Tuesday, January 3, 2017

Prosecutor Reprimand Proposed: Junior Status No Defense

A prosecutor's Rule 3.8(d) violation resulted in  a public reprimand by the Louisiana Attorney Disciplinary Board.

The prosecutor was involved in a second-degree murder trial and claimed that his subordinate status precluded a misconduct finding with respect to disclosure of the familiarity of the crucial witness with guns.

The totality of evidence underpinning the state's case consisted almost exclusively of the testimony of one key witness – and the only admitted participant – in the homicide: the victim's estranged wife, Kristyn Hoffpauir. Kristyn initially was charged as a co-defendant with Sizemore, but in May 2011 she entered a guilty plea agreeing to testify for the state at trial against her former co-defendant.

The board on the Rule 5.2 defense offered by the prosecutor

We disagree. A subordinate lawyer is only insulated by Rule 5.2(b) when the supervisory lawyer is faced with a reasonable resolution of an arguable question of professional duty. Here, we find that the supervising lawyer's resolution was neither reasonable nor arguable. His decision that such information should not be given to the defense does not logically follow from the premise that the information was hearsay. The defense could have called as witnesses the people identified by Mr. Thibeaux as possessing firsthand knowledge of the events in question, but not if it does not possess the information in the first place. Kristyn's gun familiarity was questioned in the first two trials, and one of those occasions was after the prosecutors learned that Kristyn not only may have had a gun, but may have threatened to kill her own mother.

We are not persuaded by the fact that this issue did not arise in the third trial. The issue is not what happened in the third trial, but before and during the second. We find that the Office of Disciplinary Counsel proved by clear and convincing evidence that Respondent violated Rule 3.8(d) in failing to disclose the information procured by Detective Ortiz. Respondent has substantial experience as a prosecutor, and neither he nor Mr. Westerchil was principally responsible for the case.

The board agreed that the prosecutor had withheld material evidence in violation of his disclosure obligations.

The board noted only a single prior Louisiana case involving a Rule 3.8(d) violation and considered the prosecutor's subordinate status in assessing the severity of the misconduct

The facts of this matter appear to be less egregious than those in Jordan. First, Mr. Jordan had sole discretion on what evidence was provided to the defense. Here, the facts are quite different. Mr. Skinner directed Detective Ortiz to interview Mr. Thibeaux, unbeknownst to Respondent and Mr. Westerchil. Mr. Skinner directed Detective Ortiz to leave the information regarding the prior gun possession out of his report, and then directed Mr. Westerchil to not disclose the report to the defense. Thus, Respondent was put in the difficult position of having to defy his supervisor’s handling of the information. Second, once the undisclosed evidence came to light during the second trial, Respondent and Mr. Westerchil promptly agreed to a mistrial. No such remedial action was taken in Jordan. Accordingly, the sanction recommended by the Committee – public reprimand – is appropriate and is adopted by the Board.

Mr. Skinner is the District Attorney. (Mike Frisch)

January 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

North Of Disbarment

The Louisiana Attorney Disciplinary Board has proposed permanent disbarment of an already disbarred attorney based on findings that the first sanction did not take hold.

From the charges

Judge Monique Barial, with the Orleans Parish Civil District Court, states that on May 11, 2015, you appeared in her court as counsel for Ivan Prevost, petitioner in a Petition for Protection from Abuse. The Court rendered a judgment, which you were to prepare. When Mr. Prevost was unable to reach you to obtain a copy of the judgment, he went to the Court's chambers to get a copy. The office staff told Mr. Prevost that it had not yet received the circulated Judgment with the Rule 9.5 Certificate. Approximately two days later, Mr. Prevost returned to the Court's chambers to get a copy of the Judgment in order to schedule the evaluations ordered by the Court. Mr. Prevost told the staff that he still had not heard from you, and had in fact learned that you had been disbarred.

Judge Barial then called the number that was listed on the draft of the judgment you had previously sent to the Court, and left a message asking that you call the Division. To date there has been no response to Judge Barial’s request. Judge Barial also did a search of the Court's Case Management System in order to identify whether or not you were listed as eligible. She noted that there was an Edward W. Hebert (LSBA #25086) who was listed as ineligible. The LSBA number you listed on the judgment that you submitted to the Court is #25412. You also listed your name as “E. Hebert” on the judgment. According to the Court's database, the bar roll number listed on your judgment belongs to an attorney by the name of Eric T. Hebert. Judge Barial called Eric Hebert, who confirmed that the bar roll number listed on your pleading was his, that he was not Edward Hebert, and there was no Edward Hebert at his firm.

You intentionally practiced law while suspended when you made a court appearance and prepared a judgment for Mr. Prevost. In addition, you intentionally misrepresented your name and Louisiana bar roll number to the Court, in order to conceal the fact you were ineligible to practice law.

According to Mr. Prevost, you never told him you were suspended from the practice of law. Mr. Prevost further confirmed he paid you $500 in cash to represent him in the underlying matter. You intentionally deceived Mr. Prevost and obtained $500 from him under false pretenses. As of this date, you have not refunded any of the funds given to you by Mr. Prevost.

The board agreed with the hearing committee on misconduct but not sanction

The Board adopts the factual findings and legal conclusions of the Committee. However, it does not adopt the Committee’s sanction recommendation. Instead, the Board recommends that Respondent be permanently disbarred under Guidelines 8 and 9. Additionally, the Board recommends that Respondent be assessed with the costs and expenses of this matter and be ordered to provide restitution to Mr. Prevost.

(Mike Frisch)

January 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 2, 2017

Suspension Proposed For Judge Who Sexually Harassed Employee: Drafted Recommendation Letter That Said She Was "Sexy As Hell"

The Michigan Judicial Tenure Commission has proposed a censure and suspension of 60 days without pay of a probate judge who had sexually harassed his judicial secretary over a three-year period from 2012 to 2015. 

The misconduct consisted of, among other things, a series of text messages where he complained about the state of his marriage and unaccepted invites to a Rihanna/Eminem concert and to travel to "exotic locations for court-related conferences" where they would share accomodations. 

He showed her a "sexually suggestive Youtube video of a high-priced lingerie website Agent Provocateur."

He also drafted a letter of recommendation on her behalf that advised potential employers that she was "sexy as hell." 

That language was deleted at the secretary's request. 

The judge self-reported the misconduct to the commission after reaching a civil settlement with the secretary.

Matt Durr at MichiganLive reported the story

Between 2012 and 2015, Iddings sent after-hours text messages to the woman about his marital problems and personal feelings, invited the woman to accompany him to court-related conferences where they would share a hotel room and shared a video with her about a lingerie website.

...the secretary filed a complaint against Iddings and in June a settlement was agreed upon and the secretary received an undisclosed amount of money. At that time Iddings then self-reported himself the judiciary committee for review.

The commission also recommends that the judge take a course in Texas called Maintaining Proper Boundaries.

Details from Lenconnect's David Panian.

The Peninsula had the story in October 2016 of the judge's reappointment by Governor Snyder to the Commission on Community Action and Economic Opportunity

The CCAEO is a 12-member commission created to reduce the causes, conditions and effects of statewide poverty in Michigan. The CCAEO also promotes social and economic opportunities in Michigan, and seeks to enable self-sufficiency for lower-income residents in the state.

“I thank Judge Iddings for his continued service on this commission and I am confident he will provide thoughtful input to assist low-income Michiganders,” Snyder said.

(Mike Frisch)

January 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Most Important Year In D.C. Bar History

The year 2017 will be one of the most consequential in the history of the District of Columbia Bar with the retirement and replacement of the most influential actors in the regulation and administration of the legal profession. 

The ultimate responsibility for the regulation and direction of the D.C. Bar rests with the highest court of the jurisdiction - the Court of Appeals.

From the Court's Rule I creating the unified Bar

The purposes of the Bar shall be to aid the Court in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence in public service, and high standards of conduct; to safeguard the proper professional interest of the members of the Bar; to encourage the formation and activities of volunteer bar associations; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the Bar to the public, and to publish information relating thereto; to carry on a continuing program of legal research and education in the technical fields of substantive law, practice and procedure, and make reports and recommendations thereon; to the end that the public responsibility of the legal profession may be more effectively discharged.

Chief Judge Eric Washington will step down this March. 

The court not only administers the attorney discipline system but also must work with the organized Bar on a wide array of issues including budget, i.e., the spending of mandatory dues. 

The next Chief  Judge will play a key role in the uncertain future.

The Bar's longtime Chief Executive Officer is also retiring at the end of March and  "brings to a close a remarkable career that spans 34 years of continuous service to the D.C. Bar. "

With the new building in the works, it has never been more important to have an independent leader with a fresh approach and superb managerial skills who has no loyalty to any bar faction other than its membership in the broadest sense.

I do not know who hires the next Chief Executive Officer (I assume that the task falls to the Bar's Board of Governors) but the process should be as transparent as possible and give the largest possible voice to the membership.

 Finally, there will be a new Disciplinary Counsel this year, replacing one who has been in discipline for a like period as the Chief Executive Officer has been running the Bar.

The replacement will be chosen by the Board on Professional Responsibility. 

It has been widely (if not publicly) recognized that there is room for considerable improvement in the operation of every aspect of the attorney discipline process in D.C.

The choice of the new Disciplinary Counsel is the key decision that will determine the future of attorney regulation in the District of Columbia. 

The Executive Attorney of the Board on Professional Responsibility - also a bar careerist - retired and was replaced in 2016.

I am confident that the decisionmakers responsible for the public trust that the Bar offices embody will bring in fresh blood to invigorate  a Bar that for far too long has been an inside job.

As George Allen (the coach not the politician) once said:

The Future is Now!

(Mike Frisch)

January 2, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Saturday, December 31, 2016

Does Growing More Marijuana Plants Than Permitted For Lawful Medical Use Reflect Adversely On Fitness?

An attorney's role in growing more marijuana plants than the 24 permitted under Michigan's Medical Marijuana Act is at issue in an Illinois disciplinary proceeding. 

The attorney has filed an  answer to the complaint alleging a violation of Rule 8.4(c) which provides that it is professional misconduct to

commit[] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects

 The answer does not contest that

From approximately June 2012 to December 2013, Respondent and his then-girlfriend, Samantha Lumley ("Lumley"), maintained a rented home at 3590 138th Street in Hamilton, Allegan County, Michigan (the "Hamilton residence"). During this time, Respondent traveled between Hamilton, Michigan and Bolingbrook, Illinois, where he also maintained a residence (the "Bolingbrook residence").

In or around June 2012, Respondent and Lumley Permitted For obtained medical marijuana cards under the Michigan Medical Marihuana Act (the "Act"). Section 333.26424(a) of the Act allows a registered person, referred to as a qualifying patient, to legally possess 2.5 ounces of usable marijuana and grow up to 12 marijuana plants for medicinal purposes, unless that person has a designated primary caregiver who is assisting them with their medical use of marijuana. A primary caregiver is legally allowed to possess 2.5 ounces of usable marijuana and grow up to 12 marijuana plants for each qualifying patient they are assisting, up to five patients, pursuant to Section 333.26424(b) of the Act. Lumley was a primary caregiver with one patient, Respondent, and was therefore allowed to possess a total of five ounces of usable marijuana and grow up to 24 marijuana plants.

Between June 2012 and December 2013, Lumley grew more than 24 marijuana plants at one time in the garage of the Hamilton residence. Lumley also manufactured marijuana butter, marijuana oil capsules, and marijuana laced candy, and sold these products to third parties. Respondent had knowledge of Lumley's manufacture and sale of marijuana, and he provided informational and financial assistance to Lumley's operation.

On December 4, 2013, Lumley mailed a package from Michigan containing marijuana oil to Respondent's Bolingbrook residence. The West Michigan Enforcement Team ("WEMET"), a multi-jurisdictional drug enforcement task force, intercepted the package and traced it back to Lumley.

The attorney was present at the Hamilton residence when the enforcement team arrived.

He denies knowledge of Lumley's expanded activities prior to that time.

He initially pled guilty to conspiracy to manufacture marijuana and was placed on deferred probation.

After the probation was successfully completed, he pled to a high court misdemeanor charge of maintaining a drug house and the conspiracy charges were dismissed.

He was in custody for 27 days.

The answer neither admits or denies the legal conclusion that the conduct violated Rule 8.4(b). (Mike Frisch)

December 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

An Argument That Led To Double Disbarment

An attorney disbarred in North Carolina has filed a motion consenting to the same sanction in Illinois.

The criminal charges that formed the basis of the consent

On June 10, 2015, Movant was involved in an argument with his paramour while at Hudson’s Market at the Wild Dunes resort in Isle of Palms, Charleston County, South Carolina. During the argument, Movant pointed a black Ruger LCP .380 firearm at his paramour and others. Witnesses called the police, and officers arrested Movant outside Hudson’s Market. Upon arrest, officers found Movant to be in possession of less than one gram of cocaine.

On June 1, 2016, Movant entered pleas of guilty to one felony count of pointing and presenting a firearm at a person, one misdemeanor count of unlawful carrying of a pistol, and one misdemeanor count of possession of cocaine in Charleston County, South Carolina...and judgments of conviction were entered against him the same day. Movant was sentenced to a total of one year in the State Department of Corrections (with credit for time served) and five years of probation. Movant is currently on probation.

We had the story of his interim suspension in North Carolina linking to a report by 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.

(Mike Frisch)

December 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 30, 2016

A Gift

The New Jersey Supreme Court recently reinstated an attorney after ordering his disbarment in May 2014 for intentional misappropriation.

The path post-disbarment was unusual as recounted in the court's order

and the Court thereafter on respondent’s motion for reconsideration, having remanded the matter to the special ethics master for a hearing at which respondent could present additional proofs of his defense that the funds at issue in the Cox matter were a gift to respondent, as well as evidence pertaining to respondent’s credibility;

And the special ethics master having conducted said hearing and having submitted to the Disciplinary Review Board his supplemental report with the findings of fact and conclusions of law based on the additional proofs;

And the Disciplinary Review Board thereafter having filed a supplemental decision with the Court (DRB 16-077), accepting the credibility determinations of the special ethics master and finding that in the aggregate the record lacks convincing evidence that respondent knowingly misappropriated client funds, and having recommended to the court that the formal ethics complaint be dismissed and that respondent be reinstated to the practice of law.;

And good cause appearing;

It is ORDERED that the disbarment Order filed May 12, 2014, is hereby vacated...

The charges were dismissed and the attorney was immediately reinstated.

NJ.com had reported on the 2014 order of disbarment

In the days before 91-year-old Doris Cox died in January 2008, her attorney, Michael Luciano, withdrew $100,000 from her bank accounts, court papers say.

Luciano has claimed the money was a “gift” that Cox had said she wanted to give him several months beforehand, court papers say. He later used the funds to purchase bonds for himself or his children, court papers say.

But state judiciary officials didn’t buy that argument about the gift, and last week the state Supreme Court disbarred the Livingston attorney for the knowing misappropriation of client funds.

The order of disbarment, approved on Monday, was effective immediately.

In its decision recommending disbarment, the court’s Disciplinary Review Board noted how Luciano had no written evidence to show he had permission to take the money as a gift.

The attorney also failed to report the $100,000 on tax returns, the decision states.

“Given respondent’s failure to maintain the funds in a manner that was consistent with his stories, the only possible explanation for his transfer of the funds to the trust account was so that they could be hidden from the government and Cox’s beneficiaries,” the decision states.

Luciano is planning to file a motion to reconsider the disbarment, said his attorney, David Glazer. Luciano was admitted to the bar in New Jersey in 1984.

“We think it’s…a miscarriage of justice,” Glazer said. “We don’t believe that Michael did anything wrong.”

Glazer said Luciano’s clients can testify to his honesty, decency and compassion. “I don’t think you’ll find a single client who will have a negative thing to say about Michael Luciano,” Glazer said.

Cox, a retired elementary school teacher who later worked as a veterinary technician, was referred to Luciano by a friend in order to have her will redrawn, according to the decision.

In December 2005, Cox designated Luciano as her power of attorney, and he later handled all of her financial affairs, the decision states. Cox had no family, the decision states.

Her friend testified at a hearing that Cox’s state of mind was “fine” until “the last month or so,” the decision states. At that time, Cox was incoherent and “she did not understand what day or time it was,” the decision states.

Eight days before Cox died on Jan. 11, 2008, Luciano prepared a $25,000 check payable to himself from one of her bank accounts, according to the complaint filed against him by the court’s Office of Attorney Ethics.

Luciano signed Cox’s name on the front of the check and deposited the funds into his attorney trust account, the complaint states.

On Jan. 9 – two days before Cox’s death – Luciano obtained a $75,000 check payable to Cox from another account, the complaint states. He signed Cox’s name on the back of the check and deposited it into his account, the complaint states.

Following Cox's death, Luciano used the funds to purchase bonds for himself or for his children, the complaint states.

The transfer of the $100,000 was discovered during a random audit of Luciano’s law firm by the Office of Attorney Ethics in August 2009, the decision states.

After Cox died, Luciano also received additional payments totaling more than $100,000 in attorney fees for handling the estate and a commission as the executor of her estate, the decision states.

During the ethics investigation, Luciano claimed that Cox had told him about the $100,000 gift during a July 30, 2007 meeting, the decision states. After receiving the ethics complaint, Luciano said he accepted the gift in lieu of attorney fees, according to his answer to the complaint.

“Ms. Cox emphatically stated that she wished to gift respondent $100,000.00,” according to Luciano’s answer. “Although Ms. Cox was not a blood relative her relationship with respondent was that of a relative or family member.”

But state judiciary officials concluded “there was no gift and that he availed himself of the $100,000 left in Cox’s account, which he knew she no longer needed,” the decision states.

The report of the Disciplinary Review Board proposing dismissal is linked here . 

It recounts the finding of the Special Master

although the evidence offered in support of respondent’s claim that Cox had gifted the $100,000 to him was "not overwhelming," it was "just enough to push the scales to defeat the OAE’s burden of proof below the required clear and convincing evidence standard." Consequently, the special master recommended respondent’s reinstatement to the practice of law.

The DRB majority concludes that misappropriation was not established by clear and convincing evidence with some misgivings but could no longer recommend disbarment "without hesitancy"

...some of respondent’s explanations for his actions remain contradictory, even irreconcilable, such as his failure to identify the gift on the inheritance tax return and his failure to declare the $100,000 as income. Yet, the ultimate question is, not what respondent did with the money or how he described the money or whether he should have paid taxes on the money. Rather, the ultimate issue is whether respondent knowingly misappropriated the funds in the first instance. Given the additional evidence presented on remand, it is no longer necessary to look at respondent’s subsequent actions to prove that he was not authorized to take the monies. In the face of the additional evidence that the monies were gifted to him, when considered in the aggregate with the OAE’s evidence, we are no longer able to come to a clear conviction, without hesitancy, that respondent knowingly misappropriated $100,000 from Cox.

And

Certainly, a person of honor is not immune from engaging in unethical behavior. Indeed, we do not go so far as to say that respondent has established, by clear and convincing evidence, that Cox had gifted $100,000 to him. We find, however, that, when considering all of the evidence, in the aggregate, the record lacks clear and convincing evidence that respondent knowingly misappropriated funds belonging to his client, Doris A. Cox. We recommend, therefore, that the complaint be dismissed, and that respondent be reinstated to the practice of law.

Finally, we take the opportunity to express a concern. The lack of a writing, demonstrating that Cox gifted the funds to respondent, disturbs us greatly.

Maybe not greatly enough, as indicated by the dissent of two DRB members

In our view, the corroboration of the "gift" by respondent’s family members, law partner, and former secretary is self-serving both to his interests and to theirs. That his client was generous to others does not convince us of her generosity toward him, for several reasons.

First, up until the time of the "gift," respondent billed Cox for the services he provided to her. Why, then, would she reward him with a six-figure "bonus?" This is particularly so, given that her rewards to others were in writing in the form of specific bequests in her will or the identification of beneficiaries to her annuity and pension.

Second, it is unfathomable to us that an attorney as experienced and meticulous as respondent would fail to obtain a writing confirming that Cox has gifted $100,000 to him.

Third, respondent’s failure to report such a substantial sum of money to any taxing authority, together with his admission that he did not want the beneficiaries to know about the gift, smacks of dishonesty so premeditated in scope as to trump all other evidence suggesting - and it only suggests -- a gift.

The dissenters also considered the age and infirmity of the client, which drew this response from the majority

Here, the dissenting members of this Board have based their determination, in part, on their view that Cox’s age and poor health rendered her vulnerable and that respondent took advantage of her. We note, however, that there was no evidence of her vulnerability; that age and health alone do not necessarily render one vulnerable; and that, compared to the record in [prior disciplinary cases], the record here lacks evidence that respondent took advantage of Cox. In our view, the strong character evidence produced at the rehearing undercuts such a conclusion.

I think there is at least a possibility that too much weight was given to the character evidence and too little to the proven facts.

Notably, Rule 1.8(c) of the New Jersey Rules of Professional Conduct provides

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

(Mike Frisch)

December 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Second Time Around

A District of Columbia Hearing Committee has found intentional misappropriation and recommends disbarment of an attorney previously disbarred for that same misconduct in 1990 and subsequently reinstated to practice.

The complainant was not the client.

Rather, the matter involved a dispute with co-counsel over the allocation of fees in successful litigation.

The Specification of Charges alleges that following the conclusion of a successful suit in the courts of the Commonwealth of Virginia, Respondent, who was the sole custodian of the proceeds of that suit, undertook to distribute those proceeds. He made an appropriate and unchallenged distribution to the plaintiff/client, satisfying the client’s claims pursuant to the retainer.  He also made an appropriate and unchallenged distribution to the Virginia attorney who served as local counsel in the litigation.  The problem which brought this matter to the attention of Disciplinary Counsel arose in the course of making a distribution to the two District of Columbia attorneys who had first been engaged by the plaintiff and who were responsible for arranging for Respondent’s participation in the matter. Respondent, the two complainants, and Virginia local counsel were parties to the retainer agreement, but that agreement made no provision for the division of attorneys’ share among them. While local counsel was satisfied with his share, the three District of Columbia attorneys could not reach any agreement on the division of the fee.

Notably, then Bar (now Disciplinary) Counsel, had apparently not alleged misappropriation but rather charged a Rule 1.15 (d) (duty to hold disputed funds) violation.

The hearing committee nonetheless found that the attorney engaged in intentional misappropriation 

We take this view notwithstanding Disciplinary Counsel’s suggestion that we are bound by the Contact Member’s determination. There is nothing in the record available to us to suggest that the Contact Member did indeed consider the question, and even assuming the Contact Member did consider it, we respectfully disagree with his/her conclusion. Given the facts of the Specification as pled by Disciplinary Counsel and accepted by Respondent, and considering our Court’s express views on intentional misappropriation, we are merely following those to bring this matter into conformity with the law in the District of Columbia.

In considering this matter we note some anomalies. First, it is curious that Disciplinary Counsel remarks on the “punctiliousness” of Hearing Committees which, in the face of the Disciplinary Counsel’s consistent practice of pleading misappropriation cases in the alternative, that is, not specifying whether charged conduct was intentional, reckless, or negligent, here suggests that this Committee is in contradiction of that general practice of our sister Hearing Committees when we require that in this matter Disciplinary Counsel plead the “general” misappropriation charge when Disciplinary Counsel has pled the “specific” charge which addresses the conduct here. Disciplinary Counsel’s argument neglects the core problem in this and those matters, that is, the Court of Appeals has stated a strong preference for a particular sanction when misappropriation is intentional or reckless. That preference compels that a respondent be given sufficient notice of the potential for that sanction, and equal treatment requires  that any and all conduct which amounts to intentional or reckless misappropriation be treated as such.

Finally, this and every other matter before the Board deserves as prompt a resolution as possible, and such is required in fairness to the Respondent and the public we are charged to protect. Having notified the parties that we would do so and then considering the evidence as to a charge of reckless/negligent misappropriation as well as the charge of violating Rule 1.15(d) we have provided the Board and the Court with the fullest record upon which to act. By making clear herein how we would resolve this matter on the charge of Rule 1.15(d) and on the charge of Rule 1.15(a) and (c), if the Court or the Board disagrees with our view, they can address that question without need for a remand.

The above discussion refers to the process by which an attorney hearing committee member serves as "contact member" to review proposed petitions charging ethical misconduct pursuant to the court's Rule XI

A Contact Member designated under section 4(e)(5) of this rule shall have the power and duty to review and approve or suggest modifications of recommendations by Disciplinary Counsel for dismissals, informal admonitions, the institution of formal charges, and the deferral or abatement of disciplinary investigations pending the outcome of related criminal or civil litigation. In the event of a disagreement between Disciplinary Counsel and the Contact Member regarding the disposition recommended by Disciplinary Counsel, the matter shall be referred by the Executive Attorney to the Chairperson of a Hearing Committee other than that of the Contact Member for decision. The decision of the Hearing Committee Chairperson to whom the matter is referred shall be final.

I have been in a few of the "disagreements" referred to in the rule. Such interactions remain confidential, although as my late mentor Len Becker would say, the stories are occasionally juicy. 

As to handling of the disputed proceeds, the hearing committee found

Pursuant to the retainer agreement in this matter, after distributing $360,000 to [client] Ms. Bables, the attorneys’ portion of the recovery in Ms. Bables’ matter was $240,000. One of Respondent’s first distributions of that recovery was to pay Mr. Thompson, local Virginia counsel, $15,000. While Messrs. Long and Stovall have indicated they would have paid Mr. Thompson more, Mr. Thompson has never formally complained and thus is not a party to the fee dispute among the three District of Columbia lawyers which occasioned the instant proceeding. There was, as a result, a dispute over the division of the remaining $225,000. Disciplinary Counsel contends that Respondent violated Rule 1.15(d) when, despite the fact that he had been put on notice that there was a dispute concerning the division of fees between Respondent and co-counsel in the Bables matter, Leonard L. Long, Esquire, and W. Thomas Stovall, II, Esquire, over a period of months following his distribution to Ms. Bables and local counsel, Respondent distributed to himself virtually all of the remaining $225,000 of the settlement.

And as to reliance of advice from disciplinary counsel

 While in principle Respondent can be fairly said to be in compliance with Rule 1.5(e) throughout his dispute with Messrs. Long and Stovall, in fact he never claimed reliance on the Rule until he consulted with the Office of Disciplinary Counsel long after the dispute had arisen, and after he had been advised that Messrs. Long and Stovall believed the entire sum of $225,000 was in dispute. 

Key finding

As a matter of fact, we find that there was indeed a meeting of the minds on the question of the division of the fee. At least two things indicate that Messrs. Long and Stovall were correct when they testified that the understanding between the three counsel when the association began was that the fee would be divided among them in equal parts...

The Hearing Committee finds Respondent incredible in his claim that there was no agreement on the split at the beginning of the case, and Messrs. Long and Stovall testified truthfully when they said the original agreement was that the fee would be divided equally among the three. We find that Robinson’s protestations of unfairness not to the contrary, he well knew that he had an oral agreement with Messrs. Long and Stovall to split the fee evenly, and he was thus obligated to maintain $150,000 in his account as being in dispute. He clearly did not.

The case is In re Wendell Robinson.

The apparent disagreement between the hearing committee and disciplinary counsel is an interesting one. Disciplinary proceedings are not criminal in nature and the contact member is not in any sense a grand jury.

Rather, the approval process is informal and usually  (in my stale personal experience) rather perfunctory. Indeed, there are those who believe that the process should be discarded in its entirety.

Consistent with due process notice requirements, I have no doubt that an approved petition can be amended as evidence of misconduct develops without returning to the contact member for permission.

Any other approach would elevate mindless proceduralism over common sense. (Mike Frisch)

December 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 29, 2016

A Tale Of Two Attorneys And The Open Range

The Nevada Supreme Court held that a judgment was properly set aside in part due to opposing counsel's misconduct.

The plaintiff was the estate of a man killed when he struck a cow while driving on the open range.

Michael Adams struck respondent Susan Fallini's cow while driving on a portion of highway designated as open range.' Adams died as a result, and Adams' estate (the Estate) sued Fallini for negligence. The Nevada Highway Patrol's accident report indicated that the accident had occurred on open range. Additionally, Adams' family appears to have created a memorial website for Adams prior to the lawsuit, which explained that Adams' accident occurred on open range and opined that open range laws are unjust.

From the Las Vegas Review-Journal in 2014

Fallini was sued in 2007 by the family of California mining geologist Michael Adams, who died in 2005 after his car struck one of the rancher’s cows on state Route 375.

The Fallini’s Twin Springs Ranch is open range, and Nevada law protects open-range ranchers from being sued if their cows are struck by cars.

Adams was also drunk and speeding when he struck the cow, according to police reports, but that didn’t stop his mother from filing a lawsuit against Fallini.

The fact that the accident was on open range was an inconvenient one for the plaintiff.

But the defendant made a poor choice of counsel, who is now disbarred.

We hold the district court did not abuse its discretion in granting Fallini's NRCP 60(b) motion for fraud upon the court. First, the initial judgment in this case would likely not have been obtained but for Fallini's counsel's abandonment of his client and his professional obligations to his client... Standing alone, that might not warrant relief, as the lawyer is the client's agent and the acts and omissions of an agent ordinarily return to the principal who hired the faithless agent, not those who dealt with the agent in his representative capacity. But here, the Estate's counsel seized on that abandonment as an opportunity to create a false record and present that record to the district court as the basis for judgment. Together, these acts and omissions merited relief.

The district court did not abuse its discretion in finding that the Estate's counsel breached his duty of candor to the court. Although counsel may request that the opposing party admit certain facts that counsel already knows or should know the answer to, if the opposing party fails to respond, we hold that counsel may not rely on the deemed admission of a known false fact to achieve a favorable ruling.

One side had a dilatory lawyer who was eventually disbarred; the other an overzealous lawyer who relied on the concession of a falsehood

...counsel violates his duty of candor to the court when counsel: (1) proffers a material fact that he knew or should have known to be false, see generally Sierra Glass & Mirror v. Viking Indus., Inc., 107 Nev. 119, 125-26, 808 P.2d 512, 516 (1991) (providing that counsel committed fraud upon the court "in violation of SCR 172(1)(a) and (d)" when he proffered evidence and omitted pertinent portions of a document to "buttress" his client's argument, and that he "knew or should have known" that the omitted portion was harmful to his client's position)...

We hold that the Estate's counsel's duty of candor required him to refrain from relying on opposing counsel's default admission that the accident did not occur on open range, when he knew or should have known that it was false, and that the district court did not abuse its discretion in finding the Estate's counsel committed a fraud upon the court when he failed to fulfill his duties as an officer of the court with candor.

The trial court order on the judgment was reported in the Pahrump Valley News. 

It should have been an open and shut case. However, Fallini’s first attorney, former Nye County Public Defender Harry Kuehn, failed on multiple occasions to perform the necessary legal work to properly defend Fallini’s interests. In fact, Kuehn’s work on the case was so shoddy that he ignored a request for admissions where Adams’ attorney, Las Vegas lawyer John Aldrich, asked Fallini to admit that the accident did not occur in open range.

By failing to deny that one admission, and then failing to do anything of substance to defend Fallini — the judge in the case first sanctioned Kuehn $1,000, then $5,000, then $500 a day at one point during the case — Aldrich eventually won a $2.5 million summary judgment against Fallini in July 2010.

The Nevada Supreme Court reversed that award in March 2013, lowering it to $1 million and then remanding the case back to [Judge Robert] Lane’s court...

When the judge’s order came in Wednesday, it complimented Aldrich for zealously representing his client while at the same time accusing the attorney of violating the state’s professional rules of conduct...

The trial judge further stated

“This is not to suggest that Mr. Aldrich is an unethical attorney,” the order states.

Still, Fallini’s attorney Hague blasted Aldrich during the July 28 hearing, accusing him of manufacturing evidence and bending the rules to suit his own needs.

“The court took notice that essentially two plus two equals four and then agreed with plaintiff that two plus two equals five as a matter of law. That is not how the system should work,” Hague told the court. “This is the most egregious case of fraud upon the court that I have ever seen.”

Aldrich said he was taken aback by the verbal assault.

“That is difficult to listen to. To stand there and listen to my integrity being questioned over and over by someone who does not know me is very difficult,” Aldrich said.

The attorney at one point asked the entire argument made by Hague be stricken from the record.

Further reportage from the Las Vegas Review-Journal.

If the link to the opinion does not work, try here. The case is Estate of Adams v, Fallini, No. 68033.  (Mike Frisch)

December 29, 2016 in Professional Responsibility | Permalink | Comments (0)

Sanctions But Not Dismissal For Discovery Response "Embedded In Large Amounts Of Otherwise Irrelevant Documents"

The plaintiff in a legal malpractice case was sanctioned by the New York Appellate Division for the First Judicial Department for e-discovery misconduct.

The trial court dismissal with prejudice was too severe and was thus reversed

In this legal malpractice action, consolidated with two other actions, although plaintiffs produced responsive material, it was imbedded in large amounts of otherwise irrelevant documents. Over 30,000 documents were produced. The trial court then gave plaintiffs ample time and opportunity to further produce the documents in an electronically searchable format and to organize its responses in the form that defendant requested them. Plaintiffs failed to comply with the court's directions. Under these circumstances, the trial court properly concluded that plaintiffs' failure to comply with its orders was willful (Merrill Lynch, Pierce, Fenner & Smith v Global Strat Inc., 94 AD3d 491 [1st Dept 2012], mod 22 NY3d 877 [2013]). Given, however, plaintiffs' partial compliance and the strong public policy in favor of disposing of cases on the merits, we find that dismissal of the action is too severe a sanction at this time and that a less severe sanction, of a monetary fine in the amount of $10,000 plus costs is appropriate, along with a final 30-day opportunity for plaintiffs to provide the discovery in the format ordered by the trial court on February 19, 2014.

(Mike Frisch)

December 29, 2016 | Permalink | Comments (0)

Massachusetts Suspends Former Duane Morris Partner

A year and a day suspension was imposed by a justice of the Massachusetts Supreme Judicial Court of a former Duane Morris attorney for negligent mishandling of the funds of a client, intentional misappropriation of funds due to the firm and improper billing of travel expenses to the firm.

Justice Hines agreed with the Board of Bar Overseers that purported mitigation based on preoccupation with family health issues exacerbated by substance abuse problems had not been established. 

The contention that the misconduct was proven through hearsay evidence also was rejected.

The attorney was admitted in 1971 and was a partner at the firm from 2004 to 2006 and again from February 2010 to October 2011. 

In the period between, he was counsel to the Las Vegas Sands Corporation.

According to the court's memorandum decision, he did so in part

because he expected that [the firm] would withhold his capital contribution...when he left the firm.

The mitigation that affected sanction in the attorney 's favor was prompt repayment of the funds at issue.

The Boston Business Journal reported his 2010 return to the firm and also noted the publication of his first novel. The Inquirer and Mirror had the story of the novel's publication. (Mike Frisch)

December 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Google Search Leads To Remand After Conviction

The District of Columbia Court of Appeals has held that a remand of a manslaughter while armed conviction was required in light of juror non-disclosure allegations.

The trial court had declined to hold a hearing in light of post-trial information uncovered by defense counsel

After trial, defense counsel conducted a “general Google search” of all of the jurors’ names and discovered that one of the jurors, Juror 061, was a registered sex offender with a felony record and that another juror, Juror 703A, had been a complainant in an assault case in 1999. The government subsequently discovered and disclosed that Juror 061 had several additional convictions and that Juror 703A had also been a complainant in a 2000 assault case.

This information was significant because it was inconsistent with Juror 061’s and Juror 703A’s responses during jury selection. At voir dire, the prospective jurors had sworn an oath to tell the truth. They were given a form listing eighteen questions, which the court also read aloud to them. One of the questions was whether the juror, “a close family member or a close friend . . . ha[d] ever been a victim of a crime, a witness to a crime or charged, arrested, brought to court for a crime.” Neither Juror 061 nor Juror 703A circled “yes” for this question or any other question on the form. The court also called the jurors individually to the bench for further questioning by the court and counsel.

 The court

Here, Mr. Poth proffered evidence that Juror 061 and Juror 703A had omitted material information during voir dire. It is possible that these omissions were inadvertent or were not motivated by prejudice. It is also possible that one or both of the jurors were biased against Mr. Poth. Such a prospect, if realized, would have deprived Mr. Poth of a fundamental right in our criminal justice system, and Mr. Poth was therefore entitled under Young to an evidentiary hearing to probe the jurors’ bias.

The trial court’s denial of this hearing on the ground that Mr. Poth’s counsel had failed to exercise due diligence was an error of law.  It may be that where a “defendant knows of possible juror misconduct during trial but does not bring it to the attention of the trial court before the verdict is returned, he waives the right to a new trial on that ground.” Peña v. State, 294 P.3d 13, 23 (Wyo. 2013) (emphasis added); see also United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989); United States v. Edwards, 696 F.2d 1277, 1282 (11th Cir. 1983). But a defendant otherwise has a right to rely on jurors’ responses under oath.12 See McDonough, 464 U.S. at 554 (“The necessity of truthful answers by prospective jurors if th[e voir dire] process is to serve its purpose is obvious.”). Where, as here, the defense had no actual knowledge that jurors had omitted material information and only became aware of this circumstance after conducting an extrinsic investigation, we will not find waiver or forfeiture of the right to raise a claim of juror misconduct.

Congrats to my old friend Enid Hinkes, of Cooperstown, New York, who argued the case for the defendant before the Court of Appeals. (Mike Frisch)

December 29, 2016 | Permalink | Comments (0)

Profit (Not) Sharing

The New York Appellate Division for the Second Judicial Department has accepted the consent disbarment of an attorney

The Asbury Park Press reported on recent criminal charges

A Rockland attorney has been charged with lying to a federal investigator looking into accusations the lawyer stole money from a profit-sharing plan set up for his former law practice.

Burton Dorfman, a well-known lawyer for decades in Rockland, made his first appearance on the criminal complaint Friday in U.S. District Court in White Plains. He has yet to enter a plea, but a representative of the U.S. Attorney's office said Dorfman is likely to plead guilty to the charge soon.

Judge Vincent Briccetti was unable to take a plea in the case because Dorfman's lawyer, Kerry Lawrence, is one of Briccetti's former law partners, according to the U.S. Attorney's Office in Manhattan.

Lawrence said Monday that Dorfman's case has been assigned to Judge Cathy Seibel, a former federal prosecutor. He said no date has been set for Dorfman to enter a plea.

"Mr. Dorfman and I have been aware of this investigation since 2008," Lawrence said. "We are looking forward to a resolution of the case in the near future."

Dorfman, 63, a lawyer in New York since 1979, is accused of making false statements to a U.S. Department of Labor investigator looking into allegations Dorfman stole from a profit-sharing plan that was set up for the law firm, with his former partners, Kevin Conway and Robert Knoebel, a Nyack justice, being victimized by the theft of funds.

Knoebel told The Journal News on Monday that Dorfman was a trustee for the account; Knoebel said he was only a beneficiary.

Dorfman, who has an office in Piermont, could pay restitution of more than $200,000 and a thousands of dollars in fines in the matter. The charge carries a statutory five years in prison, but Lawrence said he will seek a non-prison sentence for Dorfman.

FEDERAL CHARGE AGAINST BURTON DORFMAN

The criminal information against Dorfman says as a trustee in the plan he "falsely denied and failed to disclose to an investigator for the U.S. Department of Labor his undisclosed interests in a party with which he had caused the plan to enter into prohibited transactions."

The Rockland District Attorney's Office began investigating Dorfman a few years ago, initially over his investments in a Manhattan development. When the case expanded, the DA's office brought the FBI into the case.

Dorfman didn't return telephone messages seeking comment on Monday. The U.S. Attorney's Office declined comment until Dorfman enters a plea in the case.

Conway and Knoebel are no longer legal partners with Dorfman.

Dorfman is likely to lose his license to practice law if he's convicted. A graduate of SUNY-Buffalo Law School, Dorfman has no record of public discipline, according to the New York State Unified Court System website.

Dorfman has had an active practice in civil and criminal law in Rockland. He recently represented one of the companies seeking to purchase the county's Summit Park Hospital, a sale that never went through but involved legal actions between competing companies and later the county government. The county has closed down the hospital, which led to nearly 400 people losing their jobs and patients transferred to other facilities.

Dorfman also represented Brega Transport Corp. in Clarkstown during the company's legal fight to take over operations of Rockland County’s TOR and Tappan ZEExpress bus systems. Brega operates both lines.

(Mike Frisch)

December 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 28, 2016

Pennsylvania Proposal Tweaks ABA Anti-Discrimination Rule

The web page of the Pennsylvania Disciplinary Board notes

In a Notice of Proposed Rulemaking published December 3, 2016, at 46 Pa.B. 7519, the Disciplinary Board has proposed an amendment to Rule 8.4 of the Rules of Professional Conduct (Misconduct), adding a new subsection (g), which would make it professional misconduct and grounds for discipline for a lawyer to violate a federal, state or local antidiscrimination statute or ordinance. The Board has set a comment period running through February 3, 2017.

The full text of the proposed amendment adds the following language to the misconduct rule:

It is professional misconduct for a lawyer to …

  1. violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer's professional activities. If there is an alternative forum available to bring a complaint, no charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.

A few points about the proposed language:

  • The rule does not create strict liability for any violation of an antidiscrimination provision. The language of the proposed rule also requires that the action reflect adversely on a lawyer’s fitness as a lawyer.
  • The language lists a number of criteria that bear on the question of whether the conduct reflects adversely. Factors that enter into the determination include:
    • the seriousness of the act;
    • whether the lawyer knew that the act was prohibited by statute or ordinance;
    • whether the act was part of a pattern of prohibited conduct; and
    • whether the act was committed in connection with the lawyer's professional activities.
  • Where an administrative or judicial forum exists which has the power to adjudicate whether the conduct constitutes an illegal act of discrimination, a finding in that forum that discriminatory acts occurred, and completion of all administrative and judicial review necessary for the decision to be final, are prerequisites to disciplinary action.

The proposed rule differs from Rule 8.4(g) of the ABA Model Rules of Professional Conduct in its requirement of an adjudication of illegal conduct. The ABA rule forbids a lawyer to “(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Under the ABA rule, the disciplinary agency itself makes the determination of whether the lawyer committed discriminatory conduct. Under the Pennsylvania proposal, that conduct must violate an applicable law, and if there is a forum to make the determination of whether the lawyer committed a violation, that process must take place first. Also, the Pennsylvania rule requires that the conduct adversely reflect on fitness, which is not true of the ABA rule.

The Disciplinary Board will consider all comments submitted by members of the public. Send comments to:

Office of the Secretary
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625
Facsimile number (717-231-3382)
Email address Dboard.comments@pacourts.us

The Disciplinary Board is also seeking comments on a proposal published at 46 Pa.B. 7520 on December 3, 2016, making small changes relating to the taxation of expenses in disciplinary proceedings. Comments are due January 2, 2017.

(Mike Frisch)

December 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Out On Strikes

A new opinion from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2016-22
Date of Issue: December 12, 2016

ISSUE

Whether a senior judge may work part time for an insurance adjusting company as an insurance umpire in any circuit in which the senior judge may preside.

ANSWER: No.

FACTS

The inquiring judge will be taking senior judge status in January of 2017, and is considering part time employment with an insurance adjusting company as an “insurance umpire.”  The inquiring judge states that the office the judge would work for is located in one county, but performs work in many other counties, and specifically asks whether it is permissible to work as an insurance umpire in any county in which the inquiring judge serves as a senior judge.

DISCUSSION

Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, with limited exceptions. See Fla. Code Jud. Conduct, Application (stating that a senior judge “shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A”); Fla. JEAC Op. 06-02. To that end, Florida Code of Judicial Conduct, Canon 5G provides that “[a] judge shall not practice law,” and Canon 5D(3) states that a judge “shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity.”  Indeed, the restrictions contained in Canon 5D(3) are “one of the few per se proscriptions on lawful off-the-bench activities to be found in the Code.”  Fla. JEAC Op. 97-35. See also Fla. JEAC Op. 16-12.

Subject to clear restrictions and disclosure requirements, the Code does permit senior judges to engage in certain dual service roles, such as mediator, arbitrator, or voluntary trial resolution judge. Although the Florida Statutes do not contain a definition for “insurance umpire,” an umpire is sometimes judicially appointed and other times appointed by appraisers pursuant to the terms of an insurance policy during the appraisal process of a property insurance dispute. Unless the role of insurance umpire is sufficiently equivalent to that of a certified mediator, arbitrator, or voluntary trial resolution judge, employment would be prohibited by the Code and the inquiring judge may not engage in part time employment as an insurance umpire.

As noted, the Code permits senior judges to engage in certain dual services, in the role of mediator, arbitrator, and voluntary trial resolution judge, outside of any circuit in which the senior judge serves as a senior judge. See Fla. Code Jud. Conduct, Canon 5F(2); Fla. JEAC Op. 15-15. Even if the role of insurance umpire was substantially similar to those permitted dual service roles, the inquiring senior judge would be subject to the same restrictions and disclosure requirements set forth in the Code. Among other restrictions, senior judges providing a dual service, such as mediation, through an entity may only be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services. Fla. Code Jud. Conduct, Canon 5F(2). Here, the inquiring judge anticipates providing the insurance umpire services while affiliated with a company that describes itself as an all-line insurance adjusting service company that offers services such as claims adjusting, appraisals, scene investigations, umpire services, and mediation. Because that entity is not solely engaged in offering alternative dispute resolution services, the senior judge may not be affiliated with that company while providing any dual services if also serving as a senior judge.

Regardless of entity affiliation, a senior judge is prohibited from providing any dual services within any circuit in which the senior judge serves as a senior judge. In Opinion 16-18, we concluded that a senior judge serving as a court appointed, litigant-paid special master would be subject to the same geographical restriction. “A senior judge shall disclose if the judge is being utilized or has been utilized as a mediator, arbitrator, or voluntary trial resolution judge by any party, attorney, or law firm involved in the case pending before the senior judge.”  Fla. Code Jud. Conduct, Canon 5F(2). The senior judge must also disclose if there have been any negotiations or agreements between the judge and any of those same parties or attorneys for any such dual services. Furthermore, absent express consent from all parties, for a period of three years, a senior judge cannot preside over any case involving any attorney, party, or law firm that is utilizing or has utilized the judge as a mediator, arbitrator or voluntary trial resolution judge. Id.

For the reasons set forth above, we conclude that the inquiring judge must not serve as a senior judge and as an insurance umpire affiliated with an entity as described above. Nor does the information provided to us here indicate that serving as an insurance umpire is necessarily the equivalent of serving as a mediator, arbitrator, voluntary trial resolution judge, or litigant-paid special master; therefore, we find that it would not be permitted under the guidelines set forth in Canon 5F(2) for permissible several dual service roles.

(Mike Frisch)

December 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Training Day In Wisconsin

The Wisconsin Supreme Court has held that two prosecutor training videos may be shielded from public disclosure.

The majority opinion is authored by Justice Rebecca Grassl Bradley reversing the Court of Appeals

Wisconsin and this court are firmly committed to open and transparent government. The denial of public access occurs only in exceptional cases. This case presents one of those exceptional situations. The two videos requested here do not contain any evidence of official misconduct. The circuit court, the court of appeals, this court, and the Democratic Party all agree on this point. Both the 2009 and 2013 videos arise from confidential prosecutors' training sessions, and both videos contain instruction on prosecutorial strategies and law enforcement tactics. The 2013 recording is an accounting of a single case and the functional equivalent of a prosecutor's case file, which is exempt from disclosure under Foust. Further, it contains information, which, if released, would harm the public interest by re-traumatizing the victims and violating their privacy rights, contrary to the policies enshrined in our state constitution, statutes, and case law. In applying the balancing test required by Wis. Stat. § 19.35(1)(a), the DOJ record custodian gave specific reasons for nondisclosure, and our review independently demonstrates that the reasons proffered are sufficient and supported by the facts in this case. We reverse the decision of the court of appeals and deny the writ of mandamus.

Justice Abrahamson dissented

Our "Sunshine Law," Wisconsin's public records law, is a core principle of democracy: "[T]he people must be informed about the inner workings of their government and . . . openness in government is essential to maintain the strength of our democratic society."

The majority opinion eclipses the "Sunshine Law." It dims the lights on persons seeking information about Wisconsin government operations and——in the instant case——shuts the lights off on two records that show how district attorneys, charged with prosecuting all criminal actions within their prosecutorial units, fulfill their duties.

The majority opinion completely bars release of then Waukesha County District Attorney Brad Schimel's video presentations at two different educational conferences...

The Department of Justice has presented no evidence that the two videos reveal any investigation and prosecution practices not already known or knowable in the public sphere. The Department of Justice has presented no evidence that information in the videos would hinder the state's ability to prosecute sex offenders. The Department of Justice has presented no evidence that the videos disclose personally identifiable information about the crime victims...

The Department of Justice has not fulfilled its burden to show that the public interests favoring disclosure are outweighed by the public interests favoring secrecy in the instant case justifying barring release of the 2013 video in its entirety.

Justice Ann Walsh Bradley joined the dissent. (Mike Frisch)

December 28, 2016 | Permalink | Comments (0)

Suits For Criminal Act Damages Permitted In Ohio

Dan Trevas has a summary of an Ohio Supreme Court decision permitting a damages claim against an attorney/conservator

Civil lawsuits can be filed based on claims of being victimized by a criminal act, even when financial compensation is not specifically authorized by law, the Ohio Supreme Court ruled today.

The Supreme Court addressed whether the current version of an Ohio statute permits a civil lawsuit based on any criminal act, or if the law simply reinforces a long-standing legal principle that limits lawsuits based on the type of criminal act committed. Writing for the Court majority, Justice William M. O’Neill indicated that R.C. 2307.60 is “plain and unambiguous” and allows for a civil action for  damages that result from any criminal act, unless a suit is specifically prohibited by law.

The decision resolves conflicting interpretations among Ohio courts, and reverses a ruling by the Summit County Common Pleas Court that decided Jessica Jacobson could not file a civil lawsuit against Akron Children’s Hospital, Cleveland Clinic Children’s Hospital for Rehabilitation, and attorney Ellen C. Kaforey, who was an appointed conservator to Jacobson’s mother. Jacobson’s lawsuit alleged the crimes of unlawful restraint, kidnapping, and child enticement by Kaforey and the hospitals when Jacobson was 7 years old.

Justice Sharon L. Kennedy issued a concurring opinion, finding R.C. 2307.60 is ambiguous. She explained the 1985 legislative history that accompanied the statute shows that the General Assembly authorized civil lawsuits based on criminal acts.

In a dissenting opinion, Justice Terrence O’Donnell maintained that R.C. 2307.60 is simply an update in the Ohio Revised Code that continues to permit only lawsuits for specific crimes, and he supported his position by noting the General Assembly has passed several statutes that expressly permit victims of certain crimes to file civil lawsuits.

Jacobson Sent to Live with Relative
Kaforey, an attorney and registered nurse, was appointed by the Summit County Probate Court as a conservator to assist Jacobson’s mother in making medical decisions for Jacobson in her youth. Jacobson alleged in her lawsuit that in 2001, when she was 7, Kaforey kept her mother from visiting her when she was hospitalized. She alleged that Akron Children’s and Cleveland Clinic Children’s aided Kaforey in kidnapping her by arranging without authority to have her live with a relative in Florida, and that Kaforey, in concert with the hospitals, enticed her onto a plane and was flown to Florida without the legal permission from her mother.

As an adult, Jacobson, acting without an attorney, filed the lawsuits against Kaforey and the hospitals based on the three criminal code sections of the crimes she alleged. The trial court granted Kaforey’s and the hospitals’ request to dismiss the case, and the trial court observed that “Ohio courts have established that civil actions for damages may not be predicated upon alleged violation of a criminal statute.”

Jacobson appealed to the Ninth District Court of Appeals, which allowed Gary Kirsch, Jacobson’s stepfather and legal guardian, to substitute himself for her in the appeal, and he hired an attorney to represent him. A divided Ninth District in 2015 reversed the trial court and found the current version of R.C. 2307.60 authorizes Jacobson to file her civil lawsuit.

At the request of Kaforey and the hospitals, the Ninth District certified that its opinion was in conflict with several other courts of appeals. The Ninth District asked the Supreme Court to resolve the conflict, and the Court agreed to hear the case.

Statute Interpreted
Justice O’Neill explained the provision at the heart of the dispute is R.C. 2307.60(A)(1), which provides: “Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.”

He noted the Court reviews a statute to determine if it is ambiguous, which means it is “capable of bearing more than one meaning,” and if the language is unambiguous, the Court is prevented from digging deeper into the legislature’s intent or public policy issues.

Justice O’Neill wrote the General Assembly explicitly chose the words “any person injured ... by a criminal act has ... a civil action unless a civil action is specifically excepted by law.” And he noted the preamble to the original legislation enacting R.C. 2307.60, which became effective in 1985, “demonstrates that the General Assembly specifically sought to create a civil cause of action for damages resulting from any criminal act.”

“These legislative statements are crystal clear. We need not dig further into the meaning of the statute than the language that was signed into law. Although R.C. 2307.60 has been amended a number of times since 1985, current R.C. 2307.60(A)(1) continues to specifically authorize a civil action for damages based on the violation of any criminal statute, unless an exception applies,” he concluded.

He added that the Court makes no ruling on how the statute operates and what a plaintiff must do to prove a claim. The Court remanded the case to the trial court for further proceedings.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and Judith Ann Lanzinger joined Justice O’Neill’s opinion.

Concurrence Finds Law Ambiguous
Justice Kennedy concurred in judgment only, noting that she finds the language is ambiguous “because the phrase ‘has ... a civil action’ in R.C. 2307.60(A)(1) is reasonably susceptible of more than one meaning.” Because the statute is ambiguous, she examined the legislative history that accompanied the bill when the statute was amended in 1985 and all subsequent amendments to the statute through 2014.

In 1985, the Legislative Service Commission explained what the proposed changes to the statute would mean in a bill analysis, Justice Kennedy noted. While the Court is not bound by this analysis, she explained that the Court may refer to it if it is helpful in determining the meaning of an ambiguous statute.

“Based on the circumstances surrounding the original amendments that became effective in 1985, the former statutory provisions, and the compelling legislative history, it becomes clear that when the General Assembly recodified former R.C. 1.16 as R.C. 2307.60, it intended to create an independent civil cause of action for any crime victim injured in person or property,” Justice Kennedy concluded.

Justice Kennedy noted that the lower courts have been citing each other’s opinions relying on pre-1985 decisions that did not recognize the legislature changed the law in 1985 when it enacted R.C. 2307.60, and none of the opinions cited after 1985 “engaged in a meaningful analysis” of the law. She explained the legislature has amended the code section six times since 1985, even during “significant tort-reform measures” but has not disturbed the right to sue based on a criminal act.

Allowing victims of only certain criminal acts to sue while barring others would create a disparity in treatment, Justice Kennedy wrote. Following the interpretation suggested by the appellants would mean that a victim of a theft offense enjoys a statutory right of full recovery and under certain conditions a presumption of liability against the criminal perpetrator, but a rape victim must bring a common-law-tort cause of action and thereafter re-prove during the civil trial the existence of the assault and battery and that the rapist was responsible for the assault and battery, she noted.

Sixth District Court of Appeals Judge James J. Jenson, sitting for Justice Judith L. French, joined Justice Kennedy’s opinion.

Dissent Argues Against Lawsuits Based on any Crimes
Justice O’Donnell argued as the appellate court held, that the statute only codified common law and only claims that authorize the pursuit of civil damages based on a criminal act can be pursued.

He explained that while Jacobson cannot sue based on the three criminal violations she selected, common law causes exist for false imprisonment, assault and battery, and “it is not necessary for the General Assembly to create civil actions for violating unlawful restraint, assault, and battery statutes.”

Justice O’Donnell noted that the legislature is presumed to be aware of prior judicial interpretations of a statute when enacting amendments, and that during the times R.C. 2307.60 has been amended since 1985 lawmakers never expressed an intent to enact a separate cause of action for a violation of a criminal act.

He referenced several specific statutes created that allow civil lawsuits based on specific criminal statutes, including ones for the victims of hazing, child stealing, trafficking in persons, forced abortion, identity theft, and theft of cable television services.

Justice O’Donnell concluded as follows: “Accordingly, if the position asserted by the majority were correct, i.e., that R.C. 2307.60 creates an independent civil cause of action for damages resulting from a criminal act, then there would be no need for the General Assembly to have specifically statutorily authorized any of the listed causes of action to recover damages resulting from those criminal acts.”

Justice O’Donnell would reinstate the trial court’s judgment.

2015-1340. Jacobson v. Kaforey, Slip Opinion No. 2016-Ohio-8434.

Video camera icon View oral argument video of this case.

(Mike Frisch)

December 28, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, December 27, 2016

Reflections Over 25 Years

One of my first forays into the public discourse on legal ethics and professional responsibility came way back in 1991 as the inaugural ethics columnist for the The Bencher, the publication of the American Inns of Court. 

My connection with the Inns of Court movement (and that gig) is one of the innumerable benefits of my longstanding friendship with my former professor and beloved colleague Sherman Cohn.

Sherm was founder and the first president of the national Inns of Court movement.

My first effort is actually recounted in this  2015 post by John P. Ratnaswamy

In recognition of the 35th anniversary of the American Inns of Court, in this issue I am looking back to the inception of the regular Ethics column in The Bencher.

Michael Frisch, now Ethics Counsel and Adjunct Professor of Law at the Georgetown University Law Center, inaugurated the regular Ethics column in the December 1991 issue of The Bencher. He set its direction by stating that his "goal here will be to address current ethical issues which affect both the role of lawyers in society and the conduct of lawyers in the performance of their duties."

He chose as the column's first subject the May 1991 draft of the "McKay Report". The American Bar Association's McKay Commission performed a comprehensive evaluation of the attorney disciplinary system in the United States and made a number of recommendations in its report, which was finalized in 1992.

As the 1991 column noted, a central focus of the McKay Report was greater transparency to the public of the handling of attorney discipline matters. The report recommended that attorney disciplinary agency records and proceedings should be open to the public absent a protective order governing specific documents or information.

The 1991 column noted that the report also recommended, among other things, that disciplinary officials should be independent; that disciplinary proceedings should be streamlined to promptly remove dishonest lawyers from practice; that complainants should have an avenue to appeal an adverse finding; and a variety of measures to help attorneys comply with ethical standards and for diversion of minor misconduct matters where the attorney had an addiction or mental illness problem.

The 1991 column also noted that the report was intended to bolster public confidence in the profession, amid calls by some for an end to lawyer self-regulation.

There is not sufficient room in this column to discuss in detail the status, a quarter century later, of each of the report's recommendations. I believe it is fair to say, however, that many of the recommendations have been adopted and become embedded in attorney discipline systems.

A large majority of American jurisdictions have made attorney discipline records and proceedings open to the public, in whole or in part, subject to protective orders and to considerations of timing.

Nearly all American jurisdictions now have professional, full-time disciplinary counsel.

Data may well exist, but in the course of preparing this column I did not find data, on whether there has or has not been a general net increase in the pace of lawyer discipline systems since the McKay Report. When I did Internet searches, I found stories from as recently as the last few months complaining about reported backlogs of discipline matters in at least a few states, and in some instances complaints that backlogs were being reduced by means that do not sufficiently protect the public.

My sense is that about half the states allow some form of appeals by complainants, in some circumstances. Quite a few states have no rule on the subject, which I infer means there is no path for such an appeal.

Disciplinary agencies in many jurisdictions have adopted CLE and other programs, of course, to assist lawyers to comply with their professional responsibilities.

Finally, many jurisdictions have adopted lawyer assistance programs to help lawyers with alcohol and substance abuse issues and mental impairments. I discussed the extent of the problem and the Illinois lawyer assistance program in this column in the September/October 2011 issue of The Bencher.

John P. Ratnaswamy, Esq. is a partner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. He also serves as an Adjunct Professor of Legal Ethics at the Northwestern University School of Law. He is a former member of the American Bar Association's Standing Committee on Ethics and Professional Responsibility, co-chair of the ABA Solo, Small Firm, and General Practice Division's Committee on Ethics and Professional Responsibility, and one of the chairs of the Hearing Board of the Illinois Attorney Registration & Disciplinary Commission. This column should not be understood to represent the views of any of those entities or Ratnaswamy's or the firm's current or former clients.

I must say on reflection that I am less optimistic about the ability of the profession to credibly self-regulate than ever. (Mike Frisch)

December 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Prohibited Realm Of Providing Legal Advice

An attorney was admonished as a result of his dealings with the complaining witness in a domestic violence criminal case.

The Maine Grievance Commission ordered the sanction

This complaint was filed by Prosecutorial District Three District Attorney Andrew Robinson regarding the conduct of defense counsel Darrick Banda, a former criminal prosecutor in District Four (Augusta/Skowhegan).

DA Robinson complained concerning the manner in which Banda contacted and spoke with Savannah C, the victim in the then-pending domestic violence (DV) Assault charge against Banda’s client, Andrew S.

On December 18, 2015 Banda telephoned and spoke with Savannah shortly after she had just met with an Assistant District Attorney (ADA) in Robinson’s office to review that pending DV Assault case. Banda’s comments with Savannah included the different manners in which it might be resolved. Such a discussion was certainly proper and appropriate for Banda to engage in with Savannah, as the facts indicate she was willing to do so. In that telephone discussion with Savannah, Banda discussed and explained the results and ramifications of her not testifying for the State (the prosecutor) against Andrew, both under subpoena and without a subpoena. In that discussion, Banda provided Savannah with legal information concerning her appearance as a witness against his client, Andrew.

From that discussion, Savannah was also informed by Banda about the likely result with Andrews’ charges if she was not subpoenaed and did not appear at court, i.e. that the case would be dismissed because the State would not be able to proceed without her testimony.

In his initial response to Bar Counsel Davis’ investigative inquiry, Banda agreed that as part of his discussion with Savannah, he explained her Fifth Amendment rights under the facts of the case. Banda’s comments to Savannah included his clarification to her “that (because) she did not have a good faith basis to invoke her right to remain silent, she would have a legal obligation to appear and answer questions truthfully if she were in fact subpoenaed to testify.” In addition, Banda also agrees that he informed Savannah that from his analysis of the case he did not think she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.

Such comments constituted “legal advice” by Banda to an unrepresented person that had legal interests adverse to those of his client, Andrew. Although Banda may have intended to interview Savannah in preparation for defending the charge against Andrew, under the actual facts in this matter he crossed into the prohibited realm of providing “legal advice to an unrepresented person,” as prohibited by M. R. Prof. Conduct 4.3.

The parties stipulated to the findings

this was a minor violation; there was little or no injury caused to a client, the public, the legal system or the profession; and there is little likelihood of repetition by Banda. As a result, the Panel finds and agrees that an admonition serves those purposes.

(Mike Frisch)

December 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Firm Obligations When Dealing With Impaired Attorneys

An opinion on the ethical obligations of supervisory attorneys dealing with impaired colleagues was recently approved by the Virginia Supreme Court

In this advisory opinion, the Committee analyzes the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public.  The applicable Rule of Conduct is Rule 5.12 which requires partners or other lawyers in the firm with managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to the Virginia Rules of Professional Conduct.   Lawyers in a firm may have an obligation under Rule 8.3 to report an impaired lawyer to the Virginia State Bar if the impaired lawyer has engaged in misconduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness to practice law. However, this opinion addresses the obligations of partners and supervisory attorneys to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public. This opinion relies upon ABA Committee on Ethics and Professional Responsibility, Formal Opinion 03-429 (2003)[hereinafter ABA Formal Op. 03-429] for its approach to the issues raised by the mental impairment of a lawyer in a firm. 

The committee notes the widespread nature of the problem and uses two hypotheticals to explore the duty and offer guidance

The law firm may be able to work around or accommodate some impairment situations. For example, the firm might be able to reduce the impaired lawyer’s workload, require supervision or monitoring, or remove the lawyer from time-sensitive projects. The impaired lawyer may not be capable of handling a jury trial but could serve in a supporting role performing research and drafting documents. Depending on the nature, severity, and permanence (or likelihood of periodic recurrence) of the lawyer’s impairment, the firm may have an obligation to supervise the work performed by the impaired lawyer or may have a duty to prevent the lawyer from rendering legal services to clients of the firm, until the lawyer has recovered from the impairment. The impaired lawyer’s role might be restricted solely to giving advice to and drafting legal documents only for other lawyers in the firm who in turn can evaluate whether the impaired lawyer’s work product can be used in furtherance of a client’s interests.

In order to protect its clients, the firm should have an enforceable policy that would require, and a partner or supervising lawyer should insist, that the impaired lawyer seek appropriate assistance, counseling, therapy, or treatment as a condition of continued employment with the firm. For example, the firm could recommend, encourage or direct that the impaired lawyer contact Lawyers Helping Lawyers for an evaluation and assessment of his or her condition and referral to appropriate medical or mental health care professionals for treatment and therapy. Alternatively, making a confidential report to Lawyers Helping Lawyers may be an appropriate step for the firm. The firm or its managing lawyers might instead find it necessary or appropriate to consult with a professional medical or health care provider for advice on how to deal with and manage an impaired lawyer, including considering options for an “intervention” or other means of encouraging the lawyer to seek treatment or therapy.

(Mike Frisch)

December 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)