Wednesday, July 13, 2016

Disruptive Client Did Not Forfeit Right To Counsel

The Massachusetts Supreme Judicial Court has held that a difficult client (to put it mildly) did not by his behavior forfeit his right to counsel in a probation revocation proceeding.

The principal issue in this appeal is whether a Superior Court judge properly ordered the forfeiture of the defendant's right to counsel in a probation revocation hearing. The judge, faced with a defendant who admittedly engaged in a pattern of quarrelsome, confrontational, hostile, and threatening conduct toward a succession of nine different court appointed attorneys over the course of the trial and post trial proceedings, ordered forfeiture on those grounds. Subsequent to the forfeiture order, the defendant appeared pro se at the probation revocation hearing. A different judge found the defendant in violation of probation and sentenced him to State prison for a term of not less than seven years and not more than eight years, from and after the sentence he was then serving. The defendant appealed, claiming error in the forfeiture order and the probation revocation hearing...

Although we appreciate the imperative to force an end to the defendant's interference with the timely and fair disposition of the probation revocation matter, we are constrained to conclude that the forfeiture order must be reversed, as it does not comply with the strict guidelines we adopted in Means, supra. Therefore, we vacate the forfeiture order based on our conclusion that (1) the forfeiture hearing did not meet the procedural due process requirements of Means; and (2) the defendant's conduct, although egregious in many respects, did not warrant forfeiture under the guidelines established in Means.

The Means factors

The guidelines require consideration of four factors: (1) whether the defendant has had the services of more than one attorney; (2) the type of proceeding in which forfeiture is ordered; (3) the type of conduct offered as the basis for forfeiture; and (4) the availability of a less restrictive measure or whether forfeiture is a last resort.

The outcome

It would be an understatement to say that over the course of the seven years between the defendant's arraignment and the forfeiture order, the defendant's turbulent relationship with his withdrawing attorneys demonstrated an extraordinary inability or unwillingness to cooperate with counsel. Therefore, we have no quarrel with the judge's frustration with what could have been a tactical ploy by the defendant to delay the resolution of the matter likely to result in the revocation of his probation and the imposition of a State prison sentence. And we recognize that cases in which defendants consistently find frivolous reasons to withhold their cooperation from appointed counsel can and must be dealt with appropriately...

We conclude, however, that the forfeiture order in this case was erroneous for two reasons. First, the defendant's conduct, consisting mainly of threats to report counsel to the board over a seven-year period, was not sufficiently "egregious" to warrant forfeiture. Second, even if the defendant's conduct met the threshold for forfeiture, the judge failed to consider whether forfeiture was in the interests of justice, the second prong of the two-part test for forfeiture.

(Mike Frisch)

July 13, 2016 in Clients, The Practice | Permalink | Comments (0)

Contract Attorney Charged With Overbilling

The web page of the Ohio Supreme Court lists four disciplinary cases that are scheduled for hearing in the near future.

One of the cases involves an allegation that an independent contractor attorney had overbilled a law firm for online document review in a case.

From the charging document

Starting in 2012, respondent began working on a large pharmaceutical project for Ulmer & Berne. Similar to what she had done in the past, respondent accessed documents related to this project via a secure website where she read, coded, and summarized documents for Ulmer & Berne attorneys involved in the project...

In late 2015, Ulmer & Berne discovered a discrepancy between the amount of hours that respondent had submitted to Ulmer & Berne as time spent reviewing documents and the amount of hours that respondent was logged on to the secure website.

Thereafter, Ulmer & Berne performed a comprehensive audit of respondent's time records between 2012 and 2015 and determined that respondent had overbilled the firm...

In total, between 2012 and 2015, respondent overbilled Ulmer & Berne by $87,620.

In December 2015, Attorney Gina Saelinger, a partner at Ulmer & Berne, called respondent to discuss Ulmer & Berne's findings and to determine whether respondent had an explanation for her conduct.

At first, respondent stated that she was a bad record keeper and that she had some issues with her computer, but by the end of the conversation, respondent acknowledged her misconduct and requested the opportunity to reimburse Ulmer & Berne for any overbilled amounts.

On January 5, 2016, respondent wired Ulmer & Berne $87,620.

Very few state bar web pages provide such easy access to allegations of unethical conduct. (Mike Frisch)

July 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"An Aggressive, Rambling, And Colorfully- Worded Assault"

The Rhode Island Supreme Court has affirmed the award of attorney's fees in a bitter and ongoing domestic case.

This case marks the second round of a bitter and protracted divorce dispute between the plaintiff, John J. Tworog (John), and his now-former wife, the defendant, Dolores M. Tworog (Dolores). Before this Court once again, John, who appears pro se, appeals from an order awarding Dolores attorneys’ fees, which were assessed in connection with a contempt finding that was affirmed by this Court in Tworog v. Tworog, 45 A.3d 1194, 1200 (R.I. 2012) (Tworog I); a judgment awarding Dolores $69,000, plus statutory interest and costs; and the denial of his motion for a new trial.


Before this Court, John—a former member of the Rhode Island bar—cites multiple grievances with respect to the handling of his case in the Family Court and to the opinion of this Court in Tworog I. The papers John filed with this Court consisted primarily of an aggressive, rambling, and colorfully-worded assault on the character of one of the Family Court justices who presided over his case, as well as on Dolores, her adult son, and her attorney. The assignments of error were muddled and difficult to untangle, and the papers contained multiple passing references to purported error that were not developed in any meaningful way.

It is not the function of the Supreme Court to decipher arguments that a party has failed to develop lucidly on its own...

Our careful review of the record reveals that the trial justice based the award of attorneys’ fees on the finding of contempt that was affirmed by this Court in Tworog I.  Dolores presented expert testimony regarding the reasonableness of her attorney’s billing rate and the hours he spent on the case, and, in John’s own motion for attorneys’ fees, John “adopt[ed] the hours proposed by [Dolores’s attorney]” as the number of hours he expended representing himself on the matter. In light of the ample evidence that existed in support of the reasonableness of the award, the Family Court justice did not abuse his discretion.

This earlier opinion in the litigation notes that the plaintiff filed for divorce on Valentine's Day. (Mike Frisch)

July 13, 2016 in Billable Hours | Permalink | Comments (0)

"Unprecedented" Massive Misappropriation Draws Disbarment Recommendation

The California State Bar Court Review Department found that an attorney's "unprecedented" misconduct in cheating his elderly business partner was worthy of disbarment

Respondent Wade Anthony Robertson appeals from a hearing judge’s decision recommending disbarment. The judge found that Robertson defrauded his elderly business partner and client, Dr. William C. Cartinhour, Jr., made material misrepresentations in the process, and ultimately misappropriated $3.5 million of Cartinhour’s funds, which Robertson has not returned. The judge also found Robertson abused the litigation process by asserting frivolous positions in civil and bankruptcy proceedings. The judge found no mitigation, but serious aggravation for multiple acts of misconduct, significant harm to Cartinhour and to the administration of justice, and lack of remorse.

On review, Robertson raises a host of unmeritorious legal and factual challenges and seeks dismissal. The Office of the Chief Trial Counsel of the State Bar (OCTC) does not appeal and generally supports the hearing judge’s findings and conclusions.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we affirm. Using his relationship as Cartinhour’s attorney, Robertson perpetrated a years-long multi-million dollar theft. A jury in a federal district court awarded Cartinhour $7 million in compensatory and punitive damages against Robertson, which was affirmed in 2012. Yet Robertson has not paid the award or returned any of the funds he took from Cartinhour. Given his grave misconduct, including a massive misappropriation unprecedented in this court, and his utter lack of remorse, we conclude disbarment is necessary to protect the public, the courts, and the legal profession.

The report notes that the misconduct began less than three years after the attorney was admitted.

Robertson created a sham partnership and, over a roughly four-year period, fraudulently induced Cartinhour to “invest” $3.5 million in the Credit Suisse litigation with the promise of high returns. He also manipulated Cartinhour into signing many legal documents that served Robertson’s own interests but were detrimental to Cartinhour’s—notably, the confidentiality provision in the partnership documents, the waiver of the partnership agreement’s year-end audit requirement, the will appointing Robertson as executor of Cartinhour’s estate, and the “Vote & Agreement.” All the while, Robertson intended to use and did use the “investment” money for his own benefit. He perpetuated this fraud by repeatedly mischaracterizing the status of the litigation and its likelihood of generating enormous returns. And his duplicitous conduct continued as he admonished Cartinhour for “breaching” the confidentiality of their agreements and threatened legal action for that alleged breach. Robertson dishonestly exploited his position of trust for his personal benefit and to Cartinhour’s detriment in what the hearing judge aptly described as “a well-implemented, well-thought out, and deviously orchestrated plan to defraud Cartinhour and misappropriate large sums of money.”

The litigation between the former partners resulted in a number of reported decisions in the District of Columbia federal courts. (Mike Frisch)

July 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 12, 2016

A Short History Lesson In D.C. Bar Discipline

It is a little known fact that the District of Columbia Court of Appeals, the District of Columbia Bar, the Board on Professional Responsibility and the Office of Bar (now Disciplinary) Counsel all came into existence in the early 1970s.

The court was created in 1970 and birthed the Bar, the Board and Bar Counsel in Rules I and XI.

Unlike many courts at that time that had to grapple with the creation of a disciplinary system after the Clark Committee report, the court lacked any historical framework for the process of disciplining errant attorneys.

The most significant case from the early years (read the time of Fred Grabowsky as Bar Counsel) is In re Colson. There the en banc court interpreted a provision of the District of Columbia Code to mandate permanent disbarment for all convictions involving moral turpitude and laid out the procedures for determining moral turpitude.

Colson is also noteworthy for the dissent of Judge Stanley Harris, which lays out in as much detail as we will likely see the process that led to the delegation of power to the BPR.

I feel strongly and I believe my view is shared by the great majority of persons who are knowledgeable in the field of professional discipline that the basic decisional responsibility for the sanction to be imposed in a disciplinary proceeding should rest upon the judges of a jurisdiction's highest court, rather than upon the members of a court-created disciplinary body. After all, our Board on Professional Responsibility is not akin to an administrative agency which is presumed to have an expertise which we lack; we should be quite as capable in this area as our appointed Board members, and we should be free of even the hint of potential peer pressures which might make a particular respondent feel that he or she can receive impartial consideration only from judicial officers.

Nonetheless, the majority of my colleagues effectively concluded to the contrary. For reasons which remain inexplicable to me, this court, in adopting the above-quoted provision, has conferred what amounts to a quasi-agency status upon the Board which we have created and whose members we appoint.

While I disagree with the adoption of such a provision, I recognize that differences of opinion make, among other things, horse races and dissenting opinions. However, this case came along soon thereafter, and the majority promptly found itself confronted by its new creation.

In 1980, the en banc court decided In re Kerr and held that attorneys convicted of a crime of moral turpitude could never seek reinstatement.

The decision to create deference to the BPR on sanction and to permit the BPR to hire and fire Disciplinary Counsel were two highly consequential and ill-advised delegations of authority that have led to a system inappropriately subject to influence by the organized Bar.  

More to follow on that subject.

As I mentioned in an earlier post today, the Court has decided six en banc cases in the post-Fred Grabowsky era. All were argued and decided during my tenure from 1984 to 2001; three were argued by me. I will discuss the cases and their significance in roughly the order in which they were decided.

First was In re Reback & Parsons. The 1986 decision involved a matter in which a division of the court had suspended two attorneys for a year and a day (then meaning a separate fitness hearing before reinstatement) for neglect and misrepresentation. The attorneys had signed the client's name to a complaint after the initial divorce petition had been dismissed and failed to so advise the client and the court.

The en banc court reduced the suspensions to six-months. The judges whose sanctions were reduced - Judges Terry and Newman - were none too pleased.

The Reback & Parsons precedent was quickly rendered largely moot by the decision in In re Hutchinson. There a division of the court had suspended an attorney for six-months (the same ultimate sanction as Reback and Parsons) for lying to the SEC in an insider trading investigation in order to conceal ill-gotten profits.

The Hutchinson court held that a six-month suspension was not the ceiling for dishonest conduct without prior discipline and articulated its fullest vision of the considerations at play in determining disciplinary sanction. It remains one of the most significant disciplinary decisions of the en banc court.

It took the court several years to hold in a division that disbarment was possible for serious dishonesty without prior discipline.

That case  - In re Goffe - was also mine and represented the culmination of years of effort to get the BPR to take serious dishonesty seriously.

From the Goffe decision

We do not agree that Hutchinson was intended to limit possible sanctions in attorney dishonesty cases to a maximum three year suspension. As we have previously noted, neither Hutchinson nor Reback "purported to establish a ceiling for misrepresentation cases." Kennedy, 542 A.2d at 1229. The seriousness and pervasiveness of the pattern of misconduct here is unparalleled in this jurisdiction. Indeed, the misconduct is more severe than the misconduct in Garner, supra, where we concluded, as already noted, that "disbarment is well within the range of sanctions for similar misconduct in the District of Columbia." Garner, 636 A.2d at 421. The strictness with which other jurisdictions have dealt with similar misconduct is also persuasive. Respondent's pattern of misconduct, the absence of meaningful mitigating factors, and the need to protect the public and governmental institutions warrant a sanction consistent with Garner.

The battle over dishonesty cases continues to this day.

The Hutchinson decision was also a bit of revenge for Judge John Terry (a wonderful man and judge who was my sponsor for Supreme Court Bar membership). The revenge was expressed in Judge Newman's concurrence

In my dissent in In re Reback, 513 A.2d 226, 234 (D.C.1986) (en banc), I made clear that I believed the six months' suspension imposed on Reback and Parsons was woefully inadequate; I thought the appropriate sanction was suspension for one year and a day. It was clear to me then that the inadequate sanction imposed in that case would come back to haunt us in future cases. In this case it does. The en banc court struggles to distinguish Reback to justify a greater sanction in this case. I decline to join in that struggle. The sanction in Reback was seriously deficient. A sanction here of a one-year suspension, however, is appropriate.

I inherited Hutchinson from the late Jackson Rose and argued it before the BPR and the court. 

Next came In re Peter Wolff. Wolff had been convicted in Virginia of selling pictures depicting children engaged in sex acts. The en banc court agreed with the division's disbarment on grounds that the crime involved moral turpitude. The case has little if any precedential value and, indeed, I could not find an online link to the (very short) decision. 

I well remember the Wolff en banc oral argument, principally for the testy exchanges between Judge Nebeker and Wolff 's attorney, who later gained a measure of fame for his representation of John Bobbitt. 

In re Addams involved the en banc determination that disbarment was the presumptive sanction for intentional or reckless misappropriation. Many of the difficult issues that the disciplinary system faces regularly involve application of Addams and its progeny. One of the landmark cases in D.C. bar history.

I took over In re McBride from another attorney at Bar Counsel after the court had granted rehearing en banc. The division had disbarred an attorney convicted of misdemeanor fraud.

The case was quite sympathetic. 

McBride, a member of the District of Columbia Bar since 1954 and a 28-year honored veteran of the Department of Justice, had retired in 1983 to become a solo practitioner. According to McBride's brief, his practice consisted of many pro bono referrals from his church, including a request that he help Mrs. Shahid and her two young children, immigrants from Pakistan, change their immigration status from visitor to resident alien. With McBride's assistance, Mrs. Shahid's petition to change her immigration status was conditionally granted. But as she made preparations to fly to Pakistan to appear personally at the United States Consulate there, she grew fearful that some snag in the process would prevent her from returning to the United States and would require her to stay in Pakistan where her physically abusive ex-husband resides. She panicked and pleaded with McBride to help her obtain an American passport to use to reenter the United States in case her new immigration status was not approved. McBride helped Mrs. Shahid provide the passport office with two identification documents that belonged to a third person. McBride accompanied her to that office and remained with her as she applied for and picked up the passport. McBride received no financial or any other benefit from his actions, all of which occurred within four days. On the other hand, he has never disputed that he knew his conduct was dishonest and designed to secure for Mrs. Shahid a passport to which she was not entitled.

The division applied the Colson precedent to disbar McBride.

The en banc court considered the question of whether to overrule Colson and Kerr in whole or in part.

The unanimous court overruled Colson and Kerr in two respects. Misdemeanor convictions no longer could involve moral turpitude per se - every convicted misdemeanant gets a hearing.

More significantly, McBride overruled the holding in Kerr that made disbarment for a moral turpitude conviction permanent. That aspect of the case had led to a significant number of reinstatement petitions, many of which have been granted after felony convictions.

My favorite moment involved an exchange with Judge Terry toward the end of my argument when he asked me

What is most important to you [Bar Counsel] here?

My answer was for the survival of the procedures laid out in Colson for determining moral turpitude.

The court left the procedures intact.

Judge John Ferren had been the sole dissenter in Kerr. My sense is that he greatly enjoyed the argument and seeing his dissent later written into an unanimous opinion authored by him overruling it. 

Finally, there is In re Abrams, which was my case from soup to nuts.

We had just finished the Abrams hearing when he was pardoned of the underlying conviction by President George H. W. Bush. As they say, the case took a new direction after that little twist.

The division (Judge Terry again as author) held that a Presidential pardon precluded the imposition of any professional discipline, relying principally on the 1866 Supreme Court decision in Ex Parte Garland.  That 5-4 decision involved the restoration of practice privileges before the Supreme Court to a pardoned Confederate.

The en banc court held that the pardon did not act to insulate the beneficiary from sanction in a 5-4 decision authored by the late (and also wonderful) Judge Frank Schwelb. 

No moral character qualification for Bar membership is more important than truthfulness and candor.”  In re Meyerson, 190 Md. 671, 59 A.2d 489, 496 (1948).   An attorney is required to be a person of good moral character not only at the time of admission to the Bar, but also thereafter.  In re Rouss, 221 N.Y. 81, 116 N.E. 782, 783 (1917) (Cardozo, C.J.).   The pardon could not “reinvest [Abrams] with those qualities which are absolutely essential for an attorney at law to possess or rehabilitate him in the trust and confidence of the court.”  In re Lavine, 2 Cal.2d 324, 41 P.2d 161, 163 (1935) (citation omitted).   Accordingly, we hold that this court's authority to impose professional discipline was not nullified by the presidential pardon.

To prepare for the en banc argument, I did two things of significance. 

First, I read  Chief Justice Rehnquist's history of the court.  It was incredibly helpful and insightful in understanding the high court in the immediate aftermath of the Civil War. Because I anticipated the possibility of Supreme Court review (Abrams later petitioned for certiorari and did not get a single vote), it shaped my arguments for that eventuality.

Second, I took my darling daughter Hannah Frisch (now Caprice) to the cemetery at the Gettysburg National Battlefield and together we recited the Gettysburg Address. I cherish that memory.

There have been no en banc disciplinary cases in D.C. since the 1997 Abrams decision. (Mike Frisch)

July 12, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Not Easy, Not Reinstated

The full Massachusetts Supreme Judicial Court agreed with a single justice's denial of an attorney's third petition for reinstatement, describing the process of its review.

Weiss has failed to meet this burden. He has demonstrated none of the bases for reversal identified in the rule. The argument made in his memorandum is essentially that the single justice's probing questions of bar counsel at the hearing before him indicated that the single justice may have been inclined to grant reinstatement, yet ultimately did not do so, and that this somehow constitutes reversible error; alternatively, Weiss argues, the full court, with the single justice included, should review the matter anew. Neither position has merit or satisfies the letter or the spirit of the rule...

"Unlike nearly all other States, which require that judgment in bar discipline cases shall be by the full court, we in this Commonwealth use the single justice system in such cases." Matter of Alter, 389 Mass. 153, 156 (1983). We review the single justice's decision (on issues other than the initial choice of a sanction at the disciplinary stage) to determine whether there has been an abuse of discretion or clear error of law. See Matter of McBride, 449 Mass. 154 (2007); Matter of Cobb, 445 Mass. 452, 466, 475 (2005). While we share the single justice's stated concern in this case that bar counsel may have been attempting to use the reinstatement process to some extent "to extract further punishment for past acknowledged and sanctioned misconduct," which would have been improper, we find no error in the single justice's ultimate ruling that the hearing committee's and board's findings, report, and recommendation reflect a "careful consideration of the matter" and support the denial for reinstatement. The petitioner has not shown otherwise in his memorandum.

The denial of the petition was not "markedly different" from other cases disposed of by a single justice.

Bottom line

As the single justice observed, this is not an easy case. The petitioner, who was suspended for one year and one day, has not practiced law since May, 2011. As the hearing committee recognized, he has a sincere desire to return to practice. The focus of reinstatement proceedings, however, is on the "integrity and standing of the bar, the administration of justice, [and] the public interest," S.J.C. Rule 4:01, § 18 (5), rather than on a petitioner's private interests. See Matter of Fletcher, 466 Mass. at 1020. Neither the hearing committee, nor the board, nor the single justice was satisfied that those interests would adequately be protected if the petitioner were reinstated, on this record, at this time.

The 2011 suspension order is linked here. (Mike Frisch)

July 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Pleading Guilty And Legal Malpractice

The North Carolina Court of Appeals affirmed the dismissal of a legal malpractice case brought by a defendant who pleaded guilty to criminal charges but was later exonerated when the victim recanted her testimony.

On 2 March 2012, defendant was appointed by the Court to represent plaintiff on these charges. Plaintiff sent several notes to defendant. None of the letters in the record that were written by plaintiff to defendant include any assertion by plaintiff that he was factually innocent of the charged offenses or that he wanted a jury trial. Instead, all of plaintiff’s notes urgently requested defendant to negotiate a plea bargain that would enable plaintiff to be released from jail as soon as possible.

The attorney negotiated the plea per the client's instruction.

About a year after pleading guilty to taking indecent liberties, plaintiff obtained a signed statement from Tina stating that she and plaintiff had not had any sexual contact. Plaintiff retained defendant to prepare a motion for appropriate relief, and Mr. Patrick Currie was appointed to represent plaintiff in court. A hearing on plaintiff’s motion for appropriate relief was conducted by Judge Anna Wagoner on 13 May 2013, at which testimony was elicited from Ms. Thomas and Tina in support of plaintiff’s contention that in 2011 Tina had falsely accused him of having sexual relations with her. On 24 May 2013, Judge Wagoner entered an order granting plaintiff’s motion for appropriate relief, setting aside his guilty plea, dismissing all charges against plaintiff related to sexual contact with Tina, and removing plaintiff from the Sex Offender Registry.

 The court rejected the ensuing claim of malpractice

It is undisputed that defendant repeatedly directed defendant to negotiate a plea bargain with the prosecutor, under the terms of which plaintiff would be released from jail and allowed to rejoin his family. There is no evidence in the record to suggest that plaintiff ever indicated any desire to resolve the charges against him at a jury trial. Consequently, the question raised by plaintiff’s complaint was whether defendant’s representation of plaintiff met the standard of care for an attorney representing a criminal defendant who has directed his counsel that his preference is to resolve the charges against him with a plea arrangement. The standard of care for an attorney representing a criminal defendant requires more extensive investigation and preparation for a jury trial than for entry of a plea of guilty. Nonetheless, we agree with plaintiff’s general proposition that a client’s preference for a plea bargain as opposed to a trial does not relieve the attorney of the duty to exercise reasonable care and diligence in negotiating an appropriate plea arrangement and representing the client’s interests in this regard...

On this record, we conclude that the charges against plaintiff were supported by adequate evidence to take the case to the jury. Defendant successfully negotiated a plea arrangement pursuant to the terms of which plaintiff pleaded guilty to one charge of taking indecent liberties, agreed to register with the North Carolina Sex Offender Registry, and would be released from jail, in exchange for which the State dismissed the numerous other serious charges against plaintiff. Given plaintiff’s insistence on pleading guilty, the seriousness of the charges against plaintiff, and the strength of the evidence supporting these charges, the plea bargain arranged by defendant appears to reflect a reasonable exercise of professional skill on defendant’s part.

The court found no other basis to sustain the action. (Mike Frisch)

July 12, 2016 in Clients | Permalink | Comments (0)

Poor Accounting But No Dishonesty

A one-year suspension with all but five months stayed has been proposed by the Illinois Review Board

Respondent represented eight clients in separate proceedings to reduce their property tax assessments or obtain property tax refunds. After receiving a refund on behalf of each client but before paying the client, Respondent transferred money out of his client trust account into personal or operating accounts, temporarily leaving the client trust account with insufficient funds on each occasion to cover what the client was owed. In addition, on a few of these occasions, he overdrew his client trust account, thereby triggering an overdraft notice both to him and to the ARDC.

Because of the overdraft notices, the Administrator began investigating Respondent and ultimately charged him in an eight-count complaint with failing to hold client funds separate from his own property and dishonestly using client funds for his own purposes, in violation of Rules 1.15(a) and 8.4(c), respectively, of the Illinois Rules of Professional Conduct (2010).

The Hearing Board found that Respondent had violated Rule 1.15(a), but attributed it to poor accounting practices and not dishonest motives. It thus found that he had not violated Rule 8.4(c). It recommended that Respondent be suspended from the practice of law for one year, with the last seven months stayed by an 18-month period of probation with conditions. The Administrator filed exceptions to the Hearing Board's finding of no dishonest conduct, as well as its sanction recommendation. For the reasons set forth below, we affirm the Hearing Board's finding that Respondent did not violate Rule 8.4(c), and concur with its sanction recommendation.

The story

Respondent has a client trust account into which he deposits client funds. During 2011 and 2012 - the time period covered by the Administrator's complaint - Respondent was constantly depositing tax refund checks received on behalf of clients into the client trust account. Immediately upon receiving the tax refund checks and without ensuring the deposits had posted, he usually would write checks from the client trust account to his clients for their portion of the refunds and to himself for fees and costs. Sometimes, instead of writing himself a check, he would collect his fees and costs by transferring funds electronically from the client trust account to his personal or operating account. At hearing, he testified that he never withdrew or transferred funds from the client trust account that he did not believe he was entitled to as fees or costs.

During this time, Respondent was not using proper bookkeeping procedures. He was not reviewing his client trust account statements or keeping track of the posting of deposits or clearing of checks. He was using QuickBooks and had an accountant, but the accountant was not reconciling the client trust account or inquiring about overdrafts. Consequently, on eight occasions, each of which became the subject of a count in the Administrator's eight-count complaint, Respondent ended up using client funds for his own purposes by either overdrawing his client trust account or allowing it to fall below the balance necessary to ensure that all funds he owed to clients were in it.

Notwithstanding Respondent's lapses, his bank honored all of the checks he wrote to these eight clients, and all of the clients received the funds to which they were entitled before the Administrator filed his complaint. In addition, no client complained about Respondent, and he still represents a number of the clients.

On each of the eight counts, the Hearing Board found that Respondent had violated Rule 1.15(a), which provides that an attorney who is holding client funds in connection with a representation has an obligation to safeguard those funds and segregate them from his own funds in a client trust account. Neither party appeals from that finding.

The board agreed with the hearing board that the Administrator failed to prove that the misconduct involved dishonesty and that a short suspension was appropriate

Respondent offered extensive evidence in mitigation. Respondent's clients never complained about him to the ARDC and never contacted him regarding the whereabouts of their funds; they were all paid all of the funds due them before the Administrator filed his complaint; and Respondent still represents some of them. Also, his wife experienced life-threatening medical issues in 2011 and 2012, during the time of his misconduct.

Beginning in 2013, Respondent began taking steps to correct the deficiencies in his law practice and client trust account bookkeeping procedures, including hiring a new accountant, whom he meets with regularly and who reconciles his client trust account monthly; reviewing his bank statements monthly; maintaining a detailed client ledger; making sure the checks he deposits in the client trust account post before he issues checks to clients and himself; and no longer making electronic transfers from his client trust account. In early 2013, Respondent read the Illinois Rules of Professional Conduct relating to trust account procedures, and in April 2015, completed a client trust account webinar.

Respondent testified about his involvement with many professional organizations, including the fact that he has volunteered his time to speak at seminars for some of them; his pro bono work for various not-for-profit organizations and low-income homeowners; and his service on various boards and committees. He also presented the testimony of six character witnesses who testified about his good character. Finally, Respondent has not been disciplined in his 35 years of law practice in Illinois, and he has accepted responsibility for not maintaining his client trust account and expressed remorse and regret for his conduct.

In aggravation, despite being informed of the ARDC's investigation in 2011, Respondent did not audit his client trust account until 2013. Moreover, the amount of client money that Respondent used without authorization - $125,000 - is significant, and his failure to safeguard and segregate client funds spanned over a year and a half, which shows a pattern of mishandling client funds.

The board also recommends probation of 18 months.

In cases involving misuse of entrusted funds, the intent of the attorney is the most crucial element in determining the appropriate sanction. In Illinois, the issue is whether the conduct violated the separate rule prohibiting dishonesty.

In D.C., the question is dealt with by finding that the misappropriation was intentional or negligent (disbarment unless the attorney is a recovering addict whose condition caused the misconduct) or negligent (typically a six-month suspension with or without fitness).

This approach - which does not tie sanction to proof of dishonest intent - and which is in effect a per se rule for disbarment - is found in the court's en banc opinion In re Addams.

Someday - maybe soon - the court may reconsider the Addams precedent.

The District of Columbia Court of Appeals has decided a total of six en banc cases since it repealed a rule that required that all disbarments be from the full court.

I argued three of the six for Bar Counsel, including the last one. The court has not taken a disciplinary case en banc since the Abrams case in 1997. 

I well remember the oral argument in Addams between legendary attorney Ken Mundy and my longtime colleague and friend (now Judge) Sam McClendon.

One of the joys of working as a disciplinary prosecutor in D.C. (you read that correctly) was the opportunity to litigate in opposition to some truly great lawyers. Ken Mundy was one of the people I got to work with only because I prosecuted attorneys. He and I argued a case before the Board on Professional Responsibility just before his shocking and untimely death. I well remember his wit and smile as he made every effort to grind my arguments into dust. 

I don't remember who prevailed but I can still see Ken up at the podium working me over and making me enjoy it. A great lawyer can be more artist than technician. (Mike Frisch)

July 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 11, 2016

Office, Not Chief, May Properly Be Appointed As Counsel

The Virgin Islands Supreme Court vacated an order appointing the Chief Territorial Public Defender as counsel in a complex criminal case. The trial court may appoint the Office to a case but may not designate the particular attorney assigned.

The defendant initially had retained counsel 

In 2008, Miller was charged with a litany of offenses, including violations of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 600 et seq. (“CICO”). Miller’s trial on these crimes commenced in May 2011, in which he was represented by the law firm of Dudley Clark & Chan, LLP. Following five days of deliberations, the jury was unable to reach a unanimous verdict, which resulted in the trial court declaring a mistrial on June 24, 2011.

The firm was thereafter permitted to withdraw for nonpayment of fees.

A public defender was appointed but withdrew due to a claimed conflict of interest.

The court did not find an actual conflict of interest, but nevertheless relieved Attorney Leycock from the case because it concluded that there existed a potential for a conflict of interest which warranted Attorney Leycock’s withdrawal. The court simultaneously ordered, “Chief Public Defender Samuel Joseph, Esq., is appointed to personally represent Defendant Miller.” (JA at 154.) Lastly, the court directed Attorney Joseph to create an “ethical wall” within the Office of the Territorial Public Defender to ensure that Miller received conflict-free representation.

At the beginning of the following year, on January 27 and 28, 2014, Attorney Joseph filed two motions to be relieved as counsel, raising substantially the same two issues. First, Attorney Joseph challenged the legal efficacy of the “ethical wall” which had been ordered by the court. Attorney Joseph argued that members of the Public Defender Administration Board and employees of the Office of the Territorial Public Defender had relationships with related defendants which gave rise to conflicts of interest, and he posited that those conflicts were imputed to the entire office. Attorney Joseph also contended that, under 5 V.I.C. § 3503(a), the Superior Court lacked the requisite authority to select an individual public defender to represent an indigent defendant, adding that such an order was disruptive to the operation processes of the Office of the Territorial Public Defender.

 The court decided the appeal on its merits

In his brief, Attorney Joseph informs that Attorney Leycock is no longer employed by the Office of the Territorial Public Defender, and concedes that the conflict-of-interest issue pertaining to Attorney Leycock’s representation of Miller is now moot. (Appellant’s Br. at 15.) Therefore, we proceed to address the sole remaining issue submitted for this Court’s review: whether the Superior Court exceeded its authority by specifically assigning Attorney Joseph to represent Miller in the criminal proceedings attendant to this appeal.

The trial court exceeded its authority by appointed the Chief rather than the Office

Admittedly, the trial court was justified in being concerned about the history of counsel involved in the representation of Miller, and we acknowledge the Superior Court’s emphasis on providing conflict-free representation for Miller. Nevertheless, choosing a specific public defender was not the appropriate solution for addressing the court’s concerns, as the order superseded the role of the Chief Public Defender and violated the separation of powers doctrine. See State ex rel. Robinson, 48 S.W.3d at 69-70 (while the trial court had a legitimate interest in “break[ing] the chain of continuances made by withdrawing defenders,” and ensuring that defendant’s case proceeded to trial without further delays, “[t]he trial court acted in excess of its authority” when it appointed specific public defenders to represent the defendant). It is the Chief Public Defender—and not the court—who possesses statutory managerial authority, and is best positioned to assess the Office’s resources and experience of its lawyers, in achieving effective case management...

Upon a finding of a defendant’s indigence, the Superior Court may appoint the Office of the Territorial Public Defender as counsel. However, the court lacks the statutory authority to order that a specific public defender be assigned to represent a defendant. Accordingly, we vacate the court’s orders appointing Attorney Joseph to represent Miller in the underlying criminal proceedings and remand this case so that the Superior Court may appoint the Office of the Territorial Public Defender, leaving the determination as to the specific attorney to be assigned to Miller to be made within the discretion of the Chief Public Defender.

(Mike Frisch)

July 11, 2016 in Clients, Current Affairs, Hot Topics | Permalink | Comments (0)

Firm Liable For Unpaid Court Reporter Fee

The Connecticut Appellate Court upheld judgment against a law firm LLC but not an individual attorney in an action brought by a court reporting services for non-payment of its bill for three depositions in a federal court action.

The court expressed concern over the defendant attorney's reliance on purported New York law

Perhaps more troubling than the lack of legal analysis is the apparent mischaracterization of New York law. According to the defendants, in all judicial departments of the Appellate Division of the New York Supreme Court, with the exception of the First Department, the law is that the client is responsible for court reporting costs unless those costs are specifically acknowledged and assumed by the attorney. In the First Department, the defendants state that the responsibility for payment lies with the attorney unless disclaimed. The case relied on by the defendants, however, in support of their proposition that, in all but the First Department, an attorney’s client generally is responsible for paying for court reporting services, Sullivan v. Greene & Zinner, P.C., 283 App. Div. 2d 420, 723 N.Y.S.2d 869 (2001), is no longer good law. Its holding has been superseded by New York General Business Law § 399-cc (McKinney 2012), which is now the applicable law in all New York jurisdictions. Section 399-cc provides in relevant part: ‘‘Notwithstanding any other provision of law to the contrary, when an attorney of record orders or requests either orally or in writing that a stenographic record be made of any judicial proceeding, deposition, statement or interview of a party in a proceeding or of a witness related to such proceeding, it shall be the responsibility of such attorney to pay for the services and the costs of such record except where . . . the attorney expressly disclaims responsibility for payment of the stenographic service or record in writing at the time the attorney orders or requests that the record be made.’’ (Emphasis added.) As previously discussed, the court found that the defendants failed expressly to disclaim responsibility for payment at the time services were requested. Accordingly, even if the court had applied New York law as the defendants requested, it is unlikely to have altered the court’s decision in this case.

But only the firm is liable

Our review of the record and the findings of the trial court reveals no evidence indicating that [attorney] Lovejoy acted in his individual capacity rather than as a member of the law firm. Although each of the deposition notices was signed by Lovejoy, his signature appears after the name of the law firm, which is identified as the entity representing Ensign Yachts and, therefore, the law firm noticing the deposition. Accordingly, to the extent that the deposition notice represents an offer to enter into a contractual agreement, the evidence tended to show that offer was extended to the plaintiff by the law firm, not by Lovejoy individually. The court in its decision makes no factual findings on which it could have imposed individual liability. The court’s decision is completely silent as to whether the court believed that Lovejoy had acted in such a way as to suggest he was contracting in his individual capacity or that it was appropriate under the facts of this case to somehow ‘‘pierce the corporate veil.’’ The plaintiff states that Lovejoy is a sole practitioner and that he and the law firm are ‘‘one and the same.’’ That fact alone, however, simply cannot support the imposition of individual liability in contravention of § 34-133. Because there appears to be insufficient evidence to support the court’s decision to hold Lovejoy personally liable for acts taken on behalf of his law firm, that decision cannot stand.

(Mike Frisch)

July 11, 2016 in Billable Hours, Current Affairs | Permalink | Comments (0)

Blogging About Running Evangelist Not Actionable

The Georgia Supreme Court has affirmed the grant of judgment to defendants sued for blog and Facebook posts about the plaintiff

There is simply no basis upon which to sustain the jury verdict against Defendants for invasion of privacy based on the public disclosure of embarrassing private facts.

The story

[Plaintiff] Cottrell for many years engaged in a number of solo running exhibitions with a Christian evangelical emphasis, some of which have been portrayed in the media, and was subsequently involved in various multi-level marketing endeavors, executive leadership positions, and motivational speaking. Cottrell’s notoriety grew along with media controversy relating to his character, which questioned the authenticity and integrity of his claims and achievements. The Crockers worked for Cottrell planning two running exhibitions; Johnson was a long-time friend of Cottrell’s who came to know some women with whom Cottrell was involved outside of his marriage; Peggy is one of the women with whom Cottrell had an extra-marital affair; and Karen is Peggy’s daughter-in-law. Karen located and contacted several people she believed had information about Cottrell, including the Crockers and Johnson. Karen and her husband created a “WordPress” blog (the “Blog”) and posted stories based on this information, which portrayed Cottrell as having a long history of misrepresentation and deception for personal gain. Karen sent emails to a “list serve” group criticizing Cottrell and sharing links to the Blog posts, and Peggy sent messages to multiple Cottrell Facebook “friends” along the same lines. 

Cottrell sued.

The court found that the various theories of recovery were not supportable under the law.

Cottrell claims that the statements at issue constituted defamation per se, and complains that although the superior court found him to be a limited purpose public figure in the areas of running and Christian evangelism, in granting JNOV the superior court erroneously applied the “clear and convincing” evidence standard to every aspect of the defamation. However, Cottrell properly was found to be a public figure in the spheres of running and Christian evangelism. And contrary to Cottrell’s urging, the actual malice standard should be applied to all statements at issue here because they all potentially bear on Cottrell’s character, which is plainly germane to his Christian evangelism...

There is no dispute that Cottrell publicly traveled with Frances, and that both he and Frances revealed the affair to others. His other admitted affair, the one with Peggy, was likewise not private. Peggy herself expressly disclosed the relationship to others and that Cottrell and Peggy openly acknowledged their close relationship by having Cottrell accompany Peggy to her family gatherings. There is simply no basis upon which to sustain the jury verdict against Defendants for invasion of privacy based on the public disclosure of embarrassing private facts.

Jean Sica at Thompson Reuters had reported on the case.

The plaintiff's running activities and the honor of an historical marker are recounted here.

Internationally acclaimed artist and creative director, Dr. Brad Coriell, spoke further to that theme during the unveiling ceremony, asserting that as adults, we appreciate the strict diet, physical and mental conditioning Stan Cottrell must put himself through before each Herculean task of running such great distances. Yet, what we don’t see is the “ring of magic” that surrounds the man on each adventure that can only be seen through the eyes of a child, or an adult with a child-like heart.

Children flock to Stan Cottrell to see and touch him, this man who can do something no one else in the world can do. Most children only need one hero, one adult example that can lead the way. That can give them enough faith in themselves to do what seems to be impossible in their home, town or country. Their innocent eyes consider the man before them who has encircled the world many times with his feet hitting the ground again and again and again to achieve his goals. They start to feel the quiet dreams hidden in their hearts now come forward, accompanied with a giant, “What if? If he can, why can’t I?”

(Mike Frisch)

July 11, 2016 | Permalink | Comments (0)

Tech Support Costs Not Awarded

The Delaware Superior Court granted most of the costs sought by a prevailing plaintiff in an action that had led to a $150,000 verdict.

But this cost was disallowed

This was not a complicated trial. The highly sophisticated, and clearly very expensive, all-day-every-day availability and sometime use of technical support was, presumably, useful to Plaintiff, but was not at all necessary for the jury’s consideration of the material presented. It cannot be considered a reasonable cost under 10 Del. C. § 8504.

The court also denied the post-trial motion for judgment of the defendant.

The allegation that Plaintiff produced no evidence of causation of injury to the minor is without merit. While the existence of injury was certainly disputed, testimony did exist that the child had been subjected to some handling that a jury could conclude was abuse which caused injury. There was no testimony supporting a claim for permanency as such, but there was no separate verdict, or even argument, for future expenses

The case involved injuries to a minor at a day care center. (Mike Frisch)

July 11, 2016 | Permalink | Comments (0)

Reciprocal Suspension For Contempt Conviction

A reciprocal suspension of a year and UFO was imposed by the New Jersey Supreme Court based on a sanction in New York.

As reported by the Disciplinary Review Board

Respondent was admitted to the New Jersey bar in 1991 and the New York bar in 1992. He has no history of discipline in New Jersey. However, in 2003, respondent was censured in New York for misconduct he had committed in connection with his representation of Ricky Baker in his action against the New York Department of Health (NYDH), as described below. In that case, respondent had made egregious misrepresentations in his resume that had induced [the client] to retain him, specifically with respect to his litigation experience.

This misconduct involves the same client, who had sued and prevailed in a legal malpractice claim against the attorney. He then engaged in criminal contempt in the post-judgment attempts to collect by making false statements that led to an investigation and conviction.

The suspension was imposed nunc pro tunc and the sanctioned attorney is thus eligible to seek reinstatement. (Mike Frisch)

July 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Inherent Incredibility Doctrine Applied In D.C.

The District of Columbia Court of Appeals reversed a second-degree child cruelty conviction through applicable of the so-called "inherent incredibility" doctrine.

Appellant‘s conviction stems from an incident at the home of his sister, Donna Robinson, and her husband, Ellsworth Robinson. Appellant‘s wife, Louisetta Koh, lived in the Robinson home along with her two children, a six-year old daughter and a 16-month-old son. Appellant is the biological father of the younger child. On October 26, 2013, after appellant had brought the children back to Koh after their visit with appellant, an argument between Koh and appellant ensued when Koh informed appellant that she had made arrangements to take both children to North Carolina the next day. Appellant said that he would not allow Koh to take his son. When Ms. Robinson saw that appellant and Koh were "tussling," Ms. Robinson told appellant to leave, but appellant refused and (the trial court found) shoved Robinson aside. The bulk of the testimony at trial was focused on what occurred afterwards, when appellant walked over and picked up his son, who was seated in a highchair.

The case involves a rare occurrence - the court overturning a bench trial conviction on grounds of insufficient evidence.

Senior Judge Ferren dissented

The majority‘s decision to reverse appellant‘s conviction for attempted second-degree cruelty to children1 marks the first time in over five decades that the doctrine of "inherent incredibility" has been used to set aside a criminal conviction in the District of Columbia. Indeed, this is the first time that this court has applied the doctrine since we became the final authority over District law after court reorganization in the early 1970s. I believe that the doctrine ill fits this record, and therefore I dissent, respectfully...

I believe it is important to emphasize what my colleagues do not deny, namely, that there can be a grave risk of bodily injury to a toddler who is strapped into a high chair, picked up and gripped tightly by his father, then flipped over backward onto a couch on top of the child's mother, with the father's weight on the child-in-chair for an extended period of time while the mother wriggles away and family members try – then the police use force – to make the father let go. The question here, therefore, is limited to whether there was credible evidence that appellant‘s grip was tight enough, his weight heavy enough, and his resistance long enough to have created that grave risk...

I believe that the trial court, in crediting testimony from Ms. Robinson and Officers Keenan and Rodd (while discounting the testimony of appellant, Mr. Robinson, and Ms. Koh) did not engage in "mere speculation," as my colleagues put it, to convict appellant of attempted second-degree child cruelty. The majority‘s two examples of "inherent incredibility" - Ms. Robinson's testimony regarding appellant's "tight grip" and "weight on baby" – fail to satisfy the statutory and case law criteria essential to withholding deference to the trial court‘s findings in a bench trial. That testimony is not inherently incredible based on alleged inconsistency or on alleged mitigation of the risk by the high chair or by the couch (a posture argument not raised at trial).

The majority opinion is authored by Associate Judge Thompson joined by Associate Judge Easterly. (Mike Frisch)

July 11, 2016 | Permalink | Comments (0)

In Wisconsin

The Wisconsin Supreme Court has reinstated an attorney who had been subject to a series of suspension orders.

Attorney Edgar was admitted to practice law in Wisconsin on June 17, 1985. On March 22, 1999, the Court suspended her license to practice law for two years for misconduct consisting of conversion of funds, improperly commingling funds, and falsely certifying that she had a trust account and maintained proper trust account and bank records.

In 2003, Edgar's license was suspended for an additional year, retroactive to March 22, 2001, for misconduct consisting of multiple violations of failing to take reasonably practicable steps to protect her clients' interests; failing to keep clients reasonably informed or to comply with clients' requests for information; failing to act with reasonable diligence; and failing to cooperate with OLR's grievance investigations. She also failed to render a full accounting in connection with an advanced fee; practiced law while under administrative suspension; and failed to obtain a written conflicts waiver.

The referee supported the petition

We conclude that the referee's findings support a determination that Attorney Edgar has met her burden to establish by clear, satisfactory, and convincing evidence that she has met all of the standards required for reinstatement of her license to practice law in Wisconsin. The referee found that Attorney Edgar has not practiced law during the period of her suspension; that she has complied fully with the terms of the order of suspension and will continue to do so until her license is reinstated; and that she has maintained competence and learning in the law. If reinstated, Attorney Edgar intends to serve as a guardian ad litem in Children's Court.

The record further supports the referee's conclusion that Attorney Edgar's conduct since her suspension has been exemplary and above reproach; that she has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with those standards; that she can be safely recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and an officer of the courts; and that she has fully complied with the requirements set forth in SCR 22.26.

The attorney will be subject to two years of monitoring. (Mike Frisch)

July 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 8, 2016

Paralegal License Revoked

Unlike its American counterparts, the Law Society of Upper Canada has and exercises disciplinary authority over paralegals,

The Law Society Tribunal revoked a paralegal's license

Mr. Djukic is 56 years of age. He became licensed as a paralegal with the Law Society in March 2008, and is also a registered immigration consultant with the Immigration Consultants of Canada Regulatory Counsel. His paralegal licence has been suspended on an interlocutory basis since December 2014...

Mr. Djukic’s actions clearly brought discredit upon the paralegal profession. Through his work as an immigration consultant and his standing as a paralegal, Mr. Djukic was able to meet and, ultimately, to persuade members of two families to provide him with monies totaling more than $900,000. He did this by deceiving them into believing that they were investing or loaning funds to people who could pay high interest rates when, in fact, he was using the funds to sustain his own lifestyle. Further, despite his promises of repayment, to date Mr. Djukic has made no restitution to the complainants. As this behaviour clearly reflects adversely on his honesty, integrity and trustworthiness, we found that Mr. Djukic engaged in conduct unbecoming.

(Mike Frisch)


July 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 7, 2016

Actual Innocence Required To Sue Defense Counsel For Malpractice; Sitting In Jail Extra 13 Months Not Enough

The Washington State Supreme Court has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

We find that the public policy concerns recognized in Ang require a plaintiff to prove actual innocence of an alleged crime when pursuing a criminal malpractice claim. Because any term of confinement Piris served was within the broad authority of the trial court, the argument for a Powell exception is inapplicable here. We need not overrule Powell but note it involved a unique and narrow set of circumstances where defense counsel and the court were evidently unaware of the class or level of crime to which Powell was pleading guilty. We expect defense counsel to know the level of crime for which a client is being sentenced. That circumstance in Powell is not present in Piris's case before us. 

Justice Stephens dissented

Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...

Undoubtedly, Piris's criminal conduct was the "natural cause" of his 146- month sentence. But the additional 13 months he served on top of his lawful sentence was proximately caused by his attorneys' alleged negligence in not ensuring that he was timely resentenced. Piris should not have to prove his actual innocence as a precondition to seeking damages for these 13 months. From a practical standpoint, he is in the same position as the plaintiff in Powell; regardless of whether his excess sentence exceeded a statutory maximum or the confinement term the court imposed, it was unlawful. He should be entitled to proceed with his claim and attempt to prove that his harm resulted from his attorneys' negligence.

I would hold that a criminal malpractice plaintiff whose sentence is vacated and remanded but who does not timely receive the benefit of resentencing due to alleged attorney negligence need not prove he is actually innocent of the underlying criminal conduct to proceed with his criminal malpractice claim. Because the majority extends the actual innocence rule beyond its justifications in policy or causation principles, I respectfully dissent.

Note correction to our error in identifying the court. (Mike Frisch)

July 7, 2016 in Clients | Permalink | Comments (1)

Admission Denied But Not Because Of Online Posts

A disclosure issue led the Maryland Court of Appeals to deny an application for bar admission notwithstanding the favorable recommendation of its Board of Law Examiners

Applicant’s failure to disclose a Petition to Violate Probation on his Bar Application in the face of his known obligations to candidly, accurately and currently disclose impinged upon his character and fitness to practice law warranting denial of his application for admission to the Bar of Maryland.

Judge Battaglia's majority opinion

[Applicant] Gjini’s Bar application was forwarded to a member of the Character Committee for the Seventh Appellate Circuit, David DeJong, Esquire, because Gjini reflected a Montgomery County address. Mr. DeJong interviewed Gjini on September 9, 2014 and October 23, 2014 and concluded that Gjini had failed to bear his burden of proving his character and moral fitness for the practice of law in Maryland because of Gjini’s August 13, 2013 driving while impaired charge as well as his extensive driving record which included another alcohol related offense for which Gjini was not prosecuted.  In addition, Mr. DeJong was concerned about on-line comments he found that Gjini had written on internet message boards while in law school. After Mr. DeJong forwarded his recommendation to the Character Committee for the Seventh Appellate Circuit and before it conducted a hearing under Rule 5(b)(2),6 Gjini received a Petition to Violate Probation filed by his probation officer on December 30, 2014 alleging that Gjini had “failed to verify attending and successfully completing a local Health Department alcohol treatment program” with a corresponding Show Cause Order in which Gjini was required to appear on February 18, 2015 in the District Court for Montgomery County. Gjini’s hearing was postponed due to weather, and Gjini appeared before a district court judge in Montgomery County on March 23, 2015, just a few days before his Character Committee hearing. The district court judge determined that Gjini had not satisfied the alcohol education program requirement and gave him sixty days to complete another program at which time Gjini would need to reappear. Gjini did not supplement his Bar Application with any of this information at any time.

The committee learned of the violation from another source.

For those who post comments on line, there is this from the proceedings below

During his investigation of Mr. Gjini's application, Mr. DeJong discovered, rather serendipitously, several statements which Mr. Gjini had posted to various chat-rooms on the internet as recently as his last semester in law-school. Those postings included commentary upon martial arts videos and similar matters and are set forth, verbatim, as follows:

“This guy is a dipshit.”

“Yo, shut the fuck up so we can watch the video.”

“The both fight like hoes.”

“The bully kid was a pussie.”

“That girl is hot as fuck.”

“Who is the faggot that made this video?”

“Just keep games like they are with a PS3 controller. None of this gay shit.”

“Straight NUTT in that bitch.”

Mr. Gjini admitted that he posted the statements, above. He admitted, further, that the statements were posted while he was in law school and, in fact, many were placed during his last semester in law school. While the undersigned find these postings to be troubling, we do not believe that they are of sufficient magnitude to preclude Mr. Gjini from the practice of law.

The substance and nature of the postings may reflect something of a chasm between persons of Mr. Gjini's generation and the undersigned members of the Hearing Committee. The language employed by Mr. Gjini certainly is not to be applauded and the undersigned would not encourage its use. Nonetheless, it appears no worse than that which is commonly found on the internet, and that which is regularly employed by pop-music stars and sports figures.

Further, we note that Mr. Gjini expressed what we believe was sincere regrets with respect to the use of such language in his sworn testimony before this Committee.

The court

Based upon our review of the record, contrary to the recommendation of the State Board of Law Examiners based upon the omission of any consideration to address Gjini’s failure to disclose his Petition to Violate Probation and its attendant Show Cause Order and the hearing that followed, we determine that Gjini does not possess the present good moral character to practice law in Maryland; Gjini completely failed to supplement his Bar application with any of the facts developed solely through the efforts of Mr. Vaughan, the Chair of the Character Committee.

We are not persuaded that Gjini’s failure to disclose is mitigated in any way by his various excuses which varied from initially not knowing he had to disclose, then with his assumption that he did not have to disclose and finally, that his failure was a calculated error. We have consistently stated that disclosure on the Bar application and supplementation is mandatory...

Judge Adkins dissented

Respectfully, I dissent from the decision of the Majority to deny admission to Mr. Gjini to the Maryland Bar for lack of character and fitness. The Majority finds offensive his failure to disclose to the State Board of Law Examiners the fact that he received a Petition to Violate Probation and an attendant Show Cause Order after he chose to take an online course, instead of an appropriate in person course, to satisfy a condition of his probation...

I agree with the Board of Law Examiners and the Character Committee that he should be admitted. His alleged violation of probation—the taking of an online course rather than participating in an appropriate course in person—is a rather minor transgression...

Although Mr. Gjini clearly was under the obligation to supplement his Application for Bar Admission, not doing so under these circumstances should not constitute the basis for denying him the privilege of practicing law for which he has studied.

Chief Judge Barbera and Judge McDonald have authorized me to state that they join in the views expressed in this dissenting opinion.

(Mike Frisch)

July 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand Plus For Judge's Abuse Of Domestic Violence Victim

The Florida Supreme Court had to judge a judge

In this case, we review the revised consent judgment entered into by the Florida Judicial Qualifications Commission (JQC) and Seminole County Judge Jerri Collins. The revised consent judgment imposed the following sanctions on Judge Collins: a public reprimand before this Court, completion of an anger management course, and attendance at the domestic violence course offered during Phase II of the Florida Judicial College. We have jurisdiction. See art. V, § 12, Fla. Const. For the following reasons, we approve the revised consent judgment.

The judge engaged in misconduct

when she berated and belittled a victim of domestic violence for failing to respond to a subpoena issued by the State Attorney to testify in the trial against her abuser, who is the father of her child. As a result of the victim’s failure to appear, the State was unable to proceed with the trial. Consequently, the State dismissed a charge against the defendant for dangerous exhibition of a weapon and the defendant accepted a plea to a reduced charge of simple battery.

Judge Collins issued an order to show cause why the victim should not be held in contempt of court for violating the trial subpoena by failing to appear for trial. When the victim appeared before Judge Collins, the judge instituted direct criminal contempt proceedings in which the victim was not represented by counsel nor advised of her right to present evidence or testimony on her own behalf. During the contempt proceedings, Judge Collins was discourteous and impatient toward the distraught victim. The victim apologized for failing to appear, citing anxiety, depression, and a desire to move on from contact with her abuser as reasons why she did not appear for trial. Meanwhile, Judge Collins raised her voice, used sarcasm, spoke harshly, and interrupted the victim. Judge Collins found the victim in contempt of court and sentenced her to spend three days in jail even though the victim pleaded with the court that she needed to take care of her one-year-old child.

Furthermore, Judge Collins’ behavior created the appearance of partiality toward the State. After pressing the victim about the veracity of her statements to police, Judge Collins rebuked her for failing to appear to testify, declaring “You disobeyed a court order knowing that this was not going to turn out well for the State.” Judge Collins noted that the victim previously indicated to the State Attorney that she was not going to show up. The victim further disclosed that at a domestic abuse class she asked them to drop the charges because she was trying to move on with her life. Moreover, the victim declared that she was “not in a good place,” a remark to which Judge Collins responded, “and violating a court order did not do anything for you.”

The court had rejected an earlier proposed consent reprimand

The revised consent judgment subsequently entered into by the JQC and Judge Collins includes terms more appropriate to address the acts of misconduct in this case. Thus, we approve the terms of the revised consent judgment requiring Judge Collins’ appearance before this Court for a public reprimand, completion of an anger management course, and attendance at the domestic violence course offered during Phase II of the Florida Judicial College. We recognize that Judge Collins completed an anger management course on April 29, 2016, satisfying the sanction imposed by the revised consent judgment.

(Mike Frisch)

July 7, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Home Grown Sanction

A two-year suspension was imposed by the New York Appellate Division for the Third Judicial Department as a result of a conviction

In August 2015, Padilla pleaded guilty to the crime of manufacturing, distributing or dispensing a controlled dangerous substance, i.e., marihuana (see NJ Stat Ann 2C:35-5). This charge stemmed from the discovery by New Jersey authorities of a marihuana growing operation in the basement of Padilla's home. In October 2015, Padilla was sentenced to, among other things, 90 days in jail and two years of probation. He duly reported his conviction to this Court.

The court took into consideration the absence of prior discipline. (Mike Frisch)

July 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)