Tuesday, May 19, 2015
The South Carolina Court of Appeals affirmed the denial of post conviction relief in a trafficking in methamphetamine case on rather interesting grounds.
The court found that the attorney had an actual conflict of interest but concluded that his credible testimony that he had failed to recognize the conflict meant that it had not affected his representation
,,,counsel should have recognized the conflict and even if he did not, the conflict could have made Gonzales less inclined to tell trial counsel he had information about Perez. However, all of the case law indicates the conflict must have adversely affected trial counsel's performance. Gonzales cannot show this without showing trial counsel recognized the conflict. Because we are bound by the PCR court's finding trial counsel's testimony credible that he did not recognize the conflict, we must find trial counsel's conflict did not adversely affect his performance. Although Shurling later procured a deal for Gonzales on another charge in turn for his testimony against Perez, because trial counsel did not know of the conflict, we cannot find the conflict was the reason he did not pursue a deal in the methamphetamine trafficking case in return for information about Perez.
Justice Short dissented
I respectfully dissent. I find Gonzales has shown the conflict of interest adversely affected trial counsel's representation. Although I find credible trial counsel's testimony that he zealously represented Gonzales, I find his failure to timely recognize the conflict of interest adversely affected his performance. Trial counsel portrayed Gonzales as a "very young person" unable to make responsible decisions, which should have more timely heightened counsel's awareness to the possibility of a conflict of interest. In light of the government officials' testimony of the far more favorable treatment Gonzales could have obtained, I find the conflict of interest adversely affected trial counsel's performance.
The Ohio Supreme Court did not simply deny an application for bar admission on character and fitness grounds.
The court permanently barred any future application.
The applicant was born and received his legal education in Israel and obtained an LLM from Michigan State.
During the investigation into Wahidy’s character and fitness to practice law, the bar-admissions committee discovered that he had failed to disclose a number of significant facts regarding his past that he was required to disclose on his registration application, including his 1995 divorce, a foreclosure action, the insolvency of his failed business, a personal-injury action, charges of aggravated menacing and criminal damaging, and multiple jobs he had held. At the panel hearing, Wahidy admitted that he had signed his registration application and certified that his answers were complete and true, even though he knew they were not.
The court rejected the applicant's various explanations for the disclosure lapses and also took into account his failure to deal with debt.
we adopt the board’s recommendation to disapprove Wahidy’s pending registration application. Based on Wahidy’s complete lack of candor throughout the admissions process, however, we order that Wahidy be forever precluded from reapplying for the privilege of practicing law in this state.
Justices O'Donnell and French would deny admission but permit a future application. (Mike Frisch)
Monday, May 18, 2015
The New Jersey Supreme Court agreed with its Disciplinary Review Board that dismissal of charges that an attorney failed to set forth a fee agreement with a client was appropriate.
Respondent, who has been practicing for fifty-seven years, represented Feman, as a favor to a mutual friend. At oral argument before us, respondent asserted that he had spent fifty to sixty hours on this pro bono matter, that he never intended to charge her a fee, that he successfully negotiated a favorable real estate contract for her, and that he sent the email to her in an attempt to persuade her not to cancel the contract. Under the circumstances, we find no clear and convincing evidence that respondent violated RPC 1.5(b) and determine to dismiss the complaint.
The attorney had been reprimanded and censured in the past.
The 2001 reprimand involved negligent misappropriation ans other misconduct.
The 2006 censure was for "drafting a client’s will that left the entire residuary estate to himself."
An attorney's second affidavit to resign from the Bar was accepted by the Oklahoma Supreme Court.
The affidavit conceded
In late October or early November of 2012, respondent agreed to represent Client against a felony charge of being a fugitive from justice; they agreed for payment to consist of a retainer of $1500. On November 16, 2012, respondent entered his appearance for Client in her criminal case. Later that month, in their first in-person meeting, respondent sought payment of the retainer; Client instead asked for money to feed her children. Then Respondent asked her if they could get into his car "so I can do whatever I want to you." Client refused, but during the final handshake, respondent pulled Client toward him and made unwelcome sexual contact with her. Client reported respondent's conduct to the Norman Police Department on November 29, 2012. Along with respondent's actions during the initial in-person meeting, Client also informed the police that respondent had been texting her to inquire about kissing her 13-year-old and 17-year-old daughters in exchange for discounted legal fees.
On January 24, 2013, the district court dismissed Client's criminal charges as the time for the warrant to arrive from Texas had expired. Respondent received a copy of the dismissal, but did not inform Client of the district court's action. On February 3, 2013, respondent began texting Client again to inquire about paying his legal fees. Respondent suggested by text message to Client that she could pay for the legal services by sending him nude pictures of her and pictures of her teenage daughters. When Client asked if he was asking for nude pictures of her daughters, he responded, "Whatever u think will make me smile lol." Respondent then sent Client an explicit picture of himself. Respondent later sent a text message to Client suggesting that he should come to Client's home to take the pictures.
Client reported all of respondent's additional communications to a detective with the Norman Police Department, who asked her to contact the Garvin County Sheriff's Office. On the evening of February 3rd, a deputy with the sheriff's office began to text respondent from Client's phone with Client's permission. In response to the deputy's texts, respondent propositioned Client, asking her to wait for him in the nude along with her teenage daughters. Respondent offered his legal services for free in exchange for a sexual encounter with Client and her daughters. Respondent then called Client by phone and agreed to waive all legal fees in return for sexual favors. The next day, respondent persisted with more text messages, prefacing the conversation by stating that he was drunk the night before and he was "just teasing," but then immediately asking what Client would do for him if her case were dismissed. At no point did respondent inform Client that her criminal case had been dismissed.
The attorney pleaded guilty to misdemeanors charges. Tulsa World reported that he was sentenced to probation. (Mike Frisch)
Saturday, May 16, 2015
The Louisiana Supreme Court denied reconsideration of an application for bar admission without opinion.
Justice Weimer concurred and assigned reasons
While I hesitate to concur and thereby draw further attention to this unfortunate situation, as respectfully as I can say it, the assumption should not be made that admission was denied solely due to past substance abuse. This case is not analogous to others in which conditional admission has been granted following a demonstrated period of recovery. Certainly, the record of substance abuse is extensive and gives one pause when reviewing this application. However, recent indications are that the substance abuse has been eradicated from the applicant’s present life, which is commendable. Furthermore, the recognition and support the applicant has received from members of the legal community are also encouraging indicators. If one views this application only from the standpoint of the applicant’s ongoing recovery from substance abuse, however, the full picture does not emerge. What distinguishes this case from others in which conditional admission has been granted is the applicant’s extensive criminal record. I readily recognize there may be an interrelationship between the applicant’s substance abuse and multiple DUI convictions. However, at the risk of stating the obvious, multiple instances of criminal conduct endangering the safety of the public stand separate and apart from substance abuse and can not be disregarded...
As a result of this “damning” criminal record, distinguishing this matter from others dealing solely with substance abuse is straightforward. Thus, there is no inconsistency or arbitrariness in the court’s present denial of admission.
Justice Crichton, joined by Justice Knoll, dissented
After the Committee on Bar Admissions and the applicant filed a joint petition for conditional admission, this Court appointed a Commissioner to conduct a hearing into the issues surrounding the character and fitness of this petitioner. The Commissioner recommended we grant conditional admission after hearing all the evidence. The evidence presented to the commissioner was persuasive, but I found two letters to be particularly compelling. One letter was from a federal magistrate judge for whom petitioner formerly clerked, and the other was written by the federal district judge who presently employs petitioner as a law clerk. These letters demonstrate in a convincing fashion that petitioner has the strong support of the judges, both of whom are aware of petitioner’s history and the challenges he faces.
The dissenting justices would conditionally admit the applicant. (Mike Frisch)
Friday, May 15, 2015
The Leaf-Chronicle has this recent story on the conviction of two Clarksville Tennessee attorneys
After nearly 15 hours of deliberation Monday and Tuesday, jurors in the Carrie Gasaway/Fletcher Long extortion trial returned a verdict of guilty.
The jury notified court officers at 3:10 p.m. Tuesday that they had reached verdict for both attorneys after a seven-day trial at the Montgomery County Courts Center.
Long said after the verdict that he honors the jury’s decision, and he is considering changing his profession because it is “too stressful.”
“God has a plan for me, but it’s not to practice law,” he said. “... I think I have some marketable skills.”
Gasaway and Long, two well-known local attorneys, were convicted of trying to extort $50,000 from a client, Michelle Langlois, who hired them to attend the reading of her father’s will in October 2010. The crime is a Class D felony with a sentencing range of two to 12 years with a maximum fine of $5,000.
Attorney Long had handled some high-profile criminal cases
Long has been involved as a defense counsel in two high-profile Middle Tennessee criminal cases. As recently as April, Long was representing Jason Autry, a co-defendant in the kidnapping and slaying of Holly Bobo, a notorious West Tennessee crime.
Long also represented one of four former Vanderbilt University football players accused of raping an unconscious female student in 2013. Long argued at trial in January that his client Brandon Vandenburg did not participate in the rape and was not responsible, but a jury returned a guilty verdict.
In the local trial, the jury did not affix a fine to the convictions, and Judge Paul Summers, who was brought in from another district to hear the case, said a sentencing date will be set within the next 45 days.
The Cranston (Rhode Island) Patch has this recent report on criminal charges against a judge
A Cranston Municipal Court Judge and lawyer was arrested by East Greenwich Police on Monday for an alleged domestic altercation in their town.
Thomas Ricci, 51, was arraigned today in Third Division District Court on charges of domestic simple assault and domestic disorderly conduct and released on personal recognizance, court records show.
NBC10 reported Ricci beat and strangled the woman after she confronted him over text messages she found on his phone.
Ricci has served as Senior Associate Judge in Cranston Municipal Court since 2007.
He has also served on the Rhode Island Supreme Court Disciplinary Board, the state Coastal Resource Management Council and Warwick’s Judicial Selection Committee.
He is due to return to court on June 5 for a pretrial conference.
For those interested in recent cases of Rhode Island attorney discipline, GoLocalProv has this article titled Booze, Bribes, And Conspiracy. (Mike Frisch)
An attorney has resigned and been permanently disbarred by the Kentucky Supreme Court as a result of a felony drug conviction.
Details here from WYMT TV
A Johnson County defense attorney and her son pleaded guilty to drug charges Friday.
Mary Lou Chandler, 63, of Paintsville, pleaded guilty to one count of trafficking in a controlled substance.
Prosecutors recommended Chandler receive a two-year prison sentence to be probated for a period of five years. As part of her plea, Chandler, who is a practicing attorney in Johnson County, agreed to give up her Kentucky Bar Association membership and no longer practice law in the state.
Her son, Matthew Chandler, 35, of Paintsville, pleaded guilty to thee counts of trafficking in a controlled substance. Prosecutors recommended a seven-year prison sentence.
On Sept. 18, Mary Lou Chandler and Matthew Chandler were indicted by a grand jury for selling oxycodone pills to a confidential informant from their Johnson County home on three different dates.
Both will be formally sentenced on Jan. 16.
The Illinois Supreme Court has disbarred an attorney convicted of criminal offenses relating to his involvement with a motorcycle gang.
We previously reported on the case by quoting this release from the United States Attorney for the Eastern District of Missouri
Also sentenced today was [attorney] Jerry L. Peteet, a/k/a “Angel,” once a well-known
criminal defense attorney in Gary, Indiana. Peteet was sentenced to a term of
276 months in prison. Robinson, Peteet and 22 other defendants were indicted as
part of a vast federal investigation into the Wheels of Soul Outlaw Motorcycle
Club, a nationwide organization based in Philadelphia, Pennsylvania. The Wheels
of Soul claim to be the largest mixed-race “outlaw” motorcycle club in the
United States, with more than 400 members and chapters in at least 25 states
He had been previously suspended for 30 days in Indiana for client-related misconduct. (Mike Frisch)
The Oregon Supreme Court has disbarred an attorney for misconduct as a partner in a business venture with two others in which he played the role of general counsel in exchange for a one-third interest in the company
the accused agreed to manage the company’s finances, participate in marketing, and perform functions ordinarily undertaken by a business’s general counsel, such as drafting contracts and sales agreements. The accused had experience in conducting large, complex business transactions between 10 and 20 businesses.
As sometimes occurs, the business prospered but the partners fell out.
The misconduct involved the attorney's efforts to take control of the corporation.
The court found the record messy but concluded
What is clear is that, without consulting his business associates, the accused intermingled his personal and related-business financial affairs with the corporate affairs of Blue Q to the point that an accurate accounting of who owed what to whom would be very difficult to reconstruct. That inadequately explained practice provides context to the trial panel’s determination that the accused improperly diverted corporate assets.
Turns out that cheating a business partner violates attorney ethics rules
On de novo review, we find by clear and convincing evidence that the accused’s diversion of Blue Q assets to EMI and Carbcert, and his exclusion of his associates from Blue Q’s business affairs, demonstrated dishonesty and a lack of trustworthiness that seriously reflects adversely on his fitness to practice law and violate RPC 8.4(a)(3).
The court also affirmed findings that he made a false statement to the Nevada Secretary of State in corporate dissolution documents.
The fact that the conduct involved business partners rather than client funds did not diminish the sanction
the accused’s conduct, consisting of his exclusion of his associates from the affairs of Blue Q, his diversion of corporate assets to his own use, and his unauthorized dissolution of the corporation, is comparable to theft in terms of its nature and scale of selfish dishonesty.
The attorney is suspended for non-payment of dues (and has been for some time) in both Oregon and Washington State. (Mike Frisch)
Thursday, May 14, 2015
The Indiana Supreme Court has imposed a suspension of at least 240 days for an attorney 's trust account mismanagement and false statements in his personal bankruptcy.
An overarching theme in much of the hearing officer’s report and in the parties’ review briefs involves whether many of the charged instances of misconduct were criminal or merely negligent in nature. However, we need not delve too deeply into this issue, because Respondent expressly stipulated in advance of the hearing that he committed conversion and, in so doing, that he violated Professional Conduct Rules 8.4(a) and 8.4(b). In making these stipulations, the parties agreed that while additional relevant evidence might be introduced at the hearing, “the matters stipulated to herein are conclusively established.” Respondent is bound by these stipulations, and the hearing officer erred by not giving them effect.
As to proffered mitigation
Initially, we note our disagreement with several of the mitigating factors identified by the hearing officer. The record simply does not support the hearing officer’s findings that Respondent “made immediate restitution to [Client] and his trust account” and that no client suffered financial loss because of Respondent’s negligence. Further, Respondent’s diagnosed attention deficit hyperactivity disorder does not explain, excuse, or mitigate the misconduct that occurred here.
Facts in aggravation in this case include Respondent’s substantial experience in the practice of law, the long-term pattern of misconduct committed by Respondent over the span of several years, and the number of violations during that time. Facts in mitigation include Respondent’s lack of prior disciplinary history, his cooperation with the Commission and the disciplinary process, his stipulations designed to streamline the hearing process, and the attestation of professional acquaintances to Respondent’s skill and good reputation.
The hearing officer had recommended a 90-day suspension. (Mike Frisch)
Reading a fascinating post on America's Deadliest Prosecutors by Professor Robert J. Smith of the University of North Carolina at Chapel Hill led me to an article in the Arizona Republic on prosecutorial misconduct (and the tepid reaction by the bar disciplinary system) in Arizona.
The Arizona Republic reviewed all direct appeals of death sentences issued by the court between 2002 and the present.
Among those 82 direct appeals, there were 42 in which the defendants alleged prosecutorial misbehavior or outright misconduct, 33 of them from Maricopa County, which, as the largest county, has the busiest Superior Court.
The Supreme Court justices found that impropriety or misconduct had occurred in 16 of those 42 cases.
But only two were reversed and remanded because of the behavior (in one case characterized only as overreaching). Two prosecutors were disciplined. The offenses varied in seriousness from rolling eyes and sarcasm to introducing false testimony and failing to disclose evidence that might have helped the defendant.
But, overwhelmingly, even when misconduct was found, the high court determined that it was “harmless error,” the defendant would have been convicted anyway, or the judge had cured the problem by making a jury instruction.
Some of the most egregious instances do not show up in The Republic’s study because the misconduct triggered a mistrial or caused the prosecution to offer a sweetheart plea deal; for instance, when a prosecutor had improper contact with a disgruntled member of the defense team or when it appeared as if the state had been listening in on a defendant’s jail calls from his attorney.
According to case law, in order to declare a mistrial for prosecutorial misconduct, a trial must be “permeated” with bad behavior on the part of the prosecutor that “so infects the trial with unfairness as to make the resulting conviction a denial of due process.”
Judges are reluctant to risk such drastic measures.
I then came across an excellent blog called The Open File that is dedicated to publishing information on misconduct by prosecutors.
There appears to be no shortage of information on the subject. (Mike Frisch)
Wednesday, May 13, 2015
A three-year suspension by consent was imposed by the South Carolina Supreme Court for an attorney's conflicts of interest created by a decades long sexual relationship with a married client.
Mr. Doe owned a real estate investment company. Respondent met Mr. Doe in March 1984 when he came to her office to meet a client. At the time respondent met Mr. Doe, he was married to Mrs. Doe who also served as the corporate secretary for the real estate investment company. Mr. and Mrs. Doe had two children. Shortly after they met in 1984, respondent and Mr. Doe began a private, personal relationship. In early 1985, respondent and Mr. Doe began a secret, sexual relationship that continued until after Mrs. Doe's death in 2001. In 2005, respondent and Mr. Doe lived together and continued their sexual relationship. They remained close companions. Mr. Doe died in February 2011 at the age of 88.
The attorney also represented the client's wife
respondent collected in excess of $8,150.00 in legal fees from or on behalf of Mrs. Doe. For several closings on behalf of Mrs. Doe's joint ventures, respondent also collected in total approximately $1,400.00 in commissions on behalf of respondent's own real estate company, Kaspar Properties. Throughout this time, respondent was engaged in a sexual relationship with Mr. Doe, her client's husband. Also during this time, Mr. Doe was providing respondent with personal financial support, including loans, gifts of cash, and payment of some living expenses. Respondent did not disclose the affair, the extent of financial support, or the resulting conflict of interest to Mrs. Doe.
The attorney admitted a course of unethical conduct from 1984 to 2001. The conflict ended with the death of Mrs. Doe.
The State reported on a 2014 jury award in the attorney's favor.
A Lexington County jury late last week took two hours to deliberate before awarding a woman $1.6 million in actual damages in a civil case in which she claimed she was hounded by the Richland County Sheriff’s Department, strip-searched and tossed in jail on felony charges that were later dismissed.
The case of lawyer Kay Paschal, who won the verdict against Sheriff Leon Lott, involved a dispute over a dead Columbia businessman’s multimillion-dollar estate, issues of sheriff’s department jurisdiction and charges of exploitation of a vulnerable adult. Questions also arose about whether one of Lott’s deputies was too personally close with heirs of the dead man.
A child of the Does (actually Wallace) caused her to be arrested
Paschal was arrested in November 2011 – the same day she was to appear at an estate hearing in probate court to defend herself against allegations by Wallace’s children that she should not be the estate’s personal representative, according to legal papers and testimony in the case. Paschal lost her status as representative, at least in part because she did not appear at the hearing, the documents said.
At the jail, Paschal was stripped and given “nothing but a sheet to wrap herself in,” according to testimony in the case. She was later released on a personal bond.
The criminal charges were dismissed.
The court imposed the suspension effective as of its interim suspension ordered in January 2012. (Mike Frisch)
The Indiana Supreme Court has reversed and remanded a trial court order denying pro hac vice admission to five out-of-state attorneys in a contract-related action.
The court concluded that local rules did not create a presumption against pro hac admission
As the trial court correctly recognized, "temporary admission of an out-of-state lawyer pursuant to Admission and Discipline Rule 3(2) is within the discretion of the trial court." State ex rel. Indiana Supreme Court Disciplinary Comm’n v. Farmer, 978 N.E.2d 409, 414 (Ind. 2012) (citing Matter of Fieger, 887 N.E.2d 87, 90 (Ind. 2008) (per curiam)). See Admis. Disc. R. 3(2)(a). We agree with the Court of Appeals’ conclusion that Local Rule 5(C) does not create a presumption against pro hac vice admissions. YTC Dream Homes, 18 N.E.3d at 649. The local rule cannot vitiate the trial court’s discretion to find good cause for temporary admission under Admission and Discipline Rule 3(2).
Accordingly, we reverse and remand to the trial court with instructions to determine, without restriction by local rule and within the discretion granted by Indiana Admission and Discipline Rule 3(2), whether good cause exists for the admission of the Attorneys.
The California State Bar Court Review Department has recommended a fully-stayed one year suspension and probation of an attorney who neglected the representation of a Texas client who had retained her to look into a theft of jewelry allegation that took place when the client lived with a family in San Diego.
The misconduct was exacerbated by the attorney's initial non-cooperation but more so by her threats to the client and her grandfather. She communicated primarily with grandpa.
Prevost berated [client]Walker for allowing her grandfather to terminate Prevost’s services. She again accused Walker of lying to the State Bar...
Two weeks later, Prevost sent another email, this time to [grandfather] Hannum, in which she stated that "people who use drugs and steal from their friends are rarely credible witnesses." She also accused Hannum of being "overbearing" and intimidating Walker into filing the complaint with the State Bar. Prevost warned Hannum of the consequences of pursuing the complaint: "[W]hatever your motivation, I would suggest you take a step back and understand that you have put Alyssa in a precarious position of lying to the State Bar of California in a public proceeding by requiring her to sign documents that you wrote, and that are patently false. She will be subject to cross examination of this. Your complaint is public record. This case is public record. I really don’t wish to put Alyssa in a position to have to defend herself – and people who use drugs and steal from their friends are rarely credible witnesses – but I will do the most to defend myself . . . ." In closing, she stated, "I go to State Bar Court next week. I seriously hope you consider your actions, the consequences, and the public nature of your allegations." Hannum considered her letter to be threatening to him and his granddaughter.
The attorney also failed to return unearned fees.
Turns out there never was a criminal complaint brought against the client. (Mike Frisch)
Tuesday, May 12, 2015
A former colleague brought to my attention this footnote in a 2005 District of Columbia Court of Appeals opinion that had rejected an attorney's claims based on a three-year delay in the filing of the hearing committee report
Although we are satisfied that the Committee’s delay in issuing its report in this case did not result in a biased recommendation to the Board, we are nonetheless troubled by the length of time it took the Committee to complete its work in this case. We can foresee circumstances where such a long delay could result in the preparation of an inaccurate record and thus prejudice an attorney’s ability to defend him or herself against allegations of unethical conduct. While we are not unmindful that our disciplinary system relies on volunteers, especially at the Hearing Committee level, and that with any volunteer system some minimal delay can be expected, we trust that the Board is instituting appropriate measures to monitor and assist Committee members in the exercise of their responsibilities so as to minimize the possibility of such a significant delay occurring in the future.
And the problem of delay is not confined to the hearing committees.
If the D.C. disciplinary system ever conducts a real study of systemic delay, the results would cost some people their jobs.
I guess that is why no public report on disciplinary activities will ever see the light of day in the District of Columbia.
The court's professed "trust " in its disciplinary system can only be described as misplaced wishful thinking.
I favor Trust, but verify. (Mike Frisch)
Monday, May 11, 2015
The North Carolina State Bar's war on criminal defense counsel continues with these charges filed against the Executive Director and legal counsel to the North Carolina Center for Actual Innocence in Durham.
The allegations involve efforts to establish the innocence of Joseph Sledge, convicted of a double second degree murder in 1978. No DNA evidence was available at the time of the conviction.
Sledge's efforts to obtain DNA testing led to the reopening of the investigation in 2009.
The charges relate to the attorney's efforts to secure DNA linked to other suspects.
She is alleged to have taken a water bottle from the home of the sister of two brothers suspected of the murders without permission to test for DNA and concealing that she had done so in subsequent conversations with the sister.
The allegation is that, after the sister refused to voluntarily give a DNA sample, the attorney left
Mumma took with her when she left [the sister's] home a half empty water bottle that Mumma knew at the time may not have belonged to Mumma.
When Mumma got to her car, she confirmed that the water bottle she had taken from the [sister's] residence did not belong to Mumma. Mumma had left her water bottle in her car. She did not bring it into the [sister's] residence.
When Mumma realized she had a cool, half-empty water bottle that might yield a DNA sample of Smith family DNA, she decided not to take it back into the home, but to take it with her to contemplate whether to submit it for DNA analysis.
Indy week reported that the attorney's efforts led to Sledge's exoneration
He spent four decades in prison for a double murder he didn't commit. Mumma worked on Sledge's case for 10 years, and she was his attorney when last month, a three-judge panel exonerated the 70 year old based on DNA evidence.
The attorney is also a professor at UNC Chapel Hill teaching a course on wrongful convictions.
What is going on in North Carolina? (Mike Frisch)
The Tennessee Court of Appeals has affirmed the denial of a motion to recuse the trial judge in an accident case.
There was an interesting plaintiff
This Health Care Liability action arose from an incident in which Richard Williams slipped and fell in the parking lot of a restaurant in Memphis. Mr. Williams was seventy-nine years old at the time of the fall. Mr. Williams is a former television and radio personality, who became a local celebrity as a magician performing magic tricks on a local television show, which aired on WMC-TV, the NBC-affiliate in Memphis, from 1966 until 1989. Magicland, Mr. Williams‘ magic show for children, was televised every week for a half-hour before a live studio audience. Mr. Williams, known to his fans as "Mr. Magic," holds a world record for hosting the longest running television magic show.
After Mr. Williams‘ fall, he was treated at St. Francis Hospital for a fractured hip. After a recovery period in the hospital, Mr. Williams was admitted to Appellant HealthSouth Rehabilitation Hospital North ("HealthSouth"). On his admission to HealthSouth, a nurse performed an initial assessment, spending approximately twenty minutes with Mr. Williams. The nurse oriented Mr. Williams to his room and left him to rest. Approximately forty-five minutes later, Mr. Williams was found on the floor, having fallen from his bed...
Plaintiffs claimed that Mr. Williams should have been restrained due to his allegedly confused state and further alleged that Mr. Williams‘ current dementia and Alzheimer‘s disease were caused by the fall at HealthSouth.
The recusal issue related to a video of Mr. Magic's life that the judge found "charming" and commented
Well, I must say that what we‘ve just seen is an incredibly charming presentation. And I would be less than honest if I didn‘t indicate that at this very moment, I am overcome with emotion. And during the playing, I noticed that Ms. Rezba particularly was having a more difficult time than even I am. I want to take a break to collect myself.
The judge's expressions did not create a basis to recuse
Contrary to popular belief, judges are human and, as such, have feelings and emotions. As set out in context above, Judge Russell concedes as much in his statements from the bench. However, the mere fact that a judge may feel emotion or may sympathize with a party does not, ipso facto, mean that he or she cannot be unbiased. It is the judge‘s bias (actual or perceived), and not his or her emotion, that drives the inquiry of whether recusal is warranted. Generally, the terms "bias" and "prejudice" refer to a state of mind or attitude that works to predispose a judge for or against a party...
HealthSouth‘s primary basis for its motion for recusal was the argument that, because Judge Russell showed emotion after watching the video, he would be partial to Plaintiffs in acting as Thirteenth Juror. In the first instance, the alleged bias in this case arises from events or observations that occurred during the litigation of the case; accordingly, in order to justify Judge Russell‘s recusal, HealthSouth would have to show that the ―bias is so pervasive that it is sufficient to deny‖ a fair trial. Here, HealthSouth won its case, receiving a unanimous verdict from the jury. The motion for recusal was filed before Judge Russell actually acted in his capacity as Thirteenth Juror to review the jury‘s verdict. Therefore, when HealthSouth filed this Rule 10B appeal, Judge Russell had neither reached a "prejudged conclusion because of interest, partiality, or favor," Bean, 280 S.W.3d at 803, nor had he rendered "an opinion on the merits on some basis other than what the judge learned from participation in the case." Alley, 882 S.W.2d at 821. In short, HealthSouth has failed to meet its burden to show the type of pervasive bias that would warrant Judge Russell‘s recusal.
The California State Bar Court Review Department has concluded that disbarment is the appropriate reciprocal sanction found to have engaged in fraud in federal bankruptcy court.
Lynne Margery Romano was suspended indefinitely by the United States Bankruptcy Court for the Central District of California for professional misconduct after the court found she participated in a "series of abusive bankruptcy case filings for the sole purpose of delaying foreclosure." Indeed, over the course of three years, Romano filed 82 fraudulent bankruptcy petitions on behalf of sham petitioners in order to mislead the court and defraud creditors. Her scheme involved her paralegal, whom she aided in the unauthorized practice of law (UPL). The bankruptcy court admonished that her tactics were "not acceptable in [bankruptcy court] or any other court as a pattern of behavior for an attorney." (In re the Disciplinary Proceeding of Lynne Romano (Bankr. C.D. Cal. 2012) 2:12-mp-00104-TA.)
Romano intended to defraud creditors and the bankruptcy court. Her efforts involved an elaborate scheme whereby she utilized sham petitioners, primarily corporations that were non-existent or not in good standing, to hold a fractional interest in her clients’ real property in order to shield those clients from poor credit ratings. She did not intend to obtain bankruptcy discharges for her clients, only to delay foreclosures. Over the course of three years, Romano had the opportunity to consider the consequences of her behavior each time she filed another petition. And yet she continued unabated until the bankruptcy trustee took action.
The court here found that the attorney engaged in a pattern of dishonest conduct. (Mike Frisch)
The case was described in this post by Alyson Palmer of the Daily Report
As recounted in briefs for both sides, the advertisement said the government had cited a nursing facility, Heritage Healthcare of Toccoa, "for failing to assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." The ad rhetorically asked whether readers' loved ones had suffered bedsores, broken bones, unexplained injuries or death. Providing the firm's contact information, the ad invited anyone concerned that a loved one was being "neglected or abused" at the facility to call McHugh Fuller.
The day after the ad ran, the owner of the facility, PruittHealth-Toccoa, sued the law firm in the Mountain Circuit Superior Court. Beside citing Georgia legal ethics rules on advertising and contacting prospective clients, the complaint alleged the ad had violated Georgia's version of the Uniform Deceptive Trade Practices Act because it was false and misleading. The nursing home company initially requested damages but later amended its complaint to seek only injunctive relief.
Superior Court Judge B. Chan Caudell promptly granted PruittHealth's request for a temporary restraining order prohibiting the law firm from running similar advertisements, then set the case for a hearing a little less than a month later.
In its defense, the firm pointed to a 2012 inspection report by the Department of Health and Human Services' Centers for Medicare & Medicaid Services. That report listed multiple deficiencies at the site under the heading "Assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." In particular, the document referred to one resident not having access to mouthwash in her room and another resident's long, dirty fingernails.
At the close of the hearing, Caudell found the ad was misleading and deceptive because it said the nursing facility had been cited "for failing to assist" residents in certain areas, while the government report did not use that "failing to" language in its report. He later issued a written order prohibiting McHugh Fuller from publishing or causing the ad to be published in the future and giving the firm 20 days to make sure any electronic posting of the ad by the newspaper was removed.
The law firm appealed to the Georgia Supreme Court, raising several arguments. The firm says that Caudell abused his discretion in finding the ad false and misleading. But the law firm also raises a procedural argument, saying it didn't have advance notice that the judge was going to make a final decision in the case based on the May 2014 hearing. McHugh Fuller later filed a separate appeal complaining that Caudell had excluded from the appellate record materials that the law firm thought should be included.
The court found that the trial court had erred in granting a permanent injunction without clear notice to the law firm that such an order was contemplated. (Mike Frisch)