Saturday, February 21, 2015
The Georgia Supreme Court upheld the malice murder conviction of a defendant for the shooting death of a police officer.
The defendant was 17 years old at the time of the offense.
The court rejected an ineffective assistance of counsel based on the defense attorney's failure to object to testimony of a former juvenile court judge who had presided over cases involving the defendant.
Justice Benham dissented on the sentence and the testimony issue
In addition to the constitutionality of the sentence imposed, I write because the testimony of Tracy Graham Lawson is deeply troubling whether or not an ethical violation occurred regarding her former status as a juvenile court judge for Clayton County. I believe counsel was deficient when he failed to object to her testimony at the sentencing hearing and that such deficiency was prejudicial to Bun.
Lawson, who was never tendered as expert, was allowed to testify, among other things, that Bun began his “criminal career" at the age of ten, that she had Bun detained at the age of 13 because she was afraid of him, and that no one could change his behavior patterns. Although Lawson was no longer a juvenile court judge with any authority over Bun after December 2008, she was also allowed to testify about incidents occurring after her judicial tenure and for which she could not possibly have first-hand knowledge. Lawson called Bun a “menace to society,” she said that Bun “scared [her] from the very beginning,” and opined, “You can’t change this young man, I’m convinced of it.” Lawson also said she knew the victim, said the victim was “a wonderful human being,” and said she disqualified herself from prosecuting Bun in the instant case because she believed she could not be impartial.
Whether or not allowing Lawson to testify was a technical violation of judicial ethics, her testimony certainly had the appearance of impropriety inasmuch as Lawson was given a platform, under the guise of her professional status as a former juvenile court judge, to give her personal opinions about Bun while simultaneously admitting she could not be impartial where Bun was concerned. The fact that Lawson was no longer a judge at the time of her testimony does not mitigate the prejudicial effect the weight of her opinions had on the outcome of Bun’s sentencing. Indeed, I can think of no case where a former judge has testified against a defendant in a current criminal proceeding and essentially testified as to her personal opinion on the defendant’s predilection for criminality. When a defendant has a prior criminal record, we allow the certified copy of that prior record to speak for itself. We do not allow former prosecutors, former defense attorneys, and former judges involved in the prior case to testify about a defendant’s character for sentencing purposes or otherwise.
Justice Hunstein agreed that trial counsel's failure to object amounted to ineffective assistance. (Mike Frisch)
Friday, February 20, 2015
The Kentucky Supreme Court has permanently disbarred an attorney for disregard of support obligations.
The attorney was convicted of felony flagrant non-support.
As to the appropriate discipline, we also agree with the Board's recommendation of permanent disbarment. We recognize that lawyers do not practice law in a vacuum, and, as a result, they often deal with a wide array of mental, emotional, and physical issues. Those issues often arise from and have an impact on a lawyer's ability to practice law ethically. Most lawyers find ways to cope with and address such issues. However, for those who are unable to do so, help is available through KYLAP. James was offered the opportunity to avail himself of this resource but, because he has not responded to the charge or the complaint, we cannot determine if he has done so. Furthermore, his failure to respond has made it impossible for us to determine whether there are any mitigating factors. Therefore, in light of James's past history of discipline and his failure to respond to the current charges, we adopt the KBA's recommendation to permanently disbar James.
In doing so, we note that the Board has not cited us to any cases involving attorney discipline arising from a criminal conviction related to the failure to pay child support. However, we have recognized that, "[i]t is the duty and the responsibility of an attorney as an officer of the court to conduct their personal and professional life in such manner as to be above reproach..."
Part of keeping one's personal and professional life above reproach requires financial propriety. Parents have a statutory obligation to support their children, a breach of which may lead, as it did here, to criminal sanctions. See KRS 405.020. We believe that the duty of a parent to support his or her children is no less important than the duty of an attorney to act responsibly when handling client funds, and we have not hesitated to disbar attorneys for mishandling client funds.
A part-time magistrate has been publicly reprimanded by the Iowa Supreme Court for misconduct in connection with a search warrant.
"Déjà vu all over again." We expect lawyers and judges to learn from their mistakes. When a judicial officer repeats violations of the same ethical rules, sanctions can escalate. In this case, the Iowa Commission on Judicial Qualifications (the Commission) recommends we publicly reprimand Magistrate Douglas A. Krull for signing a warrant to search the home of his client. Krull in his private practice represented the mother in a pending action against her ex-husband to modify the child-custody provisions of their dissolution decree. A police officer sought the search warrant in a burglary investigation targeting their son. Magistrate Krull saw this matter as different from a search warrant he signed six years earlier that led to the reversal of a criminal conviction because he contemporaneously represented a client bringing a custody action against the subject of the search. State v. Fremont, 749 N.W.2d 234, 235, 243–44 (Iowa 2008) (holding Magistrate Krull’s conflict of interest invalidated warrant). The Commission issued Magistrate Krull a private admonishment for the Fremont transgression. This time, the district court judge in the modification action granted the opposing party’s motion to disqualify Krull, requiring a continuance and new counsel for Krull’s client.
The court found that a prior warrant-related incident was an aggravating factor
In both matters, Magistrate Krull signed a warrant to search the property of a party in pending civil litigation in which he was counsel of record. Both transgressions carried adverse consequences—in Fremont, Magistrate Krull’s conflict required us to vacate a conviction, 749 N.W.2d at 244, and here, the parties were subjected to delay and additional expense resulting from the continuance of the trial and retention of new counsel. In both cases, Magistrate Krull’s conflict between his public and private roles led to an appearance of impropriety. He should have learned from Fremont to recuse himself from any search warrant application targeting someone who is a party in a case in which he is counsel of record. His prior admonishment for violating the same rules is an aggravating factor.
In mitigation, the magistrate was cooperative and
Importantly...Magistrate Krull was motivated not by personal gain, but by his desire to carry out his judicial duties and serve the people of Worth County. He realized if he recused himself, the nearest available judicial officer was at least thirty miles away. There is no evidence that Magistrate Krull signed the warrant to gain an improper advantage for his private client. We weigh the appropriate sanction mindful of the "duty to sit" to fulfill judicial responsibilities. We consider Magistrate Krull’s motivation to honor that duty as a mitigating factor.
The court found that, the second time around, public discipline was appropriate. (Mike Frisch)
The Wisconsin Supreme Court affirmed findings of ethics violations but nonetheless imposed no discipline in light of the "minor" nature of the transgressions.
Having considered the referee’s report and the parties’ briefs and oral argument on appeal, we conclude that Attorney Rajek committed the rule violations on five counts as found by the referee. The violations, however, involved relatively minor failures of communication, including failures in some instances to provide certain notices or pieces of information to clients under Supreme Court Rule (SCR) 20:1.15(b)(4m), which sets forth the alternative procedure for handling advanced fees. They did not involve the sufficiency or quality of the legal representation provided by Attorney Rajek to his clients. Given the particular facts of this case and the nature of the violations, we determine that it is not necessary to impose any discipline on Attorney Rajek and that there is no basis for a restitution award. We do require Attorney Rajek to pay costs, but we reduce the amount of costs he must pay to $8,500.
The referee had recommended a public censure. (Mike Frisch)
Thursday, February 19, 2015
The North Dakota Supreme Court has dismissed ethics charges against an attorney who was alleged to have violated Rule 1.14 in his representation of a client who desired to revoke a power of attorney.
Here, Runge was retained for the purpose of helping [client] Franz execute necessary documents to leave [living facility] Missouri Slope. According to Runge, he ascertained no conservatorship or guardianship was in place for Franz, but found a power of attorney designating [daughter] Pfeifer as Franz's attorney-in-fact existed. Runge indicated he talked to Franz on the telephone on April 2, 2013, and Franz expressed his desire to leave the nursing home. Runge stated he drafted the revocation of the power of attorney for Franz and took the document to the nursing home on April 2, 2013, where he personally met with Franz and discussed the ramifications of the revocation. According to Runge, Franz signed the revocation after indicating he understood the document. Runge stated concerns about Franz's health may have existed when Franz first arrived at the nursing home in October 2012, but those concerns did not exist in April 2013, and the decision to leave the nursing home was Franz's decision. The evidence indicates Runge was adequately and reasonably able to evaluate Franz's capacity from the telephone conversation and in the personal meeting with Franz at Missouri Slope on April 2, 2013. Runge's assessment of Franz's capacity was within the range of a lawyer's exercise of professional judgment...
Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013. Nothing indicates Runge did not understand the limited powers conferred upon Pfeifer by the power of attorney and by the emergency care statement when Franz executed the revocation of the power of attorney on April 2, 2013. This Court recognized the rules of professional conduct set a minimum level of conduct for discipline. See Disciplinary Action Against McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661. Runge's communications with Franz demonstrated Franz's ability to articulate the reasons for his desire to leave the nursing home and to appreciate the consequences of his decision. See N.D.R. Prof. Conduct 1.14 cmt. 6 (outlining factors for assessing capacity). Although Runge could have contacted Pfeifer before Franz executed the revocation of the power of attorney, N.D.R. Prof. Conduct 1.14 did not require him to contact her after ascertaining Franz's capacity. We conclude clear and convincing evidence does not establish Runge violated N.D.R. Prof. Conduct 1.14. The complaint against Runge is dismissed.
The Disciplinary Board had issued an admonition.
I do not recall a case where an alleged Rule 1.14 has been the sole charge.
The rule concerning clients with diminished capacity is not designed with enforcement intentions (in sharp contrast to many other rules). It reads more like an "ethical consideration" under the old Code of Professional Responsibility.
You do see the rule invoked as a defense or explanation in disciplinary proceedings. (Mike Frisch)
The attorney had represented former deputy county attorney Lisa Aubuchan in both bar disciplinary and as a plaintiff in civil proceedings.
Aubuchan was disbarred.
The defendants in the civil suit were Phoenix attorneys who filed the bar complaint when the case was dismissed.
In the Arizona bar matter, the attorney was alleged to have filed the civil suit in bad faith and lied to Arizona Bar Counsel by claiming that the representation was pro bono when in fact there was a contingent fee arrangement.
He "decided not to contest the disciplinary proceedings" and consented to disbarment in Arizona.
In this reciprocal proceeding, Wyoming Bar Counsel concluded that Arizona Bar Counsel had"overcharged" the case.
The attorney claimed that he accepted disbarment in Arizona with the understanding that he could contest sanction in his other jurisdictions. The record offered support for his asserted understanding.
The court accepted his challenge to reciprocal discipline, finding that the record only sustained the frivolous litigation charge. The sanction was reduced from disbarment to censure.
It is most unusual to see a reciprocal disciplining court essentially accept the proposition that the disciplinary process in another jurisdiction was untrustworthy.
Two federal courts had deferred consideration of reciprocal discipline pending the resolution of this proceeding.
This is a case that likely will generate interest among disciplinary counsel around the country. (Mike Frisch)
A criminal conviction has led to an order of disbarment by the New York Appellate Division for the Second Judicial Department.
...the respondent was charged in the Court of Common Pleas of Delaware County, Ohio, with three counts of unlawful sexual conduct with a minor, three counts of illegal use of a minor in nudity-oriented material or performance, three counts of illegal use of a minor in nudity-oriented material or performance, and one count of rape.
On February 5, 2013, the respondent entered a written plea of no contest to two counts of attempted illegal use of a minor in nudity-oriented material or performance (a lesser included offense of the crime set forth in counts four and six of the above-referenced indictment), in violation of § 2923.02(A) of the Ohio Revised Code, as it relates to § 2907.323(A)(1). On May 10, 2013, Judge W. Duncan Whitney of the Court of Common Pleas of Delaware County, Ohio, sentenced the respondent to 24 months of imprisonment for both crimes, to run concurrently, and directed him to pay the costs of prosecution, and fines totaling $20,000. In addition, because he had been found to be a "Tier II Sex Offender/Child Victim Offender Registrant," he was advised to register as a sex offender in accordance with § 2950.032 of the Ohio Revised Code.
The respondent is currently incarcerated at a correctional facility in Orient, Ohio.
The Delaware County Court of Appeals affirmed the conviction and described the conduct
Appellant's convictions for attempted illegal use of a minor in nudity oriented material or performance stemmed from two photographs sent to him from a fifteen year old girl. One photograph depicted the girl topless, and the second photograph depicted an exposed nipple.
The court rejected the attorney's constitutional and other claims
We conclude the photographs depict nudity. As to a lewd exhibition, the subject is posed; therefore, the photographs are an exhibition. The posed partially clothed subject is not in a normally posed fashion. The poses are inherently sexual as the subject arched her back and fully exposed her breasts. These photographs are similar to images portrayed in "Playboy" whose main purpose is to exhibit sexual behavior that approaches sexual innuendo.
Upon review, we find the convictions for attempted illegal use of a minor in nudity oriented material or performance were not against the manifest weight of the evidence.
The attorney had appealed after entering an Alford plea. (Mike Frisch)
The California State Bar Court Review Department has recommended a 90-day suspension for an attorney's misconduct in several loan modification matters
Two Notices of Disciplinary Charges alleged that from 2010 to 2012, he collected legal fees before completing each loan modification service outlined in a single retainer agreement. A loan modification law enacted in 2009 prohibits collecting any fees until each and every loan modification service contracted for has been performed; it is designed to protect the borrower.
The Review Department rejected the attorney's "advice of counsel" defense
The record reveals that [the attorney] received conflicting information about "unbundling" his legal services from knowledgeable professionals in the industry, including attorneys, and from State Bar representatives. Even so, much of his misconduct occurred while the State Bar was investigating him about collecting fees for the unbundled services. Scurrah’s reliance on the advice of other attorneys is not a defense to his wrongdoing, but it does warrant mitigation.
The attorney's constitutional challenge to the 2009 loan modification law that forbade the fee collection prior to completion of services also was rejected. (Mike Frisch)
Wednesday, February 18, 2015
A Colorado attorney has been suspended as a result of a domestic violence conviction
On October 22, 2013, Stefu was arrested in connection with an incident involving domestic violence. He entered a plea of guilty to a class-six felony of conspiracy to commit felony menacing in Adams County District Court on August 29, 2014. Although much of the conduct underlying the criminal charges is controverted, Stefu admits that he pushed his wife down onto a couch and placed his hand on his mother-in-law during an argument with her. Stefu was sentenced to two years of probation, ordered to perform forty-eight hours of community service, and assessed charges and fees.
The suspension is for two years with at least 60 days served.
He also must complete his criminal probation before he can seek reinstatement. (Mike Frisch)
An order requiring an attorney suing a law firm to submit to a mental evaluation was affirmed by the New York Appellate Division for the First Judicial Department
Following the termination of her employment as a senior attorney in defendant's Moscow office, plaintiff commenced this action asserting causes of action for, among other things, sexual harassment, retaliatory discharge, and intentional infliction of emotional distress. She alleges that defendant caused her to suffer "extreme mental and physical anguish" and "severe anxiety," and seeks to recover $15 million for emotional distress damages. Although plaintiff denies that defendant's actions caused any diagnosed psychiatric condition and does not anticipate presenting an expert in support of her emotional distress claims, she testified at her deposition that her emotional distress has included experiencing eczema all over her body, hair pulling, anxiety, depression and suicidal feelings. Under these circumstances, the court providently exercised its discretion in determining that defendant had demonstrated that plaintiff had placed her mental condition "in controversy" by alleging unusually severe emotional distress, so that a mental examination by a psychiatrist is warranted to enable defendant to rebut her emotional distress claims (CPLR 3121[a]; see Spierer v Bloomingdale's, 37 AD3d 371 [1st Dept 2007]). Although plaintiff asserts that an examination would be unduly intrusive into private matters, she did not propose conditions or seek a protective order limiting the scope or extent of the examination (see Matter of Carrier Corp. v New York State Div. of Human Rights, 224 AD2d 936 [4th Dept 1996]).
Earlier coverage of the case here from Above the Law. (Mike Frisch)
An indefinite suspension with no reinstatement for at least a year was imposed by the Minnesota Supreme Court for misconduct described by the court
The respondent attorney engaged in misconduct by entering into an investment agreement, which amounted to an unsecured $500,000 loan, and several related business transactions with a client in violation of his obligations under the rules of professional conduct regarding conflicts of interest. The attorney also made misrepresentations to a client and opposing counsel in the course of a civil lawsuit, and to the Director during the disciplinary investigation, caused harm to his client, and did not demonstrate genuine remorse for the misconduct.
The misconduct in this case relates to D.S., who was a member of Severson’s household. D.S.’s childhood history was tragic. When D.S. was 3 months old, her parents were killed in a car accident. D.S. was the sole beneficiary of various insurance proceeds that were placed in a conservatorship administered by her adoptive mother (mother). When D.S. was in high school, she experienced serious conflicts with her stepfather that they could not resolve. As a result, D.S. asked and Severson agreed that she would become a member of the Severson household. The Seversons thereafter treated D.S. like a daughter.
The attorney received the conservatorship proceeds after D. S. became an adult. He used the half million as investment funds on her behalf but got into financial difficulty
In January 2007, D.S. requested that Severson return the $500,000 to her. Because Severson was unable to consummate a sale of the FSSCF stock, Severson was unable to return D.S.’s principal. By 2008, Severson was in serious financial trouble. Notably, Severson had acquired an equine center in 2007 and later sold the facility for $1.5 million on a contract for deed, but the purchasers defaulted on the contract. Thereafter, Severson assigned his seller’s interest in the equine center to D.S. as security for her principal, and had D.S. sign a $250,000 mortgage regarding their interest in the equine center; but Severson did not explain to D.S. that he had her sign the documents because of his financial difficulties.
D.S. hired an attorney who sought return of the money and an accounting. The attorney responded with false representations that persisted in the disciplinary investigation.
The court rejected the attorney's claim that D.S. was not his client and thus that there was no Rule 1.8(a) violation.
We conclude that the referee’s finding that Severson’s motivations were not selfish was not clearly erroneous. Severson testified that he intended to subsidize D.S.’s education through the investment agreement because he knew he could not obtain a 9% return on the investment. Severson also testified that the original purpose for assigning the equine center to D.S. was to provide a source of payment for her inheritance. This testimony supports the referee’s finding that Severson’s motivations were not selfish. In sum, we uphold all but two of the referee’s findings. We conclude the referee clearly erred when he found that Severson misrepresented to his bank that D.S. was his daughter, and clearly erred when he did not find that Severson’s lack of remorse was an aggravating factor...
Severson’s misconduct harmed D.S., who trusted him. It took D.S. several years to recover some of her principal from Severson, she had to hire an attorney in order to do so, and in the end, she lost at least one-third of the principal she had given to Severson...
We conclude that when considered in its totality, Severson’s misconduct is very serious. Severson violated the conflict of interest rules by entering into an investment agreement with a client that involved a substantial sum of money and had terms that were unfair and unreasonable. Severson further violated the rules by having that same client assign and mortgage her interest in a building without disclosing that doing so was for his benefit. These business transactions harmed the client, who had to sue Severson in order to get her money back and in the end did not recover one-third of the principal she had entrusted with Severson. Moreover, Severson committed multiple acts of dishonesty by failing to disclose that the assignment and mortgage of the equine center was for his own personal interest, failing to disclose that he, and not his law firm, generated four invoices he used to try to obtain an offset of the amount he owed the client, and making misrepresentations to the Director. Also, Severson did not exhibit remorse for his misconduct, or the effect his misconduct had on his client. Severson has not cited any case that includes multiple misrepresentations and conflicts of interest, involving a substantial sum of money, in which we have imposed a suspension of less than 1 year. We therefore conclude that the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for a minimum of 1 year.
Tuesday, February 17, 2015
The Wisconsin Supreme Court has imposed a two-year suspension of an attorney who embezzled from his law firm
Attorney Koenig accepted payments from the firm's clients without the firm's knowledge and then cashed those checks at Summit Credit Union where he maintained an account. He also received money for legal work that he performed for acquaintances who paid him directly. Attorney Koenig normally performed such work during regular law firm office hours and he used the firm's equipment, supplies, and staff. Although a Kohls firm attorney would have been permitted to perform work for family or perhaps close friends at no charge, it was understood by the firm's employees that any legal work performed by an employee should be reported to the firm. It was also understood by the firm's employees that all billings for legal work should be reported to the firm.
Attorney Koenig received other funds for honorariums and reimbursements for presenting continuing legal education programs or public workshops that he also did not turn over to the firm.
The attorney stipulated to the misconduct and agreed with the sanction. The diverted fees amounted to nearly $40,000. (Mike Frisch)
A 90-day suspension has been imposed by the Wisconsin Supreme Court for an attorney's criminal conviction and client-related misconduct.
On April 18, 2012, the OLR filed a complaint alleging the nine counts of misconduct that underlie this appeal. The complaint alleges that on July 20, 2005, Attorney Hammis was convicted in the Court of Common Pleas, Tuscarawas County, Ohio of the crime of reckless endangering, a first degree misdemeanor under Ohio law. Attorney Hammis did not report his conviction to the OLR or to the clerk of this court as required by supreme court rules. Attorney Hammis was to pay all court costs in the Ohio criminal matter. The Tuscarawas County Clerk of Court prepared an itemized bill of costs and sent it to Attorney Hammis on August 24, 2005. The itemized bill of costs was repeatedly mailed to Attorney Hammis—at least 26 times—but Ohio court records indicated he had not paid the costs, which totaled $232.16 as of September 13, 2010.
The Ohio criminal matter arose while Attorney Hammis was the president, operator, and sole member of ST&E Fabrication, LLC (ST&E). The OLR's complaint alleged that ST&E was charged in a separate companion criminal case in which Attorney Hammis pled guilty on behalf of ST&E to two felony counts of illegal transportation of hazardous waste and illegal disposal of hazardous waste.
As to sanction
With respect to the appropriate level of discipline, after careful review of the matter, we conclude that a 90-day suspension is appropriate. This is not the first time that Attorney Hammis has been found to have committed professional misconduct. Some of the behavior in this case mirrors the misconduct that resulted in his four-month license suspension back in 2011. Although Attorney Hammis argues that the referee was biased against him, the referee found Attorney Hammis's version of events to be incredible. Credibility determinations are particularly within the province of the trier of fact, and we find no basis to second-guess them.
In addition, as an inmate, I.B. was a particularly vulnerable client. All of these factors weigh against imposing a public reprimand. On the other hand, it is arguable that there may be some overlap between some of the counts alleged in the OLR's complaint. On balance, we conclude that a 90-day suspension, which was the level of discipline originally sought by the OLR, rather than the four-month suspension recommended by the referee, will sufficiently protect the public from similar misconduct and impose upon Attorney Hammis the gravity of the misconduct. We further agree with the referee's recommendation that Attorney Hammis be ordered to make restitution to I.B. in the amount of $995 and that he bear the full costs of this proceeding.
Monday, February 16, 2015
A Michigan attorney has been suspended as a result of his recent guilty plea to solicitation to commit murder.
This report from Michigan Live
Authorities alleged [attorney] Gomery, a former prosecutor, tried to pay contractor Dale Fisher $20,000 to murder attorney Christopher Cooke.
Gomery allegedly sought the murder ahead of hearing in a bankruptcy case.
Cooke represented Gomery's former business partner, Fred Topous Jr., in lawsuit. In 2013, a jury found Gomery had fabricated documents that would have given him half interest in the former Mitchell Creek Golf Course property in East Bay Township, which Gomery and Topous formed a business partnership to buy in 2009.
Gomery was ordered to pay Topous $314,000. Gomery filed for Chapter 13 and 7 bankruptcy protection in an attempt to discharge the large debt owed to Topous, who sued Gomery in 2012.
Topous, a convicted sex offender and $57 million lottery winner, was a former client of Gomery's whom the accused lawyer represented in a 2008 car accident case.
Gomery's trial was delayed due to health issues with his attorney Frank Stanley. He was arrested July 14. In December, 13th Circuit Court Judge Philip Rodgers denied a motion by Stanley to pursue an entrapment defense in the case.
Gomery served as Leelanau County Prosecutor from 1997 to 2000, and as Grand Traverse County assistant prosecutor from 1991 to 1993.
The interim suspension was imposed as a result of the felony plea. (Mike Frisch)
The Georgia Supreme Court has dismissed ethics charges against an attorney accused of dishonesty and unauthorized communication with a represented party.
The court interpreted Rule 4.2 to permit communications between an attorney and in-house counsel even where the entity client also has outside counsel, relying on the reasoning of a D.C. Bar ethics opinion.
Such lawyer-to-lawyer communications do not violate the rule.
Notably, the court had earlier rejected a voluntary petition for a reprimand. The court then expressed concern about the leniency of a reprimand in light of the dishonesty allegations.
The Review Panel had found misconduct and proposed a six-month suspension and panel reprimand,
The court majority also absolved the attorney on charges relating to his filing objections to the validation of bonds and offer to withdraw the exceptions if the developers paid him a substantial amount of money.
The court noted that the State Bar did not charge the attorney with litigation abuse and expressed no opinion as to whether the attorney's conduct violated Rules 3.1 and 3,5.
Justice Benham dissented.
He would find that the conduct of the attorney was dishonest and would impose a six-month suspension.
According to the dissent, the attorney filed two validation challenges amounting to $1.3 billion and offered to drop them immediately if the developers paid him $1,3 million. This was a "dishonest attempt to leverage his constitutional challenge into an extortion of money for himself."
Justice Benham agreed with the trial court that this was "egregious, improper and appalling" conduct.
Justice Hunstein agreed. (Mike Frisch)
Friday, February 13, 2015
The Massachusetts Supreme Judicial Court reversed a criminal conviction due to the trial court's failure to conduct voir dire into allegations that a juror slept through important trial testimony.
The charges alleged that the defendant robbed people who were at an ATM machine.
A juror brought the problem to the trial judge's attention on the second day of trial
On the first day of trial, testimony was taken from two of the three victims, Fletcher and Brown. The next morning, juror no. 6 (reporting juror) told a court officer that there had been an issue with juror no. 7 (identified juror) on the previous day...
After hearing from the reporting juror, the judge said, "Maybe I should examine him," referring to the identified juror. The judge then explained, however, "I have questioned jurors before, if I've observed them [sleeping]. I haven't; so I'm kind of hesitant." The prosecutor said, "I think her description is fairly clear as to snoring. I think it may be something we want to ask." Defense counsel said, "I would ask that you inquire."
After hearing from the parties, the judge said, "Well, I If he looks like he's not paying attention, we can take steps right now." Defense counsel asked the defendant, who was present at this discussion, "Are you okay with that . . . ?" to which the defendant responded, "I'm good."
At the end of the trial, the prosecutor stated that he had observed the identified juror "throughout the course of the trial, and he appeared to be awake and paying attention, taking notes." The judge remarked that he had tried to watch the identified juror but had not been able to because of the juror's position in the jury box. The judge added for the record, "[B]ecause of basically my failing to observe any sleepiness during the evidence, we have done nothing with him in that regard."
The defendant argues that the judge's failure to inquire into the identified juror's ability to deliberate and decide the case on the evidence was a structural error that necessitates a new trial. We agree.
In the current case, the judge declined to conduct a voir dire of the identified juror, or to take any other steps to determine if that juror was fit to deliberate. So far as the record reveals, the information relayed by the reporting juror showed reliably that the identified juror had slept through important portions of the trial. The reporting juror stated that the identified juror had been snoring loudly during the portion of the trial at which two of the three victims testified, and had later nodded his head as if awakening; a third juror reportedly had confirmed the reporting juror's observations. There was no apparent cause to doubt the reliability of this account.
The Ohio Supreme Court has issued an order of interim suspension as a result of an attorney's felony conviction.
The Mansfield News Journal had the story of the arrest from last September
John Good never suspected he would have to turn in his former law partner.
Good, now the Ashland Municipal Court judge, called police last week when he discovered nearly $9,000 missing from a former client's trust account.
Tim Potts, an Ashland defense attorney and a former member of the Ashland County Prosecutor's Office, has been charged in the case.
Potts, 43, pleaded not guilty Tuesday to charges of grand theft (two counts), obstructing justice, forgery, passing bad checks, falsification, endangering children, possession of cocaine, possession of heroin and possession of drug paraphernalia.
Potts and Good both worked under former Prosecutor Robert DeSanto, then formed a legal partnership until Good became municipal court judge in 2012.
"I was shocked," Good said. "I would not imagine that Tim Potts would do something like this. I never had any reason to believe Tim Potts was involved in drugs or that he would steal.
"I feel bad for his family, but I don't feel bad for him at all."
Because of Potts' ties to Ashland court officials, the Richland County Prosecutor's Office is handling the case. Retired Stark County Common Pleas Judge Charles Brown Jr. is presiding.
Rolf Whitney was appointed to represent Potts. He could not be reached for comment.
Richland County Assistant Prosecutor Gary Bishop is sharing the duties with fellow Assistant Prosecutor Cliff Murphy. Bishop explained the charges.
"It's alleged that he got involved in drug use," Bishop said of Potts. "It's alleged that he went to his former partner's office and started taking money out of a client's trust account."
Bishop said Good's law partnership with Potts dissolved when the former was elected.
"The client trust account was supposed to be dissolved as well," Bishop said. "It was except for one client's money. It's alleged that Mr. Potts went in and took the money out of that account."
Bishop has tried cases against Potts.
"It's a little uncomfortable prosecuting a professional colleague," he said. "It's also uncomfortable because we want to do everything by the book so the public understands there won't be any special treatment in this case."
Good agreed, saying he didn't hesitate to report his colleague.
"It's a sad situation," he said. "It's just a little bit hard for me to generate much sympathy."
Thursday, February 12, 2015
An Arizona attorney was placed on probation and admonished for his communications with a prospective client for whom he had performed services but not been compensated.
After sending an invoice that was not paid
Complainant and [attorney] Mr. Wilenchik “…exchanged dueling emails that grew increasingly insulting and off-color…” when Complaint emailed, “I told jerry I would take care of you. Now you can f—k off!” This resulted in Mr. Wilenchik stating he didn’t “…want his d—n money anyway…” Complainant replied, “Bring it b---h!” As conditionally admitted in the agreement, the emails spiraled downward.
Part of that "downward spiral" was in the response to the "bring it" comment:
OK drug dealer - I look forward to the many nights and mornings when you think of my name and squeal - you mean nothing to me. Check out the movie Deliverance.
The complainant owns a medical marijuana consulting business.
The conditional admission concedes a violation of Rule 41(g), which, among other things, obligates attorneys to avoid engaging in unprofessional conduct.
Note that the violation is of a Supreme Court rule rather than a Rule of Professional Conduct.
Practice pointer: Don't give into the natural impulse to hit the "send" button. (Mike Frisch)
An attorney who had failed to appear for his client's resentencing was suspended for 10 days by the Florida Supreme Court.
The court rejected the referee's proposal of a public reprimand.
Cohen was hired to represent a client at a resentencing hearing in the client’s criminal case pursuant to Graham v. Florida, 560 U.S. 48 (2010). On March 15, 2012, Cohen was mailed a Notice of Hearing, indicating that the resentencing hearing was scheduled for March 28, 2012. The referee found that Cohen received the Notice on March 19. On the same day, Cohen filed a "Motion to Continue Resentencing Hearing and Notice of Unavailability," asserting that the notice provided for the Graham resentencing hearing was not reasonable and that he did not have adequate time to prepare; Cohen also stated in the motion that he was unavailable on March 28 because he was previously retained to prepare a petition for writ of certiorari on behalf of another client. Significantly, Cohen did not indicate in the motion whether the State agreed to the continuance, he did not submit a copy directly to the presiding judge, and he did not set the motion for a hearing.
Because the client’s resentencing hearing had not been continued, on the day set for the hearing, March 28, 2012, the presiding judge traveled from the county where he was then assigned to the county where the hearing was to take place; the judge had reserved a courtroom and scheduled court staff in order to conduct the hearing. The assistant state attorney, the client, and the client’s former appellate attorney were also present. However, Cohen did not appear. As a result, the presiding judge was forced to reschedule the hearing for a later date. The judge testified before the referee, without hesitation, that had Cohen appeared at the hearing and requested a continuance, the judge likely would have granted his request. The assistant state attorney also testified that she had no objection to Cohen’s request for a continuance. However, Cohen simply chose not to attend. The referee found that Cohen has substantial experience in the practice of law, and particularly in the practice of criminal law, and he should have known that his motion to continue was not self-executing. The resentencing hearing was properly noticed and it had not been continued; thus, Cohen was required to appear.
Following the hearing, the referee noted that Cohen made no personal effort to contact the presiding judge to explain his absence.
The judge reported the lapse to the State Bar.
The court here concluded that the intentional nature of the misconducted warranted a short suspension. (Mike Frisch)
A six-month suspension with credit for time served on an interim suspension was imposed by the South Carolina Supreme Court as discipline for an attorney's assault and battery conviction.
As part of his probation, an evaluation for substance abuse, anger, and sexual deviance was performed. After testing, the evaluator did not classify respondent with a substance abuse diagnosis and determined respondent did not need to participate in a substance abuse class or alcohol counseling. Regarding respondent's risk for sexual offense, the evaluator determined respondent has low risk indicators, suggesting respondent would not knowingly violate his own or another person's boundaries.
The parties had agreed to this disposition.
Carolina Live reported the arrest. The attorney had been a public defender. (Mike Frisch)