Thursday, October 12, 2017
Another misconduct unrelated to the practice of law case drew a recommendation for a two-year suspension with six months stayed on conditions from the Ohio Board of Professional Conduct.
The attorney was in a car with another attorney. They were both intoxicated.
The driver was in a one-car accident.
They were walking away from the scene when the police arrived, admitted that they were both in the car but falsely claimed that they had allowed an "unknown black male" that they had met at the Train Station bar to drive them.
The attorney gave false statements to the police supporting the driver's story. He did so out of a romantic interest in the driver. He pled no contest to criminal charges as a result.
In a second incident, he was driving drunk with her in the car and pled no contest to OVI charges.
The board considered his alcoholism in the proposed sanction.
Sadly, the Gazette reported the death of the other attorney. (Mike Frisch)
The web page of the Ohio Supreme Court notes that seven reports in disciplinary cases have been filed with the court.
One case from the Board on Professional Conduct involves an unusual incident of road rage between an attorney and a bicyclist, referred to as The Bicycle Incident in the report.
The attorney apparently concluded that the bicyclist had impacted with his automobile. He tailgated and the pulled in front of the bicyclist, suddenly hit the brakes and caused a collision as a result.
The incident attracted the attention the attention of two witnesses. One was a medical doctor who stopped and started videotaping the attorney's in-your-face post-collision behavior toward the cyclist. The attorney moved his car, returned on foot, and began an altercation with the doctor.
The second witness tried to break it up. The doctor's video device fell to the ground and was stomped on by the attorney.
Criminal charges led to a no contest plea to misdemeanor criminal damaging and a 90-day stayed jail sentence.
The doctor sued the attorney and settled for $5,000.
The attorney was alleged to have failed to cooperate in the bar investigation but had been hospitalized as a result of an accident on the Ohio Turnpike. The board found insufficient evidence of the charge.
The attorney was found to have falsely described The Bicycle Incident in the civil litigation and the bar proceedings.
The board recommends a two-year suspension with one year stayed on conditions. (Mike Frisch)
Wednesday, October 11, 2017
The New York Appellate Division for the Second Judicial Department affirmed the grant of a motion to vacate default of the defendant in a legal malpractice case
The plaintiffs commenced this action against their former attorney alleging legal malpractice, fraud, and breach of fiduciary duty. The plaintiffs alleged that the defendant, who represented them in the purchase of their home, committed malpractice by, among other things, failing to determine that the home had no access to a public road and was therefore landlocked. The defendant failed to answer the complaint, and the plaintiffs moved for leave to enter a default judgment. The Supreme Court granted the motion and, following an inquest, entered a judgment against the defendant in the total sum of $1,372,458.52, which represented the sum of the purchase price of the house and the cost of improvements the plaintiffs had made after the purchase, plus interest and costs. The defendant moved to vacate the judgment entered upon his default and for leave to serve a late answer, arguing that he had a reasonable excuse for his default and a potentially meritorious defense. The court granted the motion, and the plaintiffs appeal.
Here, the defendant demonstrated a reasonable excuse for his default through the affidavit of his treating psychologist, which established that his default was due to diagnosed psychological conditions that rendered him unable to defend himself in this action at the relevant time. He also demonstrated a potentially meritorious defense to the complaint by, inter alia, submitting evidence that the property was not and had never been landlocked. In light of the defendant’s showing and the strong policy favoring adjudication of cases on the merits, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate his default and for leave to serve a late answer.
The New York Appellate Division for the Second Judicial Department affirmed the dismissal of a student's claims against St. Johns Law.
In 2014, the petitioner was a law student at St. John’s University (hereinafter the University). Based on a finding of non-academic misconduct, the University suspended the petitioner from its law school for two academic semesters, beginning with the fall 2014 semester, and also placed him on disciplinary probation. Thereafter, the petitioner commenced this CPLR article 78 proceeding to review the University’s determination. The Supreme Court, in effect, denied the petition and dismissed the proceeding. The petitioner appeals.
Contrary to the respondents’ contention, the expiration of the petitioner’s period of suspension does not render the petitioner’s appeal academic, because the University’s determination still imposes significant enduring consequences upon the petitioner (see Veronica P. v Radcliff A., 24 NY3d 668, 671).
“Courts have a ‘restricted role’ in reviewing determinations of colleges and universities” (Matter of Powers v St. John’s Univ. Sch. of Law, 25 NY3d 210, 216, quoting Maas v Cornell Univ., 94 NY2d 87, 92). “A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules or imposes a penalty so excessive that it shocks one’s sense of fairness” (Matter of Powers v St. John’s Univ. Sch. of Law, 25 NY3d at 216 [citation omitted]; see Matter of Harris v Trustees of Columbia Univ. in City of N.Y., 62 NY2d 956, 959, revg for reasons stated in dissenting op of Kassal, J., 98 AD2d 58, 67-73; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234).
Moreover, a student subject to disciplinary action at a private university is not entitled to the “‘full panoply of due process rights’” (Matter of Kickertz v New York Univ., 25 NY3d 942, 944, quoting Matter of Ebert v Yeshiva Univ., 28 AD3d 315, 315). “Such an institution need only ensure that its published rules are ‘substantially observed’” (Matter of Kickertz v New York Univ., 25 NY3d at 944, quoting Tedeschi v Wagner Coll., 49 NY2d 652, 660).
Contrary to the petitioner’s contention, the Supreme Court properly made a summary determination upon the pleadings, papers, and admissions, as no triable issues of fact were raised (see CPLR 409[b]; see also CPLR 7804[h]). Moreover, the University established that it substantially observed the disciplinary procedures set forth in its code of conduct (see Matter of VanHouten v Mount St. Mary Coll., 137 AD3d 1293, 1295).
The University acted in the exercise of its honest discretion, and did not act arbitrarily, fail to abide by its own rules, or impose an excessive penalty (see Powers v St. John’s Univ. School of Law, 25 NY3d at 216). Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding.
The Tennessee Supreme Court has disbarred an attorney for the second time formisappropriation.
Clarksville Now reported
Montgomery County attorney Carrie Gasaway has been disbarred from the practice of law by the Tennessee Supreme Court, effective October 9, 2017.
According to a news release, she will be required to pay restitution and the costs of the disciplinary proceeding.
Gasaway was previously disbarred by order in October of 2015, which remains in effect.
A petition for discipline was filed in November 2016, which contained three complaints alleging misappropriation of funds from trust, lack of diligent representation and charging of an unreasonable fee. A petition for final discipline was filed in December 2016 based on Gasaway’s criminal conviction for felony theft over $10,000. Following that conviction, the Tennessee Supreme Court suspended Gasaway from the practice of law in September 2016.
Gasaway has been ordered to pay restitution in the amount of $57,899.45 to four former clients.
Gasaway and attorney Fletcher Long were convicted in May of trying to extort money from Michelle Langlois, who had hired them to attend the reading of her father’s will in October 2010. They both gave up their law licenses.
They were each sentenced to two years in prison, which was suspended to four years of probation.
The Massachusetts Supreme Judicial Court reversed a lower court summary judgment in favor of a law firm in a malpractice action
The issue on appeal is whether, in a legal malpractice action, a court's error of law constitutes a superseding cause that bars recovery to the plaintiff client even where the defendant attorney was negligent for failing to prevent or mitigate the legal error. The plaintiff, Kiribati Seafood Company, LLC (Kiribati), brought a legal malpractice claim against its former law firm, Dechert LLP (Dechert). Kiribati alleged that Dechert negligently failed to provide a French appellate court with the evidence the court deemed necessary for Kiribati to prevail on a claim, which resulted in the court's denial of the claim. A judge of the Superior Court granted summary judgment to Dechert and denied partial summary judgment to Kiribati. The judge determined that the French appellate court committed an error of law in requiring this evidence and that, even if Dechert were negligent in failing to provide the evidence to the court, Kiribati could not recover damages for Dechert's negligence because the court's legal error was a superseding cause of the adverse decision. We conclude that an error of law under these circumstances is a concurrent, not a superseding, proximate cause and that the judge therefore erred in granting summary judgment to Dechert and denying partial summary judgment to Kiribati.
A motion to disqualify counsel in litigation arising from the Lod Airport terror attack has been denied without prejudice of Judge Emmet Sullivan of the United States District Court for the District of Columbia
Plaintiff seeks to disqualify Mr. Sher and Mr. Both based on two primary theories: (1) conflicts of interest under D.C. Rules 1.7 and 1.9; and (2) D.C. Rule 3.7's prohibition against a lawyer acting as an advocate when the lawyer is also a necessary witness...
First, plaintiff points to Mr. Sher's role in this matter as both a co-defendant and an attorney representing the Center Defendants. Plaintiff contends that Mr. Sher's dual role violates D.C. Rule 1.7(b)(4), which requires disqualification where a "lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer's own financial, business, property, or personal interests." See Mot. at 9-10.
Second, plaintiff argues that Mr. Sher and Mr. Both's prior representation of Dr. Engelberg in the Attorneys' Fees Litigation forecloses their role as counsel for the Center Defendants in this case under D.C. Rule 1.9. See Mot. at 10-12. According to plaintiff, this suit is substantially related to the Attorneys' Fee Litigation and the interests of Dr. Engelberg are now materially adverse to the interests of the Center Defendants.
The court dealt with the standing of a non-client to move to disqualify
Here, plaintiff is not and never has been a client of Mr. Sher or Mr. Both. Rather, plaintiff seeks disqualification of Mr. Sher and Mr. Both based on alleged conflicts of interest between (1) Mr. Sher and his co-defendants and (2) Mr. Sher and Mr. Both's previous and current clients – i.e., Dr. Engelberg and the Center Defendants, respectively. Plaintiff claims he has standing to do so because Mr. Sher and Mr. Both's continued representation of the Center Defendants in this case would so infect the litigation as to impact his interest in the just adjudication of his claims. See Mot. at 7-8. In other words, according to plaintiff, disqualification of opposing counsel is "absolutely necessary to preserve the integrity of the adversary process" and preserve the "fairness of the proceedings." Id. at 7, 13. Plaintiff cites to a number of cases, each of which confirm the principle that counsel must be disqualified where their ethical breaches infect the litigation – but none of which give plaintiff his desired result.
Plaintiff has failed to clear that high bar here. With respect to plaintiff's concern that Mr. Sher's personal interest as a co-defendant will cloud his judgment as an advocate for the Center Defendants, the Court finds compelling that, in their opposition brief, (1) the Center Defendants assert that they have provided consent – after being advised by another attorney – as to Mr. Sher's continued representation; and (2) Mr. Sher maintains that he reasonably believes that he will be able to provide competent and diligent representation to his co-defendants. See Opp. at 8-9; D.C. Rule 1.7(c) (a lawyer may represent a client despite a conflict if "[e]ach potentially affected client provides informed consent" and "[t]he lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client"). Likewise, with respect to the allegations of adversity between the Center Defendants and Dr. Engelberg, Dr. Engelberg himself –the client whose interests are alleged to be harmed – has stated through his counsel that he does not object to Mr. Sher and Mr. Both's role in this case at this stage in the proceedings. See Opp. Ex. C. See also D.C. Rule 1.9 (permitting a lawyer who formerly represented a client to represent another person in a substantially related matter in which that person's interests are materially adverse to the interests of the former client if the former client gives informed consent).
In short, notwithstanding plaintiff's claims to the contrary, the Court finds that any alleged conflicts here simply do not rise to the level where they affect the integrity of the proceedings or threaten plaintiff's right to a just determination of his claims. Accordingly, plaintiff lacks standing to seek disqualification of Mr. Sher and Mr. Both on conflict-of-interest grounds.
A non-client has standing to raise the Rule 3.7 issue, which the court held was premature. (Mike Frisch)
Tuesday, October 10, 2017
An opinion of the California State Bar Court Review Department
Michael Christopher Bennett appeals a hearing judge’s decision recommending disbarment because Bennett defrauded and intentionally misappropriated $13,860 from his employer, forged signatures, and misused the seals of two notaries public. Bennett does not contest culpability but requests discipline less than disbarment. Principally, he argues that he did not intend any harm, has implemented safeguards against future violations, and has otherwise been rehabilitated. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and requests that we affirm the disbarment recommendation.
Upon independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s findings of fact and law with minor modifications. The applicable disciplinary standard calls for disbarment absent compelling mitigation that clearly predominates. Bennett has not established this level of mitigation. To the contrary, his mitigation is far outweighed by his egregious, dishonest misconduct, which caused significant harm to his former employer, his clients, the public, and the administration of justice. Thus, we affirm the hearing judge’s disbarment recommendation as appropriate discipline.
The attorney was admitted in 2005.
He engaged in "off-the-books" representation of 18 clients while at the Generations law firm.
On January 2, 2013, Bennett informed the [employer attorney Trudy and office manager Tom] Nearns that he was leaving the firm that day for another job. Afterwards, Tom searched Bennett’s computer and discovered emails referencing a client matter not in the firm’s database, which had been forwarded to Bennett’s home email address. Tom also found an engagement letter directing the client to make a prepayment to Bennett and assuring that the prepayment would be placed in the firm’s trust account.
On January 11, 2013, Trudy [Nearns] wrote to Bennett that Generations was aware that he had engaged a client and accepted a prepayment on the firm’s behalf without notifying it. On January 15, 2013, the Nearns confronted Bennett, who misrepresented to them that he had personally received payment in only one matter. On January 17, 2013, Tom [Nearns] emailed Bennett, informing him that he and Trudy knew Bennett had improperly engaged other clients, and identifying four more matters. Bennett then responded that those four were the only ones. Bennett knew, however, that he had worked on and received funds for additional matters.
Ultimately, the Nearns discovered evidence of other "off-book" work. Trudy testified that she concluded Bennett took fees in 18 matters. Bennett admits that, while employed by the firm, he "provided legal services on sixteen (16) matters and billed a total of $13,860, separate and apart from the work billed from Generations; i.e.[,] [he] met with 16 people, performed legal work on their behalf, and had them pay him directly." He performed this off-book work without the firm’s knowledge or authorization, instructed clients to pay him directly, misled clients that he was providing their payments to Generations, and used firm resources, including letterhead and computers, while being compensated by the firm to perform full-time work on its behalf. Bennett did not notify Generations that these clients had retained the firm for new or additional legal services, or that they had paid for the services.
His effort to blame the firm failed.
Bennett contends that Trudy potentially committed misconduct by providing privileged and/or confidential documents to the State Bar without receiving clients’ written permission to do so. He also claims that the State Bar, in turn, potentially committed misconduct by accepting those materials, filing a public NDC that included clients’ names, and posting the NDC with those names on the State Bar’s website. Bennett provides no authority for his contentions. And although he acknowledges that OCTC filed a motion to dismiss the original NDC without prejudice about two weeks after it had been filed, he fails to note that OCTC promptly returned the documents when it realized the materials were arguably privileged and/or confidential. Bennett responded to OCTC’s motion by requesting that the NDC be dismissed with prejudice, which was rejected. He fails to show that this was an error, or that he was denied a fair hearing.
Bennett’s overall misconduct is rife with dishonesty. He created and hid an off-book practice from his employer and then lied about the extent of this practice when confronted. Moreover, he lied to clients, committed multiple forgeries, and used two notary seals without authorization. This dishonesty goes directly to his fitness to practice. And honesty is absolutely fundamental in the practice of law; without it, "the profession is worse than valueless in the place it holds in the administration of justice." (Tatlow v. State Bar (1936) 5 Cal.2d 520, 524.)
We acknowledge Bennett’s and several witnesses’ contention that his wife’s severe depression and the resulting stress upon Bennett were a cause of his misconduct. We also note that Bennett and his wife have taken steps to lessen the chance of such pressures arising again. Yet many attorneys experience emotional and physical difficulties comparable to those that Bennett faced. "While these stresses are never easy, we must expect attorneys to cope with them without engaging in dishonest activities, as did [Bennett]." (In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511, 522.) "Misappropriation . . . simply cannot be excused or substantially mitigated because of an attorney’s needs, no matter how compelling." (Hitchcock v. State Bar (1989) 48 Cal.3d 690, 709.).
The North Carolina Supreme Court reversed the reversal by the Court of Appeals and reinstated a conviction notwithstanding the prosecutor's improper closing argument
In this appeal we consider whether statements made by the prosecutor in his closing argument were improper and prejudicial, such that the trial court should have intervened ex mero motu. The Court of Appeals concluded that the prosecutor’s insinuations that defendant was a liar and lied on the stand in cahoots with defense counsel and his expert witness were improper, and had the cumulative effect of resulting in unfair prejudice to defendant. The unanimous panel of the Court of Appeals vacated the conviction and ordered a new trial. We hold that while the prosecutor’s arguments were improper, the prosecutor’s arguments did not amount to prejudicial error in light of the evidence against defendant. Accordingly, we reverse the decision of the Court of Appeals.
The charge was murder in the first degree
During closing arguments, the assistant district attorney opened by saying, “Innocent men don’t lie.” Over the course of his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times...
Defense counsel did not object at any of these points during the prosecutor’s closing arguments. The trial court did not intervene ex meru moto at any time during the prosecutor’s closing arguments.
The defendant was convicted of voluntary manslaughter.
Turning to the prosecutor’s closing argument in this case, we consider whether his statements were first, improper, and then, so grossly improper as to prejudice defendant’s right to due process.
First, defendant argues the prosecutor’s repeated statements insinuating that defendant lied were improper. Over the course of his argument, the prosecutor used some variation of “lie” at least thirteen times, though never directly calling defendant a liar. “Innocent men don’t lie” appeared to be the State’s theme: the prosecutor used it at the beginning of his closing argument and again when beginning his rebuttal. The prosecutor also referred to defendant’s claim of self-defense as “just not a true statement.” The prosecutor commented that the unidentified man involved in the shooting scenario was “imaginary” and “simply made up.” The prosecutor also asserted defendant engaged in “[t]he act of lying” and “trie[d] to hide the truth from you all.” Relying on Hembree, defendant argues that even though the prosecutor did not directly call defendant a liar, the effect and intimations of his statements are also improper. 368 N.C. at 19-20, 770 S.E.2d at 89.
A prosecutor is not permitted to insult a defendant or assert the defendant is a liar.
But no reversal due to the overwhelming evidence to support the manslaughter conviction.
The attack on the expert
Next, defendant argues that the prosecutor’s assertion that defense expert witness Dr. Corvin was “just a $6,000 excuse man” was also improper. The statement implied Dr. Corvin was not trustworthy because he was paid by defendant for his testimony. Evidence in the record supports the assertion that Dr. Corvin received compensation. Dr. Corvin’s practice received over $300,000 in 2012 for services to criminal defendants, and he testified he worked in excess of twenty hours on this case at the legislature-authorized rate of $320 per hour. This Court has held it is proper for an attorney to point out potential bias resulting from payment a witness received or would receive for his services, while it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. State v. Rogers, 355 N.C. 420, 462-64, 562 S.E.2d 859, 885-86 (2002). Here the prosecutor’s statement goes beyond pointing out that Dr. Corvin was reimbursed for his opinion to argue that Dr. Corvin was paid to formulate an excuse for defendant. In State v. Duke this Court considered similar language when the prosecutor referred to the defendant’s expert witness as the “$15,000 man” twice during closing arguments. 360 N.C. 110, 127-28, 623 S.E.2d 11, 23 (2005), cert. denied, 549 U.S. 855, 166 L. Ed. 2d 96 (2006). Though the statement in Duke was improper because it insinuated that the defendant’s expert would say anything to get paid, we did not find this language “so overreaching as to shift the focus of the jury from its factfinding function to relying on its own personal prejudices or passions.” Id. at 130, 623 S.E.2d at 24. As is the case here, the prosecution’s statement emphasized the expert witness’s fee, and the jury may properly take that information into account when determining the credibility of the expert and the weight to place on his testimony. Id. at 130, 623 S.E.2d at 24. In this case we do acknowledge the additional word “excuse” and believe this language amounts to name-calling, which is certainly improper.
But the court found that the jury verdict belied prejudice from the various arguments but cautioned
“The power and effectiveness of a closing argument is a vital part of the adversarial process that forms the basis of our justice system. A well-reasoned, well articulated closing argument can be a critical part of winning a case.” Jones, 355 N.C. at 135, 558 S.E.2d at 108. Yet, arguments, no matter how effective, must avoid base tactics such as: (1) comments dominated by counsel’s personal opinion; (2) insinuations of conspiracy to suborn perjury when there has been no evidence of such action; (3) name-calling; and (4) arguing a witness is lying solely on the basis that he will be compensated. Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made.
If one is going to engage in any form of unauthorized practice of law, a place to avoid is the Commonwealth of Pennsylvania.
That eternal truth is on full display in a case just posted on the web page of the Disciplinary Board in which the attorney consented to a suspension of six months.
The attorney was admitted in Pennsylvania in December 1992. She went on involuntary inactive status in 1998 and was administratively suspended on April 2, 2010 for failure to register and pay annual fees.
From 1996 to 2006, the attorney was Director/Counsel to Merrill Lynch in Plainsboro, New Jersey. She continued in that capacity until 2007 with BlackRock Inc. after it had acquired Merrill Lynch. She timely applied for In-House Counsel status in New Jersey.
In 2007, she began with the Hartford in Connecticut. She was accorded Authorized In-House counsel status by Connecticut in 2008 and maintained that status until revoked in 2017.
The problem arose when the Hartford relocated her to its Radnor Pennsylvania headquarters in mid-December 2012. She contacted Pennsylvania authorities concerning reactivating her license but failed to follow through with the required reinstatement process and engaged in extensive unauthorized practice.
The case is In re Alice Pellegrino. (Mike Frisch)
Monday, October 9, 2017
The Springfield (Mo) News-Leader reports
A Springfield attorney was disciplined Thursday by the Missouri Supreme Court in connection with an armed confrontation in Reeds Spring and questionable accounting in 2012.
Rita K. Sanders faces the indefinite loss of her law license, though that suspension was put on hold on the condition Sanders' completes two years of probation that requires quarterly reports and additional controls on her practice, according to a court order.
Sanders' discipline case involved two distinct matters in 2012. The first count against her was in connection with her involvement in a fugitive hunt in Stone County. The second pertains to concerns about Sanders' accounting practices involving client funds.
The suspension and an accompanying $1,500 fee comes after Sanders was found to have violated several rules of professional conduct. Sanders initially argued against probation, instead asking for a reprimand with certain requirements, according to court documents.
Sanders currently represents one of several people suspected in an April 2016 killing in Webster County and recently argued that charges against her client should be tossed.
Hunting a fugitive in Reeds Spring
In May 2012, Sanders was helping search a Reeds Spring motel room for a fugitive. With her were a bond agent and the Reeds Spring chief of police.
Following that, Sanders and the bond agent followed a tip that another fugitive was in a Reeds Spring motel room and notified local law enforcement that they were on their way south. They met the local police chief at the Reeds Spring City Hall, according to court documents.
After obtaining a key from the motel's manager, Sanders and the police chief drew their guns and entered the room, according to court documents. They saw "an apparently naked woman" alone in bed and yelled at her to prove she was unarmed, the state's brief say, and Sanders watched her while the chief checked the bathroom.
The fugitive was gone. Sanders and the chief put their guns away.
The bail bondswoman "understood that she had no authority to stay in the room because her bonding authority required her to leave the premises if the fugitive absconder was not there," the state wrote. "But, (she) and Sanders stayed and interrogated (the naked woman) about (the fugitive's) whereabouts."
Sanders was a law enforcement officer previously but no longer was in 2012. Still, court documents say, she described herself as being in "police mode" while in the motel room and taking the naked woman's phone out of her purse.
Upon dumping out the purse, Sanders and the bonding agent found no weapon or working phone but did find a pouch containing methamphetamine and drug paraphernalia. She later said she was looking for a phone number in the pouch and among the contents of the purse.
"I went through every paper in her purse," Sanders recalled. "We were looking for anything and everything that might lead us to this man that we knew was extremely dangerous."
Sanders' attorney claimed that the police chief "essentially deputized" Sanders and told her several times to "back him up." By doing so, Sanders' argument went, she was acting legally as part of a posse.
The state's counsel argued Sanders could not legally act as part of a posse because she was aiding a city police chief, not a county sheriff. Missouri law specifically endows sheriffs with power of rustling up a posse.
As a result of the incident, Sanders was charged with kidnapping, armed criminal action, unlawful use of a weapon, and fugitive recovery, court documents say. She eventually pleaded guilty to peace disturbance.
Multiple accounting issues
In a less dramatic retelling, the state outlined instances in which Sanders' trust account went into overdraft status on at least two occasions. Sanders was cautioned to "avoid further risk to (her) clients' funds and additional disciplinary investigations" after the first overdraft in March 2012.
After the second, the state's disciplinary counsel office found "no violation but poor recordkeeping and failure to supervise her staff," according to court documents. Sanders was advised multiple times to study accounting fundamentals.
In August 2014, however, there was yet another overdraft notification stemming from Sanders' accounting practices, the state said. This time, Sanders' initially blocked the state from her records and complained about an ensuing subpoena.
Once again, the state found "no misappropriation" but did find inadequate recordkeeping, commingling of personal funds with clients' money and "numerous undocumented transfers."
In response, Sanders' attorney noted she had "a high volume traffic and criminal practice" who had "no trust account problems until 2012 when the bookkeeper she had retired."
Sanders admitted to commingling money but blamed staff for the first accounting error and a delayed deposit on the second. She rehired the old bookkeeper, court documents say.
"Clearly a reprimand with conditions is an appropriate sanction in this case to protect the public, maintain the integrity of the profession, promote confidence in the disciplinary system and to provide consistency in the discipline imposed," Sanders' attorney argued.
The Missouri Supreme Court disagreed and determined Sanders' violated no fewer than five attorneys' rules.
Sanders' side of the story
When the News-Leader asked for an interview and outlined the events in the court documents, Sanders did not dispute most facts. But she offered information that doesn't appear in court documents and expressed her frustration with the situation.
"I was rather disappointed in the outcome because, quite frankly, I did absolutely nothing wrong out there in Reeds Spring," she said.
Sanders said she was initially only there to serve as a driver for her friend, described as so vision impaired that she "sees three of everything at night."
The two had tried to contact the Stone County Sheriff's Office but were told no deputies were available, Sanders said. When the pair rendezvoused with the Reeds Spring police chief, Sanders said he recognized her by name as a former law enforcement officer. The two had never met, Sanders said.
Before going into the motel room, the police chief asked Sanders whether she would back him up. She said she had her snubnose with her in her car and couldn't say no when the chief asked her to serve as back-up.
"What do you say?" Sanders said. "It's illegal to refuse to obey a lawful order. I didn't know what to do. They make it sound like I was out there playing Jane Wayne."
"I'm a grandmother," she continued. "The last thing I wanted to do was to go into a motel room when I didn't know how many people were in there. ... I didn't have a choice."
Sanders concurred that she had gone through the purse but says she never searched the room itself. She hung around the motel after being in the room she said, but only to speak with the motel manager and invite her to church.
She never again saw the woman, who Sanders believes was the tipster who called in the fugitive's location in an attempt to claim a reward. The fugitive later went to prison and testified in Sanders' favor at a hearing, she said.
Sanders acknowledged the accounting errors but said nobody was hurt and no checks were bounced. She wasn't trying to play any accounting tricks but was just trying to move money the right way and didn't quite understand what was expected, she said.
"It destroyed me," Sanders said of the aftermath. "It destroyed my life. It destroyed my business."
She figured that pleading down would make her problems go away, but she says that hasn't happened. Though she welcomed the chance to share more information, she wasn't optimistic that talking to a reporter would make a difference.
"I'm really frustrated about the system right now," she said. "I've spent my whole life fighting for justice."
"Jiminy Christmas, how about a break here?"
Hat tip to coolcrosby. (Mike Frisch)
A former Las Vegas prosecutor whose misconduct in a wrongful murder conviction was detailed in a ProPublica and Vanity Fair story in May has been rebuked again, this time for his conduct as a judge.
The Nevada Commission on Judicial Discipline publicly reprimanded Judge William Kephart in August for violating four ethics regulations. The sanction did not include any fine or discipline, but was posted online.
ProPublica’s story focused on the case of Fred Steese, a drifter convicted of murdering a Vegas trapeze artist-turned-trained poodle performer. Kephart, known as “Wild Bill,” led the prosecution. Nearly 20 years later, Steese was proved innocent after exculpatory evidence was found in the prosecution’s files.
In an accompanying story, we described how the Supreme Court of Nevada had noted prosecutorial misconduct in at least five of Kephart’s cases over a dozen years, including instances in which he choked a witness on the stand and downplayed the reasonable doubt standard by telling a jury they needed only a “gut feeling.” In 2002, Kephart was fined $250 by Nevada’s high court for a “violation of the Rules of Professional Conduct.” Although at the time Kephart promised the justices that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future,” he was again called out for bad behavior in 2008 when the court tossed out a murder conviction.
Despite these cases, Kephart moved on to the bench, eventually winning a seat on the city’s Eighth Judicial District in 2014. His term is up in 2020.
Kephart’s newest sanction involves his comments on a 2002 case in which he prosecuted Kirstin Lobato for murder. The case later became nationally known for its meager evidence against the then 19-year-old and was picked up by the Innocence Project. In February 2016, Lobato had a pending appeal before Nevada’s Supreme Court when Kephart gave a media interview in which he said the case “was completely justice done.” His comments prompted an inquiry and subsequent judicial misconduct charges, because asserting her guilt while she had an ongoing innocence claim “could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges.
The commission announced the charges in May and Kephart denied wrongdoing — saying in part that his “character and reputation” should be a mitigating factor. But he later conceded that he had broken the ethics rules and agreed to the reprimand. Neither Kephart or his lawyer, William Terry, responded to requests for comment. Nor did a spokesman for the Eighth Judicial District.
Lobato was subsequently granted an evidentiary hearing by the state’s high court that is scheduled to begin today.
The Nevada Supreme Court has suspended a convicted attorney
The State Bar has filed a petition under SCR 111 to inform this court that attorney Curtis Cannon has been convicted of voluntary sexual conduct between a prisoner and another person, a category D felony in violation of NRS 212.187. Cannon did not self-report the conviction to the State Bar as required by SCR 111(2). Because the conviction is for a felony offense, it is a "serious" crime as defined in SCR 111(6). As such, SCR 111(7) and (8) normally would require that we temporarily suspend Cannon and refer him to a disciplinary board for a hearing to determine the extent of the discipline to be imposed, if any. Cannon, however, was transferred to disability inactive status under SCR 117 in 2014 and, therefore, currently is prohibited from practicing law
We conclude that a referral to a disciplinary board is unnecessary because the conduct underlying the conviction appears to have been the subject of a grievance that was filed against Cannon before he was transferred to disability inactive status. The disciplinary proceedings as to that grievance, and several others filed against Cannon, were stayed pursuant to SCR 117. The conviction therefore may be addressed in the context of the pending disciplinary proceedings should they be resumed upon Cannon's reinstatement to active status, as provided in SCR 117(4). But, given the nature of the criminal conviction and its connection to Cannon's practice of the law, we are convinced that a temporary suspension under SCR 111 is warranted to ensure that Cannon cannot resume the active practice of the law until a disciplinary panel and this court have the opportunity to consider the appropriate discipline, if any, as a result of his criminal conviction.
The Las Vegas Review-Journal reported on the crime, which involved oral sex
Both Cannon and [incarcerated client] Wallis acknowledged that inappropriate conduct had occurred between them during the jail visit, according to an arrest report.
The contact occurred on the fourth floor of the detention center’s north tower during the 26-minute visit.
Cannon told the detectives that he was on medication and had not had sex with his wife for 14 years. Wallis, he said, wanted to marry him.
The case is In re Curtis Cannon. (Mike Frisch)
Saturday, October 7, 2017
The Nevada Supreme Court imposed a 35-day suspension rather than the proposed reprimand for an attorney's communication with a witness
This disciplinary proceeding grows out of a letter and followup email that Callister sent D.E., who witnessed a will Callister's client disputed. In them, Callister offers D.E. $7,000 "[i]n exchange for your honest testimony. . . that you never witnessed the Decedent signing a will." The letter runs several pages and threatens D.E. with personal liability and "the legal implications of perjury" if D.E. does not disavow the will. Callister sent the same letter, but not the follow-up email, to another third party who also had witnessed the will.
It is unethical for a lawyer to offer money to a fact witness contingent on the content of the witness's testimony.
The record does not support that Callister's conduct was merely negligent. His communications with D.E. were deliberate, not a casual comment in a courthouse elevator that an unnoticed witness accidentally overheard. The undisputed evidence shows that: (1) Callister wrote and sent a letter to a third-party fact witness, offering $7,000 if the witness would testify that the will he had witnessed was a fake; (2) he threatened the witness with civil litigation and criminal exposure if he did not testify as Callister wanted; and (3) a month later, Callister resent the letter as a .pdf to an email address and reiterated his cash offer, at the witness's request. From the letter and email it appears that Callister intended to do exactly what he did. If Callister was negligent, it was in not recognizing that his conduct violated the Rules of Professional Conduct until after the fact. But ignorance or mistake of law does not transform an intentional act—improperly influencing, or attempting to influence, fact witness testimony—into negligence.
Callister defended his conduct before the Disciplinary Board on the bases the will was forged, he needed D.E. to disavow the will to prove his case, and the testimony he solicited was truthful. But "lawyers cannot condition fact witnesses' compensation on the content, substance, or perceived usefulness of their testimony." Douglas R. Richmond, Compensating Fact Witnesses: The Price Is Sometimes Right, 42 Hofstra L. Rev. 905, 911 (2014)...
When apprised of Canister's dealings with D.E., the judge presiding over the will contest excluded D.E.'s testimony, disqualified Callister, and reported the matter to the State Bar. This cost Callister's client his lawyer of choice and protracted the proceeding, adding legal complications and needless expense. It also imposed systemic costs, fostering public cynicism of a system where fact witness testimony appears to be bought and sold. To his credit, Callister revoked the offer to D.E. after talking to his partner about the ethical problems it posed, before any money changed hands. This prevented further harm but did not reverse the prejudice his misconduct caused.
The appropriate sanction depends on the seriousness of the offense and case-specific aggravating and mitigating factors. Despite the seriousness of the offense, considerable mitigation exists: Callister has no prior disciplinary offenses, eventually revoked his improper communications, and enjoys an otherwise good reputation. Nonetheless, the seriousness of the offense, the prejudice it caused, and the fact it was deliberate make public reprimand insufficient.
The case is In re Jonathan Callister. (Mike Frisch)
The Nevada Supreme Court ordered the disbarment of convicted attorney Robert Graham on September 11, 2017 with one unusual feature
we disbar attorney Robert C. Graham from the practice of law in Nevada. Such disbarment is irrevocable. SCR 102(1). Graham shall pay restitution as set forth by the State Bar in the amount of $17,208,152.78. He shall also pay a fine of $1 million to the Nevada Client Security Fund.
The Las Vegas Review-Journal reported on the crimes and bar action
Graham, 52, who is in custody at the Clark County Detention Center on $5 million bail, pleaded guilty before District Judge Kerry Earley to two felony counts of theft and three counts of exploitation of an older/vulnerable person. He faces a prison term of 16 to 40 years at his Jan. 11 sentencing.
“He’s a despicable predatory thief, plain and simple,” District Attorney Steve Wolfson said after the hearing. “He’s going to serve more time in prison than some murderers. As much justice as we could deliver was delivered today.”
Graham wore black reading glasses as he stood before Earley in jail garb and chains to enter his plea.
“I’m guilty of these charges, your honor,” Graham told the judge.
His lawyer, Deputy Public Defender Bryan Cox, added afterward, “It’s been a very difficult case, especially for the victims and the victims’ families.”
In the courtroom, Chief Deputy District Attorney J. P. Raman, the lead prosecutor in the case, read aloud the names of more than 110 clients who deserve a share of the $16 million in restitution prosecutors will seek against Graham.
The money was stolen between 2011 and 2016, Raman said in court papers Thursday.
The thefts — which ranged from as little as $20 to more than $1 million — occurred in 64 estate cases, 21 trust funds, 10 guardianship cases, and four special needs trusts, the court papers show.
Graham’s guilty plea capped a 10-month legal saga that began when he abruptly shut down his Lawyers West office in Summerlin on Dec. 2 after years of looting client funds.
In interviews with the Las Vegas Review-Journal after his indictment earlier this year, former clients described their frustration with Graham as they fought, sometimes desperately, to get him to turn over their funds in the years and final months before he closed his law practice.
Clients lost everything
The victims who lost everything include a wheelchair-bound woman with cerebral palsy and three young children who survived a crash that killed their parents. Some of the victims are expected to testify at Graham’s sentencing.
Graham secretly funneled an average of $187,000 a month in client funds over the years to a special bank account to run his law practice and pay personal bills, grand jury transcripts show.
He used client funds to pay $244,000 in taxes and $700,000 a year in advertising. He also used the money to make thousands of dollars more in charitable donations to numerous organizations, including the Church of the Latter Day Saints and Boys Town of Nevada, the testimony shows.
“I was responsible for the litigation and felt I had no out,” Graham said. “So bit by bit, I moved the chairs on the deck. Each year, things got worse and worse, and I tried to bail myself out and just couldn’t.”
Assistant Bar Counsel Janeen Isaacson has since asked the Nevada Supreme Court to permanently disbar Graham.
“He stole millions of dollars to feed his ego and desires for wealth and power, and he used his law license to do it,” Isaacson said at a recent disciplinary hearing.
Several former clients filed an involuntary bankruptcy petition against Lawyers West in December seeking the firm’s remaining assets.
But lawyers for the clients have admitted there is slim chance of recovering the missing funds. In Bankruptcy Court papers, Lawyers West listed $8.7 million in liabilities and only $438,000 in assets, mostly in unpaid legal fees unlikely to be collected.
Wolfson said Thursday that obtaining restitution from Graham in the criminal case also will be difficult because of his lack of assets.
“The odds of recovering anything significant are probably not very likely,” he said.
The Nevada Supreme Court rejected a petition of the State Bar to impose an interim suspension of an attorney convicted of reckless driving
This is a petition under SCR 111 concerning attorney Rahul Kulkarni, based on a conviction for reckless driving, a misdemeanor in violation of NRS 484B.653(1)(a). See NRS 484B.653(3)(a) (providing that first-offense violation of NRS 484B.653(1)(a) is a misdemeanor). Kulkarni self-reported the conviction to the State Bar as required by SCR 111(2). Because the conviction is not for a "serious crime" as defined in SCR 111(6), temporary suspension and referral for disciplinary proceedings are not mandatory. SCR 111(7), (8). Having considered the petition and supporting documentation, we conclude that Kulkarni's offense is a minor one that does not warrant the imposition of a temporary suspension or referral to a disciplinary board at this time. See SCR 111(9). We therefore decline to take any action on the petition.
The links to the Nevada cases do not work. They can be found under unpublished opinions on the court's web page. (Mike Frisch)
The Nevada Supreme Court accepted a consent six-month suspension with three months stayed on conditions
In the plea agreement, Holper admitted to one or more violations of the following Rules of Professional Conduct: 1.1 (competence), 1.4 (communication), and 3.1 (meritorious claims and contentions) by (a) filing a complaint on behalf of a client alleging a cause of action knowing that the statute of limitations had expired and the defendant was not liable, and (b) not communicating with the client regarding the status of her case; 1.3 (diligence) by failing to diligently pursue a case; 1.6 (confidentiality of information) by allowing privileged information to be shown to a client's family member without the client's permission; 1.8 (conflict of interest) by entering into a business transaction inappropriately with a client; 1.15 (safekeeping property) by failing to maintain client funds in his trust account and failing to account for settlement funds; 3.3 (candor toward the tribunal) by not being forthright with a state court about his client's pending federal charges and his reasons for seeking to change that client's plea in an adjudicated misdemeanor matter; 5.3 (responsibilities regarding nonlawyer assistants) by failing to appropriately supervise a nonlawyer assistant; 8.1(b) (disciplinary matters) by failing to give correct or adequate information to the State Bar in responding to the disciplinary inquiries; and 8.4 (misconduct) by failing to comply with the Rules of Professional Conduct. Holper agreed to (1) a 6-month suspension, to be conditionally stayed with the exception of 90 days actual suspension; (2) a 1-year probation period, during which he must have no new grievance resulting in the imposition of actual discipline; (4) complete 20 additional hours of continuing legal education; (5) pay restitution; and (6) pay the actual costs of the disciplinary proceeding plus fees.
Justice Douglas dissented and would not approve the agreement.
The case is In re Scott Holper.
In an unrelated matter
Under the conditional guilty plea agreement, Mann admitted that he entered into an agreement to represent a client for a flat fee of $125,000, which was earned upon payment. The client paid the fee in full and Mann represented the client for one month before filing a motion to withdraw as counsel. Thereafter, Mann filed a complaint against the client to recover $28,987.50 in additional fees for extraordinary services and he sought punitive damages. Allegations in the complaint were then used against the client in ongoing trust litigation between the client and her daughters. Mann also refused to release the client's file to her new counsel and asserted a retaining lien that was arguably not supported by Nevada law. Mann admitted to violating RPC 1.16(d) (declining or terminating representation) and RPC 8.4 (misconduct) by withdrawing his legal representation in a manner that failed to protect the client's interests. Mann agreed to a five-month suspension and to pay the fees and costs of the disciplinary proceeding. In exchange, the State Bar agreed to dismiss allegations as to violations of RPC 1.5 (fees), RPC 1.6 (confidentiality), RPC 1.15 (safekeeping property), and RPC 5.4 (professional independence of a
The court did not approve
Having reviewed the record of the disciplinary proceedings, we reject the conditional guilty plea agreement and remand this matter to the Southern Nevada Disciplinary Board for further proceedings.
The case is In re David Mann. (Mike Frisch)
Friday, October 6, 2017
A misdemeanor conviction for resisting or obstructing a police officer drew a private reproval by the California State Bar Court Hearing Department.
On May 18, 2016, respondent and his wife (now respondent’s ex—wife) received a letter ordering them to vacate their home of 13 years by May 26, 2016. Upon receipt of the letter, respondent got upset and began drinking, because the lender previously had agreed to a May 31, 2016 foreclosure date. Consequently, respondent, relying on the May 31, 2016 foreclosure date, made arrangements for new housing and for a U-Haul.
When respondent read the lender’s letter, respondent became extremely upset and began drinking. Soon thereafter he grabbed a can of lighter fluid and left the house with his wife. His wife called the police and told the police that when respondent left the home, he had said that if he could not have the home, no one could have it and that he was going to burn the house down. As police officer Patricia Varozza (Varozza) was in the area, she responded to the wife’s call. When Varozza saw the person, who she believed to be respondent, she surmised that he was very upset and angry. She called out his name and began talking to him. But, she was unable to engage respondent as he started to jog away from her and toward his home. Varozza told him to stop on numerous occasions; but, respondent did not heed her calls.
Within three to five minutes Varozza caught up with respondent, who had reached the front yard of his home. Respondent squirted the light fluid toward Varozza; but, it did not touch her. Varozza used her taser on respondent, although it did not appear to have any effect on him. However, another officer, Marcus Frank (Frank), who had arrived on the scene, deployed his taser, which hit respondent twice on the back. Frank testified that the only knowledge he had regarding the lighter fluid, was based on the statement of respondent’s wife. Frank said he noted that respondent’s eyes were watery and he had a moderate odor of alcohol. But, respondent was calm and compliant.
Varozza described respondent as being completely different after being tased. She testified that it was as if respondent were a completely different person. He became compliant, seemed very calm, and was polite. Varozza testified that although respondent had a lighter with him, she never saw him light it. Varozza credibly testified that respondent was never disrespectful. When paramedics arrived on the scene, respondent was taken to the hospital, where it was determined that he had 0.27% blood alcohol content.
As to sanction
Clearly, respondent and his wife were involved in a disastrous marriage, which resulted in an extremely contentious custody dispute. At the same time the lender notified respondent that the agreed upon foreclosure date was being accelerated. Yet, despite this series of unfortunate events, respondent even in his inebriated state, somehow found the emotional strength to withdraw from the brink of disaster on May 18”‘. He did not burn any property; and he calmed himself down and interacted with the police officers in a calm and respectful way.
Thereafter, respondent entered therapy, divorced his wife, won the custody dispute, and moved 50 miles away from his wife in order to avoid the stressors of what clearly was a toxic relationship...
Respondent’s conduct on May 18, 2016, appears to have been the result of a singular lapse in judgment, which occurred when respondent was emotionally distraught due to the overwhelming family and emotional problems confronting him. Moreover, respondent has since taken steps to eliminate the possibility of being once again overwhelmed by eliminating many of the stressors that caused him to feel beaten down. As noted, respondent changed his residence to a location, which is 50 miles away from his ex~wife’s residence. He obtained sole custody of his child, and he has entered therapy. Considering and balancing all of the relevant factors, the court has determined, and orders, as outlined below, that respondent receive a private reproval with reproval conditions attached.
An attorney who had consented to disbarment in North Carolina and Illinois as a consequence of a South Carolina conviction has now consented to the same sanction in the Commonwealth of Virginia.
By committing the acts described in his Affidavit of Surrender of Law License and by being convicted of one ( 1) felony count of pointing and presenting firearms at a person, one (1) misdemeanor count of unlawful carrying of a pistol, and one (1) misdemeanor count of possession of cocaine in Charleston County, South Carolina, Howell committed criminal. acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in violation of Rule 8.4(b) of the North Carolina Rules of Professional Conduct.
We had reported on the earlier sanctions with a link to WRAL.com
A 39-year-old Cary man, who has worked as a tax attorney in Raleigh, is accused of holding his ex-girlfriend hostage at a South Carolina grocery store.
The Isle of Palms Police Department has charged Robert Howell with attempted murder, kidnapping and first-degree burglary in the incident, which happened Wednesday.
Investigators said Robert Howell followed Autumn Yee, 29, of Cary, to Isle of Palms, where she was vacationing. Howell allegedly took Yee to Hudson's Market, where she alerted one of the clerks by silently mouthing "call police."
In a 911 recording, the woman can be heard speaking to an emergency operator about the situation.
"I need you to come to Wild Dunes, please. There's a man with a gun and he's holding me hostage," she said. "I need you to get here quick."
Isle of Palms police Capt. Kimberly Usry said Yee tried to keep herself and her assailant in public places so someone could see them. At some point, she jumped over the counter to try to get away. Howell grabbed her, ran out of the store toward the beach and was arrested, Usry said.
Police said Yee, who suffered minor scratches in the incident, had gone to Isle of Palms to flee from Howell a day after he allegedly assaulted and threatened her in her Cary home.
"Officers responded and found that a subject and been harassing the victim there," Cary police Capt. Randall Rhyne said.
In a 911 call that day, Yee told dispatchers she arrived home and found him pacing back and forth in the road, staring at her. She said she was frightened and asked the call-taker to stay on the line until help arrived.
"I'm just afraid to get out of the car," she said in the recording released Monday. "I just want a cop to escort me to my door and ask him to leave."
Robert Howell and his estranged wife, Sarah Howell, are locked in a contentious custody battle over their three children. According to court documents, Sarah Howell had subpoenaed Yee in the custody case.
A day after Yee was held hostage, Sarah Howell sought a protective custody order against her husband, citing the kidnapping as proof that he posed a danger to her and her children.
Cary police said they are now working with South Carolina authorities to serve Robert Howell with additional warrants.
"We take domestic violence very seriously," Rhyne said. "We have a pro-arrest policy for these type of offenses. We try to get them adjudicated to the full extent of the law."
Bo Demster, a managing partner at Poynter & Spurill in Raleigh, confirmed that Howell worked as a tax attorney at the firm from 2013 until this April. The terms of his departure were not disclosed.
"This was a real surprise to all of us who have worked with him," Demster said of Howell's arrest.
The Massachusetts Supreme Judicial Court has held that a court lacked jurisdiction to convict an attorney of intimidation for his emails to opposing counsel
Paul Muckle was convicted in the Boston Municipal Court Department (BMC) of intimidating a person furthering a court proceeding, see G. L. c. 268, § 13B, and other offenses. The alleged victim of Muckle's intimidation was opposing counsel in a civil action commenced by Muckle in Federal court. His posttrial motion to vacate the intimidation conviction was allowed, and that charge was dismissed for lack of jurisdiction in the BMC...
For essentially the reasons stated by the dissenting Appeals Court Justice, we conclude that such jurisdiction was absent. We therefore affirm the order dismissing the intimidation charge.
The Appeals Court decision described the communications in a case involving litigation brought by the lawyer on behalf of himself and his mother against Wells Fargo, represented by attorney Sean Higgins
In March, 2010, Judge Douglas P. Woodlock of the United States District Court allowed Wells Fargo's motion for summary judgment and dismissed the Federal case, and shortly thereafter, the defendant filed an appeal with the United States Court of Appeals for the First Circuit (First Circuit). After Judge Woodlock dismissed the case, the tone of the defendant's e-mails and other communications to Higgins began to change. Specifically, on May 2, 2010, the defendant sent an e-mail accusing Higgins of “disrespect[ing]” the defendant's mother and included a link to a video on the video sharing Web site YouTube of a telephone conversation between the defendant and Higgins. On June 2, 2010, the defendant sent an e-mail to a large mailing list with a motion attached that he said he intended to file in the Federal suit. The body of the e-mail said, in part, that “[t]his motion is about to send thunder claps upon Wall Street when they read it. READ IT AND WEEP ATTORNEY SEAN HIGGINS AND JUDGE DOUGLAS P. WOODLOCK, YOUR JUDGMENT IS AT HAND.”
On June 4, 2010, the defendant sent an e-mail to a large mailing list, which contained a link to a YouTube video. The body of the e-mail said, in part, “[L]et this video serve as a warning to Sean Higgins, Judge Woodlock, and anyone else who seeks to commit impropriety in the court․ I am trying to do this in a non destructive [sic ] manner, but you guys just keep on testing MY LORD ․ ow [sic ] much longer do you supposed [sic ] that He will remain patient before commanding me to end it! in my own way!”
On August 12, 2010, the defendant forwarded a mass e-mail that contained a warning about bombs made from ordinary household items, such as plastic bottles. Above the forwarded message, the defendant wrote, in part, “I am even sending this to my opponents Attorney Dudley Goar [sic ] and Attoryney [sic ] Sean Higgins. I want them to be very careful because want [sic ] them to be in one piece and in good health when we face off in the First Circuit court, I will get more satisfaction from that, so guys, read below and be safe.”
There was then a lull until October, 2011. During that month, the defendant telephoned Higgins and left him a voice mail message. In the message, the defendant called Higgins a “bastard” and said that he did not like him. Higgins testified that, at one point during the litigation, the defendant was telephoning him once or twice per week, but later, after some time, the number of calls decreased. Sometime before October 12, 2011, the defendant's appeal was dismissed by the First Circuit, and Higgins testified that, right after the appeal was over, the telephone calls stopped.
On October 12, 2011, the defendant sent an e-mail to a large mailing list saying that the First Circuit had ruled against him and that “the first bloodshed will come from Massachusetts before I let ANY ONE take me out of my home.” On October 19, 2011, the defendant sent an e-mail to a large mailing list saying, in part, “SEAN HIGGINS, REMEMBER HOW MUCH I DETEST YOU ․ I WILL NEVER FORGET THAT YOU DISRESPECT [sic] MY MOTHER AND CALLED HER A LIAR ․ LET'S SEE WHO WILL BE THE LIAR WHEN YOU FACE A JURY OF THE REVOLUTION ․ THERE IS A PRISON CELL WAITING FOR YOU AT SOUTH BAY FOR YOUR CRIMES․ YOU WILL BE TRIED FOR TREASON AGAINST THE PEOPLE․” On February 2, 2012, the defendant sent an e-mail to a large mailing list saying, in part, “DO NOT LET MY DEATH BE IN VAIN, MAKE SURE YOU PUT THE BLAME SQUARELY ON SEAN HIGGINS! AND JUDGE WOODLOCK THE DAY THEY BURY ME! THEY WILL CAUSE MY BLOODSHED.”
On April 1, 2012, the defendant sent an e-mail to a large mailing list saying, in part, “Sean Higgins! you [sic ] are the only man on Earth I hate beside [sic ] the pope and the Rothschild [sic ], and I hate you even more than I hate them ․ I cannot wait to roast you! Not even god will intervene for you when I get my hand around your fat heart․ Is your heart light like a feather, or is it heavy as lead!?” On April 12, 2012, a criminal complaint was issued in the Boston Municipal Court against the defendant for the present offenses.
The Appeals Court dissent
Whatever our power, if any, under Supreme Judicial Court precedent to ignore plain statutory language that was deliberately enacted and that does not violate the State or Federal Constitution, I simply cannot agree that a difference of opinion whether a subset of one crime over which the Superior Court has jurisdiction may also be heard in the District and Boston Municipal Courts warrants its exercise. Since the trial judge correctly construed the statute, I would affirm her order of dismissal.