Friday, October 14, 2016

Comparing Bar Discipline Systems

The highly transparent Ohio Supreme Court web page has a link to the recent disciplinary cases submitted for the court's review

The Ohio Board of Professional Conduct today announced it has filed the following reports and recommendations for disciplinary cases involving attorneys and judges charged with professional misconduct with the Supreme Court of Ohio.

Except in consent-to-discipline cases, the parties will have an opportunity to file objections to the board’s report and recommendation with the Supreme Court. If objections are filed, the case will be scheduled for oral argument. Oral argument is not scheduled in reinstatement cases, except upon order of the Court. In cases in which the board recommends acceptance of a consent-to-discipline agreement, no objections are permitted, and the case is submitted to the Court for consideration.

Additional information about each case, including the report and recommendation, may be obtained by clicking on the hyperlink for each case. Questions regarding pending cases should be directed to the Office of Public Information at 614.387.9250.

Cases on Report of the Board

Butler County
Disciplinary Counsel v. Gregory Lawrence Peck
Case No. 2016-1490
Recommended sanction: Six-month suspension, stayed

Cuyahoga County
Disciplinary Counsel v. Scott Clifford Smith
Case No. 2014-0197 (on remand)
Recommended sanction: Indefinite suspension

Ohio State Bar Association v. Harry Joseph Jacob III
Case No. 2016-1488
Recommended Sanction: Two-year suspension, one year stayed

Cleveland Metropolitan Bar Association v. Edward Joseph Heben, Jr.
Case No. 2016-1495
Recommended Sanction: One-year suspension, six months stayed

Franklin County
Disciplinary Counsel v. Thomas Patrick Maney Jr.
Case No. 2016-1494
Recommended sanction: One-year suspension, six months stayed

Hamilton County
Disciplinary Counsel v. Robert Hansford Hoskins
Case No. 2016-1496
Recommended sanction: Disbarment

Warren County
Disciplinary Counsel v. Jeremiah Justin Denslow
Case No. 2016-1487
Recommended sanction: Six-month suspension, stayed

Wood County
Wood County Bar Association v. Robert Eugene Searfoss III
Case No. 2016-1489
Recommended sanction: Two-year suspension, one year stayed

Reinstatement Case

Mahoning County
Mahoning County Bar Association v. William Charles Helbley Jr.
Case No. 2012-0200
Recommendation: Grant reinstatement

Dismissal Based on Finding of No Misconduct

Cuyahoga County
Disciplinary Counsel v. Alan Jack Rapoport
Board Case No. 15-073

For those who may find it useful to compare the work load of one state system with another, note that the D.C. Board on Professional Responsibility has submitted five reports (one involving co-respondents) in the past ninety days.

A review of the calendars of the D.C. Court of Appeals reflect that one bar case was argued in October and one was submitted on the court's summary calendar. For November, there were no bar discipline cases either argued or submitted.

There are 33 bar disciplinary matters pending  hearing in North Carolina. The web page of the D.C. BPR reports four pending matters.

It is nice to know there is so little sanctionable attorney misconduct in the District of Columbia. 

Or does the answer lie elsewhere? (Mike Frisch)

October 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Pro Se Attorney Convicted And Suspended: Johnnie Cochran Analogy Rejected

The web page of the Illinois ARDC reports a recent order of the state Supreme Court

Mr. Gold-Smith, who was licensed in 2003, was suspended on an interim basis and until further order of the Court. He was found guilty in the Circuit Court of Will County of solicitation of murder for hire and for solicitation, both Class X felonies. In addition, he is awaiting trial on state charges of aggravated domestic battery (a Class 2 felony), aggravated battery (a Class 3 felony) and unlawful violation of an order of protection (a Class A misdemeanor).

The Chicago Tribune had a story

A Will County judge Tuesday ruled that former Homer Glen attorney Robert Gold-Smith was guilty of trying to hire someone to kill his ex-wife in 2012.

"I've spent close to 30 hours of considering all the evidence," Judge Daniel Rozak told Gold-Smith in the courtroom. "The bottom line is I'm finding guilty."

Gold-Smith, who represented himself during the trial, had argued that it wasn't his voice recorded by inmate Brian McDaniel, who wore a wire in the Will County Jail during a conversation about the murder-for-hire plot on Oct. 3, 2012.

The defendant had been in jail in connection with a 2010 charge of aggravated domestic battery, when witnesses had said he followed his wife out of a Will County courtroom after a divorce hearing and punched her several times.

During his closing arguments last month, Gold-Smith said, "If the voice doesn't fit, you must acquit," using a line similar to one used by O.J. Simpson attorney Johnnie Cochran in referring to a bloody glove the former football player was alleged to have worn.

Rozak on Tuesday acknowledged that an expert could not definitively identify whose voice was on the 2012 recording, but he also considered video surveillance footage from a camera in the cell block which he said was located right above McDaniel's cell.

"The camera couldn't be better positioned," the judge said.

After the verdict, Rozak gave Gold-Smith the opportunity to request a public defender to handle his future options in the case, such as filing a motion for the judge to reconsider his finding.

Gold-Smith, who cast his head down and shook his head after the verdict, said he would now like a public defender.

Rozak told public defender Amy Christensen, who was in the courtroom, that she will likely need more than 30 days to review all the evidence, but set the next court hearing for April 1 for the potential filing of the motion for him to reconsider his verdict.

The judge suggested Gold-Smith "do yourself a big favor" and request a public defender for the pending 2010 aggravated domestic battery charge.

Gold-Smith also faces a charge of trying to bribe McDaniel in 2015 to change his testimony.

Assistant State's Attorney Adam Capelli said Gold-Smith faces 20 to 40 years in prison on all the charges, and must serve at least 85 percent of the sentence.

Frank Vaisvilas is a freelance reporter for the Daily Southtown.

And from the Herald-News 

Gold-Smith told Rozak his motions to introduce new evidence and reconsider the case will move faster than if an assistant public defender had to review everything.

"[Solicitation of murder] is a mandatory minimum of 20 years at 85 percent and you're worried about a couple of months?" Rozak asked. The judge then "apologized in advance" and offered a frank assessment of Gold-Smith's criminal defense as "not only ineffective, you're inept."

 "You have to realize that you did an absolutely terrible job representing yourself," Rozak said. "If I want a will or a real estate deal you might be the best attorney in the state of Illinois, but you're a terrible trial lawyer."

Before his arrest Gold-Smith worked as a bankruptcy attorney.

"If I told you I needed heart surgery, you'd refer me to a gynecologist. You'd say what's the difference, they're both doctors," Rozak said. "If you could sue yourself for ineffective assistance [of counsel] you'd have a dead-bang winner."

Rozak said Gold-Smith's decision to represent himself despite his lack of experience in criminal law was "the best thing the state had going for it" with a weak case.

"If you'd sat there, shut up and kept quiet, maybe – just maybe – my decision would've been different, but every hole that was in their case – you filled in," the judge concluded.

 And from the same source

Gold-Smith said Rozak wants “to personally oversee this conviction to gratify [his] ego.”

The former bankruptcy attorney also believes the judge felt obligated to protect the reputations of investigators and prosecutors he believes were duped by McDaniel.

“It’s not only politics but your Machiavellian prejudices that convicted me the day I set foot in your courtroom. You knew that recording was fabricated,” Gold-Smith told the judge.

After the bench trial, Rozak estimated he spent 30 hours listening to the tapes submitted as evidence.

“Why have you railroaded me?” Gold-Smith asked. “Your sadistic determination to send people to prison, regardless of their innocence?”

“You, sir, are an anachronism. A throwback to the tyrannical kings, despots and dictators,” he said. “The Spanish Inquisition would’ve been more appropriate for your [distribution] of justice, or should I say, injustice.”

Gold-Smith continued his statement to the court by accusing Rozak of anti-Semitism because of his last name, although Gold-Smith is not Jewish.

(Mike Frisch)

October 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 13, 2016

Judge Who Assaulted Mentally Disabled Person Removed From An Office He No Longer Holds

The Mississippi Supreme Court has removed from office and fined a judge

The Mississippi Commission on Judicial Performance recommends to this Court that former Madison County Justice Court Judge William “Bill” Weisenberger Sr. be removed from office after finding by clear and convincing evidence that Weisenberger physically and verbally assaulted a mentally disabled individual at the 2014 Canton Flea Market. Because of the egregious nature of Weisenberger’s actions, this Court agrees with the Commission’s recommendation and removes Weisenberger from office. Weisenberger is directed to pay a fine in the amount of $1,000 and costs of these proceedings in the amount of $5,918.46.

The ugly details

Weisenberger’s conduct clearly was willful. Weisenberger was not hired to provide security for the Canton Flea Market, yet he was dressed like a security officer and was carrying a gun and had a radio. Additionally, although Weisenberger knew he was not hired to provide security, he heard Deputy Sullivan’s transmission over the radio and purposefully injected himself into the situation instead of waiting for hired security officers. Weisenberger took it upon himself to initiate contact and unreasonably inflict physical injury upon Rivers. In addition, Weisenberger yelled a racial slur at Rivers, a completely inappropriate and intentional action that heightened the injury that Weisenberger inflicted. And instead of calling for security when Rivers did not walk in the direction in which Weisenberger had no authority to direct him, Weisenberger repeatedly made contact with Rivers and forced him to comply to Weisenberger’s wishes. Moreover, throughout the interaction, Weisenberger was wearing a shirt that said “Madison County Justice Court.” Thus, Weisenberger’s actions clearly were willful.

Justice Coleman concurred

Justice Dickinson makes an excellent point – that we cannot remove a person who is not a judge from the judicial office. However, our precedent in judicial performance cases requires us, in part, when we consider the proper sanctions for judicial misconduct to examine prior cases that are on point. See Miss. Comm’n on Judicial Performance v. Thompson, 169 So. 3d 857, 869 (Miss. 2015); Miss. Comm’n on Judicial Performance v. Skinner, 119 So. 3d 294, 300 (Miss. 2013). Should a future case arise as to which today’s case would be “on point,” today’s opinion would support removing the judge in question from office. If we omit the sanction from today’s opinion, then should the above-described case arise it would not be so readily apparent that removal is proper, despite the severity of the misconduct. Because including the sanction will better inform the Court’s decisions in the future, I concur with the majority’s decision to do so – despite the reality that Bill Weisenberger already has left office.

Presiding Justice Dickinson

I agree with the majority’s findings of misconduct, and most of the sanction imposed. But the notion that we can remove Bill Weisenberger from office after the voters already have done so is pure fiction. Justice Coleman understandably is concerned that the bench, bar, and public should be on notice that Weisenberger’s conduct merits removal from office.

But his concern would be eliminated by simply declaring that if Weisenberger still were in office, he would be removed from it. This approach would comport more closely with logic and the truth.

(Mike Frisch)

October 13, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Robe

The Illinois Administrator has swiftly filed charges in a much-publicized matter for an attorney's alleged

(Dishonesty as a result of handling cases on a judge’s call while dressed in judicial robes and seated on the judge’s chair behind the bench)

Remarkably, the charges involved an incident took occurred that took place only two months ago. I'd venture there are few places where charges ever go forward so swiftly.

The particulars

1. From August 2011 to August 2016, Respondent was employed as a Law Clerk/Staff Attorney for Office of the Chief Judge of the Circuit Court of Cook County. From August 2011 until May 2015, Respondent worked at the Daley Center Courthouse and was responsible for research and writing assignments given to her by Chief Judge Timothy Evans. In May 2015, Respondent was transferred to the Markham Courthouse in the Sixth Municipal District ("Markham"), where she maintained her position as Law Clerk/Staff Attorney and was responsible for research and writing assignments given to her by any of the judges at Markham. Judge Marjorie Laws ("Judge Laws"), the presiding judge in Markham, was Respondent’s supervisor at Markham.

2. At no time has Respondent held the office of Judge or Associate Judge in Illinois pursuant to Article VI of the 1970 Illinois Constitution. As a result, at no time was Respondent authorized to act as a Judge or Associate Judge in a Circuit Court of this State of Illinois.

3. In March 2016, Respondent won the primary election for the office of judge in the Circuit Court of Cook County, First Judicial Subcircuit. Respondent is currently unopposed on the general election ballot for November 2016. Subsequent to winning the primary election, Respondent began observing judges at Markham during their court calls in preparation for the likely possibility that she would be elected to the office of judge in November 2016.

4. On August 11, 2016, Judge Valarie Turner ("Judge Turner") was assigned to Courtroom 098 in Markham ("Courtroom 098") for court calls scheduled to begin at 9:00 a.m., 10:30 a.m., and 1:00 p.m. On August 11, each of the three court calls involved traffic tickets that had been issued in the Village of Dolton. The Village of Dolton prosecutor working in Courtroom 098 that day was Luciano Panici, Jr. ("Panici, Jr.").

5. On August 11, 2016, at approximately 9:00 a.m., Respondent was seated in the witness box to the left of the judge’s bench in Courtroom 098. Shortly thereafter, Judge Turner entered Courtroom 098 wearing her judicial robe, took the bench, and began the 9:00 a.m. call. Respondent remained seated in the witness box throughout the 9:00 a.m. and 10:30 a.m. calls, between which there was no recess.

6. At approximately 12:00 p.m., the court recessed for lunch. At that time, Judge Turner introduced Respondent to Panici, Jr. and asked, "Have you met Judge Crawford?" Respondent did not correct Judge Turner’s statement that she was a judge. Panici, Jr. introduced himself to Respondent and left Courtroom 098.

7. Judge Turner’s statement that Respondent was a judge in paragraph six, above, was false because Respondent was not a judge on August 11, 2016, nor has she ever been a judge.

8. Respondent knew that Judge Turner’s statement in paragraph six, above, was false because she knew she was not a judge. Respondent’s failure to correct Judge Turner’s statement in paragraph six, above, was dishonest and misleading.

9. At approximately 1:00 p.m., Panici, Jr. returned to Courtroom 098 for the afternoon call beginning at 1:00 p.m. At that time, Officer Derrell White also arrived at Courtroom 098 for the afternoon call. Officer White sat in a chair in a row of chairs located to the left of and slightly behind the witness box. Respondent again sat in the witness box to the left of the judge’s bench. Judge Turner began the afternoon call at approximately 1:00 p.m.

10. At some time near the end of the 1:00 p.m. call, Judge Turner announced to the people in Courtroom 098, "We’re going to switch judges" and gave her judicial robe to Respondent. Respondent did not correct Judge Turner’s reference to her as a judge and put on Judge Turner’s robe in plain view of the people in Courtroom 098.

11. Judge Turner’s reference to Respondent as a judge in paragraph ten, above, was false because Respondent was not a judge on August 11, 2016, nor has she ever been a judge.

12. At the time Judge Turner referred to Respondent as a judge in paragraph ten, above, Respondent knew Judge Turner’s statement was false because she knew she was not a judge. Respondent’s failure to correct Judge Turner’s reference to her as a judge in front of the people in Courtroom 098 was dishonest and misleading.

13. After putting on Judge Turner’s robe, Respondent sat down on the bench and began purporting to preside over at least three cases on the 1:00 p.m. call. Judge Turner stood behind Respondent.

14. As a result of Judge Turner’s previous introduction of Respondent, at the time Respondent put on Judge Turner’s robe and began purporting to preside over cases, Panici Jr. believed Respondent was a judge.

15. After Respondent had put on Judge Turner’s robe and sat on the bench, the court clerk called the case of defendant Maliq Giles ("Giles"), ticket YE-334-458. At Giles’ request, Respondent purported to continue the matter until October 26, 2016. Respondent reflected her purported decision by writing "MD 10-26-16" on the back of ticket YE-334-458.

16. After Giles’ matter, the court clerk called the case of defendant Angel LaSalle ("LaSalle"), ticket YE-334-458. When LaSalle stepped up to the bench, Respondent said to LaSalle, "Officer is not in court." Panici, Jr. then made a motion to continue the matter. Respondent turned to Judge Turner and asked, "Can I deny his motion?" Judge Turner replied, "Yes, you can deny the motion" and Respondent purported to deny the motion. Panici, Jr. then made a motion to non-suit the matter, which Respondent purported to grant. Respondent then reflected her purported decision by writing "ONIC" (Officer Not In Court) and "MCNS" (Motion City Non-Suit) on the back of ticket YE-334-458.

17. At some point while Respondent was wearing Judge Turner’s robe and seated on the bench, she called the case of defendant Kendrah Blackshear ("Blackshear"), ticket YE-250-620. Blackshear stepped up to the bench before Respondent and presented a valid driver’s license. Panici, Jr. made a motion to non-suit the matter and Respondent purported to grant the motion.

18. At the time Blackshear stepped up in front of Respondent, described in paragraph 17, above, Blackshear believed Respondent was a judge as a result of the facts that Respondent was wearing a judicial robe, sitting behind the bench in the Judge’s chair, and presiding over cases being called by the clerk.

19. After the 1:00 p.m. call concluded, Respondent returned Judge Turner’s judicial robe to her. At that time, Officer White approached Respondent to congratulate her on her judgeship. Officer White asked Respondent if she would be assigned to Markham and Respondent replied that she was in Markham now but would probably be assigned downtown.

20. Respondent’s statement to Officer White referenced in paragraph 19, above, was false and misleading because she was not a judge assigned to Markham on August 11, 2016.

21. Respondent knew that her statement to Officer White referenced in paragraph 19, above, was false and misleading because she knew she was not a judge assigned to Markham.

22. After being apprised of what had occurred, Judge Laws conducted an investigation of Respondent’s conduct. As a result of that investigation, Judge Laws placed all three tickets referred to in paragraphs 15-17, above, back on the court’s docket. On September 1, 2016, Judge Laws heard all three matters, tickets YE-334-458 (Giles), YE-334-458 (LaSalle), and YE-250-620 (Blackshear). Panici, Jr. was the prosecutor and motioned to non-suit each matter. Judge Laws granted the motions and dismissed the tickets nunc pro tunc to August 11, 2016.

The attorney also is charged with engaging in criminal conduct based on the above alleged facts and false statements in the investigation. (Mike Frisch)

October 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Arbitration Of Legal Malpractice Claims Retainer Clause Enforced

The District of Columbia Court of Appeals has handed down a decision in a case where an attorney had sued for unpaid fees in one forum and been sued for legal malpractice in another.

Two sets of proceedings underlie these three consolidated appeals: (1) a malpractice claim filed by Rosanne L. Woodroof against her former attorney Joseph F. Cunningham and his law firm Cunningham & Associates, PLC (collectively "Cunningham"), and (2) proceedings to enforce a foreign judgment for unpaid attorney’s fees that Cunningham obtained against Woodroof in Virginia. The primary issue before this court is whether we have jurisdiction to hear Woodroof’s appeal from the trial court’s order staying the malpractice proceedings and compelling arbitration. We hold that we do have jurisdiction of that appeal; our jurisdiction of the appeals related to the foreign judgment proceedings is not questioned. We affirm the challenged order and the judgment of the Superior Court.

A D.C. trial judge had directed that an arbitration provision in the retainer agreement be enforced

 Cunningham argues that Woodroof cannot appeal Judge Holeman’s order. He asserts that, by making such orders appealable, the Council of the District of Columbia violated the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93-198, 87 Stat. 774 (1973) ("the Home Rule Act") by attempting to expand our jurisdiction. We reject Cunningham’s argument.

And this dispute was subject to arbitration

With our jurisdiction confirmed, we now reach the merits of this appeal – whether the trial court erred by ordering the parties to arbitrate the malpractice action. Woodroof argues that she should not be compelled to arbitrate her claim because the Arbitration Agreement was ambiguous, selectively invoked to Cunningham’s advantage, and an unenforceable consumer adhesion contract. We disagree...

Ultimately, to the extent, if at all, that Cunningham’s actions make the agreement ambiguous, any ambiguity is construed in favor of arbitration, and thus the Arbitration Agreement is "susceptible of an interpretation" that would include Woodroof’s claim regarding the services rendered by Cunningham under the Retainer Agreement.

 The court rejected the argument that the retainer agreement was a contract of adhesion and contentions that both parties should have been subject to contempt sanction.

One unusual participant in the litigation

Adam Raviv and Lauren N. Moore were on the brief for amicus curiae The Attorney/Client Arbitration Board of the District of Columbia Bar in response to the court’s April 20, 2015, order for the purpose of contesting the appealability of the Superior Court order compelling arbitration.

Hope my mandatory bar dues did not finance that effort, with which I disagree and which the court here rejected. Nice to know that the Bar took up the attorney's view against the client.

The opinion was authored by Associate Judge John Fisher. (Mike Frisch)

October 13, 2016 | Permalink | Comments (2)

A Call For Study Still Falls On Deaf Judicial Ears

The Wisconsin Supreme Court has ordered a 60-day suspension of an attorney who had defaulted in the bar disciplinary proceeding.

Judge Abrahamson concurred but raised a number of points, including

The third issue is one that I have raised numerous times. The OLR disciplinary system is about 15 years old. I repeat my numerous requests that the court review the lawyer disciplinary system and the Rules of Professional Conduct for Attorneys. The instant case presents issues that should be considered in such reviews. See, e.g., Rule Petition 14-06 (Abrahamson, J., concurring); and Rule Petition 15-01 (Abrahamson, J., dissenting); In re Disciplinary Proceedings Against Johns, 2014 WI 32, 353 Wis. 2d 746, 847 N.W.2d 179 (Abrahamson, C.J., dissenting); In re Disciplinary Proceedings Against Kratz, 2014 WI 31, 353 Wis. 2d 696, 851 N.W.2d 219 (Abrahamson, C.J., concurring; Prosser, J., concurring in part and dissenting in part).

 Judge Ann Walsh Bradley dissented and would order the attorney to make restitution to a client. (Mike Frisch)

October 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 12, 2016


A former Buffalo judge has been disbarred as a result of a felony bribery conviction.

The Buffalo News reported on the conviction and the judge's background

For the first time in 21 years, no one rose to their feet when John A. Michalek walked into a courtroom on Wednesday.

For the first time since he began serving as a State Supreme Court judge in 1995, Michalek’s role in the courtroom was as an admitted criminal, one who pleaded guilty to felony crimes of bribe-receiving and offering a false instrument for filing in a court case. Both of the crimes involved Michalek’s dealings with longtime political power broker G. Steven Pigeon.

Looking thin, pale, tired, dejected and broken, the 65-year-old Michalek told the court that he was resigning from his $193,000-a-year judgeship, and agreeing to cooperate as a witness in the ongoing probe into Pigeon’s political activities. He faces a possible prison term of up to seven years when he is sentenced on Sept. 21.

As a convicted felon, the former judge also will lose his right to practice as an attorney. It’s a painful fall from grace for a man who was selected as the Outstanding Jurist in 2005 by the Erie County Bar Association’s Matrimonial and Family Law Committee. And many of the people who knew and worked with Michalek over the years seem genuinely surprised.

“Would I ever have expected Judge Michalek to get into any kind of trouble? Absolutely not,” said former Erie County District Attorney Frank J. Clark, who worked with Michalek from 1977 to 1985. “John was a very conservative, very reserved, very careful guy … a public servant. I was extremely surprised to hear he was in any kind of trouble. It just doesn’t add up.”

Until now, many people in legal circles would say Michalek lived a charmed life. A State Supreme Court judgeship is one of the most coveted jobs for any lawyer in New York State. It is a 14-year position that, in addition to a salary far beyond that made by most lawyers, provides a generous pension and other benefits.

Michalek never had to run in a contested election for his judgeship. A registered Democrat, he was selected by political party leaders to be “cross-endorsed” by both Democrats and Republicans in 1994 and again in 2008.

Every judge has his or her critics, but legal experts say most of the lawyers who practiced in front of Michalek considered him to be fair, honest and hardworking.

“I’ve practiced in front of him a number of times over a period of 20 years. Even when he’s ruled against me, I’ve never seen a decision from him that seemed to be tainted by politics or anything else,” said Amherst lawyer Steven M. Cohen.

It is sad, said Cohen and several other Buffalo attorneys, that Michalek has become the second brother in his family to wind up in serious trouble with the law.

Not like his brother

His older brother, the late James J. Michalek, was a flashy guy – an attorney and investment scam artist who lived in an extravagant home in Orchard Park, wore a full-length fur coat, drove an expensive sports car and went to prison in the 1990s for cheating banks out of millions of dollars and dozens of senior citizens out of their retirement savings.

To most people in Buffalo’s legal community, John Michalek seemed to be cut from a much different cloth. He earned a reputation as an earnest, quietly efficient attorney who served as a top prosecutor in the Erie County district attorney’s office before political party leaders chose him to become a State Supreme Court judge in 1994. He began serving in 1995.

“John was not only embarrassed by the actions of his brother, he felt terrible about it,” said a close family friend of Michalek. “Some of Jim’s victims were old family friends, old neighbors and retired steelworkers … John wanted people to know that he wasn’t like that.”

“John and his brother Jim were such different personalities. Jim was flamboyant, a riverboat gambler,” Clark said. “John seemed to be a much different guy.”

The former judge grew up in a well respected family in Lackawanna. His late father, Leo Sr., was a physician. His late mother, Louise, was a nurse widely involved in charity and volunteer activities. The couple raised five children – three lawyers, a physician and a psychiatrist.

“I’ve known this family going back to the 1950s, and they were one of the most respected families in Lackawanna,” said former Erie County DA Edward C. Cosgrove, still practicing law at age 81. “They were good, solid people, deeply religious, hardworking, very good students.”

John Michalek graduated from St. Francis High School, Canisius College and the University at Albany Law School before he was hired by the district attorney’s office in 1977.  Cosgrove gave him his first job.

“John was a marvelous young man who worked very hard for us,” Cosgrove recalled.

A notorious client

In 1985, after serving four years as chief of the Justice Courts Bureau, Michalek left the DA’s office and established a Hamburg law firm with two partners, Daniel J. Henry and Robert M. Vallarini, who later would win election as an Erie County legislator. Michalek handled some criminal defense work with the law firm, and his most famous – or infamous – client was the late Richard W. Matt.

Michalek represented Matt in a number of criminal matters in the early 1990s. Matt jumped into the national headlines last summer when he and another inmate escaped from the Clinton Correctional Facility in Dannemora. After nearly three weeks on the run, Matt was shot and killed by police last June.

Michalek became active in Town of Hamburg politics, and he was named assistant town attorney in 1988. Hamburg political figures say Michalek was an invaluable aide to Vincent J. Sorrentino, who was the town attorney and also the chairman of the Erie County Democratic Party. After Hamburg’s town supervisor, Jack Quinn, was elected to Congress, Michalek was appointed to take his place as interim supervisor for the year of 1993.

In 1994 – with a big push from Sorrentino – Michalek was selected by party leaders to get both the Democratic and Republican Party endorsements for State Supreme Court judge. With no actual competition, he won election for his first 14-year term in November 1994.

He has not been a controversial figure as a judge, but has handled some high-profile cases. In a 2012 ruling, he awarded more than $2.7 million – or more than $230,000 each – to 12 white Buffalo firefighters who alleged they were passed over for promotions because of their race. City officials vehemently disagreed with the ruling, which was later overturned by an appeals court.

In April of this year, Michalek made a ruling that barred former Buffalo School Board James M. Sampson from the ballot for this year’s election. Michalek agreed with opponents of Sampson who said he did not have enough legitimate signatures on his nominating petition.

One local attorney, Arthur Giacalone, said he had a bad experience with Michalek and felt he treated him and his client unfairly during a 2014 trial. But most attorneys and court officials interviewed by The News in recent weeks said Michalek had a solid reputation.

Allegations shock peers

“I always considered him to be a decent guy, hardworking and diligent,” said one former colleague, Salvatore R. Martoche, a former state appellate judge now in private practice. “I honestly can’t say anything negative about him because I don’t know anything bad about him.”

“I practiced before him on several different lawsuits, and I thought he was fair and very careful,” said Cosgrove, Michalek’s former boss. “As far as I am concerned, his past and present reputations are marvelous. I don’t know of anything contrary to that. I’d have to understand every part of what happened before I made any judgments on him.”

Acting Erie County District Attorney Michael J. Flaherty Jr. was not involved in the Michalek probe, but he held a press conference after Wednesday’s court session to talk about the importance of prosecuting judges and other government officials who violate the public trust.

Flaherty called Michalek’s case “a sad and intolerable ... disheartening” situation.

[Investigators zero in on email exchanges between Pigeon and Michalek]

The acting DA said he cannot recall another instance of a State Supreme Court judge in Western New York being accused or convicted of bribery-related charges.

A tall man who enjoyed playing pickup basketball with local attorneys, Michalek is described by friends as a devoted husband and father who has donated his time to St. Francis High School and other charitable and not-for-profit organizations.

One longtime Hamburg politician, who spoke on the condition that he or she would not be identified, expressed shock after learning of Michalek’s close relationship with a controversial political power broker like Pigeon.

“Knowing John as I do, I cannot fathom him doing anything illegal,” said the politician, a friend of Michalek’s for more than three decades. “I’ve known unsavory people in politics, but I can’t imagine John being one of them.”

When asked if he ever imagined that Michalek would take bribes or do anything else that was illegal, Cosgrove exclaimed: “Goodness, gracious no!”



The order was entered by the New York Appellate Division for the Fourth Judicial Department. (Mike Frisch)

October 12, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Attorney Disbarment Proposed: Did Not Misappropriate Mucho Dinero

The California State Bar Court Review Department has recommended disbarment in a case involving misappropriation

Three men—David Benullo, David Goldstein, and David Klawans—retained Kaplan to represent them as their attorney in the sale of a movie script entitled Mucho Dinero to Blake Freeman, a producer. Benullo initially contacted Kaplan about retaining him by sending an email with the subject line "lawyer for a deal." On December 29, 2011, Goldstein emailed Benullo, inquiring whether Kaplan was acting as a lawyer or manager in the sale of the script. Benullo replied: "[S]teve’s the lawyer who came in to deal with this for us." Kaplan was copied on this email. Shortly thereafter, on January 10, 2012, Benullo, Goldstein, and Klawans entered into a written Deal Memorandum with Kaplan that stated Kaplan would be paid for "professional services in negotiating and drafting the terms of the purchase of the Script by Producer [Freeman]."

In June 2012, the parties agreed on a sales price of $90,000 for the script. The three men agreed to split the proceeds as follows: 42.5 percent each to Benullo and Goldstein and 15 percent to Klawans. Freeman paid the sales proceeds to Kaplan in two installments: $65,000 on August 1, 2012, and $25,000 on September 6, 2012. Kaplan did not deposit the money in his CTA. Instead, he placed it in a Wells Fargo Bank checking account, which he used for his movie production company, Rainstorm Entertainment, Inc. (Rainstorm Account).

Under the Deal Memorandum, Kaplan would be paid 10 percent of Benullo’s share of the sales proceeds and 7.5 percent each of Goldstein’s and Klawans’s shares—$7,706.20 of the $90,000. When Kaplan received the $65,000 payment, he properly withheld $5,565.58 as his fee and paid Benullo, Goldstein, and Klawans their respective shares of the remaining $59,434.42, including $25,553 to Goldstein. When Kaplan received the $25,000 payment on September 6, 2012, he properly withheld $2,140.62 as his fee. He stipulated that he paid Benullo and Klawans their shares of the remaining $22,859.38 but failed to pay Goldstein his share, which was $9,828.25.

The $9,828.25 was misappropriated. 

The Review Department rejected the contention that the conduct was not intentional.

The attorney has no record of prior discipline. (Mike Frisch)

October 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ten Years After (And Not A Rock Act)

Further proof of the systemic dysfunction of the District of Columbia bar disciplinary system is on display with the filing of a hearing committee report in the case of In re Michael Avery

Disciplinary Counsel  charged Respondent, Michael L. Avery, with violating D.C. Rules of Professional Conduct (“Rules”) 1.1(a) (competence), 1.1(b) (skill and care), 1.2(a) (abiding by client’s decisions), 1.3(a) (diligence and zeal), 1.3(c) (duty of reasonable promptness), 1.4(a) (keeping client reasonably informed), 1.4(b) (explaining matters to a client), 1.4(c) (failure to promptly notify client of settlement offer), 1.5(c) (contingency fee requirements), 1.15(b) (failure to promptly notify client of receipt and to deliver settlement funds), and 8.4(d) (conduct that seriously interferes with the administration of justice). The charges stem from Respondent’s acceptance of a client representation in a personal injury matter, and delegation of responsibility for that matter to an unsupervised paralegal, who accepted a settlement offer without the client’s authorization.

The Hearing Committee finds clear and convincing evidence to support each of the alleged violations of the disciplinary rules, with the exception of Rules 1.5(c), 1.15(b), and 8.4(d).  Based on these violations, and the factors in aggravation established by Disciplinary Counsel, we recommend the sanction of a 45-day suspension, and that, as a condition of reinstatement, Respondent must undergo an assessment by the D.C. Bar’s Assistant Director, Practice Management Advisory Services, or his designee, (and sign a limited waiver permitting that program to confirm compliance with this condition and cooperation with the assessment process), and must agree to implement the recommended changes to his office practices and procedures.

So far so good.

The date that the Office of Bar (now Disciplinary) Counsel received the client's complaint: September 25, 2006.

Charges filed: December 29, 2011.*

Given that date, I know well the end-of-the-year pressure to move this Golden Oldie.

Hearing held: March 28 and April 19, 2012.

Hearing Committee report filed: October 12, 2016.

So, five years to investigate and four and a half years to decide a absolutely routine client complaint.

And still no action until after Board on Professional Responsibility and Court of Appeals review.

Wish someone cared even a little bit. (Mike Frisch)

* I do not know this for a fact but the charges may well have sat unreviewed at the Board office for a period of time. That delay would be attributable to the Office of the Executive Attorney rather than Bar Counsel. Such delays of a year or more were not uncommon at the time.

October 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Torture Logic

The Law Society of Upper Canada case linked below (and here) has another aspect - the accused attorney contends that he was tortured!

Mr. Sumner says that Mr. Kochis engaged in torture when he used his position of authority to coerce or extort him into signing the Waiver of his rights to a civil remedy against his former roommate. Mr. Sumner argues that the communications he seeks to exclude were derivative to the torture under which he signed the Waiver and are covered by the principles on exclusion of evidence obtained by torture.

The Society opposed the granting of the motion on the basis that the evidence did not support the conclusion that Mr. Sumner was tortured or that the communications it seeks to rely on in this application were obtained as the result of torture or were derivative of the torture...

 Mr. Sumner argues that Mr. Kochis, by virtue of his position as the assistant district attorney responsible for responding to Mr. Sumner’s application for a Declaration of Factual Innocence, was a person in a position of authority. Mr. Sumner argues that, by withholding his consent or non-opposition to the grant of the Declaration, Mr. Kochis used his position to coerce or extort Mr. Sumner into signing the Waiver. Mr. Sumner says he signed the Waiver out of fear that the state would otherwise oppose the grant of a Declaration of Factual Innocence and out of fear for damage to his reputation if it was not granted.

In order to find that there was torture at the hands of a public official, there must be evidence of intentional infliction of pain and suffering. There is no evidence on which we can find that Mr. Kochis intended harm to Mr. Sumner.

Mr. Sumner acknowledges that the Law Society is not seeking to rely on the Waiver but argues that the communications the Law Society seeks to admit are derivative to the torture that coerced his signature on the Waiver. In order for evidence to be derivative, there must be some plausible connection between the event deemed to be torture and the evidence.

The facts do not support such a connection. There is no temporal connection between the original incident and the communications that the Society wishes to introduce. The alleged torture occurred in 2009, while the communications by Mr. Sumner were made starting in 2012 and continuing to the present.

There is also no causal or other connection between the original incident and the communications. There is no evidence that Mr. Sumner was subsequently forced to write emails or make the phone calls or any of the communications as a result of signing the Waiver.

The Society seeks to introduce these communications as evidence that Mr. Sumner has engaged in conduct unbecoming a lawyer. There is no evidence that Mr. Sumner was coerced, extorted or forced to author these documents, so as to require them to be excluded.

Another failed argument

Mr. Sumner’s last motion was brought on the basis that the Society's motion for a partial electronic hearing made it an accessory to the behaviour of Mr. Kochis, such that the application should be stayed. The motion was dismissed.

Mr. Sumner argued that, in bringing its motion to have Mr. Kochis testify electronically, the Society is interfering with Mr. Sumner's legal right to arrest Mr. Kochis.

The Criminal Code defines an accessory as:

23 (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.

Mr. Sumner's intent was to arrest Mr. Kochis in Toronto if he attended to give evidence in this proceeding. The Law Society has no obligation to facilitate that arrest nor does it have any legal right to require Mr. Kochis to attend to testify in person. There is no evidence that, in bringing its motion, the Law Society is “receiving, comforting or assisting” Mr. Kochis in escaping arrest.

There is also no evidence that any of the Society’s investigators, the Proceedings Authorization Committee, or the Society’s counsel have the required intent to enable Mr. Kochis to escape after having committed an offence.

(Mike Frisch)

October 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Electronic Testimony Allowed In Canadian Bar Prosecution: Attorney Allegedly Threatened California Prosecutors

A Tribunal Hearing Division of the Law Society of Upper Canada has granted a motion to allow bar witnesses to testify by electronic means.

The Law Society brought a motion for an order permitting it to call the evidence of three witnesses, Mr. Kochis, Mr. Hernandez and Mr. Laing, by electronic means. All three reside in California and are recipients of communications that, in this application, the Law Society alleges are threatening and harassing. Mr. Kochis was the Chief Deputy District Attorney of San Bernardino County in California at the relevant time. Mr. Hernandez was the Deputy Trial Counsel, Office of the Chief Trial Counsel for the State Bar of California. Mr. Laing is an investigator with the San Bernardino County Sheriff's Office.

The Law Society's motion is granted. Allowing the California witnesses to testify electronically is efficient, convenient and cost-effective. There will be no negative impact on the fairness of the proceeding.

The order being sought is justified on the basis of convenience and cost and time-effectiveness. The Law Society will incur significant costs if it must organize and pay for flights and accommodations for three witnesses from California. Further, scheduling and attendance will be facilitated if the witnesses need only be available electronically for the duration of their testimony. There is no basis to conclude that their evidence, as we understand it, is unsuitable for presentation by electronic means. They will be identifying and providing context for the communications at issue.

The context

The application against Mr. Sumner arises out of a series of events that took place in California where he was practising law. The events are summarized here but are described in greater detail in Law Society of Upper Canada v. Sumner, 2016 ONLSTH 66 (CanLII), in which a different panel granted the Law Society's motion for an order suspending Mr. Sumner on an interlocutory basis.

In late 2007, on the strength of his roommate's private arrest, the Montclair, California police department arrested Mr. Sumner for battery and vandalism. The charges were dismissed in early 2008. In late 2009, Mr. Sumner petitioned for a Declaration of Factual Innocence (the Declaration) from the Superior Court of the State of California. After Mr. Sumner signed a waiver of his civil rights against his former roommate (the Waiver) the District Attorney, Mr. Kochis, indicated the State did not oppose the granting of the Declaration.

At some later point, Mr. Sumner concluded that Mr. Kochis had filed the criminal charges against him without cause and had improperly required him to release his claim against his former roommate as a condition of not opposing the Declaration.

Mr. Sumner alleges that he has suffered significant harm as a result of being coerced into signing the Waiver. He says that Mr. Kochis has committed a number of criminal acts in the context of requiring the Waiver, including that he (Mr. Kochis) solicited a bribe, engaged in extortion, and conspired with others to do both. Mr. Sumner says that, as a result of these actions, he is entitled under California law to make a citizen's arrest of Mr. Kochis and to require others to assist him in so doing.

 Mr. Sumner threatened to arrest Mr. Kochis and use all necessary force to do so. His threats were by verbal and written communications and were numerous and public. Mr. Sumner made these threats to Mr. Kochis, and to others in positions of authority including Mr. Laing and Mr. Hernandez.

 Email examples

When I go to California next I will arrest. If you [Chief Deputy District Attorney John Kochis] resist, I will kill you [in] accordance with the law!!! You are a criminal and a piece of shit!!!! You should DIE!!!!!

Because you are a supporter of tyranny, you have little to no right to life. I can use violence in the street to rid the world of a tyrant you fucking piece of shit!!

 You are a tyrant and I encourage anybody to blow a hole through your head and rid this world of a gangster and a piece of garbage.


Hi I would like to file a complaint about a criminal enterprise.

 … the San Bernardino District Attorney's Office engages in a pattern of threatening criminal defendants with prosecutions unless they pay money to a charity or other organization. They have probably done this [to] over 10,000 people they're probably one of the biggest criminal enterprises of United States of America. I have lots of evidence if you want it …

 OK well then John Kochis, Chief of the San Bernardino District Attourney's [sic] office is under arrest and if he so much as moves a muscle I'll blow a fucking hole through his brain ok. That man is fucking guilty right he's under arrest, bang mother fucker, bang bang bang bang bang mother fucker.

he's fucking dead. That fucking ... [unintelligible] ... Fucking dead that fucking piece of shit mother fucker is under arrest, you understand me? He's fucking under arrest and you are too if you think ... [Unintelligible] ... you have to arrest that mother fucker he's a fucking gangster ... [unintelligible] ... he's under arrest.

(Mike Frisch)

October 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, October 11, 2016

Bound To Arbitrate

An attorney must submit to arbitration of a dispute with Holland & Knight, according to a decision of the New York Appellate Division for the First Judicial Department

The motion court correctly found that, although plaintiff had not signed the partnership agreement containing the arbitration provision, he had assumed the duty to arbitrate by annually agreeing to be bound by the partnership agreement and by repeatedly invoking the dispute resolution provision in the partnership agreement (see Thomson-CSF, S.A. v American Arbitration Assn., 64 F3d 773, 777 [2d Cir 1995]).

The court also correctly found that the dispute was governed by the arbitration provision.

Renewal was properly denied, as no waiver of the right to arbitrate was effected by defendant's application for a preliminary injunction in aid of arbitration and the accompanying assertion of counterclaims, with no further litigation activity (see Cusimano v Schnurr, 26 NY3d 391, 400 [2015]; LaRosa v Arbusman, 74 AD3d 601, 604 [1st Dept 2010]). Notably, defendant demonstrated a clear intent to continue the arbitration process by seeking mediation of the counterclaims under the dispute resolution provision of the partnership agreement.

.(Mike Frisch)

October 11, 2016 | Permalink | Comments (0)

Short Suspension Proposed For "Dishonest Conversion"

An Illinois Hearing Board has recommended a five month suspension of an attorney for what it characterized as "dishonest conversion"

Respondent failed to hold the escrow funds separate from his own property and converted the funds to his own use by overdrawing his personal account and repeatedly allowing the balance to fall below the escrow amount. Respondent also engaged in dishonest conduct by knowingly using the tax escrow funds for his own purposes. The Hearing Board rejected Respondent's claim that he did not know the $2,500 he received at the real estate closing represented the real estate tax escrow funds and never agreed to hold the escrow.

Significant aggravation was established, including Respondent's extreme delay in paying restitution, his own precarious financial situation, his failure to accept responsibility or show remorse, and his failure to fully cooperate in the disciplinary proceedings. There was minimal mitigation. The Hearing Board recommended that Respondent be suspended for five months and be required to complete the ARDC Professionalism Seminar.


After reviewing relevant precedent and considering the facts in this case, we conclude that a suspension for five months is appropriate and will satisfy the purposes of the disciplinary process. This sanction is within the range of discipline imposed in the cases noted above involving the dishonest conversion of comparable sums. We also believe it takes into account the significant aggravation as well as the lack of any compelling mitigation. In addition, we believe based on the record Respondent would also benefit from additional instruction regarding his ethical obligations. Therefore, we recommend Respondent also be required to complete the ARDC Professionalism Seminar as part of his discipline.

I guess I am not sufficiently schooled in disciplinary sanctions in Illinois as I was unaware that a short suspension with automatic reinstatement was the normative sanction for dishonest conversion with significant aggravation. (Mike Frisch)

October 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, October 10, 2016

[No] Thanks For [Time] Sharing

The Virginia State Bar Disciplinary Board has suspended an attorney convicted of felony offenses in federal court.

Virginia Gazette reported on the charges

The trial against a Williamsburg attorney accused in a $1.3 million timeshare scheme is set for September, according to documents filed this week in U.S. District Court for the Eastern District of Virginia.

Deborah M. Wagner, the 43-year-old co-owner of Wagner & Hyman on Jamestown Road, is charged with fraud, four counts of mail fraud, three counts of wire fraud and three counts of aggravated identity fraud in connection with a timeshare scheme that targeted resorts and timeshare owners from 2009 to 2013, according to a Department of Justice news release.

Wagner faces up to 22 years in prison for the crimes, the news release states.

Wagner is accused of keeping transfer fees after mailing and wiring timeshare transfers from the original owners to stolen identities and unnamed owners, also known as straw owners, according to court documents. had the story of her recent guilty plea as did the Daily Press. (Mike Frisch)

October 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Drives Drunk To Courthouse And Makes Sexual Advances On Court Receptionist

The Indiana Supreme Court has imposed a one-year suspension with all but 90 days stayed

On September 8, 2014, Respondent, who practices in Jackson County, drove while intoxicated to the Shelby County Courthouse for a scheduled small claims hearing. Upon arriving at Superior Court 2, Respondent made repeated physical sexual advances on the court’s receptionist. The judge and a security officer were summoned, a breath test was administered to Respondent, and the results indicated an alcohol concentration equivalent (“ACE”) of 0.15. The judge immediately convened a contempt hearing, during which Respondent had to lean on the rail in front of the bench to steady himself. Respondent was found in direct contempt and ordered jailed until his ACE returned to zero. As a result of these events, the small claims hearing for which Respondent had appeared had to be continued for another date and all other hearings scheduled in the court that day were delayed at least an hour. Respondent was charged with several crimes in connection with this incident and eventually pled guilty to operating while intoxicated (“OWI”) as a class A misdemeanor.

The attorney will be on probation for "at least" two years after serving the active suspension.

The Shelbyville News reported on the situation.

A report from the Shelby County Sheriff's Department stated that [Judge] Riggins found Robertson in contempt of court and Riggins requested Robertson be tested for alcohol. The report stated Robertson also acted inappropriately with a staff member by touching her inappropriately three times.

Robertson tested a .154 blood alcohol content on a breath test and failed several field sobriety tests.

"Robertson advised that (he) had been drinking on Monday, Sept. 8, 2014. Robertson stated that he had started drinking vodka at approximately 9 a.m. and drank about a pint of it. Robertson said he stopped drinking at approximately 11 a.m. Robertson said that sometime between 11:30 and 12 p.m., he left to come to Shelbyville for a court hearing," the report states.

(Mike Frisch)

October 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sex Offenses Lead To Two Disbarments

The Massachusetts Supreme Judicial Court has disbarred an attorney convicted of criminal offenses and disbarred in New Hampshire.

From the summary on the web page of the Board of Bar Overseers

On May 23, 2013, Lisa A. Biron, who was admitted to the bar of the Commonwealth on December 8, 2008, was found guilty by a jury in the United States District Court for the District of New Hampshire on one count of transportation with intent to engage in criminal sexual activity (18 U.S.C. §§2423(a), and 2427), six counts of sexual exploitation of children (18 U.S.C. §§2251(a) and 2256) and one count of possession of child pornography (18 U.S.C. §§2252A(a)(5)(B)). The conviction resulted from the respondent’s conduct in bringing a minor to Canada to engage in sexual activity for the production of child pornography and six instances of causing sexually explicit conduct by a minor for the purpose of producing a video depiction of the conduct. The respondent was sentenced to forty years of imprisonment, to be followed by supervised release for life.

On October 17, 2013, the respondent was temporarily suspended from the Massachusetts bar as a result of the New Hampshire conviction. She timely filed an affidavit of compliance. Further proceedings were stayed pending the conclusion of the respondent’s appeal of her conviction. In November of 2014, the respondent’s conviction was affirmed by the First Circuit, and in March of 2015, the respondent’s petition for certiorari was denied by the United States Supreme Court.

On May 28, 2015, the New Hampshire Supreme Court entered an order disbarring the respondent as a result of the conviction. On December 22, 2015, bar counsel filed a petition for reciprocal discipline with the Supreme Judicial Court for Suffolk County based upon the respondent’s disbarment in New Hampshire. After a telephone hearing, the Court (Botsford, J.) on June 10, 2016, entered a judgment of disbarment, retroactive to the date of the respondent’s temporary suspension, with the condition that the respondent’s reinstatement to the Massachusetts bar shall be conditioned upon her reinstatement in New Hampshire.

Salon reported on the criminal case

A New Hampshire lawyer who works with a virulently anti-gay Christian-right organization has been found guilty of child pornography charges after videotaping her own daughter having sex with two men on multiple occasions.

(Mike Frisch)

October 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Th[e] Type Of Shenanigan That Judicial Estoppel Cuts Off At The Knees" But With A Dissent

The West Virginia Supreme Court of Appeals denied a writ of prohibition brought by a criminal defendant to prevent disclosure of a report prepared at the behest of the defendant and her counsel.

The limited record in this proceeding indicates that the Petitioner was charged...with two counts of child neglect creating a risk of injury, and two counts of child neglect causing injury.  In September of 2015, the Petitioner pled guilty to all the charges. Prior to the scheduled sentencing hearing, a psychological evaluation and risk assessment was arranged for the Petitioner by defense counsel. To facilitate the psychological assessment, the Petitioner wanted the psychologist to review the medical records of her two children, which had been generated during a prior child abuse and neglect proceeding. The Petitioner also wanted to have her attorney discuss with the psychologist the specifics of her case and other confidential information that involved the victims...

The Petitioner underwent the psychological assessment. After the Petitioner had the psychological assessment done, she refused to disclose the report to the trial court and State. A hearing was held over the Petitioner’s refusal to disclose the psychological report. At the end of the hearing, the trial court ordered the Petitioner to disclose the report to the State and court. The Petitioner thereafter filed this proceeding to prevent enforcement of the disclosure order.

The court majority was sharply critical of defense counsel

In this proceeding the Petitioner contends that disclosure of her psychological report would violate the attorney-client privilege and work product doctrine. Assuming, without deciding, that the attorney-client privilege and work product doctrine would prevent disclosure of the psychological report, we find that the doctrine of judicial estoppel prevents the application of those doctrines...

After obtaining a favorable ruling from the trial court allowing disclosure of confidential information to the psychologist, in exchange for a specific promise to turn over the psychological report for sentencing purposes, the Petitioner now asserts for the first time that the psychological report is protected from disclosure by the attorney-client privilege and the work product doctrine. We are gravely concerned by the Petitioner’s blatant attempt to insult the integrity of the judicial process by pretending that her promise to the court did not exist. It is precisely this type of shenanigan that judicial estoppel cuts off at the knees. “The doctrine estops a party from playing ‘fast-and-loose’ with the courts or to trifle with the proceedings.”

...The Petitioner came to the trial court with a promise to disclose the psychological report to the court, if the court allowed the Petitioner to reveal certain information to the psychologist. In making this promise to the court, the Petitioner implicitly waived any attorney-client privilege and work product protections the psychological report may have had. However, now that the report has been generated, the Petitioner has changed her mind about disclosure and is seeking the protection of those privilege doctrines. We will not allow this.

Justice Benjamin dissented

The criminal defense bar ought to be able to confidently develop expert services and opinions on behalf of their clients for sentencing purposes without fear that the information thereby derived, if proved harmful instead of useful, will fall into the hands of the prosecution. The adversary process and its attendant safeguards, including time-honored privileges and the work-product doctrine, does not cease to exist once a criminal defendant has pleaded guilty or is found to be so. Unfortunately, the majority’s well-intentioned efforts in this instance to improve the flow of relevant information to the circuit court will, in the longer term, perversely and inevitably impede the truth-seeking function of sentencing proceedings and render them less accurate by chilling the efforts of criminal defense lawyers to effectively advocate for their clients.

(Mike Frisch)

October 10, 2016 in Clients, Privilege | Permalink | Comments (0)

Suspension Proposed For Misrepresentations In Workers' Comp Matter

An attorney's third brush with bar discipline merits an 18-month suspension, according to a recent recommendation by the California State Bar Court Review Department. 

The problems started in a personal bankruptcy

In December 2003, Hansen made misrepresentations to the United States Bankruptcy Court in a Chapter 7 bankruptcy petition that she and her husband jointly filed concerning the number and amount of encumbrances on her residence. In February 2004, Hansen also altered and then recorded a deed of trust so that it misstated the amount of the loan it secured. Inexplicably, OCTC did not file an NDC in Hansen I until October 28, 2010. On July 27, 2011, the Supreme Court ordered, inter alia, that Hansen be actually suspended for 30 days and placed on probation for two years as the result of a stipulation to one count of misconduct for gross negligence in committing acts of moral turpitude. No aggravating circumstances were involved. In mitigation, Hansen had no prior record of discipline, cooperated with the State Bar, and provided one good character letter and one letter describing her membership in a non-profit organization.

The probation did not go well

Between approximately September 2011 and May 2012, Hansen failed to comply with several probation conditions from Hansen I, including failing to participate in a scheduled telephonic Office of Probation meeting, provide proof of completion of six hours of MCLE-approved courses, and timely submit a quarterly report. In aggravation, Hansen had one prior record of discipline, engaged in multiple acts of misconduct, and failed to participate in the probation revocation proceeding. No mitigating factors were established. On September 25, 2012, the Supreme Court ordered Hansen’s probation revoked, and further ordered that she be actually suspended for one year and placed on probation for two years, subject to conditions.

Here the attorney made misleading statements to the Workers' Compensation Appeals Board

The WCAB imposed sanctions against Hansen and three other attorneys from her law firm after concluding that they had intentionally misled the Board, causing it to take unwarranted action...

We acknowledge that the 18-month actual suspension recommended by the hearing judge is at the severe end of the disciplinary continuum as developed in the decisional law, and it constitutes significant discipline. But we adopt her recommendation based on the totality of Hansen’s misconduct, which would justify an 18-month suspension had all of the misconduct been brought as one case. (In the Matter of Sklar, supra, 2 Cal. State Bar Ct. Rptr. at p. 619.) Indeed, Hansen’s misconduct in her three cases spans more than eight years and involves repeated probation violations and two instances of moral turpitude for making misrepresentations to separate judicial tribunals. Notably, Hansen made the misrepresentations to better her own personal position. And in the instant case, the deceptions to the WCAB occurred over many months, even after the Board warned Hansen that she was wading into deep ethical waters and facing possible sanctions. Yet she pressed on, essentially doubling down on her efforts to justify her conduct. Her presentation of half-truths and concealment of material facts significantly and adversely impacted the administration of justice. Furthermore, all of the misconduct was directly related to her practice of law before the WCAB.

(Mike Frisch) 


October 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 7, 2016

Dues Oversight In New Jersey Leads To Reprimand

Helping a friend with a couple of phone calls and letters was sanctionable as unauthorized practice of law for an attorney whose New Jersey license had been administratively suspended. 

The New Jersey Supreme Court has reprimanded the attorney for misconduct set forth in the decision of the Disciplinary Review Board

Respondent was admitted to the New Jersey and New York bars in 1991. She is currently engaged in the practice of law, as inhouse counsel to KPMG, in New York City. She has no disciplinary history in New Jersey.

In 1991, respondent was admitted to the New York and New Jersey bars and began her legal career as an associate at Cahill Gordon & Reindel LLP (Cahill), in New York City. In 1993 or 1994, respondent left Cahill for an in-house counsel position at Scholastic, Inc., also in New York City (Scholastic). In 1997, respondent left Scholastic for her current position, in-house counsel to KPMG, again, in New York City. Respondent does not maintain a private practice.

While employed by Cahill, respondent was unaware of the required annual assessment to the New Jersey Lawyers’ Fund for Client Protection (CPF). In 1993, respondent became ineligible to practice law for failure to pay the annual assessment to the CPF.  Respondent claimed that, upon leaving Cahill for Scholastic, she received no information from either Cahill or the CPF regarding her annual assessment obligations.  Respondent also asserted that, during her employment with Scholastic and KPMG, she received neither correspondence from the CPF nor information from her employers’ human resources departments about the annual assessment. She explained that, as a result, she remained unaware of her CPF obligation.

She was administratively suspended in 2005.


More than eight years later, on October 28, 2013, on behalf of her friend, who owned Esperanza Salon (Esperanza) in Summit, New Jersey, respondent drafted and sent a letter to Tara Galatt, the owner of a competitor salon "down the street" from Esperanza. The letter demanded that Galatt cease and desist from employing Stephanie Wright, a former employee of Esperanza, who, prior to her termination, had executed an employment contract that contained a one-year non-compete clause with an eight-mile radius. The letter stated that Galatt’s failure to end Wright’s employment "shall result in Esperanza Salon seeking a restraining order against Ms. Wright and your organization for breach of contract and seeking monetary damages."

Galatt's counsel discovered the problem

Upon learning that her license had been revoked, respondent contacted the owner of Esperanza and informed her that she could no longer assist her with her legal troubles. Respondent admitted that she had drafted and sent the two letters and had the two telephone conversations with Matthews, all on behalf of Esperanza. She filed no pleadings, made no court appearances, and charged no fee for her services.


In this case, the DEC found credible respondent’s testimony that she had no knowledge of the revocation of her license. Upon a review of the record, and in light of the panel’s opportunity to observe and question respondent during the hearing, we accept the DEC’s credibility determination on this issue. As set forth above, the DEC found multiple mitigating factors and determined that, under the reasoning of Torellas, a censure was the proper sanction to impose.

Although we accept the DEC’s credibility assessment, as well as its findings in mitigation, we are troubled that respondent made no effort, for over fourteen years, to ensure her compliance with CPF obligations, and no effort, for over twenty years, to verify her status as a New Jersey attorney. Nevertheless, respondent’s misconduct was limited to two letters and two telephone calls, and was motivated by her desire to help a friend. Moreover, respondent genuinely believed she was still a member of the New Jersey bar, as evidenced by her efforts to satisfy her CLE obligations. When respondent learned that her New Jersey law license had been administratively revoked, she immediately ceased her improper representation of Esperanz.

The court barred the attorney from future pro hac vice admission until further court order. (Mike Frisch)

October 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ad for Louisiana US Senate Race Takes a Right-Hand Turn You Don't See Coming

I saw a TV ad yesterday in our local U.S. Senate race that made me do a literal double-take. I recognize this blog is not really for politics, so please forgive me for deflecting from another Ohio discipline case involving exotic dancers (wait--maybe that does relate to our senate race in some way). I should qualify it by noting that this candidate is not the worst we have on our local airwaves right now, just the one with an ad I feel like sharing. I'm not posting the ones where other candidates essentially fight over how much they hate the President and who is impeaching the IRS Commissioner. And even they are better than candidate David Duke, if you recognize the name (some people forget). Anyway, it's the ad (currently) at the top labeled "...Conservative for Louisiana." Don't be afraid that by clicking on his site you'd be supporting his candidacy in some The Google way. I assure you he's not at all as bad as many of the 16 others.

In other political info I want to share, my son Steven works for a tech company that (inter alia) runs a tracking poll for the U.S. Presidential race (in a project with The Times Picayune newspaper). It's actually pretty amazing what their methodology is. New results tend to show up at noon central each day. I click on it a lot. I am suffering pre-PTSD for the election.

(Alan Childress) 

October 7, 2016 in Television | Permalink | Comments (0)