Wednesday, November 20, 2013
A criminal defense attorney had been publicly reprimanded by the Wisconsin Supreme Court for ethics violations in the repesentation of clients.
The court agreed with the referee that a non-suspensory sanction was appropriate notwithstanding a prior private reprimand:
The referee acknowledges that Attorney...previously received a private reprimand, but noted the misconduct in this case occurred at a time when Attorney...faced multiple outside pressures including dissolution of his small law firm, divorce, financial pressures, and an excessive caseload. The referee explicitly noted that "[f]rom the testimony, these pressures and distractions are behind him." The referee noted that character witnesses described Attorney...as a highly experienced criminal lawyer who is "competent, dignified and respected." The referee was mindful that "[a] suspension at this time and the resulting closure of his sole practitioner office for several months could be devastating to his law practice." We agree.
The court ordered that the attorney make restitution to a client and pay full costs of his bar prosecution. (Mike Frisch)
Tuesday, November 19, 2013
The Delaware Supreme Court approved the recommendation of its Board on Professional Responsibility and imposed a public reprimand of an attorney.
One unusual aspect of the court's order: the attorney must either seek inactive status within 30 days or undergo a mental health evaluation and monitoring by the Bar's treatment program.
He must also pay late fees to the Continuing Legal Education Committee and costs of the disciplinary prosecution.
The disciplinary problems stemmed primarily from failure to complete CLE obligations and a false registration statement. (Mike Frisch)
A decision from the Ohio Supreme Court is summarized by Chris Davey on the court's web page:
Gallia County Common Pleas Court Judge David Dean Evans has received a one-year stayed suspension from the Ohio Supreme Court for failing to disqualify himself from a case in which he had a conflict with defense counsel.
In a 5-2 per curium decision (not authored by any particular justice) announced today, the court rejected the sanction of a six-month stayed suspension that has been recommended by the Board of Commissioners on Grievances and Discipline and instead imposed a full year stayed suspensions.
Robert W. Bright practiced before Judge Evans representing indigent criminal defendants for the Gallia County public-defender commission. In the case that resulted in this disciplinary complaint, Bright represented a defendant who had initially agreed to enter into a plea agreement but later changed his mind during the plea hearing before Judge Evans. Moments later, the defendant changed his mind again, and Judge Evans refused to accept the plea. Three days later, Judge Evans again refused to accept the plea agreement even though Bright and the county prosecutor jointly agreed to it.
Bright then filed an 18-page motion requesting that Judge Evans accept the plea agreement and stating that the judge’s refusal to do so was “an abuse of discretion” and “unreasonable and/or arbitrary and/or unconscionable.” Bright also criticized some of Judge Evans’s other courtroom practices.
Judge Evans issued an entry overruling Bright’s motion and removing Bright as counsel in the matter. The entry stated in part:
The Court finds that while Defense Counsel’s attitude toward the Court as expressed in the instant motion may not rise to the level of Professional Misconduct or to the level of being contemptuous, it certainly is not acceptable behavior. By such conduct he has created conflict with the Court whereby in this case or for that matter any other case in the future, when he does not agree with a decision or ruling by the Court, instead of being critical by accusation of being arbitrary, unreasonable, unconscionable or of abusing discretion, he simply may accuse the court of being bias [sic] or prejudice [sic] as it relates to him. The Court must not only avoid any impropriety, bias or prejudice but must avoid any appearance of such. The expressions and attitudes of Defense Counsel as exhibited and announced in the instant motion toward this Court compromises [sic] the Court’s ability to avoid any appearance of bias [or] prejudice, or to be fair and impartial as it relates to Defense Counsel regardless [of] how hard it tries or what strides it makes toward guaranteeing that there would be no bias, prejudice and that it would be fair and impartial.
Judge Evans subsequently filed entries removing Bright as appointed counsel in 63 other criminal cases—even though none of the defendants in any case had requested Bright’s removal as their counsel. The entry in each case stated that “Attorney Robert W. Bright is relieved of further obligation due to the conflict he has created with the Court” and “due to the Court’s inquiry to the Office of Disciplinary Counsel, Supreme Court of Ohio regarding Mr. Bright’s conduct.”
Judge Evans’s actions removed Bright’s entire caseload, and within a month of the judge’s entries, the Gallia County public defender terminated Bright’s employment, reasoning that it had “no other options,” since Bright could not practice in Judge Evans’s courtroom. Disciplinary counsel ultimately decided against filing any charges against Bright based on Judge Evans’s grievance.
The Ohio State Bar Association brought a complaint against Judge Evans. The parties submitted a consent-to-discipline agreement recommending that Judge Evans be publicly reprimanded. The Board of Commissioners on Grievances and Discipline rejected the agreement and remanded the matter for further proceedings before a three-member panel of the board. On remand, the parties waived a hearing and submitted stipulations of fact and misconduct and jointly recommended a stayed six-month suspension. The panel, and later the board, adopted the parties’ stipulations and recommended sanction. No objections were filed before the Supreme Court.
All parties agreed that Judge Evans’s conduct violated Jud.Cond.R. 2.11 (requiring a judge to disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including circumstances in which a judge has a personal bias or prejudice concerning a party or a party’s counsel) and Gov.Bar R. V(11)(E) (requiring that all proceedings and documents relating to review and investigation of grievances be private).
In today’s decision, the court wrote: “Given the judge’s serious ethical violations and the significant harm caused by his misconduct, we impose a fully stayed one-year suspension … Accordingly, Judge David Dean Evans is hereby suspended from the practice of law in Ohio for one year, with the entire suspension stayed on the condition that he commit no misconduct during the suspension. If Judge Evans fails to meet this condition, the stay will be lifted and Judge Evans will serve the entire one-year suspension. Costs are taxed to Judge Evans.”
Joining in the majority were Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill.
Justice Paul E. Pfeifer wrote a dissenting opinion in which he said that Judge Evans faces a particular set of challenges as a judge in a smaller jurisdiction that should be taken into account in setting the sanction in this case.
“When a judge in a large county has an irreconcilable conflict with an attorney, that attorney’s cases can be assigned to another judge. In smaller counties, especially those like Gallia County that have only one judge in the general division of the court, that simple resolution is not possible,” Justice Pfeifer wrote. “In the circumstances before us, it is more sensible for the attorney to give way than the judge. Judge Evans was elected by the people of Gallia County to serve as their sole judge; however highly skilled, attorney Bright is an at-will employee. Surely, when an irreconcilable conflict prevents them from working on cases, the elected judge should supersede the at-will employee.” Justice Pfeifer said he would impose the original sanction of a public reprimand that had been agreed to by the parties.
Justice Terrence O’Donnell indicated that he would impose the six-month stayed suspension that the parties agreed to after the case was remanded.
The opinion is linked here. (Mike Frisch)
An attorney convicted of federal felonies was disbarred by the New York Appellate Division for the Fourth Judicial Department:
Respondent, as in-house counsel to two investment firms, participated in a fraudulent investment scheme that resulted in investor losses exceeding $6 million. This Court has repeatedly held that, "when an attorney uses his law license to commit crimes and to aid another in the commission of crimes, the appropriate sanction is disbarment."
The court found no substantial mitigating factors. (Mike Frisch)
Monday, November 18, 2013
An announcement from the web page of the Virginia State Bar:
By order entered November 1, 2013, the Supreme Court of Virginia has adopted, effective February 1, 2014, a new Rule 1A:1, addressing admission to the Virginia bar without examination (often called “admission on motion”). Although the old and new rules are similar in many respects, there are several significant differences.
To continue encouraging other states to grant the same privilege to Virginia lawyers, the Court has retained the requirement that only lawyers who are admitted in jurisdictions that also admit Virginia lawyers without examination (i.e., “reciprocal” jurisdictions) are eligible for admission on motion in Virginia. The new rule requires that admission to the bar of the reciprocal jurisdiction must have been by examination.
Admission on motion is based on the premise that passage of a reciprocal state’s bar exam combined with the experience gained over the course of several years of recent successful law practice may be accepted in place of a second bar exam as evidence of one’s legal knowledge and ability. The minimum practice requirement has been reduced from five of the last seven years under the old rule to three of the last five years. New requirements for twelve hours of approved instruction on Virginia substantive law and/or procedure and familiarity with the Virginia Rules of Professional Conduct have been added. Unchanged is the statutory requirement of a minimum of five years’ bar admission. Persons applying for admission on motion must still establish their good character and fitness to practice law in Virginia.
In what is perhaps the most significant change, the new rule drops the old rule’s requirement that one admitted on motion commit to practice full-time in Virginia; and lawyers admitted on motion, including those who have been admitted under the old rule, are no longer subject to potential license revocation if they move out of state or change their status. Lawyers admitted on motion may change their membership status under the applicable membership rules in the same manner as lawyers admitted by examination.
The Supreme Court of Virginia will be issuing revised regulations consistent with the provisions of new Rule 1A:1, and the Board of Bar Examiners is preparing new application forms. The new regulations and the application forms will be available in January on the board’s website, and the board will begin accepting applications under the new rule on February 1, 2014.
An attorney who ran for a circuit court judge position has been charged with running a false advertisment by the Illinois Administrator:
Between 1980 and 1995, [the attorney's opponent] Judge Lopinot was a part-time public defender for the St. Clair County Public Defender's office, and he had no supervisory duties over other part-time or full-time defenders in that office.
The front side of Respondent's campaign mailer referred to a 1989 case in St. Clair County in which Rodney Woitdke ("Woidtke") had been convicted of murder. The mailer stated that Woidtke spent 12 years in prison for a murder that he did not commit, and it cited an opinion of the Illinois Appellate Court for 5th Judicial District in 2000 that reversed the denial of Woidtke's post-conviction petition and remanded for his case for a new trial, on the basis of a conflict of interest on the part Woidtke's trial counsel, then-Assistant Public Defender Brian Trentman ("Trentman"). Respondent's mailer then stated the following:
"Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian Trentman ‘were NEGLIGENT in their representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his wrongful conviction of murder of Audrey Cardenas.' (Source: Woidtke v. St. Clair County, St. Clair Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No. 02-4223, May 2003) (sic)"
In the above-quoted text, Judge Lopinot's name was in a very large font and all capital letters, while Trentman's name was in a very small font and with only the first letters capitalized. See Exhibit One.
On the mailer, accompanying the above-quoted text, was a photograph of Judge Lopinot that bore the epigraph "NEGLIGENT" and was imposed over a larger photograph of a man whose wrists and mouth were bound with duct tape. See Exhibit One.
Respondent's representations that Judge Lopinot had supervised Trentman in the Woidtke case, and that Judge Lopinot was negligent in the case, were false. Judge Lopinot had no involvement in the Woidtke case in 1989.
Respondent knew that his representations that Judge Lopinot had supervised Trentman in the Woidtke case, and that Judge Lopinot was negligent in the case, were false, or he made the representations with reckless disregard as to their truth or falsity.
Judgepedia reports that Judge Lopinet nonetheless prevailed. . (Mike Frisch)
An Illinois attorney is alleged to have engaged in a sexual relationship with a court-appointed criminal client and then lied about it to a judge and the Bar.
The complaint alleges that the attorney served as the Marion County Public Defender and was appointed to represent a client who was placed on probation with participation in a treatment program.
The sexual relationship is alleged to have started after the client went into treatment. The attorney thereafter represented her in revocation proceedings.
When allegations surfaced, the complaint alleges
...Judge Mark Stedelin, the resident Circuit Judge of Marion County, and Judge S. Gene Schwarm, the Chief Judge of the Fourth Judicial Circuit, met with Respondent and confronted him with information they had received about Respondent’s relationship with [the client].
During the meeting, Respondent denied having sexual relations with [the client] while [her] case was pending in Drug Court, and told the judges that he began sexual relations with her shortly after she was released from the Illinois Department of Corrections in April 2012.
Respondent’s statement that he did not have sexual relations with [the client] while her case was pending, and that he began sexual relations with [her] in April 2012 was false, in that Respondent began sexual relations with [her] in September 2011, while he was her counsel in case number [redacted]
Respondent knew his statements were false.
On April 22, 2013, Respondent formally resigned his position as Marion County Public Defender.
The petition states that his later false statements to the ARDC were corrected by a truthful affidavit.
Observation: I am a tireless (if often ignored) advocate for transparency in bar discipline and often cite Illinois as a prime example of one of the very best web pages in that regard.
Having said that, Illinois may be the only place where the allegations of misconduct are too detailed. Here, I have redacted the name of the client and question whether the client should be identified by name or case number.
Further, I note that the charges include this:
At the time the sexual relationship began, Respondent was 54 years old and [the client] was 23 years old.
That fact, if proven, may be relevant. Does it need to appear in the charging document? (Mike Frisch)
An admitted attorney who had disclosed a number of past incidents in his Pennsylvania Bar application but misrepresented his disclosures to Villanova School of Law was suspended for a year by the Pennsylvania Supreme Court.
The attorney had a record of five incidents (mostly alcohol-related) and disclosed two in his 2007 application to the law school. The disclosed incidents had taken place around Villanova and he believed that the school had prior notice of them.
He then disclosed the other three on the cusp of graduation.
The school accepted the "amendment" to the application on conditions that he perform 25 hours of community service, discuss the matter with a Dean and contact the bar program for lawyers with alcohol problems.
He then told the bar authorities that the failure to disclose was an unintentional oversight and that he had "completely forgot" to "update" the school application.
The Disciplinary Board found that the attorney "had consciously decided not to disclose [three] incidents...because he believed that [the law school] would not discover that he had omitted those incidents on the Application."
While he had "properly disclosed each incident" on the Application, he misrepresented his state of mind concerning the failures to disclose to the law school and "claims that the misrepresentation was prompted by embarrassment."
The Board: "A suspension of one year...will impress upon Respondent, and other bar applicants, the necessity of complete candor and honesty when completing the Pennsylvania Bar Application." (Mike Frisch)
Friday, November 15, 2013
Konefsky and Sullivan on Placing the Big Changes to Legal Practice and Legal Education into a Broader Context of the Profession
Alfred Konefsky (SUNY University at Buffalo, Law) and Barry Sullivan (Loyola-Chicago, Law) have posted to SSRN their fascinating paper, "In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust." It will be published in Buffalo Law Review. Its abstract:
This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.
In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.
Definitely worth a read, especially for its taking the costs meme from Tamanaha's Failing Law Schools and others to a different level. [Alan Childress]
November 15, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)
The New York Court of Appeals ruled against an estate that contested the claim of a German museum to a 3,000 year old gold tablet recovered by German archeologists prior to World War One.
The tablet was shipped to the claimant museum in 1926, was missing by 1945 and "resurfaced in 2003, when it was discovered in the possession of the decedent..."
The estate of the Nassau County resident and Holocaust survivor claimed that the tablet was a"spoil of war."
The "spoils of war" theory proffered by the Estate - that the Russian government, when it invaded Germany, gained title to the Museum's property as a spoil of war, and then transferred title to the decedent - is rejected. The Estate's theory rests entirely on conjecture, and the record is bereft of any proof that the Russian government ever had possession of the tablet. Even if there was such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force.
The court answered a question certified by the Appellate Division. (Mike Frisch)
The Ohio Supreme Court has remanded a disciplinary matter against a judge, rejecting an agreed-upon six-month suspension in favor of consideration of a more severe sanction.
ABC6 reported the charges
The Disciplinary Counsel of the Ohio Supreme Court has now recommended Environmental Court Judge Harland Hale should be charged with misconduct.
The official complaint says Hale violated the Code of Judicial Conduct when he dismissed a speeding ticket for a lawyer who had been representing Judge Hale.
The complaint says lawyer Patrick Quinn got the ticket and asked the judge if he could be arraigned without appearing in court.
Hale is alleged to have taken the ticket, and the complaint says he “…dismissed Quinn’s ticket without any involvement from the prosecutor or Quinn”.
The complaint says Judge Hale wrote falsely that the Prosecutor dismissed the charge, and later had improper communication with the prosecutor.
A three Judge panel will be appointed to hear the case.
If they find Judge Hale guilty, the punishment ranges from a reprimand to disbarment.Judge Hale Faces Disciplinary Action
The Columbus Dispatch also reported on allegations against the judge, noting that the speeding ticket involved an attorney who represented the judge
On Jan. 18, one month after Hale dismissed the speeding ticket, Quinn was beside him as his attorney during a deposition in a lawsuit filed by the judge against his accusers, court records show. Quinn shares a law practice with Ric Brunner, Hale’s lead attorney for the civil cases.
The legal battle began in December 2010 when Brenda Williams, a former Spanish-language interpreter for the Municipal Court, filed a federal lawsuit saying that court officials covered up or failed to act on her complaints about Hale’s inappropriate behavior. Her lawsuit did not name Hale as a defendant, because he, along with a group of judges and the Municipal Court administrator, settled out of court.
In November, Hale filed a lawsuit in Franklin County Common Pleas Court against Williams; her attorney, Michael Moore; and Lynn Hamilton, a Groveport resident who also had accused the judge of inappropriate behavior. He said that all three defamed him and that Williams and Moore had violated the settlement agreement by discussing the case.
Hamilton filed a federal lawsuit against Hale one week later, accusing him of making unwanted sexual advances after she appeared in his court on a drunken-driving charge.
All of the parties to the suits were in court-ordered mediation yesterday trying to resolve the disputes.
The process could be complicated by an allegation this week that Hale tried to influence a potential witness in Hamilton’s lawsuit.
Hamilton’s attorney, Toki Clark, filed a motion on Wednesday asking a federal judge to schedule a hearing on the matter and to consider sanctions against Hale.
The witness, Sandra Marcum, said in an affidavit that she had “a personal relationship” with Hale from May 2010 to the summer of 2011, after he asked for her phone number when she appeared in his court. She said he called her on April 16 after learning that she was a potential witness in Hamilton’s case and said, “Make sure to tell them we were just friends.”
“There is no doubt in my mind that Harland’s calls to me were to let me know what I should and should not say if I am called to testify,” Marcum said. “I am afraid that, if I am called as a witness and testify truthfully about what happened between us, I will be in danger.”
During a break in the mediation, Clark said she wants the federal judge to take action “to ensure that no other witnesses in this case are going to be intimidated.”
Hale would not comment on the allegation.
The New York Commission on Judicial Conduct has proposed the removal of an Albany County Surrogate's Court Judge for misconduct in office.
A press release noted that the judge had been publicly censured for giving "evasive and deceptive" and "misleading and obstructionist" testimony in a proceeding before the commission.
Here, the judge
[f]rom 2007 to 2011...failed to disqualify herself from, and took judicial actions in, nine matters involving attorneys with whom she had close professional and personal relationships: four matters involving her close friend and personal attorney, Thomas J. Spargo; four matters involving attorney Matthew J. Kelly, the judge's de facto campaign manager in her 2007 failed campaign for a nomination to the state Supreme Court and later the campaign manager in her 2010 campaign for reelection as Surrogate; and one matter involving William Cade, the attorney who represented her in an earlier Commission proceeding that resulted in her censure in 2007.
The commission rejected the suggeastion that the matters were "ministerial" in nature and that her failure to disqualify was an appropriate exercise of discretion.
A dissent notes that the cases were non-adversarial in nature. (Mike Frisch)
An attorney who engaged in a conflict of interest by suing a current client for fees was reprimanded by the New Jersey Supreme Court.
It did not help that the ongoing representation was a bankruptcy proceeding and that the fee suit resulted in a wage assignment.
The Disciplinary Review Board evaluated the sanction question
Although compelling circumstances may reduce the measure of discipline to an admonition, we see no compelling circumstances here to warrant such a departure. Respondent and [his law partner] Middlebrooks admitted that they met together to determine how to proceed to collect their outstanding fees from the [clients]. Together, they decided to sue their clients in Superior Court to collect their fees, knowing they were engaged in an ongoing bankruptcy representation...
In aggravation, respndent's actions placed the clients at great risk. Had the fifty-percent (according to [one client]) wage executions been completed, the entire Chapter 13 might have failed and the second mortgage might have been reinstated.
The attorney has no prior discipline. (Mike Frisch)
The New Jersey Supreme Court has censured a criminal defense attorney who interviewed a co-defendant in an armed robbery case without permission of that person's counsel.
The co-defendant had offered a guilty plea and was potentially a witness in the trial, which did not justify or excuse the jailhouse interview on Super Bowl Sunday 2011.
The attorney's story
For his part, respondent testified that, although he did not have [counsel's] consent to communicate with [co-defendant] Jackson, he went ahead and did so anyway because Jackson had become a witness and agent for the State, after he plead guilty, and because, as a zealous advocate for [his client], respondent believed that it was crucial for him to talk to Jackson.
The attorney's testimony that he did not discuss the case with Jackson was "not true," according to the report of the Disciplinary Review Board. The DRB found that Jackson sought to withdraw his plea based on information received from the attorney.
The attorney has no record of prior discipline. (Mike Frisch)
The Illinois Administrator has filed a complaint alleging that an attorney who was employed by the Cook County Sheriff's Office engaged in criminal and dishonest conduct by working as a private lawyer and for a county board while receiving disability payments.
After he sustained injuries in a car accident
Despite being on Injured on Duty status and receiving disability benefits from the Cook County Insurance Benefit Fund from October 2008 to November 2010, Respondent continued to work as a private attorney by representing [four] clients and receiving compensation from those clients during the same time period that he was receiving disability benefits...
The complaint alleges that he also received nearly $40,000 for work as an elected McHenery County commissioner during the disability period.
In or about February 2009, the Sheriff’s Personnel Office began investigating Respondent to determine his level of activity in light of the injuries from which he claimed to suffer. As a part of its investigation, the Sheriff’s Personnel Office conducted surveillance on Respondent which included witnessing him driving. The investigation also revealed that Respondent was then working as a McHenry County Board member and a lawyer while receiving disability benefits from the CCSO.
Now, the charge
Respondent’s conduct in receiving temporary total disability benefits from the CCSO and compensation from McHenry County and from his law practice was dishonest and fraudulent, and Respondent knew the applicable regulations did not allow him to collect disability benefits from the CCSO while getting paid by the McHenry County Board.
Thursday, November 14, 2013
The Florida Supreme Court has rejected a referee's report proposing a 30-day suspension and suspended an attorney for 91 days.
The attorney had been the chair of the tort litigation practice group at the now defunct firm of Rothstein, Rosenfeldt & Adler.
Rothstein and Rosenfeldt were the only equity partners.
The attorney made false statements in connection with the purchase of a cooperative apartment in New York City. He falsely claimed a 20% equity share in the firm and caused the firm CFO to issue a letter to the co-op board that misrepresented his status and finances.
Reinstatement is not automatic after a suspension of 91 days.
The Sun Sentinel also has the story. (Mike Frisch)
The full Massachusetts Supreme Judicial Court has raised a single justice's three-year suspension to disbarment as reciprocal discipline for his resignation in Florida.
The respondent was admitted to the bar in Massachusetts on June 7, 1977, and in Florida on November 27, 1984. In 1995, he was indicted in the United States District Court for the Southern District of Florida on charges of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. He eventually pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), admitting that he had met with an incarcerated client and received from the client a map to a warehouse where 145 kilograms of cocaine were located. The respondent sent that map to another client by facsimile transmission. In June, 1999, the respondent was sentenced to a 105-month term of incarceration, with four years of supervised release to follow. The respondent did not report the conviction to bar counsel in Massachusetts. S.J.C. Rule 4:01, § 12(8), as appearing in 425 Mass. 1313 (1997). On November 12, 1999, the Supreme Court of Florida allowed the respondent's petition for disciplinary resignation, and granted him leave to seek readmission after five years. The respondent did not report the discipline to the Board of Bar Overseers (board) or to bar counsel, as he was required to do by S.J.C. Rule 4:01, § 16(6). After learning of the conviction and discipline in Florida, on November 23, 2011, bar counsel filed a notice of conviction and petition for reciprocal discipline in the county court. A single justice of this court suspended the respondent from the practice of law for three years, declining to apply the suspension retroactively to the date of his disciplinary resignation from the Florida bar.
The court found no special mitigating factors and concluded:
We conclude that a three-year suspension is markedly disparate from what has been imposed in like circumstances, and that disbarment is appropriate. The order of the single justice is therefore vacated, and the matter is remanded to the county court, where a judgment of disbarment shall enter, effective as of the date of the single justice's order of term suspension.
The case is In re Michael W. Burnham, decided today. (Mike Frisch)
A 2011 graduate of Case Western Reserve University Law School has been denied admission to the Ohio Bar.
Although the Licking County Bar Association had recommended approval of the application, the Board of Commissioners on Character and Fitness disagreed but proposed that he be permitted to reapply for the July 2014 bar examination.
The court agreed with the board that admission should be denied, but delayed permission to reapply until July 2018.
The applicant was convicted of second-degree felony of pandering obscenity involving a minor in 2007.
The Kenyon Collegian reported on the charges and provided some family background:
The case has made headlines around central Ohio primarily due to controversy surrounding Daubenmire's father, "Coach" Dave Daubenmire.
The elder Daubenmire was the football coach in London, Ohio, 30 miles west of Columbus when the American Civil Liberties Union (ACLU) sued the school because Daubenmire allegedly started all of the games with a Christian prayer. He is known locally as a "culture warrior" whose ministries include Pass the Salt and Minutemen United, a lobbying organization that counts among its victories a large superstore chain's decision to remove soft-core pornography from their shelves and the removal of a "homosexual bathhouse" from a Columbus neighborhood. Dave Daubenmire also made national headlines when he was arrested protesting the decision to remove Terri Schiavo from her feeding tube by attempting to deliver Schiavo a cup of water.
The elder Daubenmire and his wife released a statement about their son on one of their ministry's websites. "What he has done is shameful, despicable, and repulsive, they wrote. "But he is our son and we love him. We will walk this path together." The Daubenmires also expressed gratitude, saying, "The wound had been exposed. He has come clean. We can finally help him get well."
The court here found him "an unlikely candidate to engage in the conduct that led to his arrest and conviction" as he was raised "in a strict religious household and was a good student and star athlete." He admitted that he began to look at Internet pornography in high school and downloaded pictures of children under eighteen.
His conduct was discovered when his computer malfunctioned and was sent to a repair shop by his father. The repair technician found the files and reported it to authorities. The applicant cooperated with the criminal investigation and pleaded no contest to charges.
The applicant attended law school because he understood that he would be barred from his chosen career as a coach and teacher. He fully disclosed the situation in his law school application and has complied with treatment.
The court decision will permit reapplication after his obligation to register as a sex offender expires. (Mike Frisch)
A majority of the New York Appellate Division for the Second Judicial Department has held that one party to a long term committed same-sex relationship stated a cause of action for breach of an oral agreement.
Each had had a biological child that the other adopted. The plaintiff stayed at home while the defendant continued to work.
They ended the relationship in 2007 and were never married.
The parties lived together in a committed, same-sex relationship for nearly 18 years, and are the parents of two children. After the relationship ended, the plaintiff commenced this action seeking, inter alia, damages for breach of an alleged oral "joint venture/partnership" agreement whereby she would share in assets, including the defendant's retirement contributions and earnings, in exchange for leaving her full-time job to care for the parties' children. The plaintiff also asserted several equitable causes of action predicated upon the alleged oral agreement to share in the defendant's retirement contributions and earnings. For the reasons that follow, we conclude that the complaint is sufficiently pleaded to state a cause of action sounding in breach of contract.
Justice Dillon concurred in part and dissented in part:
Distilled to its essence, the plaintiff in this action seeks "equitable distribution" of the defendant's assets and future pension benefits without alleging in the complaint that the defendant had promised to share them if the parties did not stay together. Indeed, there is no allegation that the parties had any meeting of the minds as to the distribution of property or assets upon a termination of their relationship. Absent such an allegation, and absent an affidavit from the plaintiff clarifying or expanding her description of the parties' agreement to cover such an eventuality, the complaint fails to state a cause of action. The plaintiff's theory of recovery is dependent upon implying terms for the distribution of retirement benefits to circumstances involving the dissolution of the parties' familial relationship. The Supreme Court properly refrained from implying such provisions into the oral contract in determining that, under the circumstances alleged, the "complaint lacks a contract for the court to enforce."
No aspect of this partial dissent speaks to the merits of the New York's more recent enactment of the Marriage Equality Act. This Court is sensitive to the complications occasioned by various forms of familial relationships that necessarily result in financial agreements or entanglements. The judiciary, however, is limited in addressing and determining the ownership and/or distribution of familial assets, absent either the existence of a lawfully recognized marriage or an enforceable expressed contract between persons in a cohabitational relationship.
Wednesday, November 13, 2013
The Minnesota Supreme Court order indefinitely suspending an adjunct professor who taught a sports law class for sexually harassing a student "he had taught and was supervising in an independent clinic" has been posted.
The attorney had "opposed any public discipline."
Justice Lillehaug dissented, noting that the court's order allows the attorney to seek reinstatement after 90 days. As the "common denominator" of the sexual harassment and subsequent "interference with a law school's and law enforcement's administration of justice" was "the use and abuse of power," a longer suspension should have been imposed.
Unlike the majority order, the dissent describes the misconduct in detail.
Personal note: The attorney's father moved the original Washington Senators to Minnesota. I never have and never will forgive him. It takes all the strength of will I possess to avoid dancing here. (Mike Frisch)