter

In view of the mitigation advanced at the hearing, including the respondent's candor and sincere contrition, his cooperation with the Grievance Committee in these proceedings, his advanced age and the fact that he has begun to wind down his practice in anticipation of retirement, the respondent's volunteer and community activities, the aberrational nature of the respondent's misconduct since his resumption of the practice of law in 1988, and the filing of the subject will for probate in February 2015, we conclude that the appropriate sanction is a public censure.

(Mike Frisch)

April 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sex, Crimes And Misdemeanors, California-Style

The California Bar Journal's April 2017 disciplinary summaries include a number of matters of possible interest

WALTER RYAN HAYBERT [#257224], 41, of Los Angeles, was disbarred Feb. 4, 2017 and ordered to comply with rule 9.20 of the California Rules of Court.

Haybert has been ineligible to practice law since February 2016 after a misdemeanor conviction for violating a protective order. Despite a restraining order requiring him to stay at least 100 feet away from his ex-wife, he entered her home. When she asked him to leave, he refused. Officers later found him on a hill about 80 feet away from the house. He admitted he had been drinking and said he thought the restraining order applied to another address.

Haybert failed to respond to a notice of hearing on conviction and his default was entered. He did not seek to have the default set aside within 90 days as required under the State Bar’s Rules of Procedure so the State Bar moved to disbar him.

EMORY LUTHER KING, JR. [#71491], 71, of Carmichael, was suspended from the practice of law for six months and ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. He was also placed on two years' probation and faces a two-year suspension if he fails to comply with the terms of his disciplinary probation. The order took effect Feb. 4, 2017.

While serving as a member of the indigent defense panel in Sacramento County, King convinced a client to come to his house where he solicited her for sex and conditioned his further representation of her on her having sex with him. The 22-year-old client, a single mother charged with three felonies, did not give into his demands and left. The woman reported his conduct to the indigent defense panel and King resigned.

King called the client to his house under the false pretense of discussing her case, abused his power and significantly harmed his client, who was vulnerable and had never been in the justice system. However, a number of factors spared him from disbarment. There was no sexual relationship. Also, King had no prior record of discipline in 30 years of practice, provided character references and demonstrated remorse by resigning from his panel role after being confronted with the allegations.

SCOTT BUNKER HAYWARD [#138582], 57, of Santa Ana, was placed on five years' probation and faces a two-year suspension if he fails to comply with the terms of his disciplinary probation. The order took effect Feb. 19, 2017.

Bunker's suspension resulted from his conviction for assault with force likely to cause great bodily injury and false imprisonment, both misdemeanors.

Bunker, who was diagnosed with bipolar disorder, started having problems in 2013 after he asked his physician to wean him off his psychiatric medications. Months later, his mental state began to deteriorate and his wife left him. In December 2013, he offered to let a woman he met at a train station stay in the guest room at his house.

The second night of her stay, Bunker was out with the house guest and began driving recklessly. When the woman got upset about how he was driving and asked to be taken back to his house to collect her belongings, he refused, at one point slamming her head into the passenger side window. They eventually arrived back at his house and the woman ran into the guest room and locked the door, which Bunker soon kicked open. He then struck her in the head with a coffee cup, threw a shoe and a pair of binoculars at her and pinned her down on the bed. When he left, the woman dialed 911 and he was arrested.

Bunker ultimately received psychiatric treatment and began taking medications again that ended his manic state. Bunker"s bipolar symptoms have been in control since leaving the hospital, he now participates in a support group and, as of the date of the judge"s discipline recommendation, had not exhibited similar behavior in two years.

Hayward had one prior record of discipline.

CARMEN LYNNE FISCHER [#117363], 61, of Chandler, Ariz. was placed on interim suspension Feb. 21, 2017 following her conviction in Arizona for attempted money laundering and assisting a criminal street gang, felonies that involve moral turpitude.

Fischer pleaded guilty to the charges. Between December 2007 and July 2013 she assisted a gang member, Angel Garcia, aka Chipas, by passing along information, money and other items of value to inmates in state and federal prison, according to the Pinal County Attorney. She received a three-year prison term and will face four years of probation after her release.

Because there was no notice of appeal, the State Bar has filed a motion for summary disbarment.

The Phoenix New Times reported on the Fischer case. The Arizona New Republic had the story of the conviction with link to a video. (Mike Frisch)

April 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Opines On Ethics Of Email Solicitations

A staff report from the web page of the Ohio State Bar

The Ohio Board of Professional Conduct today issued advisory opinions on lawyer advertising and the representation of clients by a former magistrate. The opinions update and replace opinions previously issued by the Board under the former Code of Professional Responsibility and the former Code of Judicial Conduct.

In Advisory Opinion 2017-3, the Board provides guidance for lawyers who desire to use unsolicited emails as a form of advertising to attract new clients.

As a general rule, lawyers are not permitted to solicit clients through in-person contact, real-time electronic contact, or by live telephone. However, other forms of non-direct solicitation by lawyers are permissible. The Board advises that email is a form of an indirect communication that may be utilized by lawyers seeking new clients. When using email as a form of advertisement, the lawyer must abide by other conduct rules including avoiding misleading communications, not engaging in unwanted communications or harassment, and adding a disclaimer that the email is an “Advertisement Only.” The opinion also advises that a lawyer may use third-party services to send the emails, as long as the lawyer maintains responsibility for the actions of the service and the content of the emails. The opinion updates and withdraws former Adv.Op 2004-1.

In Advisory Opinion 2017-04, the Board considered the ability of a former magistrate, now practicing law, to represent a domestic relations client, post-decree, in a matter originally heard by the magistrate.

The Board advises that a former magistrate may not represent the client, unless all parties give informed consent, in writing, to the representation. If the former magistrate is not permitted to represent the client, no lawyer in the former magistrate’s firm may represent the client unless the former magistrate is timely and properly screened by the firm, receives no part of the fee, and written notice is provided to the parties and the court.

The Board also advises that under the Ohio Ethics Law, the former magistrate is prohibited for 12 months from representing a client in any matter the former magistrate personally participated before leaving public office. The opinion updates and withdraws former Adv. Op. 2005-5.

(Mike Frisch)

April 17, 2017 in Economics, Judicial Ethics and the Courts, Law & Business | Permalink | Comments (0)

Sunday, April 16, 2017

Disbarred In Arizona And Now Tax Court; Only Cautioned In New Mexico

The United States Tax Court has issued a press release reporting the disbarment of four attorneys based on state court-imposed sanctions. 

One matter involved an Arizona order of disbarment based on findings that the attorney had bartered legal services for nude photos

From the Tax Court's release

Mr. Moffatt's disbarment from the practice of law in the State of Arizona was based on his misconduct in communications via Facebook Messenger on October 11,2013. According to the Findings of Fact in the Decision and Order, the exchange was as follows:

MS. CHILDERS: Hi[,] I'm the person [Plat [S]purlin talked to you about ... I just wanted to let you know i'm trying to get the 75.00 round up [for an initial consultation] and hopefully will be in touch with you next week.

MR. MOFFATT: I take all sort of things as trade fyi. C.A.P. Cash, Assets ....

MS. CHILDERS: I've pretty much sold everything I have of value[.] ... So ... I will get it[,] it will just take [the] weekend. Mr. Moffatt then asked Childers to send "me the basics" and stated that he would take "the position that it [the fee] is on the way."

MR. MOFFATT: fyi-I have a bad boy streak in me, just like my father. This allows me to be flexible.

MS. CHILDERS: Awesome. Rock on bad boy.

MR. MOFFATT: How about a pic. And then send me the money later.

MS. CHILDERS: A picture of????

MR. MOFFATT: [W]hatever you think might motivate me. How does that sit with you? Did I offend you or are we ok.

MS. CHILDERS: I am not sure what motivates you. Lol.

MR. MOFFATT: I am a bad boy that likes women. Any shape. Does that focus it[?].

Childers then sent Mr. Moffatt a picture of herself with her grandson.

MR. MOFFATT: [C]ash and assets are best, but a woman has more options. Nice pic.

MR. MOFFATT: How about a pic without [the] kid or?? How much less will I be able to see. Workable or not?

Childers subsequently sent Mr. Moffatt another picture of herself clothed.

MS. CHILDERS: [i]s this what you wanted. MR. MOFFATT: [G]ood start. How about removing something[?] [W]hen are you going to send me the docs. So I can get started.

MR. MOFFATT: [A]re you going to give me the pic with less as well. Lets just call it what I want. Yes I want a nude.

MS. CHILDERS: I don't even take a shower nude. And what would that get me[?]

MR. MOFFATT: Give me a surrogate for you, or cash works. Childers asked Mr. Moffatt what he meant by "a surrogate" and Mr. Moffatt informed her this meant "[a]nother woman."

MS. CHILDERS: [h]ow would I do that[?]

MR. MOFFATT: How many friends do you have[?] Say [cJan I borrow$ [ sic]. No, if not, I need apic for * * .

MS. CHILDERS: [h]ow much in services will that cover[?]

MR. MOFFATT: Pics buys time. Physical attention will be bartered. I could collect when I am in town later in year.

MR. MOFFATT: [W]hich way are we going, pic, cash, physical?

MS. CHILDERS: I'm getting my babies ready for a nap[.] I will get back with you. Mr. Moffatt informed

Complainant he would call her and then subsequently messaged her stating that he tried to call her twice.

He had contested the Arizona matter initially but later defaulted

Mr. Moffatt participated in the disciplinary proceedings before the Presiding Disciplinary Judge. He filed an answer asserting 38 affirmative defenses. He attended the mandatory telephonic initial case management conference. Mr. Moffatt served 106 requests for admission on the Arizona State Bar. He moved for a stay of proceedings. Mr. Moffatt filed a Motion for Expanded Request for Admissions in which he requested a hearing. Mr. Moffatt also moved for recusal of the Presiding Disciplinary Judge, to quash a subpoena for his deposition, to strike the State Bar of Arizona's request for admissions, to strike the State Bar of Arizona's request for production of documents, and to recommend an investigation of the Arizona Inspector General. However, Mr. Moffatt failed to file an initial disclosure statement. On December 30, 2015, the State Bar of Arizona moved for sanctions alleging that Mr. Moffatt had failed and refused to file an initial disclosure statement. Mr. Moffatt did not respond to this motion and did not appear at the hearing to determine if sanctions were appropriate on January 26, 2016. As mentioned above, the Presiding Disciplinary Judge found that Mr. Moffatt non willfully failed to submit an initial disclosure statement and sanctioned Mr. Moffatt by striking his Answer, rendering a default judgment against him. In addition, the Presiding Disciplinary Judge found that Mr. Moffatt willfully failed to appear and submit answers at his deposition. Mr. Moffatt also failed to appear at his aggravation/mitigation hearing on February 18,2016. 

New Mexico had considered the matter and apparently reached a different result

After the [Tax Court] hearing, Mr. Moffatt provided us with a copy of the confidential letter that he received from the Disciplinary Board of the Supreme Court of New Mexico. The letter was an official Letter of Caution issued pursuant to Rule 17­ I05(B)(3)(b) of the New Mexico Supreme Court Rules Governing Discipline for Mr. Moffatt's communication with Ms. Childers.

The Arizona case generated some controversy.

The Santa Clarita Valley the-signal.com reported

Moffatt — a candidate for the congressional seat that takes in the Santa Clarita Valley and is now held by Steve Knight, R-Palmdale — said his actions were a “mistake,” but he believes he did nothing illegal.

“I happen to have a male drive that on occasion will come out,” he said. “In this case, it was an inopportune time.”

The woman who received the request filed a complaint in New Mexico, where she was at the time, according to Moffatt. He said the State Bar of New Mexico investigated the claims and determined by December 2013 that no attorney-client relationship existed and that the conduct was not illegal.

Moffatt said he believed the case was a “done deal” until November 2015, when the State Bar of Arizona filed charges against him. Although Moffatt is based in Lancaster, he handles federal cases and his license to practice law is through Arizona.

Judge William J. O’Neil signed the order of disbarment April 19. Moffatt appealed the decision to the U.S. Court of Appeals for the Ninth District.

Moffatt believes he is being targeted for political reasons, arguing that other attorneys have done worse and not been barred from practicing law.

“I’m being taken down for asking an out-of-state chick for a nude over Facebook three years ago,” he said.

His appeal notes that the State Bar of Arizona filed charges only a week after his wife, Star Moffatt, announced her candidacy for California Senate District 21, which takes in most of the Santa Clarita Valley.

Moffatt alleges the judge who issued the order has a history of targeting high-profile Republican attorneys.

 Law360 reported that the Ninth Circuit declined to stay the disbarment. (Mike Frisch)

April 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, April 15, 2017

Tax Court Disbarment Affirmed By Federal Circuit Court

The United States Court of Appeals for the District of Columbia Circuit affirmed a United States Tax Court disbarment order.

Attorneys have duties not only to clients, but to opposing counsel and courts. Because our legal system depends on attorneys working with opponents and abiding by court orders, each court has the “inherent power” to control attorneys’ admission to its bar and their expulsion. In re Echeles, 430 F.2d 347, 349 (7th Cir. 1970).

The United States Tax Court has disbarred Wilfred I. Aka for repeated failures to discharge his duties to the court, clients, and opposing counsel alike. Today we uphold its order, clarifying in the process the basis for our jurisdiction in this case and the proper standard of review.

As to jurisdiction

Although we have reviewed Tax Court disbarment orders on previous occasions, see In re Thies, 662 F.2d 771 (D.C. Cir. 1980); Rodriguez v. U.S. Tax Court, 398 Fed. App’x 614 (D.C. Cir. 2010); Krouner v. U.S. Tax Court, 202 Fed. App’x 470 (D.C. Cir. 2006), we have not expressly held that we have jurisdiction to do so. Today we confirm that we do.

Standard of review

in this appeal from the Tax Court’s disbarment order, we will review the court’s factual findings for clear error. Nonetheless, we will consider de novo appellant’s argument that the Tax Court violated the Fifth Amendment’s Due Process Clause.

He had previously been reprimanded.

Only three years would pass, however, before the Tax Court again ordered Aka to show cause why he should not be disciplined, this time for misconduct in seven other cases. Again the Tax Court accused him of missing hearings, ignoring opposing counsel’s requests for documents and conferences, and disregarding court orders, all in violation of its practice rules and the ABA Model Rules of Professional Conduct. Again the court gave him an opportunity to make his case. The court first extended by more than three months the time period allowed for Aka to respond to its show-cause order, a period in which Aka submitted three written documents. The court also held a disciplinary hearing at which Aka appeared with counsel and provided testimony. These written and oral submissions were discussed in detail by the Tax Court in its memorandum suborder, but again the court found that Aka disputed no material facts but only blamed his clients. The court also noted that even if Aka was right that his clients had hampered his work on their behalf, he was still at fault for shirking his duties to opposing counsel and the court itself. As it also observed, “[t]he fact that Mr. Aka’s failures are chronic and extend over the entire period that he has been admitted to this Bar, continuing even after his most recent disciplinary hearing, compel us to conclude that they are done knowingly.” Supp’l App. at 27. The Tax Court thus disbarred Aka for violating its orders and rules, this time willfully, and a month later denied his motion to vacate or modify its disbarment order.

Merits

In Aka’s telling, the Tax Court’s failure to propose a plan for his reinstatement robbed him of due process in violation of the Fifth Amendment; and that court’s decision to disbar him deprived him of substantive due process. Neither claim succeeds.

First, Aka offers no legal authority for his contention that the Tax Court violated his due-process rights. Due process requires a court pursuing disbarment to give attorneys fair notice and a chance to be heard, and to follow its published rules for disbarment proceedings. Ruffalo, 390 U.S. at 550; In re Bird, 353 F.3d 636, 638 (8th Cir. 2003). The Tax Court did so here; Aka does not deny that. He claims instead that the court deprived him of due process by failing to lay out steps for his reinstatement. Due process does not require such guidance, however, and Aka cites no authority to show that it does.

Second, Aka contends that the Tax Court denied him substantive due process by, for example, disbarring him absent evidence that he had committed any crime...It is impossible to wrench from these cases a substantive due  process right to bar membership or against unduly harsh disbarment. Indeed, Aka’s substantive due process claims are so “completely devoid of merit” that they do not trigger our jurisdiction to consider claims made under federal law. 

Judge Rogers concurred

In sum, this court’s published opinions reflect a fulsome scope of review of the factual record and the disciplinary procedures afforded to the attorney. Although acknowledging that due deference is to be accorded to the discretionary choice of discipline by the imposing court, see Ex parte Burr, 22 U.S. 529, 530 (1824), this court all the while renders an ultimate assessment of what is appropriate in view of the facts found and the process afforded during the disciplinary proceeding, see, e.g., In re Snyder, 472 U.S. 634, 647 (1985); Sacher v. Ass’n of the Bar of City of New York, 347 U.S. 388, 389 (1954); see also In re Jacobs, 44 F.3d at 88 (interpreting Burr). Succinctly put, this is an abuse of discretion standard of review, which encompasses examination of “whether the reasons given reasonably support the conclusion.” Kickapoo Tribe, 43 F.3d at 1497 (quoting Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979)).

Today, the court, much as in our unpublished opinions declining to choose between abuse of discretion and de novo review, purports to avoid making the choice again, going only so far as to adopt a clearly erroneous standard of review for factual findings and a de novo standard of review of constitutional Due Process challenges. Op. 4. But our precedent indicates this court will decide for itself the appropriateness of a sanction in cases that present serious concern about the extent of discipline imposed. Whatever discomfort there might be to extending an abuse of discretion review to the disciplinary actions of an Article I court, see Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 891 (1991), this court is bound by Section 7482(a)(1) and our interpretation of it. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996).

Judge Griffith concurred in his own opinion

Our panel opinion notes that we have jurisdiction to hear Aka’s procedural challenge to the Tax Court’s disbarment order, that this challenge fails, and that the Tax Court has not come close to depriving Aka of substantive due process.

I do not believe, however, that due process claims are the only ones that Aka has raised before us. He has also argued that the Tax Court’s decision to disbar him—the result, and not simply the process—was too severe a penalty for his particular misconduct. As Aka raises it, this objection is not a constitutional one, rooted in due process or otherwise. It is simply an argument that in imposing such a grave and lasting penalty, the Tax Court abused its discretion.

I take no position here on whether we have jurisdiction to hear such non-constitutional challenges to disbarment orders...

This court need not “respond specifically to every argument made by every appellant.” Troy Corp. v. Browner, 129 F.3d 1290 (D.C. Cir. 1997). But disbarment orders are serious business. In reviewing them, we owe attorneys a thorough treatment of their arguments, however unpromising. I have written separately with that in mind.

(Mike Frisch)

April 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Privacy V. Public Access In Canadian Bar Admission

An important issue in bar admissions involves striking a proper balance between the privacy of an applicant and the public interest in matters involving attorney licensure.

An applicant who was admitted last November by the Law Society of British Columbia despite allegations of collaboration on a test raised issues of the confidentiality of the proceedings.

As a result, an order governing public access to information about the case has recently been entered by a Hearing Panel.

We accept that the parties, through their agreement, have identified the Confidential Information within the hearing record and the Admission Decision that is highly personal and sensitive for the Applicant and other individuals.  We further accept that, to the extent the parties have reached agreement, disclosure of the Confidential Information has no public interest value.  We address below the question of the public interest value of the Confidential Information in respect of which the parties do not agree.

Again, the Law Society in its submissions accepts that the agreed to restrictions on disclosure of the Confidential Information would not compromise the Law Society’s ability to inform the public of the result of the Admission Decision and the essential reasons for that result.

The disclosure of information involves a balancing of interests

In Applicant 9, the panel sought to weigh the public interest in hearing transparency and openness on the one hand against the value of personal privacy on the other.  The panel concluded that some of the information in evidence was highly sensitive, and its disclosure could be damaging to the privacy interests of the applicant.  Conversely, there was no public interest value in disclosing the sensitive personal information.  Therefore, the balance clearly favoured restricting disclosure of the information.

In this matter, a similar balancing of interests is required; however, the considerations are not as straightforward as in Applicant 9

There, the underlying issues had all been finally determined.  The competing interests being weighed were relatively discrete and known.  The public interest was limited to ensuring that the process was transparent and that the community could be sufficiently informed of the decision and the reasons for it.  The applicant’s interest was limited to preserving his personal privacy in respect of past conduct.

Here, the public interest goes beyond transparency and openness in regard to a completed hearing process.  Rather, consideration must be given to the public interest in enabling the Law Society to pursue its core mandate of protection of the public by engaging in additional prospective processes arising from the evidence disclosed in this matter.

The Law Society’s ability to take additional steps for the protection of the public following the conclusion of this matter is a significant factor to consider in balancing the competing interests.

On the other hand, the considerations militating in favour of restrictions on disclosure of the Confidential Information include not only the Applicant’s personal privacy, but also matters of broader public interest, including avoiding additional new harms to the Applicant and others.

The hearing panel's order limited access to portions of the hearing transcript and the findings.

The underlying admissions issue

The Applicant...admitted to collaborating with another student (“Student 1”) in respect of two Professional Legal Training Course (“PLTC”) assessments (together, the “Assessments”) when students were expressly and repeatedly instructed that such collaboration was prohibited.

In this matter, the Law Society took the position that, notwithstanding the seriousness of the Applicant’s conduct, if this Panel accepted the Applicant’s evidence explaining how and why she engaged in the prohibited collaboration, it would be open to us to conclude that the Applicant is of sufficiently good character, repute and fitness to be called and admitted.

 The Panel found the Applicant to be credible and forthright, including with respect to her explanation of her admittedly inappropriate conduct.

[Given our conclusion in that regard, and in light of the Applicant’s particular circumstances, which are set out in greater detail below, the Panel finds that the Applicant has met the test and is eligible to be called and admitted.

The similarity of drafting between applicant's submission and that of another student had been noticed. 

Applicant admitted the violation when confronted and provided incriminating Facebook messages

Student 1:      A little worried about getting done for working together if our shit looks too much alike.  But trust we can figure out a way not to plagiarize each others [sic] crapola.

Applicant:      Ya I’m super paranoid about that shit so you don’t need to worry about me taking yours or anything.

(together, the “Facebook Messages”)

The Applicant testified that she was surprised to see the reference in Student 1’s message to “working together.”  She recalled that, at the time, she had associated “cheating” with plagiarism.  That is the reason that, in her response, she had stated she would not take Student 1’s work.

In cross-examination, counsel for the Law Society put it to the Applicant that the Facebook Messages in fact showed that she was “at pains to avoid getting caught” collaborating.  The Applicant disagreed with this proposition.  She testified that she was focused on her concern about plagiarism, not collaborating.

In her favor

The Applicant’s behaviour following the discovery of her collaboration speaks even more favourably to her good character than was the case in Cattermole.  There, the student initially denied her plagiarism to both her principal and the Deputy Director of the Alberta bar admission course.  Nonetheless, such conduct in that matter did not result in the student being denied call and admission, although it is important to recall that Cattermole was a discipline, rather than a credentials matter.  In any event, the Hearing Committee determined that only a reprimand was required, at least in part, due to the stresses that the student had experienced leading up to her misconduct in light of the negative consequences that she had already suffered.

The balance of the interests of privacy and the public interest in the bar admissions process is a difficult one to strike.

As an example , I am previously on record that Louisiana in particular offers little guidance in articulating standards and reasoning in conditional  admission matters.  (Mike Frisch)

April 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 14, 2017

Do Not Hit Send

A complaint recently filed by the Illinois Administrator alleging the following rule violations

  1. in representing a client in a domestic relations dispute, using means that have no substantial purpose other than to embarrass, delay, or burden a third person, including sending offensive emails regarding [opposing counsel] Ms. Renwick to her former professor and making disparaging comments and references to and about Ms. Renwick, her client, and her client’s child in pleadings filed publicly with the court, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

  2. conduct that is prejudicial to the administration of justice by sending harassing emails to opposing counsel and making sexist and inappropriate references to her in pleadings filed publicly with the court, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

The case

Respondent represented Fredrick Williamson in a dispute regarding the allocation of parental responsibilities of Mr. Williamson’s child. The case was docketed in the Circuit Court of Cook County, Domestic Relations Division, as Williamson v. Hines, case number 2016 D 8018. Masah S. Renwick represented Kimberly Hines, the mother of the child, in the matter.

He filed a pleading that referred to Ms. Renwick as "Ms. Loudmouth," and made other uncomplimentary comments ending with "like a dull knife, just ain't cutting'; You just talkin' loud and sayin' nothing!"

Respondent attached a picture of the child who was the subject of the proceeding to the Memorandum. Respondent stated in the Memorandum that he "read" the child as "tacky," a "HOT GHETTO MESS," and "PEDOPHILE BAIT!!!!!!!!!!!!!!!!!!." (emphasis in original) Citing to a "[b]lack [j]oke," Respondent wrote that the child "lookted [sic] like a weevehead, midget stripper, bout to jump on the pole and twirl." In the Memorandum, Respondent stated that the child’s mother, Ms. Hines, perpetrated the obscenity because she was "creating a mini-me to accompany her as an accessory, like a big Louis Vuitton bag." Respondent accused Ms. Hines of having low self-esteem, and stated that if anyone suffered from a learning deficiency, it was Ms. Hines and not her child.

Respondent also stated in the Memorandum that the child’s mother suffered from psychoses, and referred to Ms. Renwick’s argument in court as "bumbling incompetence." He accused Ms. Renwick of "tootsie rolling" (which Respondent defines as "[l]ollygagging"), over Labor Day weekend, rather than working on the case.

Respondent included several acknowledgements at the end of the Memorandum including one to the "wratched, Antonin Scalia" for teaching Respondent to be "mean, vicious, and viperous, with sarcasm and wit." Respondent also stated that while he could "try to do Richard A. Posner," (referring to the Judge of the United Stated Court of Appeals for the Seventh Circuit), Justice Posner "can’t even begin to try to possibly do me."

 There are also email charges

Respondent forwarded to Ms. Renwick an email invitation to a Halloween party that he had received from Val and Frank Motley. Mr. Motley was a college professor of Ms. Renwick and the dean of admissions at her alma mater, Indiana University. In the email that he sent to Ms. Renwick at 10:22 p.m. that evening, Respondent included the message "You’re NOT invited."

On September 22, 2016, at 10:30 p.m., Ms. Renwick replied to Respondent’s email regarding the Halloween party and advised him that she had a standing invitation to the Motleys’ party.

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 9:14 a.m. email at 10:43 p.m. in which he stated the following: "Frank [Motley] told me to treat you like a real lawyer. So I decapitated you. … Just who the hell do you think you were patronizing. Certainment non moi! Big mistake."

On September 22, 2016, Respondent replied to his own 10:43 p.m. email at 10:50 p.m. in which he told Ms. Renwick to "get to work, or be quiet."

 On September 22, 2016, Respondent sent a reply to Ms. Renwick’s 10:30 p.m. email at 10:54 p.m. in which he stated that he could have Ms. Renwick disinvited from the Halloween party, and that Ms. Renwick may find herself disbarred. In that email, Respondent also inquired as to whether Ms. Renwick would be "wearing [her] weave" to the next court date.

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 10:58 p.m. in which he told Ms. Renwick that she may have met him in law school, but that Respondent was in disguise. In that email, Respondent also told Ms. Renwick that "[y]ou don’t seem to know too much."

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 11:05 p.m. His reply copied Frank Motley, and Respondent stated the following about Ms. Renwick: "She could be disbarred and doesn’t even realize it."

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 11:10 p.m. His reply copied Mr. Motley, and Respondent stated that Ms. Renwick was "out there seriously perpetratin’."

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 11:16 p.m. His reply copied Mr. Motley, and Respondent stated that Ms. Renwick was a "trip" and that she should attend the Motleys’ Halloween party as "herself, a real witch."

And  in a motion

Respondent stated that Ms. Renwick "dresses for court like she’s going to a cocktail party, tottering about in five inch, open toed stilettos at 9:30 a.m., not p.m., obviously dazed and confused, too much leg, too much décolletage, far too much mouth, and, in general just too much." Respondent criticized Ms. Renwick’s attire and compared her to a bad imitation of Alexis Carrington Colby, a character from the 1980s television show "Dallas." Respondent called Ms. Renwick a "walking joke performing as a lawyer," a "total nightmare," and an "affront to working women everywhere."

Back to electronic messages

On October 5, 2016, Respondent sent Ms. Renwick an email at 10:19 p.m., and he copied Frank Motley on that email. In that email, Respondent told Ms. Renwick that she had "let loose" her "big mouth" one time too many, and that she needed to "keep [her] big trap shut." Respondent told Ms. Renwick that she had "f[*]cked with the wrong person," and that he would "drag [her] through the mud and slam [her] against a brick wall, before handing [her] over to the ARDC for intense questioning." He advised Ms. Renwick that she would need a lawyer to defend her license to practice law.

In his October 5, 2016 email, Respondent referred to Ms. Hines as "a whore – an educated whore – but a whore none the less," and stated that going to church at this late date would not help her. He referred to Ms. Hines as a "looser" [sic] and a "trollop" and assured Ms. Renwick that she would "go down" with Ms. Hines.

Also in his October 5, 2016 email to Ms. Renwick, Respondent told her that she was in "deep doo doo" and didn’t even know it. Respondent referred to Ms. Renwick as "Uma Brincadeira Grande – A Big Joke in Portuguese," and promised her that he would continue to write "exceptionally nasty things about [her] conduct as a lawyer" that would become part of the public record. Respondent warned Ms. Renwick to come to her senses before it was too late, and he threatened that if she continued to "play with" him, it would not end well.

On October 4, 2016 at 6:02 p.m., Respondent sent Ms. Renwick an email, copying Frank Motley, in which he invited her to "Temptation Walk down to the ARDC."

On October 5, 2016, Respondent sent Ms. Renwick another email at 11:36 p.m. in which he, among other things, told her not to come "tootsie rolling up in court when the hearing date is set" and called her a "paragon of verbosity."

(Mike Frisch)

April 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)