Friday, May 15, 2015

God's Plan

The Leaf-Chronicle has this recent story on the conviction of two Clarksville Tennessee attorneys

After nearly 15 hours of deliberation Monday and Tuesday, jurors in the Carrie Gasaway/Fletcher Long extortion trial returned a verdict of guilty.

The jury notified court officers at 3:10 p.m. Tuesday that they had reached verdict for both attorneys after a seven-day trial at the Montgomery County Courts Center.

Long said after the verdict that he honors the jury’s decision, and he is considering changing his profession because it is “too stressful.”

“God has a plan for me, but it’s not to practice law,” he said. “... I think I have some marketable skills.”

Gasaway and Long, two well-known local attorneys, were convicted of trying to extort $50,000 from a client, Michelle Langlois, who hired them to attend the reading of her father’s will in October 2010. The crime is a Class D felony with a sentencing range of two to 12 years with a maximum fine of $5,000.

Attorney Long had handled some high-profile criminal cases

Long has been involved as a defense counsel in two high-profile Middle Tennessee criminal cases. As recently as April, Long was representing Jason Autry, a co-defendant in the kidnapping and slaying of Holly Bobo, a notorious West Tennessee crime.

Long also represented one of four former Vanderbilt University football players accused of raping an unconscious female student in 2013. Long argued at trial in January that his client Brandon Vandenburg did not participate in the rape and was not responsible, but a jury returned a guilty verdict.

In the local trial, the jury did not affix a fine to the convictions, and Judge Paul Summers, who was brought in from another district to hear the case, said a sentencing date will be set within the next 45 days.

 (Mike Frisch)

May 15, 2015 | Permalink | Comments (0) | TrackBack (0)

The Shadow

The Cranston (Rhode Island) Patch has this recent report on criminal charges against a judge

A Cranston Municipal Court Judge and lawyer was arrested by East Greenwich Police on Monday for an alleged domestic altercation in their town.

Thomas Ricci, 51, was arraigned today in Third Division District Court on charges of domestic simple assault and domestic disorderly conduct and released on personal recognizance, court records show.

NBC10 reported Ricci beat and strangled the woman after she confronted him over text messages she found on his phone.

Ricci has served as Senior Associate Judge in Cranston Municipal Court since 2007.

He has also served on the Rhode Island Supreme Court Disciplinary Board, the state Coastal Resource Management Council and Warwick’s Judicial Selection Committee.

He is due to return to court on June 5 for a pretrial conference.

For those interested in recent cases of Rhode Island attorney discipline, GoLocalProv has this article titled Booze, Bribes, And Conspiracy. (Mike Frisch)

May 15, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Convicted And Disbarred

An attorney has resigned and been permanently disbarred by the Kentucky Supreme Court as a result of a felony drug conviction.

Details here from WYMT TV

A Johnson County defense attorney and her son pleaded guilty to drug charges Friday.

Mary Lou Chandler, 63, of Paintsville, pleaded guilty to one count of trafficking in a controlled substance.

Prosecutors recommended Chandler receive a two-year prison sentence to be probated for a period of five years. As part of her plea, Chandler, who is a practicing attorney in Johnson County, agreed to give up her Kentucky Bar Association membership and no longer practice law in the state.

Her son, Matthew Chandler, 35, of Paintsville, pleaded guilty to thee counts of trafficking in a controlled substance. Prosecutors recommended a seven-year prison sentence.

On Sept. 18, Mary Lou Chandler and Matthew Chandler were indicted by a grand jury for selling oxycodone pills to a confidential informant from their Johnson County home on three different dates.

Both will be formally sentenced on Jan. 16.

(Mike Frisch)

May 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Breaking Up That Old Gang Of Mine

The Illinois Supreme Court has disbarred an attorney convicted of criminal offenses relating to his involvement with a motorcycle gang.

We previously reported on the case by quoting this release from the United States Attorney for the Eastern District of Missouri

Also sentenced today was [attorney] Jerry L. Peteet, a/k/a “Angel,” once a well-known
criminal defense attorney in Gary, Indiana. Peteet was sentenced to a term of
276 months in prison.  Robinson, Peteet and 22 other defendants were indicted as
part of a vast federal investigation into the Wheels of Soul Outlaw Motorcycle
Club, a nationwide organization based in Philadelphia, Pennsylvania.  The Wheels
of Soul claim to be the largest mixed-race “outlaw” motorcycle club in the
United States, with more than 400 members and chapters in at least 25 states
nationwide.

He had been previously suspended for 30 days in Indiana for client-related misconduct. (Mike Frisch)

May 15, 2015 | Permalink | Comments (0) | TrackBack (0)

Oregon: Stealing From Business Partners No Different Than From Clients

The Oregon Supreme Court has disbarred an attorney for misconduct as a partner in a business venture with two others in which he played the role of general counsel in exchange for a one-third interest in the company

the accused agreed to manage the company’s finances, participate in marketing, and perform functions ordinarily undertaken by a business’s general counsel, such as drafting contracts and sales agreements. The accused had experience in conducting large, complex business transactions between 10 and 20 businesses.

As sometimes occurs, the business prospered but the partners fell out.

The misconduct involved the attorney's efforts to take control of the corporation.

The court found the record messy but concluded

What is clear is that, without consulting his business associates, the accused intermingled his personal and related-business financial affairs with the corporate affairs of Blue Q to the point that an accurate accounting of who owed what to whom would be very difficult to reconstruct. That inadequately explained practice provides context to the trial panel’s determination that the accused improperly diverted corporate assets.

Turns out that cheating a business partner violates attorney ethics rules

On de novo review, we find by clear and convincing evidence that the accused’s diversion of Blue Q assets to EMI and  Carbcert, and his exclusion of his associates from Blue Q’s business affairs, demonstrated dishonesty and a lack of trustworthiness that seriously reflects adversely on his fitness to practice law and violate RPC 8.4(a)(3).

The court also affirmed findings that he made a false statement to the Nevada Secretary of State in corporate dissolution documents.

The fact that the conduct involved business partners rather than client funds did not diminish the sanction

the accused’s conduct, consisting of his exclusion of his associates from the affairs of Blue Q, his diversion of corporate assets to his own use, and his unauthorized dissolution of the corporation, is comparable to theft in terms of its nature and scale of selfish dishonesty.

The attorney is suspended for non-payment of dues (and has been for some time) in both Oregon and Washington State. (Mike Frisch)

May 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, May 14, 2015

ADD No Mitigating Factor

The Indiana Supreme Court has imposed a suspension of at least 240 days for an attorney 's trust account mismanagement and false statements in his personal bankruptcy.

The court

An overarching theme in much of the hearing officer’s report and in the parties’ review briefs involves whether many of the charged instances of misconduct were criminal or merely negligent in nature. However, we need not delve too deeply into this issue, because Respondent expressly stipulated in advance of the hearing that he committed conversion and, in so doing, that he violated Professional Conduct Rules 8.4(a) and 8.4(b). In making these stipulations, the parties agreed that while additional relevant evidence might be introduced at the hearing, “the matters stipulated to herein are conclusively established.” Respondent is bound by these stipulations, and the hearing officer erred by not giving them effect.

As to proffered mitigation

Initially, we note our disagreement with several of the mitigating factors identified by the hearing officer. The record simply does not support the hearing officer’s findings that Respondent “made immediate restitution to [Client] and his trust account” and that no client suffered financial loss because of Respondent’s negligence. Further, Respondent’s diagnosed attention deficit hyperactivity disorder does not explain, excuse, or mitigate the misconduct that occurred here.

Facts in aggravation in this case include Respondent’s substantial experience in the practice of law, the long-term pattern of misconduct committed by Respondent over the span of several years, and the number of violations during that time. Facts in mitigation include Respondent’s lack of prior disciplinary history, his cooperation with the Commission and the disciplinary process, his stipulations designed to streamline the hearing process, and the attestation of professional acquaintances to Respondent’s skill and good reputation.

The hearing officer had recommended a 90-day suspension. (Mike Frisch)

May 14, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Recommended Reading On Prosecutor Misconduct

Reading a fascinating post on America's Deadliest Prosecutors by Professor Robert J. Smith of the University of North Carolina at Chapel Hill led me to an article in the Arizona Republic on prosecutorial misconduct (and the tepid reaction by the bar disciplinary system) in Arizona. 

The Arizona Republic reviewed all direct appeals of death sentences issued by the court between 2002 and the present.

Among those 82 direct appeals, there were 42 in which the defendants alleged prosecutorial misbehavior or outright misconduct, 33 of them from Maricopa County, which, as the largest county, has the busiest Superior Court.

The Supreme Court justices found that impropriety or misconduct had occurred in 16 of those 42 cases.

But only two were reversed and remanded because of the behavior (in one case characterized only as overreaching). Two prosecutors were disciplined. The offenses varied in seriousness from rolling eyes and sarcasm to introducing false testimony and failing to disclose evidence that might have helped the defendant.

But, overwhelmingly, even when misconduct was found, the high court determined that it was “harmless error,” the defendant would have been convicted anyway, or the judge had cured the problem by making a jury instruction.

Some of the most egregious instances do not show up in The Republic’s study because the misconduct triggered a mistrial or caused the prosecution to offer a sweetheart plea deal; for instance, when a prosecutor had improper contact with a disgruntled member of the defense team or when it appeared as if the state had been listening in on a defendant’s jail calls from his attorney.

According to case law, in order to declare a mistrial for prosecutorial misconduct, a trial must be “permeated” with bad behavior on the part of the prosecutor that “so infects the trial with unfairness as to make the resulting conviction a denial of due process.”

Judges are reluctant to risk such drastic measures.

I then came across an excellent blog called The Open File that is dedicated to publishing information on misconduct by prosecutors. 

There appears to be no shortage of information on the subject. (Mike Frisch)

May 14, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 13, 2015

An Affair To Remember

A three-year suspension by consent was imposed by the South Carolina Supreme Court for an attorney's conflicts of interest created by a decades long sexual relationship with a married client.

Mr. Doe owned a real estate investment company. Respondent met Mr. Doe in March 1984 when he came to her office to meet a client. At the time respondent met Mr. Doe, he was married to Mrs. Doe who also served as the corporate secretary for the real estate investment company. Mr. and Mrs. Doe had two children. Shortly after they met in 1984, respondent and Mr. Doe began a private, personal relationship. In early 1985, respondent and Mr. Doe began a secret, sexual relationship that continued until after Mrs. Doe's death in 2001. In 2005, respondent and Mr. Doe lived together and continued their sexual relationship. They remained close companions. Mr. Doe died in February 2011 at the age of 88.

The attorney also represented the client's wife

 respondent collected in excess of $8,150.00 in legal fees from or on behalf of Mrs. Doe. For several closings on behalf of Mrs. Doe's joint ventures, respondent also collected in total approximately $1,400.00 in commissions on behalf of respondent's own real estate company, Kaspar Properties. Throughout this time, respondent was engaged in a sexual relationship with Mr. Doe, her client's husband. Also during this time, Mr. Doe was providing respondent with personal financial support, including loans, gifts of cash, and payment of some living expenses. Respondent did not disclose the affair, the extent of financial support, or the resulting conflict of interest to Mrs. Doe.

The attorney admitted a course of unethical conduct from 1984 to 2001. The conflict ended with the death of Mrs. Doe.

The State reported on a 2014 jury award in the attorney's favor.

A Lexington County jury late last week took two hours to deliberate before awarding a woman $1.6 million in actual damages in a civil case in which she claimed she was hounded by the Richland County Sheriff’s Department, strip-searched and tossed in jail on felony charges that were later dismissed.

The case of lawyer Kay Paschal, who won the verdict against Sheriff Leon Lott, involved a dispute over a dead Columbia businessman’s multimillion-dollar estate, issues of sheriff’s department jurisdiction and charges of exploitation of a vulnerable adult. Questions also arose about whether one of Lott’s deputies was too personally close with heirs of the dead man.

A child of the Does (actually Wallace) caused her to be arrested

Paschal was arrested in November 2011 – the same day she was to appear at an estate hearing in probate court to defend herself against allegations by Wallace’s children that she should not be the estate’s personal representative, according to legal papers and testimony in the case. Paschal lost her status as representative, at least in part because she did not appear at the hearing, the documents said.

At the jail, Paschal was stripped and given “nothing but a sheet to wrap herself in,” according to testimony in the case. She was later released on a personal bond.

The criminal charges were dismissed.  

The court imposed the suspension effective as of its interim suspension ordered in January 2012. (Mike Frisch)

May 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Welcome To Indiana

The Indiana Supreme Court has reversed and remanded a trial court order denying pro hac vice admission to five out-of-state attorneys in a contract-related action.

The court concluded that local rules did not create a presumption against pro hac admission

As the trial court correctly recognized, "temporary admission of an out-of-state lawyer pursuant to Admission and Discipline Rule 3(2) is within the discretion of the trial court." State ex rel. Indiana Supreme Court Disciplinary Comm’n v. Farmer, 978 N.E.2d 409, 414 (Ind. 2012) (citing Matter of Fieger, 887 N.E.2d 87, 90 (Ind. 2008) (per curiam)). See Admis. Disc. R. 3(2)(a). We agree with the Court of Appeals’ conclusion that Local Rule 5(C) does not create a presumption against pro hac vice admissions. YTC Dream Homes, 18 N.E.3d at 649. The local rule cannot vitiate the trial court’s discretion to find good cause for temporary admission under Admission and Discipline Rule 3(2).

Accordingly, we reverse and remand to the trial court with instructions to determine, without restriction by local rule and within the discretion granted by Indiana Admission and Discipline Rule 3(2), whether good cause exists for the admission of the Attorneys.

(Mike Frisch)

May 13, 2015 | Permalink | Comments (0) | TrackBack (0)

The Wrong Way To Deal with A Bar Complaint

The California State Bar Court Review Department has recommended a fully-stayed one year suspension and probation of an attorney who neglected the representation of a Texas client who had retained her to look into a theft of jewelry allegation that took place when the client lived with a family in San Diego.

The misconduct was exacerbated by the attorney's initial non-cooperation but more so by her threats to the client and her grandfather. She communicated primarily with grandpa.

Prevost berated [client]Walker for allowing her grandfather to terminate Prevost’s services. She again accused Walker of lying to the State Bar...

Two weeks later, Prevost sent another email, this time to [grandfather] Hannum, in which she stated that "people who use drugs and steal from their friends are rarely credible witnesses." She also accused Hannum of being "overbearing" and intimidating Walker into filing the complaint with the State Bar. Prevost warned Hannum of the consequences of pursuing the complaint: "[W]hatever your motivation, I would suggest you take a step back and understand that you have put Alyssa in a precarious position of lying to the State Bar of California in a public proceeding by requiring her to sign documents that you wrote, and that are patently false. She will be subject to cross examination of this. Your complaint is public record. This case is public record. I really don’t wish to put Alyssa in a position to have to defend herself – and people who use drugs and steal from their friends are rarely credible witnesses – but I will do the most to defend myself . . . ." In closing, she stated, "I go to State Bar Court next week. I seriously hope you consider your actions, the consequences, and the public nature of your allegations." Hannum considered her letter to be threatening to him and his granddaughter.

The attorney also failed to return unearned fees.

Turns out there never was a criminal complaint brought against the client. (Mike Frisch)

May 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2015

Misplaced Trust

A former colleague brought to my attention this footnote in a 2005 District of Columbia Court of Appeals opinion that had rejected an attorney's claims based on a three-year delay in the filing of the hearing committee report

Although we are satisfied that the Committee’s delay in issuing its report in this case did not result in a biased recommendation to the Board, we are nonetheless troubled by the length of time it took the Committee to complete its work in this case. We can foresee circumstances where such a long delay could result in the preparation of an inaccurate record and thus prejudice an attorney’s ability to defend him or herself against allegations of unethical conduct. While we are not unmindful that our disciplinary system relies on volunteers, especially at the Hearing Committee level, and that with any volunteer system some minimal delay can be expected, we trust that the Board is instituting appropriate measures to monitor and assist Committee members in the exercise of their responsibilities so as to minimize the possibility of such a significant delay occurring in the future.

A decade later, the hearing committee delays have only gotten worse.

And the problem of delay is not confined to the hearing committees. 

If the D.C. disciplinary system ever conducts a real study of systemic delay, the results would cost some people their jobs.

I guess that is why no public report on disciplinary activities will ever see the light of day in the District of Columbia.

The court's professed "trust " in its disciplinary system can only be described as misplaced wishful thinking.

I favor Trust, but verify. (Mike Frisch)

May 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2015

Attorney's Efforts Free Innocent Man; State Bar Files Ethics Charges Over Water Bottle

The North Carolina State Bar's war on criminal defense counsel continues with these charges filed against the Executive Director and legal counsel to the North Carolina Center for Actual Innocence in Durham.

The allegations involve efforts to establish the innocence of Joseph Sledge, convicted of a double second degree murder in 1978. No DNA evidence was available at the time of the conviction.

Sledge's efforts to obtain DNA testing led to the reopening of the investigation in 2009.

The charges relate to the attorney's efforts to secure DNA linked to other suspects.

She is alleged to have taken a water bottle from the home of the sister of two brothers suspected of the murders without permission to test for DNA and concealing that she had done so in subsequent conversations with the sister.

The allegation is that, after the sister refused to voluntarily give a DNA sample, the attorney left

Mumma took with her when she left [the sister's] home a half empty water bottle that Mumma knew at the time may not have belonged to Mumma.

When Mumma got to her car, she confirmed that the water bottle she had taken from the [sister's] residence did not belong to Mumma. Mumma had left her water bottle in her car. She did not bring it into the [sister's] residence.

When Mumma realized she had a cool, half-empty water bottle that might yield a DNA sample of Smith family DNA, she decided not to take it back into the home, but to take it with her to contemplate whether to submit it for DNA analysis.

Indy week reported that the attorney's efforts led to Sledge's exoneration

 He spent four decades in prison for a double murder he didn't commit. Mumma worked on Sledge's case for 10 years, and she was his attorney when last month, a three-judge panel exonerated the 70 year old based on DNA evidence.

The attorney is also a professor at UNC Chapel Hill teaching a course on wrongful convictions.

What is going on in North Carolina? (Mike Frisch)

May 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Contrary To Popular Belief

The Tennessee Court of Appeals has affirmed the denial of a motion to recuse the trial judge in an accident case.

There was an interesting plaintiff

This Health Care Liability action arose from an incident in which Richard Williams slipped and fell in the parking lot of a restaurant in Memphis. Mr. Williams was seventy-nine years old at the time of the fall. Mr. Williams is a former television and radio personality, who became a local celebrity as a magician performing magic tricks on a local television show, which aired on WMC-TV, the NBC-affiliate in Memphis, from 1966 until 1989. Magicland, Mr. Williams‘ magic show for children, was televised every week for a half-hour before a live studio audience. Mr. Williams, known to his fans as "Mr. Magic," holds a world record for hosting the longest running television magic show.

After Mr. Williams‘ fall, he was treated at St. Francis Hospital for a fractured hip. After a recovery period in the hospital, Mr. Williams was admitted to Appellant HealthSouth Rehabilitation Hospital North ("HealthSouth"). On his admission to HealthSouth, a nurse performed an initial assessment, spending approximately twenty minutes with Mr. Williams. The nurse oriented Mr. Williams to his room and left him to rest. Approximately forty-five minutes later, Mr. Williams was found on the floor, having fallen from his bed...

Plaintiffs claimed that Mr. Williams should have been restrained due to his allegedly confused state and further alleged that Mr. Williams‘ current dementia and Alzheimer‘s disease were caused by the fall at HealthSouth.

The recusal issue related to a video of Mr. Magic's life that the judge found "charming" and commented

Well, I must say that what we‘ve just seen is an incredibly charming presentation. And I would be less than honest if I didn‘t indicate that at this very moment, I am overcome with emotion. And during the playing, I noticed that Ms. Rezba particularly was having a more difficult time than even I am. I want to take a break to collect myself.

The judge's expressions did not create a basis to recuse

Contrary to popular belief, judges are human and, as such, have feelings and emotions. As set out in context above, Judge Russell concedes as much in his statements from the bench. However, the mere fact that a judge may feel emotion or may sympathize with a party does not, ipso facto, mean that he or she cannot be unbiased. It is the judge‘s bias (actual or perceived), and not his or her emotion, that drives the inquiry of whether recusal is warranted. Generally, the terms "bias" and "prejudice" refer to a state of mind or attitude that works to predispose a judge for or against a party... 

HealthSouth‘s primary basis for its motion for recusal was the argument that, because Judge Russell showed emotion after watching the video, he would be partial to Plaintiffs in acting as Thirteenth Juror. In the first instance, the alleged bias in this case arises from events or observations that occurred during the litigation of the case; accordingly, in order to justify Judge Russell‘s recusal, HealthSouth would have to show that the ―bias is so pervasive that it is sufficient to deny‖ a fair trial. Here, HealthSouth won its case, receiving a unanimous verdict from the jury. The motion for recusal was filed before Judge Russell actually acted in his capacity as Thirteenth Juror to review the jury‘s verdict. Therefore, when HealthSouth filed this Rule 10B appeal, Judge Russell had neither reached a "prejudged conclusion because of interest, partiality, or favor," Bean, 280 S.W.3d at 803, nor had he rendered "an opinion on the merits on some basis other than what the judge learned from participation in the case." Alley, 882 S.W.2d at 821. In short, HealthSouth has failed to meet its burden to show the type of pervasive bias that would warrant Judge Russell‘s recusal.

(Mike Frisch)

May 11, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

License Foreclosure Imminent

The California State Bar Court Review Department has concluded that disbarment is the appropriate reciprocal sanction found to have engaged in fraud in federal bankruptcy court.

 Lynne Margery Romano was suspended indefinitely by the United States Bankruptcy Court for the Central District of California for professional misconduct after the court found she participated in a "series of abusive bankruptcy case filings for the sole purpose of delaying foreclosure." Indeed, over the course of three years, Romano filed 82 fraudulent bankruptcy petitions on behalf of sham petitioners in order to mislead the court and defraud creditors. Her scheme involved her paralegal, whom she aided in the unauthorized practice of law (UPL). The bankruptcy court admonished that her tactics were "not acceptable in [bankruptcy court] or any other court as a pattern of behavior for an attorney." (In re the Disciplinary Proceeding of Lynne Romano (Bankr. C.D. Cal. 2012) 2:12-mp-00104-TA.)

The court

 Romano intended to defraud creditors and the bankruptcy court. Her efforts involved an elaborate scheme whereby she utilized sham petitioners, primarily corporations that were non-existent or not in good standing, to hold a fractional interest in her clients’ real property in order to shield those clients from poor credit ratings. She did not intend to obtain bankruptcy discharges for her clients, only to delay foreclosures. Over the course of three years, Romano had the opportunity to consider the consequences of her behavior each time she filed another petition. And yet she continued unabated until the bankruptcy trustee took action.

 The court here found that the attorney engaged in a pattern of dishonest conduct. (Mike Frisch)

May 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Advertising Injunction Against Law Firm Vacated

The Georgia Supreme Court has vacated a permanent injunction and remanded a case where a nursing facility had sued to enjoin a law firm's advertisement seeking potential clients against it.

The case was described in this post by Alyson Palmer of the Daily Report

As recounted in briefs for both sides, the advertisement said the government had cited a nursing facility, Heritage Healthcare of Toccoa, "for failing to assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." The ad rhetorically asked whether readers' loved ones had suffered bedsores, broken bones, unexplained injuries or death. Providing the firm's contact information, the ad invited anyone concerned that a loved one was being "neglected or abused" at the facility to call McHugh Fuller.

The day after the ad ran, the owner of the facility, PruittHealth-Toccoa, sued the law firm in the Mountain Circuit Superior Court. Beside citing Georgia legal ethics rules on advertising and contacting prospective clients, the complaint alleged the ad had violated Georgia's version of the Uniform Deceptive Trade Practices Act because it was false and misleading. The nursing home company initially requested damages but later amended its complaint to seek only injunctive relief.

Superior Court Judge B. Chan Caudell promptly granted PruittHealth's request for a temporary restraining order prohibiting the law firm from running similar advertisements, then set the case for a hearing a little less than a month later.

In its defense, the firm pointed to a 2012 inspection report by the Department of Health and Human Services' Centers for Medicare & Medicaid Services. That report listed multiple deficiencies at the site under the heading "Assist those residents who need total help with eating/drinking, grooming and personal and oral hygiene." In particular, the document referred to one resident not having access to mouthwash in her room and another resident's long, dirty fingernails.

At the close of the hearing, Caudell found the ad was misleading and deceptive because it said the nursing facility had been cited "for failing to assist" residents in certain areas, while the government report did not use that "failing to" language in its report. He later issued a written order prohibiting McHugh Fuller from publishing or causing the ad to be published in the future and giving the firm 20 days to make sure any electronic posting of the ad by the newspaper was removed.

The law firm appealed to the Georgia Supreme Court, raising several arguments. The firm says that Caudell abused his discretion in finding the ad false and misleading. But the law firm also raises a procedural argument, saying it didn't have advance notice that the judge was going to make a final decision in the case based on the May 2014 hearing. McHugh Fuller later filed a separate appeal complaining that Caudell had excluded from the appellate record materials that the law firm thought should be included.

The court found that the trial court had erred in granting a permanent injunction without clear notice to the law firm that such an order was contemplated. (Mike Frisch)

May 11, 2015 in Current Affairs, Hot Topics, Law & Business | Permalink | Comments (0) | TrackBack (0)

Sunday, May 10, 2015

The Road To Bar Admission In Louisiana

The Louisiana Supreme Court has admitted an applicant who initially had been denied certification for the following non-disclosures

the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds relating to his failure to disclose the following information on his law school application: (1) a speeding ticket; (2) a seatbelt citation; (3) an open container citation; and (4) his arrest for driving with a suspended driver’s license.

After a remand, the committee recommended that the applicant be admitted.

The court agreed. 

The same path to admission for this candidate

the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds relating to his failure to disclose the following information on his law school application: (1) a citation for possessing alcohol as a minor, and (2) a citation for reckless operation of a motor vehicle, hit and run, no driver’s license on person, expired driver’s license, and license plate required. 

The court also granted conditional admission to two applicants.

These Louisiana admissions cases would be much more instructive to applicants if the court explained its reasoning in greater (or indeed any) depth. (Mike Frisch)

May 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, May 9, 2015

No Judicial Review Of Congressional Censure

Congressman Charles Rangel's effort to seek judicial review of his 2010 censure was rebuffed by the United States Court of Appeals for the District of Columbia Circuit.

Public service has its benefits and its burdens. Congressmen, for example, enjoy absolute immunity from suit for their conduct in the legislative arena. That same immunity, however, prevents them from airing their legislative disagreements in a judicial forum. Representative Charles Rangel asks this Court to review his 2010 censure by the United States House of Representatives. But the Constitution—specifically, the Speech or Debate Clause—prevents us from doing so. Rangel must vindicate his reputation in the one court that can hear his claim: the court of public opinion. We affirm the district court‘s dismissal of his complaint.

Holding

the Speech or Debate Clause prevents us from entertaining this action. The same legislative immunity would presumably protect Rangel if he ever found himself on the other side of the "v. "   For now, it compels dismissal of his suit. We affirm the district court‘s decision on this ground and have no call to consider the other defects it found in Rangel‘s complaint.

(Mike Frisch)

May 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

Answers Filed In Prosecution Of Death Penalty Defense Attorneys

The two North Carolina death penalty defense attorneys charged with ethics violations have filed answers that deny the allegations of misconduct.

The answer of Cassandra Stubbs is linked here; Gretchen Engels's is here.

The attorneys are charged with Rule 1.3 (lack of diligence) and 8.4(d) (conduct prejudicial to the administration of justice).

These answers persuasively demonstrate how thin these charges are and confirm my earlier views  that these cases should not have been brought.

The essence of the answers are that minor mistakes in complex litigation do not equate with lack of diligence. If perfection was required, every lawyer in every case would be subject to discipline. 

Attached to the answers are court opinions in which the responsible judge specifically concluded that the inconsistencies at issue were immaterial and that the attorneys conduct was "not the product of intentional misconduct, willfulness or bad faith." 

Case closed, one might well think.

But, wait, there's more.

The underlying death penalty cases at issue involved allegations of  Batson violations by the prosecutors.

The court found the evidence demonstrated that the prosecutors engaged in a pattern of race-based decision making in death penalty cases.

The "words and deeds of the prosecutors involved...In the writings of prosecutors long buried in case files and brought to light for the first time in this hearing, the Court finds powerful evidence of race consciousness and race-based decision making" in the jury selection process.

Is the State Bar prosecuting those prosecutors?

My earlier posts are linked here and here. 

(Mike Frisch)

May 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sleeping In The Attic

An attorney has been disbarred in Maryland in the wake of his "Peeping Tom" conviction.

The case was argued in the Court of Appeals yesterday.

HuffPost had this story

A peeping Tom with a law degree and advanced degrees from Harvard and MIT has pleaded guilty to secretly taping his female tenants having sex. His spying was discovered, in part, thanks to Cosmopolitan Magazine.

Dennis Alan Van Dusen, 64, recorded three women who rented rooms in his house, in the tony D.C. suburb of Chevy Chase, Md., with cameras he installed in smoke detectors above their beds...

According to the ABA Journal, Van Dusen charged below-market rents of less than $600. The average rent surrounding the house on 6910 Ridgewood Ave. is $2,000. In October, 2007 the property was assessed at $1,133,092.

And from the Washington Post on his sentencing

A Chevy Chase landlord who hid tiny video cameras in his tenants’ bedrooms received no jail time Tuesday from a judge who said psychiatric treatment is called for more than time behind bars.

“We have a gentleman here who, I guess, I can only characterize as being disturbed or sick, and that’s been confirmed by many sources,” Montgomery County Circuit Court Judge Paul H. Weinstein said Tuesday.

Weinstein ordered the landlord, Dennis Van Dusen, 64, to continue psychotherapy, pay a $2,500 fine and serve five years of probation. The sentence came moments after Van Dusen — a lawyer with two master’s degrees from Harvard University — offered reasons for his bizarre behavior. The troubles can be traced to his childhood, according to his attorney, who said Van Dusen’s mother was such a hoarder that he had to sleep in the attic.

The court's order indicates that a full opinion will follow.

A civil suit resulted in a million dollar judgment, according to Gazette.net.  (Mike Frisch)

May 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Uninsured

An attorney who had for years falsely represented that he had malpractice insurance consented to disbarment in North Carolina.

Between 2010 and 2014, McVey knowingly and intentionally falsified
documents purporting to show that he maintained liability coverage through Lawyers
Mutual, despite not having coverage for at least 15 years. McVey made these
misrepresentations and provided these falsified documents to at least one mortgage loan lender between 2010 and 2014 for the purpose of qualifying with the lender as an
attorney approved to handle real estate closing transactions involving loans made by the
lender. But for his misrepresentations, McVey would not have qualified with the lender
to serve as a closing attorney and would not have been entitled to receive a fee in
transactions involving loans made by the lender.

(Mike Frisch)

May 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)