Monday, October 10, 2016

"Th[e] Type Of Shenanigan That Judicial Estoppel Cuts Off At The Knees" But With A Dissent

The West Virginia Supreme Court of Appeals denied a writ of prohibition brought by a criminal defendant to prevent disclosure of a report prepared at the behest of the defendant and her counsel.

The limited record in this proceeding indicates that the Petitioner was charged...with two counts of child neglect creating a risk of injury, and two counts of child neglect causing injury.  In September of 2015, the Petitioner pled guilty to all the charges. Prior to the scheduled sentencing hearing, a psychological evaluation and risk assessment was arranged for the Petitioner by defense counsel. To facilitate the psychological assessment, the Petitioner wanted the psychologist to review the medical records of her two children, which had been generated during a prior child abuse and neglect proceeding. The Petitioner also wanted to have her attorney discuss with the psychologist the specifics of her case and other confidential information that involved the victims...

The Petitioner underwent the psychological assessment. After the Petitioner had the psychological assessment done, she refused to disclose the report to the trial court and State. A hearing was held over the Petitioner’s refusal to disclose the psychological report. At the end of the hearing, the trial court ordered the Petitioner to disclose the report to the State and court. The Petitioner thereafter filed this proceeding to prevent enforcement of the disclosure order.

The court majority was sharply critical of defense counsel

In this proceeding the Petitioner contends that disclosure of her psychological report would violate the attorney-client privilege and work product doctrine. Assuming, without deciding, that the attorney-client privilege and work product doctrine would prevent disclosure of the psychological report, we find that the doctrine of judicial estoppel prevents the application of those doctrines...

After obtaining a favorable ruling from the trial court allowing disclosure of confidential information to the psychologist, in exchange for a specific promise to turn over the psychological report for sentencing purposes, the Petitioner now asserts for the first time that the psychological report is protected from disclosure by the attorney-client privilege and the work product doctrine. We are gravely concerned by the Petitioner’s blatant attempt to insult the integrity of the judicial process by pretending that her promise to the court did not exist. It is precisely this type of shenanigan that judicial estoppel cuts off at the knees. “The doctrine estops a party from playing ‘fast-and-loose’ with the courts or to trifle with the proceedings.”

...The Petitioner came to the trial court with a promise to disclose the psychological report to the court, if the court allowed the Petitioner to reveal certain information to the psychologist. In making this promise to the court, the Petitioner implicitly waived any attorney-client privilege and work product protections the psychological report may have had. However, now that the report has been generated, the Petitioner has changed her mind about disclosure and is seeking the protection of those privilege doctrines. We will not allow this.

Justice Benjamin dissented

The criminal defense bar ought to be able to confidently develop expert services and opinions on behalf of their clients for sentencing purposes without fear that the information thereby derived, if proved harmful instead of useful, will fall into the hands of the prosecution. The adversary process and its attendant safeguards, including time-honored privileges and the work-product doctrine, does not cease to exist once a criminal defendant has pleaded guilty or is found to be so. Unfortunately, the majority’s well-intentioned efforts in this instance to improve the flow of relevant information to the circuit court will, in the longer term, perversely and inevitably impede the truth-seeking function of sentencing proceedings and render them less accurate by chilling the efforts of criminal defense lawyers to effectively advocate for their clients.

(Mike Frisch)

October 10, 2016 in Clients, Privilege | Permalink | Comments (0)

Suspension Proposed For Misrepresentations In Workers' Comp Matter

An attorney's third brush with bar discipline merits an 18-month suspension, according to a recent recommendation by the California State Bar Court Review Department. 

The problems started in a personal bankruptcy

In December 2003, Hansen made misrepresentations to the United States Bankruptcy Court in a Chapter 7 bankruptcy petition that she and her husband jointly filed concerning the number and amount of encumbrances on her residence. In February 2004, Hansen also altered and then recorded a deed of trust so that it misstated the amount of the loan it secured. Inexplicably, OCTC did not file an NDC in Hansen I until October 28, 2010. On July 27, 2011, the Supreme Court ordered, inter alia, that Hansen be actually suspended for 30 days and placed on probation for two years as the result of a stipulation to one count of misconduct for gross negligence in committing acts of moral turpitude. No aggravating circumstances were involved. In mitigation, Hansen had no prior record of discipline, cooperated with the State Bar, and provided one good character letter and one letter describing her membership in a non-profit organization.

The probation did not go well

Between approximately September 2011 and May 2012, Hansen failed to comply with several probation conditions from Hansen I, including failing to participate in a scheduled telephonic Office of Probation meeting, provide proof of completion of six hours of MCLE-approved courses, and timely submit a quarterly report. In aggravation, Hansen had one prior record of discipline, engaged in multiple acts of misconduct, and failed to participate in the probation revocation proceeding. No mitigating factors were established. On September 25, 2012, the Supreme Court ordered Hansen’s probation revoked, and further ordered that she be actually suspended for one year and placed on probation for two years, subject to conditions.

Here the attorney made misleading statements to the Workers' Compensation Appeals Board

The WCAB imposed sanctions against Hansen and three other attorneys from her law firm after concluding that they had intentionally misled the Board, causing it to take unwarranted action...

We acknowledge that the 18-month actual suspension recommended by the hearing judge is at the severe end of the disciplinary continuum as developed in the decisional law, and it constitutes significant discipline. But we adopt her recommendation based on the totality of Hansen’s misconduct, which would justify an 18-month suspension had all of the misconduct been brought as one case. (In the Matter of Sklar, supra, 2 Cal. State Bar Ct. Rptr. at p. 619.) Indeed, Hansen’s misconduct in her three cases spans more than eight years and involves repeated probation violations and two instances of moral turpitude for making misrepresentations to separate judicial tribunals. Notably, Hansen made the misrepresentations to better her own personal position. And in the instant case, the deceptions to the WCAB occurred over many months, even after the Board warned Hansen that she was wading into deep ethical waters and facing possible sanctions. Yet she pressed on, essentially doubling down on her efforts to justify her conduct. Her presentation of half-truths and concealment of material facts significantly and adversely impacted the administration of justice. Furthermore, all of the misconduct was directly related to her practice of law before the WCAB.

(Mike Frisch) 


October 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 7, 2016

Dues Oversight In New Jersey Leads To Reprimand

Helping a friend with a couple of phone calls and letters was sanctionable as unauthorized practice of law for an attorney whose New Jersey license had been administratively suspended. 

The New Jersey Supreme Court has reprimanded the attorney for misconduct set forth in the decision of the Disciplinary Review Board

Respondent was admitted to the New Jersey and New York bars in 1991. She is currently engaged in the practice of law, as inhouse counsel to KPMG, in New York City. She has no disciplinary history in New Jersey.

In 1991, respondent was admitted to the New York and New Jersey bars and began her legal career as an associate at Cahill Gordon & Reindel LLP (Cahill), in New York City. In 1993 or 1994, respondent left Cahill for an in-house counsel position at Scholastic, Inc., also in New York City (Scholastic). In 1997, respondent left Scholastic for her current position, in-house counsel to KPMG, again, in New York City. Respondent does not maintain a private practice.

While employed by Cahill, respondent was unaware of the required annual assessment to the New Jersey Lawyers’ Fund for Client Protection (CPF). In 1993, respondent became ineligible to practice law for failure to pay the annual assessment to the CPF.  Respondent claimed that, upon leaving Cahill for Scholastic, she received no information from either Cahill or the CPF regarding her annual assessment obligations.  Respondent also asserted that, during her employment with Scholastic and KPMG, she received neither correspondence from the CPF nor information from her employers’ human resources departments about the annual assessment. She explained that, as a result, she remained unaware of her CPF obligation.

She was administratively suspended in 2005.


More than eight years later, on October 28, 2013, on behalf of her friend, who owned Esperanza Salon (Esperanza) in Summit, New Jersey, respondent drafted and sent a letter to Tara Galatt, the owner of a competitor salon "down the street" from Esperanza. The letter demanded that Galatt cease and desist from employing Stephanie Wright, a former employee of Esperanza, who, prior to her termination, had executed an employment contract that contained a one-year non-compete clause with an eight-mile radius. The letter stated that Galatt’s failure to end Wright’s employment "shall result in Esperanza Salon seeking a restraining order against Ms. Wright and your organization for breach of contract and seeking monetary damages."

Galatt's counsel discovered the problem

Upon learning that her license had been revoked, respondent contacted the owner of Esperanza and informed her that she could no longer assist her with her legal troubles. Respondent admitted that she had drafted and sent the two letters and had the two telephone conversations with Matthews, all on behalf of Esperanza. She filed no pleadings, made no court appearances, and charged no fee for her services.


In this case, the DEC found credible respondent’s testimony that she had no knowledge of the revocation of her license. Upon a review of the record, and in light of the panel’s opportunity to observe and question respondent during the hearing, we accept the DEC’s credibility determination on this issue. As set forth above, the DEC found multiple mitigating factors and determined that, under the reasoning of Torellas, a censure was the proper sanction to impose.

Although we accept the DEC’s credibility assessment, as well as its findings in mitigation, we are troubled that respondent made no effort, for over fourteen years, to ensure her compliance with CPF obligations, and no effort, for over twenty years, to verify her status as a New Jersey attorney. Nevertheless, respondent’s misconduct was limited to two letters and two telephone calls, and was motivated by her desire to help a friend. Moreover, respondent genuinely believed she was still a member of the New Jersey bar, as evidenced by her efforts to satisfy her CLE obligations. When respondent learned that her New Jersey law license had been administratively revoked, she immediately ceased her improper representation of Esperanz.

The court barred the attorney from future pro hac vice admission until further court order. (Mike Frisch)

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

Ad for Louisiana US Senate Race Takes a Right-Hand Turn You Don't See Coming

I saw a TV ad yesterday in our local U.S. Senate race that made me do a literal double-take. I recognize this blog is not really for politics, so please forgive me for deflecting from another Ohio discipline case involving exotic dancers (wait--maybe that does relate to our senate race in some way). I should qualify it by noting that this candidate is not the worst we have on our local airwaves right now, just the one with an ad I feel like sharing. I'm not posting the ones where other candidates essentially fight over how much they hate the President and who is impeaching the IRS Commissioner. And even they are better than candidate David Duke, if you recognize the name (some people forget). Anyway, it's the ad (currently) at the top labeled "...Conservative for Louisiana." Don't be afraid that by clicking on his site you'd be supporting his candidacy in some The Google way. I assure you he's not at all as bad as many of the 16 others.

In other political info I want to share, my son Steven works for a tech company that (inter alia) runs a tracking poll for the U.S. Presidential race (in a project with The Times Picayune newspaper). It's actually pretty amazing what their methodology is. New results tend to show up at noon central each day. I click on it a lot. I am suffering pre-PTSD for the election.

(Alan Childress) 

October 7, 2016 in Television | Permalink | Comments (0)

Ohio Reinstates Attorney Convicted Of Tax Offenses: Failures To Report Involved (Inter Alia) "House Fees" For Exotic Dancers Working In His Strip Club

The Ohio Supreme Court has reinstated an attorney who had been suspended for two years due to a conviction in a tax case.

In the complaint, relator alleged that after a two-week criminal trial in the United States District Court for the Eastern District of Kentucky, a jury found that Lawrence had knowingly underreported income from various businesses that he owned in whole or in part for the 2004, 2005, and 2006 tax years. Some of the unreported income came from businesses that were tangentially related to his practice of law—including rental income that he received from other attorneys. Lawrence was convicted in July 2012 of three counts of filing false tax returns in violation of 26 U.S.C. 7206(1) and sentenced to 27 months of incarceration on each count to be served concurrently, followed by a one-year term of supervised release. Lawrence was also ordered to pay a special assessment of $300 and restitution of $128,253.26 plus interest, which he paid in full by December 17, 2012. Upon notification of his felony conviction, we suspended his license on an interim basis effective November 29, 2012. In re Lawrence, 133 Ohio St.3d 1496, 2012-Ohio- 5492, 978 N.E.2d 914.

Lawrence’s conviction and sentence were affirmed by the Sixth Circuit Court of Appeals, United States v. Lawrence, 557 Fed.Appx. 520 (6th Cir.2014), and the Supreme Court of the United States denied his petition for a writ of certiorari, Lawrence v. United States, ___ U.S. ___, 135 S.Ct. 223, 190 L.Ed.2d 133 (2014).

The court granted credit for time served on the interim suspension imposed after the conviction.

The parties stipulate that the mitigating factors include the absence of a prior disciplinary record, Lawrence’s timely, good-faith effort to make restitution or rectify the consequences of his misconduct, his cooperative attitude toward the proceedings, evidence of his good character and reputation apart from the charged misconduct, the imposition of other penalties, and the absence of harm to his clients. See Gov.Bar R. V(13)(C)(1), (3), (4), (5), and (6). The parties agree that just one aggravating factor is present—that Lawrence engaged in a pattern of misconduct...

We agree that Lawrence violated DR 1-102(A)(3) and (4) and that his misconduct warrants a two-year suspension. In light of the significant mitigating factors present, we also agree that Lawrence should receive credit for the time served under his interim felony suspension. Therefore, we adopt the parties’ consent-to-discipline agreement.

Details on the tax case are set out in an opinion remanding a malpractice claim that the attorney brought against her tax advisor as well as in the Circuit Court opinion affirming the conviction.

Defendant Meredith Lawrence was a personal injury lawyer who owned Racers, a strip club, held a number of residential and commercial office properties, which he leased, and lived on over 3,000 acres of land, which he farmed. He earned income from these businesses and operated them with the assistance of several employees, including bookkeepers. In 2003, Lawrence hired CPA Robert Ryan to prepare tax returns for all of the entities in which Lawrence was involved. Ryan also prepared and electronically filed Lawrence's personal tax returns for 2004, 2005, and 2006. Ryan included Lawrence's unique PIN (Personal Identification Number) on each return...

During a two-week jury trial, the government introduced proof that Lawrence failed to report income from five different sources: (1) "house fees" from the exotic dancers who worked at Racers; (2) withdrawals from his client trust accounts; (3) rental income from attorneys who leased office space from him; (4) reimbursements from those same attorneys for office expenses; and (5) rental income from residential tenants.

This is the second case in two days from Ohio that involve a lawyer and exotic dancers. (Mike Frisch)

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

Virginia Considering Streamlining Advertising Rules

Also posted on the Virginia State Bar web page

September 30, 2016

VSB Seeking Comments on Proposed Amendments to Lawyer Advertising Rules

The Virginia State Bar’s Standing Committee on Legal Ethics is seeking comments from its membership on proposed amendments to Rules 7.1 - 7.5 of the Rules of Professional Conduct that govern lawyer advertising.

The proposed changes come from a study by a committee of the Association of Professional Responsibility Lawyers (APRL) that determined that current rules do not account for the rise of Internet marketing and advertising.  Additionally, the study found that although current rules generate a predominance of technical complaints by competing attorneys, they may not be necessary to protect the public. Lastly, a number of case decisions in the last ten years have struck down rules governing lawyer advertising and raised First Amendment as well as antitrust concerns when rules are carried out by lawyers who also have a competitive market interest.

The Committee decided based on all factors that the best option is to streamline lawyer advertising rules and to focus on those that prevent false and misleading speech.

The full report on proposed amendments as well as the current rule may be accessed here.

You are invited to comment on the topic by November 4, 2016 by e-mailing Karen A. Gould, the Executive Director of the Virginia State Bar, at

(Mike Frisch)

October 7, 2016 in Current Affairs | Permalink | Comments (0)

Client Perjury Rules Clarified In Virginia

A recent notice on the web page of the Virginia State Bar

September 30, 2016

Supreme Court of Virginia Approves Rule Changes and Legal Ethics Opinion 1884

The Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal, as well as Legal Ethics Opinion 1884.

Effective December 1, 2016, the Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal.

The amendments clarify a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial, and when the lawyer can withdraw from the representation before the client’s intended perjury occurs. The order may be found here.

Effective immediately, the Supreme Court of Virginia has approved Legal Ethics Opinion 1884: Conflicts arising from a lawyer-legislator’s employment with a consulting firm owned by a law firm.

The opinion addresses a situation where a lawyer who is a member of the Virginia General Assembly joins a consulting firm. The lawyer asks whether the lawyers and non-lawyers in the consulting firm would be barred from lobbying the General Assembly and whether that bar would extend to members of the law firm as well. In this opinion, the Committee concluded that both lawyers and non-lawyers in the consulting firm, as well as the lawyers in the law firm that own the consulting firm, would be barred from representing clients or otherwise lobbying before the General Assembly. The order may be found here.

(Mike Frisch)

October 7, 2016 in Bar Discipline & Process, Clients, Current Affairs, Ethics | Permalink | Comments (0)

Prosecuted Prosecutor Lauded

The Indiana Lawyer has a story about disciplinary charges brought against an elected prosecutor

Johnson County judges, lawyers and the mother of a murdered teen traveled to a distant court Wednesday to come to the defense of their elected prosecutor.

A parade of character witnesses supported Bradley Cooper, who faces possible professional sanctions for press comments he made after a South Bend judge reduced a killer’s death sentence to life in prison without parole.

Cooper’s “reputation for truthfulness is unquestioned. It is stellar,” testified Johnson Superior Judge Lance D. Hamner. The former elected prosecutor, Hamner hired Johnson and said he was an exemplary deputy who often worked late into the evening on cases, rising quickly up the ranks. “I told him on several occasions he didn’t need to impress me; I was already impressed,” the judge said.

Witness after witness, including several criminal defense attorneys who try cases against Cooper, testified in glowing terms to his truthfulness and ethics during a half-day hearing 90 minutes from the courthouse in Franklin. Cooper’s discipline case was heard in the courtroom of hearing officer and Wayne Superior Judge Charles K. Todd in Richmond.

The Indiana Supreme Court Disciplinary Commission brought a formal complaint against Cooper for comments attributed to him in articles published by the Indianapolis Star and the Associated Press. Cooper affirmed the statement he made to The Star but said he didn’t recall a similar comment carried by AP. Both comments were in reaction to post-conviction relief granted to Michael Overstreet, who then-St. Joseph Superior Judge Jane Woodward Miller found in November 2014 was mentally incompetent to stand trial. Overstreet’s PCR case had been assigned to Miller after Johnson Superior Judge Cynthia Emkes recused herself for health reasons.

Cooper was deputy prosecutor but led the prosecution when Overstreet was convicted in 2000 of the rape and murder of 18-year-old Franklin College student Kelly Eckart. Her body was discovered in a ravine near Camp Atterbury in Brown County three years earlier.

After Miller found Overstreet incompetent to be executed, Cooper said a Star reporter who had followed the case over the years asked him for a statement. Cooper sent a text that read:

“I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn’t even afford to drive up for the hearing. The idea that this convicted murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal.”

The commission argues the statements violate Rule of Professional Conduct 8.2(a), which states in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

Cooper testified that after Miller filed a grievance against him with the commission, he sent her a sincere letter of apology. “It’s been something that I believe is proper and prudent,” Cooper said. “When you offend a judicial officer, you apologize for it. … It was not my intent to offend her.”

Over the years, Cooper stayed in contact with the victim’s mother, Connnie Sutton, who had vowed to attend every hearing concerning Overstreet until the jury’s punishment was carried out.

Commission staff attorney David E. Griffith Jr. called just one witness — Cooper — who he questioned for more than an hour about the statements, whether Cooper had read U.S. Supreme Court opinions forbidding the execution of murderers who are mentally retarded, and about his familiarity with Indiana Supreme Court decisions regarding Overstreet’s PCR petitions.

“I do believe I glanced at that order when it came in,” Cooper said of the state Supreme Court decision that permitted Overstreet to proceed with the PCR petition that Miller ultimately granted. Cooper said his professional involvement as prosecutor ended after Overstreet was convicted and sentenced.

Griffith pressed Cooper on the oath he took and whether he was required to keep up with court rulings and know the laws of the state, to which Cooper replied, “No.” He said he was unfamiliar with much of the Indiana Code that didn’t pertain to criminal law, for instance.

“Are you saying you’re just a figure-head?” Griffith asked. Cooper replied he wasn’t; that his oath required him to uphold the law, not to read them all.

Griffith later concluded his cross-examination of Cooper by asking if he knew the definition of “ridicule.” He asked Cooper whether a lawyer, and a prosecutor in particular, can publically ridicule a judge. Cooper said as long as there isn’t a knowingly false statement, “I do not see a prohibition of that.”

Cooper’s defense attorneys, Jennifer Lukemeyer and Jim Voyles, sought to portray his comment to The Star as factual. Voyles dissected the comment and Cooper said he was indeed angry that the proceeding had been moved to a court more than 180 miles from the victim’s mother’s home. He felt this deprived Sutton and the community the right to attend and follow the proceedings.

“That case absolutely moved a community,” Cooper said.

Sutton said she kept in contact with Cooper over the years and considered him a friend. She testified that after her divorce, she told him she was unable to afford to pay for travel, lodging and food to attend Overstreet’s PCR proceedings when they were moved to South Bend. She said Cooper got county funds allocated that allowed her to attend.

“He was always honest,” even when news wasn’t good, Sutton said. “He never held anything back.” Despite what she called Cooper’s tough exterior, Sutton said, “I saw that he had a heart, and a big one.”

Voyles also focused on difficulties in Cooper’s personal life that preceded his comment to The Star — his mother and a sister had died and he went through a divorce in the years prior. Those who testified said these things clearly took a personal toll on Cooper, as has the discipline case.

Johnson Circuit Judge K. Mark Loyd said Cooper may come across as hardened but “his personal side is significantly different.” He said Cooper feels badly that the discipline case has put the community through the Overstreet case again.

“Brad is extremely truthful, sometimes to a fault,” testified Franklin defense attorney Russell Johnson. “I am of the belief that Brad did not attack a judge.

“It’s been difficult for Brad,” Johnson said, because he feels the case has shone a bad light on the community and on prosecutors.

Stacy Uliana shared a personal story about Cooper’s intervention to slow down police who were rushing to charge her stepson with a crime he didn’t commit. She said Cooper followed through, even attending his expungement proceeding. “He stood up for my son,” she said, which “gave me more confidence in prosecutors than I generally have.”

“I’ve seen him dress down police officers for lying,” testified criminal defense attorney Andrew Baldwin. “He will just do what is right and the politics behind it be damned.”

John P. Wilson, a 42-year attorney in Johnson County, said the community has a reputation for “straight-up lawyers … and Mr. Cooper is no exception. … One thing Brad will do is give you an opinion.”

Wilson said he’s tried more cases against Cooper than anyone, and he called his ethics impeccable. He recalled one case in which Cooper pointed out mitigating circumstances for a defendant that Wilson said he had missed.

“He does the right thing,” Wilson said. “He does justice.”

Hearing officer Todd ordered a transcript of the hearing prepared within 30 days, after which attorneys on both sides will have 30 days to present proposed findings of facts. Todd then will draft a hearing officer’s report for the Supreme Court, which will decide what sanction, if any, should be imposed on Cooper.   

(Mike Frisch) 

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

From Disbarment To Permanent Disbarment

A Louisiana Hearing Committee recommends that a previously-disbarred attorney be permanently disbarred for continuing to practice in a domestic relations hearing officer conference.

The attorney had responded to the initial complaint but did not answer to the bar charges. (Mike Frisch)

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

Thursday, October 6, 2016

Three Disbarred For Selling Out Clients

The Florida Supreme Court has disbarred three attorneys who sold out clients for lucre

The referee found, and we agree, that the PIP lawyers’ secret settlement with Progressive, memorialized in the MOU and the AMOU, was a conflict of interest and an improper aggregate settlement, in violation of Bar Rules 4-1.7(b), 4-1.7(c), and 4-1.8(g). Under the terms of the MOU and AMOU, Progressive paid a lump sum to each of the PIP law firms. The settlement was an aggregate settlement, in that it encompassed both the PIP claims and the bad faith claims, as well as attorney fees and costs. The clients, both those named as plaintiffs in the Goldcoast case and those not named in the case, were required to release their PIP benefit claims and their pending or potential bad faith claims. Progressive offered the PIP law firms collectively $14.5 million. Under the AMOU, $1.75 million of this amount was designated to settle the Goldcoast case, $5.25 million would be paid to Kane & Kane, $4.38 million went to Marks & Fleischer, and a little more than $3 million would be paid to Watson & Lentner. Beyond these distributions, the MOU and AMOU offered no other guidance or restrictions as to how the money would be allocated. Thus, it was left entirely to the PIP lawyers to determine how much each client would receive and how much would be taken as attorney fees. This arrangement created significant conflicts between the PIP lawyers’ interests and those of their clients, and between the PIP lawyers and the bad faith attorneys. The PIP lawyers decided that their clients who were not named in the Goldcoast case, a majority of the clients against Progressive, would be reimbursed for their unpaid medical bills plus interest but would not receive any money for their bad faith claims, even though they were required to release those claims. As a result, the PIP law firms were able to take a substantial amount in attorney fees—Kane & Kane took $4,144,055 in fees and Watson & Lentner took $2,522,792. Only their greed—nothing in the MOU or AMOU—prevented the PIP lawyers from compensating clients for their bad faith claims. Indeed, the referee found: “Therein lies the ultimate conflict. The settlement pitted the lawyers’ interests against the interests of their own clients. The less the clients received, the more the PIP attorneys received.” We agree with the referee that the PIP lawyers’ most egregious violation occurred when they abandoned their clients’ bad faith claims in favor of a greater fee for themselves.

Two were father and son

In addition to their conduct during the Progressive settlement, Charles Kane and Harley Kane continued to engage in further dishonest acts. During the course of the unjust enrichment litigation, both Charles Kane and Harley Kane threatened to withhold compensation from their associates in order to force them to fabricate time records for use in the case. There is also evidence that Harley Kane later altered and inflated these time records. The inflated time sheets were provided to the bad faith attorneys and their counsel during discovery. Harley Kane admitted that the time records produced in discovery were “excessive.”

The referee proposed disbarment of the son and suspensions for the other two.

The court

The referee in this case found that Charles Kane, Harley Kane, and Darin Lentner engaged in egregious misconduct: they secretly negotiated an aggregate settlement that created conflicts of interest between lawyers and clients, and left the bad faith attorneys with no compensation for their significant work in the Goldcoast case; in allocating the settlement funds, they abandoned their PIP clients’ bad faith claims in favor of a greater fee for themselves; and they withheld from clients nearly all the material information about the settlement, entirely to further their own interests. Given their actions, we agree with the referee that Harley Kane should be disbarred. We cannot agree, however, with the referee’s recommendation that Charles Kane and Darin Lentner receive a sanction any less severe. This considerable violation of respondents’ ethical responsibilities to their clients and the legal system, entirely for their own financial interests and at the expense of their clients, warrants disbarment.

The oral arguments are linked here. 

A decision in related bankruptcy proceedings is linked here. (Mike Frisch)

October 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sex With Exotic Dancer Client, Other Misconduct, Leads To Disbarment: Sadness No Mitigator

The web page of the Ohio Supreme Court (Dan Trevas) notes a disciplinary decision issued today

The Ohio Supreme Court today disbarred a Cleveland attorney for professional misconduct including settling personal injury matters without the consent of his clients, failing to promptly deliver funds to a client, and engaging in a sexual relationship with another client.

The Supreme Court unanimously voted to disbar John B. Frenden. In a per curiam opinion, the Court stated the Board of Professional Conduct found “a significant deficiency in Frenden’s core ethical obligations of honesty, trustworthiness, diligence, and reliability.”

The Cleveland Metropolitan Bar Association had charged Frenden in 2015 with several violations of the rules governing attorneys that stemmed from four client matters.

Accident Settlement Mishandled
In 2011, Diane Dubois hired Frenden to represent her in a personal-injury matter in which she was injured by another driver. Frenden told her in January 2011 to see a chiropractor, but had no further contact with Dubois for the rest of the year. Frenden failed to gather adequate information to fully evaluate her claim, and when an adjustor for the at-fault driver’s insurance company tried to contact Frenden in 2012 he did not respond. The adjustor wrote to Frenden with an offer to settle Dubois’ claim for $28,000, asserting she had a preexisting injury.

Dubois testified that Frenden told her the settlement offer was for $83,000. But the insurer had not made such an offer, nor had Frenden demanded that amount. Dubois’ damages amounted to $41,000 and Frenden admitted his typical demand would have been for about four times the amount, approximately $164,000. He claimed DuBois agreed to settle for $35,000.

Frenden wrongly reported to the insurance company that Dubois was a Medicare recipient when she was a recipient of another government program. The insurer required Frenden to have Dubois sign a consent form to report the injuries to the federal government as required by Medicare. Frenden returned the $35,000 settlement check and sought to renegotiate the settlement.

The statute of limitations on Dubois, claim expired in January 2013, and Dubois was unable to reach Frenden until the following month. Frenden sent the insurer the required authorization form, which Dubois testified she did not sign and noted her name was misspelled. Frenden instructed Dubois to sign the $35,000 settlement check without showing her the amount of the settlement. Nearly one year after the settlement, and after Dubois filed a grievance with the bar association, Frenden released the funds. He sent Dubois about $20,800 and the rest to reimburse a government insurance program and medical providers for her treatment.

A three-member panel of the professional conduct board found Frenden violated several rules when representing Dubois, including failing to provide competent representation and failing to keep the client reasonably informed about the status of the matter. For forging Dubois’ signature, the panel found he violated the rule that prohibits lawyers from engaging in conduct that negatively reflects on the lawyer’s fitness to practice.

Case Dismissed Without Client’s Consent
In 2008, Frenden agreed to represent Diane Sigler in a personal-injury matter after she and her son were injured in an automobile accident. Frenden filed the lawsuit in 2010, erroneously naming Sigler’s husband, rather than son, as a plaintiff. The week before the trial was to begin in 2011, the opposing attorney complained that Frenden failed to file a required expert report regarding Sigler’s injuries.

Frenden voluntarily dismissed the case just days before the trial without Sigler’s knowledge or consent, and refiled the case again in 2012. Frenden settled the case for $5,000 even though Sigler’s damages were nearly $12,000, and Frenden admitted he would typically demand $46,000 to settle a case like Sigler’s. The opposing attorney sent Frenden the check but asked him not to deposit it until he returned a release form, but Frenden disregarded the request and also deposited the check without Sigler’s signature.

Frenden also represented Sigler in a divorce proceeding, and she paid him $1,500 in advance. Frenden did not comply with Sigler’s request to hire a forensic accountant to obtain information about her husband’s finances, and Frenden failed to keep appointments with her to discuss the case. Sigler provided Frenden with 725 pages of documents to provide to her husband’s lawyer during discovery. Frenden failed to document that he delivered the information, which the opposing lawyer stated he did not receive. Sigler personally delivered the documents to the opposing attorney just two days before the trial.

Frenden admitted he was not prepared for the trial. The parties negotiated a settlement, but Sigler wanted to indicate that she signed under duress. Frenden did not permit it. As they were leaving the courthouse, Frenden informed Sigler he had no malpractice insurance. Sigler sued Frenden for malpractice in 2015.

The panel found Frenden failed to competently represent Sigler in both matters, failed to keep her informed about the status of her legal matters, failed to obtain her consent to settle a case, failed to notify her in writing that he did not have malpractice insurance, and committed other violations of rules.

Representation of Exotic Dancer in Divorce and Custody Matters
Frenden agreed to represent a woman identified in court documents as A.S. in a divorce in 2013. He met A.S. at a club where she worked as an exotic dancer. Frenden filed an answer and counterclaim in the case, but waited three months to seek court-ordered support for A.S. and her three children.

A.S. estimated she paid Frenden about $3,000 for his representation and testified he asked for more money and for her to use her government food card to purchase groceries for him and to clean his house to offset her legal fees. Frenden did not maintain records of payments or submit any bills to A.S. to pay him.

Frenden sent a text to A.S. threatening to take her infant twins to the county’s child protective services if she did not pay him. He also took revealing pictures of her with plans to publish a calendar, claiming he would split the proceeds and apply his half to her attorney fees. She testified that she engaged in sexual relations with Frenden “because she felt it was the only way to get him to leave her alone.”

The professional conduct board found Frenden violated the rule that bars a lawyer from engaging in sex with a client unless it is a consensual relationship that existed prior to the client-lawyer relationship.

A.S. also allowed Frenden’s secretary to take physical custody of her twins in early 2014 with the understanding they would be returned in a few months, but the secretary retained an attorney and sought permanent custody of the children. Frenden continued to represent A.S. in matters, but did not advise her on how to regain physical custody of her children. The board found Frenden violated the rules against creating a conflict of interest.

In addition to the violations the board found for his representation of clients, at the time of his disciplinary hearing Frenden could not properly account for $18,000 in his client trust account, and admitted his account records were inaccurate and in disarray.

Frenden Claims Sadness Impacted Performance
When considering a sanction, the board noted that Frenden had no prior disciplinary record and that he experienced a stressful period of his life after discovering he was not the father of a child he believed to be his. He claimed his sadness made it difficult to perform as an attorney, but testified he had never been diagnosed with depression, that he was not under the care of a psychiatrist, and that he remained able to function.

The board found Frenden acted with a dishonest and selfish motive, had a pattern of misconduct involving multiple offenses, failed to cooperate in the disciplinary process, and made false statements to the bar association’s investigator. The three-member panel hearing Frenden’s case recommended he be indefinitely suspended with conditions to be reinstated.

“Noting the egregious nature of Frenden’s conduct, however, which according to the board involved theft and forgery but also harm to vulnerable clients, the board recommended that Frenden be permanently disbarred from the practice of law in Ohio,” the opinion stated.

The Court stated the record clearly and convincingly demonstrated Frenden violated the professional conduct rules, and disbarred him.

2016-0265. Cleveland Metro. Bar Assn. v. Frenden, Slip Opinion No. 2016-Ohio-7198.

(Mike Frisch)

October 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Heading Toward A Conclusion

A case that illustrates the problem of both inexcusable delay and undue leniency in the District of Columbia disciplinary system will be argued before the Court of Appeals next Tuesday.

The panel consists of Associate Judges Thompson and McLeese and Senior Judge Ruiz.

From our prior coverage of the report of the primary culprit - the hearing committee assigned to the case

The most overdue District of Columbia hearing committee report (perhaps ever) has finally been filed.

Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.

After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.

His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.

He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court's usual (indeed, nearly invariable) practice for felony convictions.

The hearing was competed on January 15, 2008.

The report was filed last Friday - seven years and a day after.

And it stinks.

According to the committee, the offense is not one of moral turpitude and was caused by his alcoholism. The committee bought his story that he was essentially morally blameless due to an "alcoholic blackout."

Notably, he denied an ongoing alcohol problem when it served his purposes in the criminal case. In the disciplinary case, the cause was demon rum. That little inconsistency was no problem for the hearing committee.

Nor were his four prior alcohol-related traffic accidents an issue.

The committee recommends a fully stayed suspension of two years and a day and probation.

Not one minute of suspension for severely injuring someone while driving drunk and fleeing the scene.

Hardly worth waiting for.

And, a decade after that near-fatal night, this matter is nowhere near resolution.

The Board on Professional Responsibility must review the report and make its own recommendation for final court action.

The board report essentially agreed that absolution was preferable to discipline

The board  found that the conduct did not involve moral turpitude because the attorney was suffering from an "alcoholic blackout" when he committed these crimes...

So let me get this straight. An attorney practices at a major law firm and there is not a hint of evidence that he functions below par at work. His practice is to get loaded night after night near work and drive home drunk to Virginia. Like a random bullet from a gun, the inevitable happens. Fortunately, he causes major injury but not death. He flees the scene.

No real disciplinary consequences because he'a an alcoholic?

If it's a "close question," why not protect the public and uphold the integrity of the legal profession?

While the board found ethical violations, it was a treated as a mitigating factor that he was an alcoholic when he was driving drunk...

They note that the incident happened eleven years ago and never (unless I missed it) acknowledge that seven years of that time involved their own hearing committee's disgraceful delay.

And he doesn't need to tell his clients about it - it's double secret probation. 

By coincidence, he's a big firm lawyer. 

It's another day in the the world of the D.C. bar disciplinary system.

I will report on the argument next week. I hope and expect that the panel will explore the regulatory failure reflected in these proceedings. (Mike Frisch)

October 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 5, 2016

Attorney Pleads Guilty To Rape Of Unconscious Client

A story from

Vincent A. Cirillo Jr., a longtime Montgomery County defense lawyer, on Tuesday admitted raping a 22-year-old unconscious client at her West Norriton apartment last year.

 Hours into jury selection for his potential trial, Cirillo, who for more than a year had maintained his innocence, agreed to plead guilty to a single count of rape. In return, prosecutors dropped four other felony counts.

"I had to do this for my family," Cirillo said as he was led from the courtroom in handcuffs. "I didn't want to risk the maximum amount of exposure I was facing if convicted."

 He still could spend years in prison. Common Pleas Judge Steven T. O'Neill told Cirillo he faces a maximum term of 10 to 20 years, potential designation as a sexually violent predator, and the loss of his law license.
Assistant District Attorney M. Stewart Ryan said he plans to argue for a state prison sentence.

"In this case the defendant was her lawyer," Ryan said, "someone that she trusted."

Prosecutors said the woman hired Cirillo, 56, of Gladwyne, last year to represent her in a criminal matter. In August 2015, he went to her home for a meeting to discuss the case.

The woman told police that she thought Cirillo drugged her because he encouraged her to drink alcohol and she became too impaired to stand up. She said she did not remember what happened after a certain point in the evening and that someone later found her unconscious on her bed in only her underwear.

She went to the hospital for treatment and reported the incident to police.

Detectives then arranged surveillance as she met with Cirillo. He confirmed they had sex, according to a criminal complaint filed in the case, by saying he used a condom and telling the woman he had no venereal diseases.

Prosecutors also found photographs on Cirillo's phone that they planned to present at trial, showing the woman unconscious on her bed.

Since his arrest in August 2015, and even as jury selection began Tuesday morning, Cirillo had maintained his innocence. He entered the plea as his wife and daughter sat behind him in the front row of the courtroom.

His victim did not attend the proceeding.

Cirillo is the son of late Superior Court Judge Vincent A. Cirillo.

His lawyer, Nino Tinari, said he will argue at sentencing that his client had gone through a bad period in his life.

"It's devastating," Tinari said. "I've known the family for so long, it bothers me."

Cirillo also still faces trial on charges he impersonated his victim's lawyer in an attempt to obtain her confidential court records.

Ryan, the prosecutor, said Cirillo went to the county's domestic relations office last month and pretended to be the woman's attorney in an attempt to obtain her custody files. He now faces counts of identity theft, conspiracy, and forgery - charges that led the judge to revoke his bail last week.

No date was set Tuesday for Cirillo's sentencing.

 (Mike Frisch)

October 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Scheer Volume Of Unauthorized Practice Violations Merit Further Suspension

Multiple instances of unauthorized practice of law has led to a proposed suspension of an attorney by the California State Bar Court Review Department.

 In Marilyn Sue Scheer’s first disciplinary proceeding (Scheer I), we found her culpable of engaging in the unauthorized practice of law (UPL) in 26 client matters in 11 different states from October 2009 through January 2011, and of collecting illegal fees in those matters. For this misconduct, she received a two-year actual suspension to continue until she paid approximately $120,000 in restitution to her former clients. At this time, she remains on actual suspension for failure to pay this restitution.

In this consolidated review, Scheer appeals from Hearing Department decisions in her second and third disciplinary proceedings (Scheer II and Scheer III). In each, a hearing judge found Scheer culpable of misconduct that is substantially identical to the misconduct in Scheer I. Neither judge, however, recommended a new fixed period of actual suspension because the current misconduct occurred during the same time period as the misconduct in Scheer I. Rather, each judge recommended that Scheer should be actually suspended from the practice of law until she pays restitution to her former clients.

On review, Scheer challenges culpability and raises a series of legal challenges to the decisions, which largely duplicate the arguments she raised in Scheer I. The Office of the Chief  Trial Counsel of the State Bar (OCTC) does not appeal and renews its request that Scheer remain actually suspended until she pays restitution.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we find Scheer culpable as charged. Like the hearing judges, we do not find that a new fixed period of actual suspension is appropriate. We recommend that Scheer be actually suspended until she makes restitution to her clients.

(Mike Frisch)

October 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Dispatches From The Republic Of Montana

The Montana Supreme Court upheld the denial of non-commercial driver's licenses to an applicant

In 2013 and 2014, Terry-Lee filed three applications with the Montana Department of Justice Motor Vehicle Division (DOJ/MVD) seeking a non-commercial Montana driver’s license. In each application, he professed that he was a “non-resident” inhabitant/citizen of the “Republic of Montana.” He declined to complete the section of the applications regarding United States citizenship but indicated that he was “not a U.S. person.” He claimed a date of “creation” rather than a date of birth and asserted that he was created in the “Washington Republic.” He further asserted that he has no Social Security number and that he is “exempt” from using postal zip codes. The DOJ/MVD rejected each of his applications, explaining that Lee did not complete the form as required and submitted insufficient or non-conforming information. Lee filed a timely appeal of his last denial to the Seventeenth Judicial District Court, Valley County

The licenses were denied.

 On appeal to this Court, Lee urges us to instruct the DOJ/MVD to issue him a driver’s license with his “true & correct Christian name” spelled “Terry-Lee” in upper and lower case letters (as opposed to all upper case letters) and to include his last known address with “‘no’ MT-zip code on the face of said license.”

On appeal

Because Lee consistently denied being a United States citizen, DOJ/MVD attempted to verify Lee’s legal status in the country by utilizing the federal SAVE system. However, without a Social Security number and other necessary identifying information, DOJ/MVD was unable to verify Lee’s status. Without such verification, the agency was required to deny Lee’s application for a license.

The record in this case indicates that for decades Terry-Lee has repeatedly declared that he is not a United States citizen; rather, he claims to be a “sovereign state citizen of the Republic of Montana.” In an affidavit that he claims to “annex” to any document on which he “places [his] autograph,” he states:

That I have no memory of accepting the dubious status of or acting in the capacity of a “U.S. citizen” or “person” within the meaning of the so-called “14th Amendment” and any purported “evidence” to the contrary is hereby Declared [sic] a deceitful falsehood.

Montana’s licensing statutes and regulations apply to all Montana residents seeking a driver’s license. The law simply does not provide for alternative or special legal status.


 (Mike Frisch)

October 5, 2016 | Permalink | Comments (0)

No Shawshank Redemption

A recent opinion of the Florida Judicial Ethics Advisory Committee


Whether a judge may directly solicit donations of used books for use by inmates at the local jail library?



 The inquiring judge has been taking used paperback books to a local jail for use in the inmate library. The judge would like to step up this effort by asking for donations of used books from the local bar association membership and asking attorneys to drop the used books off at the judge’s office for the judge to deliver to the jail. The judge would also like to post on the judge’s Facebook page that the judge wants to collect people’s used books to take to the jail.


Soliciting donations from groups or persons who appear before the judge, such as members of the local bar association, and requesting that the donations be delivered to the judge or the judge’s office may convey the impression that the judge will favor those who donate. Likewise, soliciting donations from groups or persons on the judge’s Facebook page, regardless of whether those groups or persons appear before the judge, also may appear to be coercive to those who are not inclined to donate but who fear the judge’s disfavor if they do not donate, particularly when the judge is requesting that the donations be delivered to the judge or the judge’s office.

(Mike Frisch)

October 5, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Improper Closing Argument In Tobacco Case Reverses $70 Million Judgment

From sunEthics

 Sitting en banc on a motion for rehearing, the Fourth DCA reversed a $70 million plaintiff’s judgment in a tobacco case.  The trial was trifurcated, with Phase II covering causation, comparative fault, compensatory damages, and entitlement to punitive damages.  Based on the jury’s verdict, the trial court entered a judgment for plaintiff in excess of $70 million in compensatory and punitive damages.

The Fourth DCA initially affirmed, but responded to a motion for rehearing en banc by reversing and remanding for a new trial.  “[T]he comments and argument of plaintiff’s counsel were so improper that their cumulative effect during the Phase II proceedings was such that the jury verdict was unduly based upon passion and prejudice.”

The appeals court summarized the improper arguments:  “[T]he plaintiff’s counsel’s opening statement was overly argumentative and included comments chastising the tobacco companies for their failure to apologize. The closing argument included inflammatory remarks; statements evoking sympathy from the jury; inappropriate religious references; comments about the defendants not taking responsibility; attacks for electing to defend the case; and insinuations regarding the failure of the defendants’ corporate representatives to attend the trial. Taking into account all of the preserved objections to the improper comments in plaintiff’s counsel’s opening and closing as referenced above, the cumulative impact of these errors created an atmosphere of ‘win at all costs.’”

Although numerous objections to improper argument were sustained by the trial court, the Fourth DCA made it clear that trial judges are expected to do more than just sustain objections in situations like that presented in this case:  “[A] timely and appropriate admonition of counsel avoids the possibility that the offending conduct will continue, and hopefully forestalls the accumulation of prejudice that occurs when such repeated improprieties are not effectively addressed. Regrettably, the trial court did not adequately perform its duty to prevent the conduct described herein. As one of the aforementioned examples from this case indicates, after the court sustained fourteen objections over the course of a mere thirty-three pages of trial transcript, the court took no further action. Apart from the deleterious effects that judicial inaction may cause in any given case, the failure of our trial courts to effectively deal with such conduct can in a broader sense only lead to emulation by other attorneys. Dismissing such occurrences as mere ‘harmless error’ encourages ‘Rambo’ litigators, intent on engaging in no-holds-barred tactics at trial, to roll the dice in the appellate courts. If that occurs, the entire judicial system suffers.”

The appeals court issued a clear warning against future misconduct:  “In [Philip Morris USA, Inc. v.] Tullo, [121 So. 3d 595, 598 (Fla. 4th DCA 2013)], we sent a gentle message to lawyers pertaining to how future cases should be handled, and cautioned counsel to “be vigilant in crafting closing arguments that fall within the confines of permissibility.” . . .  Unfortunately, we have seen many recent cases where this warning was either misunderstood or simply ignored. In this opinion, we hope to make that warning clearer. Attorneys who engage in such tactics in the future do so at their own peril, and the peril of their clients, by risking the reversal of their cases on appeal.” R.J. Reynolds Tobacco Co. v. Calloway, __ So.3d __ (Fla. 4th DCA, No. 4D12-3337, 9/23/2016) (on rehearing), 2016 WL 5404053.

(Mike Frisch)

October 5, 2016 | Permalink | Comments (0)

Videptaping Conviction Affirmed

Dan Trevas reports on the web page of the Ohio Supreme Court

The state was not required to prove that a secret recording of an 11-year-old girl undressing was lewd or graphic to convict a Montgomery County man of creating nudity-oriented material involving a minor, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 to affirm the 2012 felony conviction of Terry Lee Martin for videotaping the girl. The Court accepted the case in order to clarify whether the definition of “nudity” differs for those charged with possessing materials with nude children from those charged with creating non-pornographic materials with child nudity.

Writing for the Court majority, Justice Paul E. Pfeifer explained the Court’s interpretation of R.C. 2907.323. To convict a person for possession of images of nude minors without violating the First Amendment, the images must depict nudity that “constitutes a lewd exhibition or involves a graphic focus on the genitals.” To convict a person of creating the child nudity materials, the lewd or graphic element does not apply, the Court concluded.

In separate dissenting opinions, Justices William M. O’Neill and Judith Ann Lanzinger suggested that to prevent a violation of the First Amendment the state must prove the images are lewd or graphic. They cited the U.S. Supreme Court’s 1990 Osborne v. Ohio decision, which found the only way the state law regarding possession of nude pictures was found constitutional was for the lewd or graphic requirement to be found in the images.

Lower Courts Interpret Law Differently
Martin recorded a video of the girl while she was undressing in a bathroom. He was charged with violating R.C. 2907.323(A)(1). The law prohibits photographing “any minor who is not the person's child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity.”

The statute has an exception that allows the photographing of a nude minor if the parents or guardian give written consent and it is used for “a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance.”

At the trial, the parties stipulated that the girl’s parents did not consent in writing to Martin’s recording and it did not meet any of the uses stated in the law. He was found guilty and appealed his sentence to the Second District Court of Appeals, arguing that the trial court did not apply the proper definition of “nudity” in order to convict him. The Second District affirmed his conviction, but noted its decision was in conflict with the Fourth District Court of Appeals. The Supreme Court determined a conflict existed and agreed to hear the case.

Court Considers Narrower Definition of “Nudity”
The Supreme Court considered whether the definition of nudity in state law, R.C. 2907.01(H), applies when trying to convict a person for illegal use of child nudity or if a narrower definition of nudity developed by the Ohio Supreme Court in its 1988 State v. Young decision is required. In Young, the Court was analyzing the conviction for a violation of R.C. 2907.323(A)(3), which is essentially the same as (A)(1) only that it applies to possession of child nudity materials, not the creation of them.

Justice Pfeifer explained that R.C. 2907.01(H) defines nudity as “the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full opaque covering of any portion thereof below the top of the nipple.” The Court, in Young, concluded the possession of materials that depict mere nudity would be protected by the First Amendment, he wrote, and for there to be a violation of the law, the material must contain nudity that “constitutes a lewd exhibition or involves a graphic focus on the genitals.”

Martin argued that the video recording was not lewd or focused on the genitals, and Justice Pfeifer wrote the Court agreed. Martin contended that because the video did not meet the definition of nudity stated in the Young decision, he cannot be convicted of the law for creating child nudity material.

State Has Authority to Regulate Obscene Material
Justice Pfeifer wrote the state has broad powers to regulate the distribution of obscene material, and to prohibit the creation and possession of child pornography. The state has not suggested that child-nudity-oriented material is the same as child pornography, but that all the state’s interest in eliminating child pornography applies to eliminating child-nudity-oriented material.

“Even if child-nudity-oriented material is less harmful to the child depicted than child pornography, it is undeniably harmful. Even if child-nudity-oriented material is less exploitative of a child than child pornography, it is undeniably exploitative,” he wrote.

Justice Pfeifer cited the U.S. Supreme Court’s Osborne decision and noted that penalizing the possession of child nudity raises First Amendment issues, but the case did not address the creation of it.

“We are not aware of any court in the country that has concluded that a person has the right, fundamental or otherwise, to create nudity-oriented material using someone else’s minor child unless it is for a proper purpose and is done with parental consent,” he wrote.

The majority concluded that the narrower definition of nudity does not have to be applied and that Martin was properly convicted when the court used the definition of nudity written in the Revised Code.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined Justice Pfeifer’s decision.

Dissent Finds Statute Meant to Protect “Morally Innocent”
In his dissent, Justice O’Neill cited the Young decision and stated the purpose of the exceptions that allow nude photos of children was designed for possessing or viewing nude minors “where that conduct is morally innocent.” He wrote that by applying only the definition in state law, R.C. 2907.01(H), the Court is criminalizing photographing nude infants absent written parental consent, and that many Ohioans currently possess innocent photographs of children in a state of nudity.

“Uncles, aunts, grandparents, and others take these photographs of their nieces, nephews, and grandchildren. And they do it without parental permission in writing,” he wrote. “That R.C. 2907.01(H) cuts so broadly shows that it cannot withstand constitutional scrutiny.”

Justice O’Neill maintained the U.S. Supreme Court upheld the conviction of Clyde Osborne in Osborne after citing the Young decision and the Ohio Supreme Court’s requirement that a violation required the lewd or graphic element. He asserted the section of the law that applies to possession, as it did in Osborne, applies to the companion section about creation that was used to convict Martin.

“Would this court have allowed Michelangelo to be imprisoned for carving a nude teenage David from marble yet stood by while the patrons of the Galleria dell’Accademia di Firenze went unpunished?” he wrote.

Justice Lanzinger in her separate dissent noted that Martin did not present a constitutional challenge to the prohibition of creating child nudity material, but that an overly broad interpretation of the law “would raise serious constitutional concerns.”

“I believe that we must apply Young’s statutory interpretation of ‘nudity’ to R.C. 2907.323(A)(1), effectively limiting the definition found in R.C. 2907.01(H), for the reasons stated in Justice O’Neill’s dissent,” she concluded.

2014-2028. State v. Martin, Slip Opinion No. 2016-Ohio-7196.

Video camera icon View oral argument video of this case.

(Mike Frisch)

October 5, 2016 | Permalink | Comments (0)

Tuesday, October 4, 2016

Tinkering With A Broken Process

The District of Columbia Board on Professional Responsibility has amended its rules governing negotiated dispositions.

As there is near unanimous agreement amongst interested observers ( i.e. me) that the consent discipline process has been an abject and lamentable failure in a system characterized by a glacial pace of proceedings, I wonder whether the intent of the additional language to the pertinent board rules is  to help or hinder the process. 

I think I know the answer.

The BPR intends that there be more hoops to jump through and reasons to burden and discourage the process. As it was, so shall it be.

New language in Board Rule 17.3 in italics

The petition for negotiated discipline shall be prepared by Disciplinary Counsel and signed by Disciplinary Counsel, respondent and, if applicable, respondent’s counsel. It shall contain: (i) a statement of the nature of the matter that was brought to Disciplinary Counsel’s attention; (ii) a stipulation of facts and charges, including citation to the Rules of Professional Conduct that respondent has violated; (iii) a statement of any promises or inducements that have been made by Disciplinary Counsel to respondent, including, but not limited to, any agreement not to pursue specific charges or investigations of possible misconduct, whether in the present proceedings or in future proceedings, including an agreement not to present evidence of unadjudicated acts of misconduct under Board Rule 9.8(a) if the respondent seeks reinstatement; (iv) an agreed upon sanction, with an explanation of the basis for the proposed sanction, a statement of relevant precedent and any circumstances in aggravation or mitigation of sanction that the parties agree should be considered and any other factors that are relevant to whether the proposed sanction is justified; and (v) the justification for imposing a fitness requirement, if included in the agreed sanction.

The most significant portions of the new Board Rule  17.5 are also in italics

(iii) the agreed upon sanction is justified, and not unduly lenient, taking into consideration the record as a whole, including the nature of the misconduct, any charges or investigations that Disciplinary Counsel has agreed not to pursue, the strengths or weaknesses of Disciplinary Counsel’s evidence, any circumstances in aggravation and mitigation (including respondent’s cooperation with Disciplinary Counsel and acceptance of responsibility), and relevant precedent. A justified sanction does not have to comply with the sanction appropriate under the comparability standard set forth in D.C. Bar R. XI, § 9(h).

I have long said that in order for consent discipline to work, you have to trust your disciplinary counsel to exercise discretion in a responsible manner.

Lack of mutual trust and respect between the players in D.C. has led to most unfortunate consequences where use of negotiated discipline is concerned.  (Mike Frisch)

October 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Former Assistant Attorney General

A recent sanction of the Illinois Supreme Court

Mr. Win, who was licensed in 2012, was suspended for one year. While serving as an Assistant Illinois Attorney General, he made a false statement to a federal judge by claiming that he had notified a witness to appear for a hearing when, in fact, he had not sent notification to the witness. He then created and back-dated a letter to support his false claim, and he repeated the false statement to his supervisor. He later filed a false affidavit repeating the claim and made false statements to the ARDC by again claiming that he had notified the witness about the hearing. The suspension is effective on October 13, 2016.

From the motion for consent discipline

As an Assistant Attorney General, Respondent was assigned to represent two corrections officers at Pontiac Correctional Center who had been sued by an inmate. The Mintor case was assigned to the Honorable Joe Billy McDade, U.S. District Judge in the Central District of Illinois. On October 14, 2014, Judge McDade ordered the Warden of Pontiac Correctional Center to produce records in advance of the next scheduled hearing on November 12, 2014, or to appear at the hearing that day. Judge McDade ordered Respondent to notify the Warden about his order. Respondent did not forward the order to the Warden or anyone else at Pontiac Correctional Center, nor did Respondent notify the Warden or his office about the order.

At the November 12, 2014 hearing, Respondent falsely told Judge McDade that he had forwarded a copy of the order to the litigation coordinator at Pontiac Correctional Center. Following the hearing, Judge McDade directed the United States Attorney's Office to determine whether the Warden should be held in contempt of court for willfully disobeying a court order in the Mintor case.

C. Misrepresentation to a supervisor and creation of a false letter

After returning from federal court on November 12, 2014, Respondent created a letter on Attorney General stationary addressed to the litigation coordinator at Pontiac Correctional Center concerning the November 12, 2014 hearing in the Mintor case. Respondent back-dated the letter to October 22, 2014, to make it appear as though he created and sent the letter on that date. The following morning, Respondent showed the letter to his supervisor at the Attorney General's Office and falsely represented that he drafted and sent the letter in October.

D. False affidavit

On November 21, 2014, Respondent filed an affidavit in the Mintor case in response to a request from the U.S. Attorney's Office. In the affidavit, Respondent stated that he had prepared a letter to the litigation coordinator on October 22, 2014, concerning Judge McDade's order in the Mintor case; that he assumed the letter had been mailed on that date; and that he assumed the Warden had received notice of the November 12, 2014 hearing, by way of that letter. Respondent knew these statements were false because he didn't prepare the letter until November 12, 2014, and he knew that he had not notified the Warden of the November 12, 2014 hearing and he had no reason to believe anyone else had done so.

E. False statements to ARDC

On March 25, 2015, the Administrator docketed an investigation against Respondent after receiving a report about Respondent's conduct from the Attorney General's Office. On April 24, 2015, Respondent sent a letter to the Administrator which falsely stated that he had drafted and prepared the letter to the Warden in the Mintor case on October 22, 2014.

On August 4, 2015, Respondent appeared at the ARDC office and gave sworn testimony concerning his actions in the Mintor case. In the sworn statement, Respondent testified falsely that he had created and sent the letter to the Warden's office on October 22, 2014.

On August 31, 2015, Respondent submitted a "revised" response to the ARDC's report in which he admitted that his previous letter and sworn testimony contained intentionally false statements.

The order was posted on September 22. (Mike Frisch)

October 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)