Tuesday, June 7, 2016

License Modification

Misconduct in loan modification matters has led to a proposed suspension in this recommendation of the California State Bar Court Review Department

 Joseph Lynn DeClue appeals a hearing judge’s decision finding him culpable of illegally charging and collecting advance fees for loan modification services in two client matters. The judge found DeClue’s misconduct was unmitigated, but aggravated by his prior record of discipline, significant harm to clients, failure to make restitution, and uncharged misconduct, including failure to perform competently and aiding and abetting his non-attorney staff’s unauthorized practice of law (UPL).

 DeClue challenges both culpability findings. He also asserts that, even if we find him culpable, the hearing judge’s recommended discipline, including a six-month actual suspension, is too severe. DeClue contends that a two-year stayed suspension is appropriate. The Office of the Chief Trial Counsel of the State Bar (OCTC) does not appeal, and it supports the judge’s culpability and discipline recommendations.

The review department agreed with the findings and proposed sanction

...we adopt the recommended discipline, which is within the range provided by the standards and is consistent with the decisional law.

(Mike Frisch)

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

Monday, June 6, 2016

After Seven Years Of Investigation, Sanction Proposed For Pants Judge

Does anyone remember the D.C. Administrative Law Judge who sued a cleaners for over $60 million in a dispute concerning a pair of pants?

The D.C. Disciplinary Counsel has had that rather highly-publicized matter under investigation since May 2007 and apparently took seven years to file charges.

A hearing committee just issued its report

This disciplinary proceeding arises out of litigation that Respondent conducted on his own behalf in the Superior Court for the District of Columbia between June 2005 and August 2007 an in the District of Columbia Court of Appeals between August 2007 and March 2009. In pursuing his case, Respondent made factual allegations and advanced legal positions based thereon with respect to events that had occurred not only in May and June of 2005 but also in July of 2002.

As to the seven year delay in prosecution, the usual response: No harm, no foul.

After careful consideration of his testimony in this regard, the Hearing Committee has concluded that Respondent has not established even by a preponderance of evidence that he incurred any of the alleged prejudice. See In re Morrell, 684A.2d 361, 368-370 (D.C. 1996). Therefore, the Hearing Committee recommends that the Board conclude that Respondent has not established his Seventh Defense.

As to frivolous litigation

the Hearing Committee has concluded after much deliberation that Respondent’s course of action was an unacceptable perversion and betrayal of the noble law reform work that his former, distinguished legal services organization and other such entities properly pursue. The Hearing Committee recommends, therefore, that the Board conclude that Respondent pursued unmeritorious claims and supporting theories in violation of Rule 3.1. 

The hearing committee finds that the former judge violated Rules 3.1, 3.2 and 8.4(d) and recommends a stayed 30-day suspension with two years of probation.

The report may be accessed at this link under the name In re Roy Pearson.  

Between the delay shown here and the one mentioned in a post last Friday, is it well past time to wonder about the ability of the Office of Disciplinary (formerly Bar) Counsel to fulfill its public protection mission? (Mike Frisch)

June 6, 2016 in Bar Discipline & Process | Permalink | Comments (2)

Tax Seizure Of Entrusted Funds Leads To Suspension

A sixty-day suspension followed by eighteen months of supervised practice has been imposed by the West Virginia Supreme Court of Appeals

The issue before us arises out of Howard J. Blyler’s (“Mr. Blyler”) acts and failures to act in his capacity as a court-appointed special commissioner with respect to judicial sales of property. Proceeds from the judicial sales were being held by Mr. Blyler in a segregated bank account established for the purpose of maintaining the proceeds pending accounting and distribution of the funds to heirs of an estate. However, the proceeds were seized from the account in order to satisfy Mr. Blyler’s personal income tax liabilities.

The court declined to follow the Hearing Panel Subcommittee's proposed "strong reprimand" and supervision.

We have undertaken a thorough review of the record submitted, the briefs and argument of the ODC and Mr. Blyler, as well as the applicable legal precedent. This Court has carefully considered the thoughtful reasoning of the HPS. We have taken into account the view of the complainant-victim that supervised practice is acceptable and is the roadmap for achieving restitution. Moreover, we are cognizant of the unique factors surrounding the conduct at issue and the contributing tragic personal family circumstances. Our review compels this Court to impose a sixty-day suspension from the practice of law, a supervised practice period of eighteen months, the completion of additional continuing legal education in the subject of ethics, an evaluation by a licensed professional counselor, restitution together with an accounting, and to adopt the remaining sanctions recommended by the HPS.

If there's anything I hate, it's a weak reprimand.

The attorney was admitted by diploma privilege in 1976.

Mr. Blyler owed back taxes to the Tax Department in the approximate principal amount of twenty-five thousand dollars ($25,000.00). By March 2009, the total tax liability exceeded one hundred fifty-seven thousand dollars ($157,00.00) including accrued interest and penalties. Mr. Blyler was aware of his personal tax liability, but there is no evidence that he did anything intentionally to use client funds to satisfy his personal liability. He had no reason to anticipate that a tax levy would extend to a special commissioner’s account created to hold funds for a third party. Mr. Blyler did not have any advance notice that the funds in the “Special Account” were being seized. He learned of the levy and seizure of the funds via a mailed notice that he received two to three days after the seizure of funds was accomplished

Upon learning that the funds had been seized, Mr. Blyler immediately notified the Tax Department and the Bank that the funds levied upon were not his personal funds, but, rather, were client funds not subject to levy. Contact was also made with a representative of the Governor’s office to see if they might intervene to help recover the funds.

However, at that time, Mr. Blyler took no other steps to recover the money. Significantly, Mr. Blyler failed to notify his client of the adverse action that had been taken. Furthermore, Mr. Blyler did not notify the circuit court about the levy upon the funds in the “Special Account.”

Some background

Mr. Blyler’s law practice is a small, rural and general practice. In large part, the practice consisted of criminal defense appointments, abuse and neglect cases, domestic relations, and guardian ad litem work.

During the course of the above-described events, Mr. Blyler found himself in the midst of a personal family hardship. His wife of forty-five (45) years, Madonna Blyler, who was a school teacher, began suffering from serious cognitive problems which forced her to take an early retirement in 2008. Prior to her retirement, Mr. Blyler helped compensate for his wife’s failing mental capacity by assisting her with her teaching responsibilities. He graded all her student papers, prepared student report cards and performed various tasks that she was unable to accomplish. Her fellow teachers and school administrators also were assisting. As the problems progressed, she became unable to work. In March 2009, at the age of fifty-four, she applied for and received social security disability due to her diagnosis of early onset Alzheimer’s disease.

Mr. Blyler was a caring and devoted husband who provided his wife virtually around-the-clock care from the time of her diagnosis in March 2009 until her death in December 2014. At times, Mr. Blyler had outside help to care for his wife while he was at work, but that eventually proved difficult and unworkable. He did not have the financial means to provide her with the full-time, in-home care that she required. Mr. Blyler was committed to keeping his wife at home and out of an institutional nursing home placement...

Mr. Blyler made every effort to care for his wife and continue to work and serve the community. Eventually, during the last year of his wife’s debilitating illness, in order to meet her needs, he began restricting the amount of work he accepted. By the Fall of 2012, he ceased accepting appointments for abuse and neglect and felony cases. His number-one priority became his wife.

The court found significant mitigation

this Court concludes that the testimony overwhelmingly established the significant personal, emotional, and financial toll placed on Mr. Blyler while caring for his wife as she suffered through early onset Alzheimer’s disease, which required Mr. Blyler’s continual care and assistance in every activity of life as she progressively declined both physically and cognitively. It is plain that Mr. Blyler was devoted to the needs of his dying wife while continuing to serve a community with his small, general, rural law practice...

This Court further finds that Mr. Blyler’s cooperation, free disclosure, and attitude toward the disciplinary process constitutes a mitigating factor. Mr. Blyler entered into extensive factual stipulations and admitted violations. Additionally, the record reflects his acknowledgment of wrongdoing, tremendous remorse, and contrition.

The attorney also had extensive favorable character evidence and no selfish motive,

Chief Justice Ketchum dissented on the issue of restitution

The majority is requiring Lawyer Blyler to pay back the approximately $47,000 he owes to the estate. At the same time, the majority is taking away his opportunity to earn an income by suspending his law license. These are self-defeating sanctions that defy common sense. Even the complaining party agrees that Lawyer Blyler should be permitted to continue to practice so that restitution can be made.

(Mike Frisch)

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

Recovery Progress Results In Probation

The Pennsylvania Supreme Court has ordered a stayed year and a day suspension with probation as a result of an attorney's four arrests for driving while intoxicated.

The attorney was admitted in 1986 and has no prior discipline.

The Disciplinary Board's appended report tells the story.

The first incident involved a single car accident on October 8, 2013. Toxicology reports found that the attorney had a BAC of .376. She was charged with DUI Highest Rate of Alcohol.

Thereafter she was arrested three times in 2014:  January 6 (.45), May 26  (.269) and September 26 (.30).

Each was treated as a first offense because there were no previous convictions at the time (but see below). 

The attorney served a 90 day sentence and has been compliant with treatment foe addiction. She is active in both AA and the Bar's program.

Her firm has commendably re-employed her and is committed to aiding her in ongoing recovery efforts.

She did not report the convictions as required and had also failed to report two earlier DUI convictions that took place in 2000 and 2001, 

The board noted that she is the sole support of her three college-age children and that the practice of law is the source of funding their education.

The court order requires supervised probation for a period of two years. (Mike Frisch)

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

Sunday, June 5, 2016

Masters Of Brevity: Three In But Reasons Unknown

The Louisiana Supreme Court has granted bar admission in three matters. The court orders are recounted in full below.

In case CFN 50

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

Justice Weimer

I would remand and appoint a commissioner in this matter.

Justice Guidry

Guidry, J., dissents and would remand for the appointment of a commissioner.

Case CFN 693279

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

And CFN 890414

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

May I respectfully suggest that orders such as these do little to inform the Bar, the public and applicants for admission of the standards that Louisiana employs to decide who is qualified for the privilege of bar admission? (Mike Frisch)

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

Bar Discipline Discovery In Canada

The Law Society of Upper Canada Tribunal has entered an order in a complex bar prosecution scheduled to begin hearings this summer.

This is a bigger and more complicated case than most at the Law Society Tribunal. There are many documents. The Law Society has already disclosed over 100,000 pages to Mr. Keshen’s lawyers. The hearing in Kenora is expected to take a total of about 10 weeks. It will happen over several two-week periods, with breaks in between, starting in June 2016 and probably continuing through the fall...

The complainants were sent as children to residential schools “created for the purpose of separating Aboriginal children from their families, in order to minimize and weaken family ties and cultural linkages, and to indoctrinate children into a new culture—the culture of the legally dominant Euro-Christian Canadian society.” This case, while not directly about experiences in residential schools, is closely tied to those experiences. Sensitivity to those experiences, as well as to the fact that Mr. Keshen faces serious allegations that may affect his ability to practise his chosen profession, is critical.

At issue

Under general principles, the Law Society must disclose to Mr. Keshen everything that happened during its investigation. It must provide transcripts of interviews with witnesses, information from investigators about what happened if tape recorders were turned off, and copies of the documents it gathered. It has done all of that. Law Society counsel also gave detailed answers to questions put in writing by Mr. Keshen’s lawyers. Many letters have been sent back and forth asking for and giving further information.

This decision is about whether the Law Society must look for and share more documents and information with Mr. Keshen and his lawyers before the hearing. If more documents and information need to be shared, then it also will be about how the Law Society should share that information. It is not about whether the allegations have been proven or any defences.

[Many issues raised in the Lawyer’s Notice of Motion were resolved before or during the motion hearing. We deal here with only the disputes that remain outstanding.

[Mr. Keshen says that a key part of his defence at the hearing will be that the complainants’ evidence is less reliable because of how the investigation was done and other factors. He says various things have affected the evidence. They include how the Law Society obtained and investigated complaints as well as discussions in the community about Mr. Keshen. Mr. Keshen has been representing people in the complainants’ communities for many years. He says that people and organizations who are on the other side of separate legal disputes or who have had other issues involving Mr. Keshen may have influenced what the complainants say and believe.  He expects to call an expert witness who will support this theory.

[Mr. Keshen asks us to order the Law Society to disclose evidence that he says may be relevant to this defence. He requests an order that the Law Society make reasonable efforts to look for correspondence about Mr. Keshen or the complainants between the Law Society and various third persons and an organization (Grand Council Treaty #3) he has identified.

[Mr. Keshen also asks us to order that the Law Society provide complete details about a visit that Jan Walker, a staff member in its Intake Department, made to Kenora and Dryden in September of 2014. According to the Law Society, after interviews had been scheduled with the first 13 complainants, the Law Society was advised that people wanted to meet with Law Society staff. Ms. Walker went to answer questions about the Law Society or the complaints process. The Law Society says that there was no invitation for individuals to make complaints against lawyers and she did not discuss specific lawyers with anyone at that time. Mr. Keshen says that this statement conflicts with information provided by complainants.

[Mr. Keshen asks for all communications with third parties about the trip, Ms. Walker’s general discussions about the obligations of lawyers or the problems experienced by residential school complainants, communications about the possibility of complaining to the Society, communications between her and those with whom she met about Mr. Keshen and other communications with the complainants, their family members, members of their bands and others.

[Also, Mr. Keshen asks that we order that various Law Society representatives attend for oral examinations where they would be asked questions by his lawyers. A court reporter would be present and a transcript produced.

[Finally, the Law Society asks that we strike various documents from Mr. Keshen’s Motion Record.

The tribunal directed

In our view, communications to or from the Law Society about Mr. Keshen or about the complainants are potentially relevant to the defence that the witnesses are less reliable and/or credible because of how the complaints were gathered. This includes discussions with Ms. Walker and with other parts of the Law Society, before or outside the formal investigation. Similarly, we agree that communications to or from the Law Society by the third parties identified by Mr. Keshen, which refer to him or the complainants, may potentially be relevant to the reliability of the oral evidence. To be clear, these are only communications with the identified third parties that specifically reference Mr. Keshen or anyone who complained against him.

[We also agree that if there were discussions about the Law Society seeking out or soliciting complaints against lawyers involved in the residential school process or Mr. Keshen they are potentially relevant to the Lawyer’s defence. We do not consider general information or discussions about the Law Society making itself accessible to potential complainants, making its services available in locations outside Toronto or to First Nations communities to fall within this category. The Law Society need only disclose any communications that refer to asking or inviting individuals to make complaints about services provided by Mr. Keshen or lawyers serving residential school claimants or advise that there are no such communications.

But the lawyer may not take oral examination of Law Society employees

Assuming that we have such a power we would not exercise it in this case. This would add an additional step, not used in the Tribunal’s process, that would make the proceedings more costly and complex with little benefit. It would reduce, rather than enhance, proportionality in the Tribunal’s process. The Law Society has provided extensive disclosure and detailed written answers to the questions asked by counsel for Mr. Keshen. We are confident that the good faith and co-operation shown by the lawyers so far will lead to appropriate disclosure of the information we have identified as potentially relevant. If a dispute arises about whether the Law Society has taken the right steps, we can rule on that.

(Mike Frisch)

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

Handing Is Sending

The New Mexico Supreme Court reversed a decision of its Court of Appeals

Defendant Robert Tufts, a male in his late thirties, filmed himself masturbating, saved the electronic image on a secure digital (SD) memory card, inserted the card  into a cell phone, handed the cell phone to a fifteen-year-old girl (Child) with whom  he had developed an intimate but non-sexual relationship, and told her there was a  surprise on the phone for her. Defendant was convicted of criminal sexual  communication with a child in violation of NMSA 1978, Section 30-37-3.3 (2007).  The Court of Appeals reversed the conviction, holding that “ ‘to send[,]’ when used  to describe the act of causing another person to receive a physical object[,] evokes the notion of a third-party carrier,” and therefore, when Defendant hand-delivered obscene electronic images to Child, he did not “send” the images to her by means of  an electronic communication device.

Handing is sending

Communicating directly with a child by means of an electronic communication  device may occur through a third-party carrier such as social media, internet forums  and message boards, online file-sharing services, text message, or email. However,  it may also occur by delivering the electronic communication device containing the  obscene images of the defendant directly to the child. It does not matter whether the delivery was by the defendant or a third-party carrier; someone had to cause the electronic images to go or be taken to a particular destination—in this case, that someone was Defendant, and the destination was Child. The history and purpose of  the statute support this interpretation...

Defendant handed the cell phone with the memory card that he inserted into the phone to Child, and it was with that cell phone that Child produced the obscene electronically generated image of Defendant which  he intended Child to view. Defendant’s argument that he is not guilty of violating  Section 30-37-3.3(A) because he did not transmit the obscene electronic image to  Child through a third-party carrier is without merit.

June 5, 2016 | Permalink | Comments (0)

Thursday, June 2, 2016

Another Day In The D.C. Bar Discipline System: Committee Report Filed 14 Years After Investigation Commenced

A District of Columbia Hearing Committee has found that an attorney with no record of prior discipline engaged in reckless misappropriation before the turn of the century and must be disbarred under applicable precedent.

Respondent, Quinne Harris-Lindsey, handled exactly one probate matter in her legal career. She did so as a favor to a family member. Her conduct in that probate matter now jeopardizes her ability to practice law. In the course of that representation, she paid herself fees from an estate account subject to court supervision with her client’s permission but without the required prior authorization of the court. Respondent and Disciplinary Counsel jointly stipulate that her withdrawals constitute misappropriation. The District of Columbia Court of Appeals has held that if a misappropriation is intentional or reckless, the presumptive sanction is disbarment. See In re A[d]dams, 579 A.2d 190, 191 (D.C. 1990) (en banc). If the misappropriation is negligent, a six-month suspension is likely the appropriate sanction. See, e.g., In re Anderson, 778 A.2d 330, 342 (D.C. 2001).

The rest of Respondent’s career has been, by all accounts, exemplary. She works for the District of Columbia Public Schools as a supervisory attorney. Her work there has been praised by a letter that is in the record from James Sandman – a well-known lawyer in the community. The Hearing Committee finds that her testimony was candid and honest. She forthrightly acknowledged that she did not comply with the court’s requirement of prior approval of any withdrawal of legal fees from the probate account. Indeed, in her post-hearing brief she “concedes that she violated Rule 1.15(a) by paying herself from estate funds without receiving prior authorization from the court . . . .” Respondent Brief at 3. The withdrawals from the account in question were agreed to by her client. Finally, Disciplinary Counsel acknowledges that Respondent has been cooperative in their investigation and handling of this complaint.

The committee's dilemma

Because Respondent concedes that she twice engaged in misappropriation by withdrawing funds from the Estate without prior court approval, the Hearing Committee must assess the character of each withdrawal, one of which occurred 15 years ago, the other 20 years ago. Needless to say, memories fade. Though Respondent was credible and forthright in her testimony to the Hearing Committee, even she (to her further credit) admitted that her ability to recall her state of mind two decades earlier was imperfect, if it existed at all.

The case does have that one rather remarkable feature

There is one other possible basis for mitigation – the extremely long delay between the time the conduct at issue took place and when this case was brought to a contested hearing. Respondent’s 1999 withdrawal occurred more than fifteen years ago, and it has been fourteen years since this disciplinary matter was referred to Disciplinary Counsel by the Superior Court. By any measure, this is a significant and troubling delay...we cannot find that this delay is sufficient to mitigate the presumptive sanction of disbarment. We, therefore, recommend that the Respondent be disbarred. 

The report may be found by inputting the attorney's name here.

The hearing committee report reflects the undeniable fact that the case came to the Office of Disciplinary Counsel fourteen years and one name change ago. I do know that some of the delay is attributable to efforts (which I supported) in 2011 to resolve the case with a negligent misappropriation conclusion and a consent suspension.  When the court rejected a consent sanction in 2011,  I predicted the case would not get finally resolved until 2016. 

How naively optimistic was I. Look for final action in maybe 2018-19. 

Once again the D.C. system shows its system-wide dysfunction - a first-level report (subject to board review and Court final action) of an attorney fourteen years after the investigation  commenced.

Cases regularly take ten years to move from soup to nuts. This one has a shot at twenty.

A rather straightforward case involving a single probate matter where the facts were not in dispute - only the attorney's intent.

My prediction: This case may well lead to the overturning of the en banc holding of In re Addams that disbarment is required in virtually all cases of intentional or reckless misappropriation.  Disciplinary Counsel's delay may well play a role in the demise of that doctrine. (Mike Frisch)

June 2, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Speeding Away To Suspension

There is enough evidence of misconduct and harm to warrant the interim suspension of an attorney, according to a decision of the West Virginia Supreme Court of Appeals.

We find sufficient evidence to initially demonstrate that Mr. Duffy violated our Rules of Professional Conduct and that he poses a substantial threat of irreparable harm to the public. Likewise, we grant the ODC’s Petition to temporarily suspend his law license pending the outcome of his formal disciplinary charges. The suspension shall take effect immediately.

He had missed a series of court hearings in criminal matters

Mr. Duffy represented two clients in Clay County, West Virginia, in separate felony matters. Both clients were in custody awaiting Mr. Duffy’s assistance. For the three weeks between January 19, 2016, and February 8, 2016, Mr. Duffy missed every hearing scheduled (seven in total) on these two clients’ behalf. Thus, the hearings were continued multiple times because of his absences. To these clients’ detriment, this cycle of absences and continuances lasted until the circuit court relieved Mr. Duffy of his duties as counsel on February 8, 2016.

Mr. Duffy did not always provide the circuit court an explanation for his absence, but when he did, it was invariably on the date of his clients’ scheduled hearings and implicated either health or car problems. For example, on February 2, he told the circuit court he could not attend his clients’ hearings because his car was broken down but that it was scheduled to be fixed the following day. Three days later, on February 5, he was arrested for drunk driving. However, on February 8, he provided the circuit court the same excuse, that his car was broken down, for his failure to attend his clients’ hearings.

Mr. Duffy never mentioned his drunk driving arrest or the criminal charges pending against him in explaining why he failed to attend any of his clients’ hearings.

Meanwhile

Meanwhile, Mr. Duffy was in Westlake, Ohio, where he engaged in criminal conduct. On the afternoon of February 5, 2016, Mr. Duffy drove to a Speedway gas station to buy beer. However, he was so intoxicated that the store clerk refused the sale. Mr. Duffy reacted by grabbing the beer from the counter, exiting Speedway without paying, and driving into traffic.

Mr. Duffy was charged with operating a vehicle while intoxicated and theft. He was summoned to appear before a municipal court in Ohio on February 9, 2016. He missed his court date, which prompted the municipal court to issue a capias to compel his appearance in court. Later, Mr. Duffy pled guilty to one count of operating a vehicle while intoxicated and one count of disorderly conduct, both of which are misdemeanors in Ohio.

The court

the ODC filed its Petition to suspend Mr. Duffy’s law license on February 17, 2016, alleging he violated Rules of Professional Conduct 8.4(b), (c), and (d).3 On February 19, 2016, this Court mailed Mr. Duffy notice of the ODC’s Petition and informed him of his “right to request a hearing before this Court within thirty days of the Petition.” He responded to the ODC’s Petition almost two months later -- on April 14, 2016. Having conducted Mr. Duffy’s requested hearing on May 17, 2016, we now grant the ODC’s Petition to temporarily suspend his law license pending the outcome of his disciplinary charges.

(Mike Frisch)

June 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Heart Is A Lonely Hunter

Divorced parents cannot be ordered to pay for their child's dental school per a decision of the Indiana Supreme Court.

We...note that married parents have no legal obligation to pay for their children’s educational expenses beyond high school, let alone graduate school expenses. Thus, while this Court certainly understands and values the amount of discretion we give our trial judges, particularly in family law matters, we do not believe that it is the court’s province to order a divorced parent to pay for a child’s graduate or professional school under the statutory language as written, without clear instruction and guidance from the Legislature that it intends to confer this significant authority and discretion on the courts. Of course, even though we interpret the statute to exclude graduate and professional school expenses, this does not leave children seeking to have their divorcing or divorced parents assist them with their graduate and professional school expenses without a remedy. Parents are still free to agree to pay all, or a portion of, their children’s graduate or professional school expenses in their settlement agreements. The courts can enforce such agreements.

We hold that the term “postsecondary,” as used in Ind. Code § 31-16-6-2, does not include graduate or professional school expenses, particularly in light of other action by the Legislature that limits parents’ financial obligations to their adult children, and the fact that an interpretation including graduate and professional school expenses would make Indiana an outlier on this issue without a clear expression by the Legislature that it intends that result. We therefore reverse the trial court’s order that Father pay the costs of his daughter, Hunter’s, dental school.

(Mike Frisch)

June 2, 2016 | Permalink | Comments (0)

Wednesday, June 1, 2016

Shotgun Divorce: Attorney Disqualified For Exploring Consultation

The Montana Supreme Court affirmed the disqualification of local and national counsel in an action brought against O. F. Mossberg & Sons as a result of a brief consultation with the plaintiff.

The District Court disqualified Mossberg’s out-of-state counsel, Renzulli Law Firm, and its local counsel, Tarlow & Stonecipher, pursuant to Rule 1.20(c) of the Montana Rules of Professional Conduct. The basis for the court’s disqualification order was a prospective client consultation that Luke Keuffer had with an attorney from Tarlow & Stonecipher, which was later used in a deposition of Stephanie Keuffer by John Renzulli of the Renzulli Law Firm. The court found that the continued involvement in the case by Mossberg’s counsel gave the Keuffers reason to question whether their case can proceed fairly and cause to question what they may have disclosed in the consultation to Tarlow & Stonecipher that may later be used against them in the current litigation. The court also found that Mossberg’s counsel’s actions undermine the public’s trust in the legal profession. For the reasons discussed below, we affirm the District Court’s order disqualifying Renzulli and Tarlow & Stonecipher.

Luke and Stephanie were out hunting. She had a Mossberg rifle.

The Keuffers allege that the Mossberg rifle fell and struck Luke’s rifle and then discharged and shot Luke in the face, causing serious and permanent injury. On August 10, 2010, Luke called Tarlow & Stonecipher, PLLC, and spoke to attorney Margaret Weamer “regarding [Luke’s] possible claim against [a] gun manufacturer for injuries sustained in [a] hunting accident.” Weamer’s time record indicates that she spoke with Luke for six to twelve minutes. After discussing the case with Luke, Weamer advised him that Tarlow & Stonecipher would not be interested in taking the case.

The issue came to light at a deposition and led to a disqualification motion

The court found that Renzulli improperly used the Keuffers’ consultation against them during Stephanie’s deposition. The court found that the purpose of Renzulli’s questioning was to intimidate the Keuffers and create an impression they have a bad case. The court indicated the uniqueness of the situation as Renzulli did not use “information learned” from the consultation, but used the fact that the consultation occurred. The court concluded that this was equally a violation of the Rules because Renzulli used the consultation to intimidate and create an adverse inference about the Keuffers’ case. The District Court disqualified Mossberg’s counsel because their actions defeat the purpose of the Rules of Professional Conduct which threatens the public’s trust in the legal system.

The court

In this case...Renzulli consciously used the information learned in Luke’s consultation with Tarlow & Stonecipher for tactical litigation purposes.

The majority concluded that the trial court had not abused its discretion in ordering disqualification.

Justice Beth Baker dissented

The District Court found that Mossberg’s counsel did not use or reveal information learned from the phone conversation in violation of Rule 1.20(b). The court concluded, however, that there was “no reason why the rule should not be equally applicable when an attorney uses the fact that they consulted with a party and declined to represent that party to intimidate that party or to create an adverse inference about that party’s case.” The court concluded further that “knowing that certain information was not disclosed may be just as harmful as information that was disclosed.” The District Court made no finding that Luke disclosed information that could be significantly harmful to him in the case, and acknowledged that “it is not clear what information was disclosed/learned during Luke’s 6-12 minute consultation with Weamer.” It found nonetheless that “defense counsel used the fact that a consultation even occurred against the [Keuffers] in a significantly harmful manner...

Here, Renzulli used Luke’s communication with Weamer during his deposition of Stephanie as a litigation tactic to imply that the Keuffers had a weak case. Renzulli’s questioning demonstrated a lack of professional, courteous, and civil attitude toward not only the Keuffers, but to the legal system. Renzulli’s attempt to harass and intimidate the Keuffers was out of bounds. Even though the District Court found as a matter of fact that Renzulli did not reveal any specific information that Luke divulged to Weamer, the District Court properly recognized that Luke’s communication to Tarlow & Stonecipher of “the facts” that prompted him to seek legal assistance was not to be “used” against him by counsel for the adverse party. Accord Perry, ¶¶ 29-30 (analyzing whether an attorney violated her duty of confidentiality to a prospective client). See also M. R. Prof. Cond. Preamble ¶ 18. Renzulli acknowledged that he was attempting to do just that by suggesting that the Keuffers had to shop the case around before they could find a lawyer who was willing to take it...

The interests of Renzulli’s client—about whom the Court is noticeably silent— also are entitled to consideration before disqualifying counsel of its choice. Recognizing that a party “must not be lightly separated from her counsel of choice,” we have suggested that disqualification of counsel should not be used for punitive purposes.

Justice Laurie McKinnon also dissented

In my opinion, the District Court abused its discretion in imposing the severe remedy of disqualification, particularly given that the relationship between a prospective client and a lawyer do not impose duties as stringent as between an actual and/or former client and his lawyer. Imposition of such a severe remedy as disqualification should be sparingly imposed, in light of its significant effect in disrupting litigation...Under the circumstances here, disqualification of Mossberg’s counsel was an abuse of discretion when the District Court could have simply precluded the offensive line of questioning by both Renzuilli and Tarlow & Stonecipher and thereby maintained the integrity of the proceeding. The public’s trust in the legal system in not undermined when a trial court perceives an abuse by counsel and corrects it by a fair, proportionate, and measured remedy.

(Mike Frisch)

June 1, 2016 in Clients, Law Firms, Professional Responsibility | Permalink | Comments (0)

Imperfect Lien

The Utah Court of Appeals held that a law firm failed to perfect a lien on settlement proceeds after a partner and the case departed

Thomas D. Boyle represented Dawn Woodson in a wrongful death action while he was employed by the law firm Clyde Snow & Sessions PC (Clyde Snow) and then later by Prince Yeates & Geldzahler (Prince Yeates). After six years of litigation the parties reached a settlement. Clyde Snow asserted a lien on a portion of the settlement funds for attorney fees. Prince Yeates interpleaded a portion of the settlement, and the district court awarded those funds to Clyde Snow. Boyle appeals the district court’s order awarding the money to Clyde Snow. Because we determine Clyde Snow did not properly intervene, we conclude the district court lacked jurisdiction to award it attorney fees. We therefore reverse.

The case

In 2007, fifteen-year-old Caleb Jensen died while participating in a wilderness therapy program. His mother, Dawn Woodson, retained Clyde Snow to represent her in a wrongful death action. Boyle was lead counsel on the case. Woodson signed a contingency-fee agreement specifying that Clyde Snow would retain forty percent of any recovery...

In June 2010, three years after the case began, Boyle left Clyde Snow and joined Prince Yeates, and Woodson opted to have her case follow him there. Clyde Snow then filed a notice of its attorney lien. While he was with Prince Yeates, Boyle continued to represent Woodson until the case settled.

Settlement was reached in 2013.

On the merits

An attorney seeking to enforce an attorney lien must do so either "by filing a separate legal action‛ or ‚by moving to intervene in a pending legal action." Utah Code Ann. § 38-2-7(4)(a) (LexisNexis 2014). This section does not confer an unconditional right to intervene. See Bishop v. Quintana, 2005 UT App 509U, para. 5. Instead, a person desiring to intervene must submit a "timely application" and "shall serve a motion to intervene upon the parties as provided in Rule 5."

...Here, Clyde Snow did not file a timely motion to intervene. First, the only filing on behalf of Clyde Snow submitted before the parties’ settlement was a notice of Clyde Snow’s lien. After the parties’ settlement but before the court dismissed Woodson’s claims, Clyde Snow filed a restated notice of its attorney lien and an objection to the parties’ motion to dismiss the case, which stated that "Clyde Snow reserved its statutory right to intervene." But Clyde Snow never actually moved to intervene in the pending action.

Second, even if we construed Clyde Snow’s objection as a deficient attempt to intervene, it was not filed in a timely fashion.

The court also expressed concern about the danger presented to the client's interests

After the defendants expressed their concerns and objections to Clyde Snow’s participation, the court asked if anybody had ‚a strong objection‛ to keeping the case open, and no one replied. The court then decided to keep the case open for the sole purpose of resolving Clyde Snow’s attorney lien issue.

In doing so, the court inappropriately allowed Clyde Snow to derail resolution of the case by objecting to the parties’ stipulated agreement to dismiss Woodson’s claims. The court continuously referenced Clyde Snow and Boyle as parties even though neither had intervened as a party in this case. Although the actual parties did not reply when the court asked if anyone strongly objected to Clyde Snow’s participation, any further objections from the defendants would have been futile. Further, the court’s decision put the actual parties in an untenable situation: they either had to object to Clyde Snow’s presence at the risk of transforming Clyde Snow from non-party status to that of a party or refrain from objecting at the risk of having the court rule in a manner contrary to their interests.

(Mike Frisch)

June 1, 2016 in Billable Hours, Law Firms | Permalink | Comments (0)

Tuesday, May 31, 2016

Did Someone Call Me Snorer?

The District of Columbia Court of Appeals imposed a reciprocal six-month suspension of an attorney

The following facts were stipulated by Mr. Hartke and the Virginia State Bar Disciplinary Board. In January 2014, Mr. Hartke attended a Continuing Legal Education (“CLE”) seminar in Virginia. During the morning session, Mr. Hartke fell asleep and began snoring, causing the seminar’s coordinator to intervene and wake Mr. Hartke. During the afternoon session, Mr. Hartke began talking loudly at a video presentation and continued to do so after the seminar coordinator asked him to stop. In response to Mr. Hartke’s continued outbursts, another attendee led Mr. Hartke from the room. That attendee smelled alcohol on Mr. Hartke’s person. Another attendee saw a nearly empty liquor bottle among Mr. Hartke’s possessions and noticed that Mr. Hartke appeared to be intoxicated. Mr. Hartke admitted to one attendee that he had been drinking.

In a written response to the Virginia State Bar and orally to a Virginia State Bar investigator, Mr. Hartke denied bringing alcohol to the seminar and denied being intoxicated during the seminar. When speaking with the investigator, Mr. Hartke also denied falling asleep and snoring during the morning session, insisting that he had been taking notes. In a subsequent conversation with an Assistant Virginia Bar Counsel, however, Mr. Hartke admitted that those representations were not accurate and that he did not take the steps necessary to correct his misrepresentations...

Mr. Hartke contends that his Virginia suspension was based on “sleeping and snoring in a [CLE] class.” To the contrary, as he acknowledged in the Virginia stipulation, Mr. Hartke was not suspended for sleeping and snoring. Rather, he was suspended for failing to correct misrepresentations that he made to the Virginia State Bar in the course of the Virginia disciplinary proceedings. This court’s Rules of Professional Conduct also prohibit misrepresenting facts in the course of a disciplinary proceeding. D.C. R. Prof. Conduct 8.1 (“[A] lawyer . . . [,] in connection with a disciplinary matter, shall not . . . [f]ail to disclose a fact necessary to correct a misapprehension known by the lawyer . . . to have arisen in the matter . . . .”); see also D.C. R. Prof. Conduct 8.4 (c) (“It is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”)

The court imposed the suspension nunc pro tunc so that it is fully served.

The title is inspired by these lyrics and dedicated to my friend and erstwhile colleague Ross Dicker.  (Mike Frisch)

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

Snakes

The Tennessee Board of Judicial Conduct reprimanded a juvenile court judge who made inappropriate remarks when faced with a valid transfer petition.

The judge referred to the litigant and/or his attorney as a "sneaky snake" who was "conniving" and engaged in a "ploy." The judge had a transcript of these remarks prepared and transmitted as part of the record in order to show her "demonstrated anger and animus toward that party and his counsel." (Mike Frisch)

May 31, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Legal Malpractice Suit Dismissed

The CEO of Blue Star Jets has lost his legal malpractice suit of claims brought against the attorneys who had handled his divorce from his first wife.

The New York Appellate Division for the First Judicial Department held that

This malpractice action arises from defendants' representation of plaintiff in a contentious divorce proceeding, and focuses primarily on the matrimonial court's purported improper valuation of plaintiff's interests in two marital assets: Blue Star Jets LLC (Blue Star) and International Star Investments Limited (ISI Ltd.). Plaintiff contends that, but for the negligence and malpractice of defendants, the court's valuation of his interest in Blue Star and ISI Ltd. would have been lower, and that he would have had to pay his ex-wife a lower distributive award.

Plaintiff failed to state a malpractice claim regarding defendants' failure to present independent expert testimony to rebut the court-appointed expert's valuation report regarding Blue Star, because the record shows that defendants' decision not to call such a witness was a strategic and reasonable one (Pouncy v Solotaroff, 100 AD3d 410, 410 [1st Dept 2012], lv denied 21 NY2d 857 [2013]). Plaintiff also has not alleged adequately that this decision was the proximate cause of his damages (Bender Burrows & Rosenthal, LLP v Simon, 65 AD3d 499, 499 [1st Dept 2009]).

Plaintiff failed to state a malpractice claim with respect to defendants' failure to move for a reappraisal or revaluation of Blue Star and ISI Ltd., since plaintiff failed to allege adequately that such a motion would have been successful (id.), particularly given the matrimonial court's discretion in determining valuation issues (see McSparron v McSparron, 87 NY2d 275, 287 [1995]).

Plaintiff failed to state a cause of action based on defendants' failure to move to reargue or reconsider the divorce judgment, since the decision of whether to make such a motion is a strategic one and plaintiff has not alleged adequately that such a motion would have been successful (Warshaw Burnstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013]).

The motion court correctly dismissed plaintiff's allegation that defendants failed to appeal from the divorce judgment, because the record shows that defendants informed plaintiff of his right to appeal, but that he chose not to do so in light of the cost and his minimal chance of success (Rodriguez v Fredericks, 213 AD2d 176, 177-178 [1st Dept 1995], lv denied 85 NY2d 812 [1995]).

The motion court should have dismissed the allegations regarding defendants' failure to present "appropriate evidence" at trial to establish the correct value of plaintiff's interest in ISI Ltd. The record does not support plaintiff's allegation that defendants possessed this documentation but failed to submit it to the matrimonial court. In any event, the admission of this documentation would not have altered the matrimonial court's calculations and distributive award.

The motion court providently exercised its discretion in denying plaintiff's request for further discovery, since he failed to specify how additional discovery would enable him to state a sufficient claim with respect to the dismissed allegations (see CPLR 3211[d]; Putter v North Shore Univ. Hosp., 7 NY3d 548, 554 [2006]).

Page Six had this story on the post -divorce litigation between the plaintiff and his ex-wife. (Mike Frisch)

May 31, 2016 in Clients | Permalink | Comments (0)

A Renowned Expert Gets Suspended

The New Jersey Supreme Court has imposed a six-month suspension of an attorney who violated multiple rules of professional conduct.

Details from this letter decision of the Disciplinary Review Board

Compounding the Board's concern is respondent's pattern of misrepresentations. Respondent repeatedly made misrepresentations to his clients and to the public via his fee agreements, websites, and advertising. Additionally, respondent made two distinct misrepresentations to disciplinary authorities. First, respondent misrepresented his alleged relationship with [national law firm] FLA and then lied about taking fees from clients in Maryland.

Ad misrepresentations

Respondent was a solo practitioner with no associates, partners, or "of counsel" relationship. Nevertheless, respondent used multiple law firm names and website addresses that contained plural designations, such as "Esquires," "Attorneys at law," and "Counsellors at Law" [sic].

Moreover, on his websites, respondent misrepresented the nature and size of his practice, even listing a retired attorney as someone currently associated with the firm in an "of counsel" capacity. Respondent also falsely stated on his website that his firm had been rated "AV" by Martindale-Hubbell, even after that company issued a Cease and Desist letter to him regarding his use of the AV rating. Further, respondent used an impermissible trade name, "Loan Law Center;" included on his website an impermissible client testimonial; stated on his website that he practices and operates as a limited liability corporation under a name not registered with the New Jersey Department of Treasury; did not maintain professional liability insurance; and did not use the firm name registered with the Department of Treasury in his marketing materials, retainer agreements, and other legal correspondence.

Further, in his websites, respondent stated that he was a "renowned expert in Internet Liable [sic] and Slander." In fact, the Supreme Court has never certified respondent in any practice area and respondent' s area of practice was limited to mortgage modifications. Respondent's statement regarding his expertise in internet libel was patently false and had the clear potential to discourage clients and third parties from posting negative reviews of respondent's law practice and mortgage modification business, all in violation of RPC 7.4(a) and RPC 8.4(c).

The DRB noted, but did not accept as an excuse, the attorney's contention that his wife was responsible for the false advertising. (Mike Frisch)

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

Court Holds Mintz Levin Not Entitled To Summary Judgment On Discrimination And Retaliation Claims

The Massachusetts Supreme Judicial Court has held that summary judgment is not appropriate on most of an attorney's claims against the Mintz Levin law firm.

The court also held that some "self-help" options are available to an attorney alleging discrimination.

Here, we are asked to determine whether summary judgment should have entered for the employer on an employee's claims for gender discrimination and retaliation. In addressing the retaliation claim, we confront the novel question whether it is "protected activity" for an employee to search for, copy, and share with the employee's attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim.

The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD), that she was being subjected to discriminatory treatment on the basis of her gender -- treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm's document management system for items that might prove her assertions of discrimination. In November, 2008, after these searches were made known to the firm's chairman, the plaintiff's employment was terminated "for cause."

 The plaintiff sued; the firm countersued. All the plaintiffs claims were thrown out on summary judgment

We conclude, first, that the plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation. Therefore, summary judgment for the defendants on those counts was inappropriate. Second, we hold that an employee's accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute "protected activity," but only where her actions are reasonable in the totality of the circumstances. Finally, we conclude that judgment was entered properly on the claim against Cohen for tortious interference with contractual relations.

On self help

The question whether an employee's acts of self-help discovery in aid of claims under G. L. c. 151B, § 4, may ever, under any circumstances, constitute protected activity is one of first impression for this court. Taking into consideration the interests at stake and the views of other courts that have addressed the matter, we conclude that such conduct may in certain circumstances constitute protected activity under that statute, but only if the employee's actions are reasonable in the totality of the circumstances.

 New England In House had this report on the case. (Mike Frisch)

May 31, 2016 in Law & Business, Law Firms | Permalink | Comments (0)

Monday, May 30, 2016

Prebirth Drug Use That Leads To Child's Death Not Criminal In West Virginia

The West Virginia Supreme Court of Appeals has reversed a criminal conviction for child neglect leading to death where the mother took drugs short ly before giving birth and the child died 11 days later

On June 11, 2013, Ms. Louk injected methamphetamine into her left arm. She was thirty-seven weeks pregnant at that time. A few hours after injecting the methamphetamine, Ms. Louk experienced breathing problems and went to Summersville Regional Hospital. Dr. Tracey Lester treated Ms. Louk upon her arrival at the hospital. Dr. Lester testified that Ms. Louk presented to the emergency room with acute respiratory distress which was caused by her methamphetamine use...

Due to concerns about Ms. Louk’s fetus being deprived of oxygen, Dr. Lukasz Rostocki performed an emergency Cesarean section and delivered the child. The child, Olivia Louk, was born “essentially brain dead,” according to Dr. Susan Venuti, the forensic pathologist who performed Olivia Louk’s autopsy. Dr. Venuti testified that upon being born, Olivia Louk “had no movement, no spontaneous respirations, and they had to immediately put her on a ventilator to help her breathe.” Olivia Louk died eleven days after she was born.

The court majority

We have read the law and it is clear: when enacting our child neglect resulting in death statute, the Legislature did not criminalize a mother’s prenatal act that results in harm to her subsequently born child. We therefore reverse the circuit court’s December 9, 2014, sentencing order. Although we recognize that there may be significant policy implications and social ramifications surrounding the present issue, our review is confined to the plain language of the statute enacted by the Legislature. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. This Court does not sit as a superlegislature, commissioned to pass upon the social, political, or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions. Thus, the Court’s duty in this matter is to enforce the plain language of the child neglect resulting in death statute enacted by the Legislature.

Justice Benjamin concurred with regret

Words are inadequate for the tragedy occasioned by Ms. Louk’s injection of methamphetamine into her body in her thirty-seventh week of pregnancy. Because of her actions, an innocent child is dead. While I have dedicated much of my service in the judiciary to helping individuals take responsibility for their decisions, overcome their addictions and turn their lives around, I cannot personally excuse the decision taken here by Ms. Louk—a decision which not only harmed herself, but which also resulted in the senseless end of the life of another. However addiction may explain irresponsible behavior, it does not excuse it. What Ms. Louk did was wrong. If I were to step away from my duty to follow the law, and to instead make it, I might be tempted, as others, to affirm this conviction...

And while, out of a desire to assuage a personal sense of outrage, it may be tempting for a judge to here engage in activism under the guise of supposed statutory interpretation, it is beyond this court’s legal and constitutional province to make criminal that which the legislature has not...

Though perhaps emotionally tempting, stretching West Virginia Code § 61­ 8D-4a to permit this criminal prosecution to stand, i.e., the prosecution of a woman for acts committed during pregnancy that contribute to the death of a subsequently born child, renders the statute hopelessly vague. What conduct would constitute unlawful neglect? Would the failure to seek prenatal care constitute neglect if the subsequently born child dies? Could eating raw oysters during pregnancy, which is commonly known to carry a risk of food poisoning, be considered neglect? At what stage in the pregnancy would any such acts be neglectful? Would all the mothers of newborn children that die be the potential subject of investigations to determine if any of their activities while pregnant contributed to the death of their children?

An impassioned dissent by Justice Loughery

Olivia Ann Vangeline Louk was eleven days old when she died as a result of her mother’s neglect. West Virginia Code § 61-8D-4a provides that the mother’s conduct constitutes a felony punishable by a three-to-fifteen-year term of imprisonment. Yet, the majority, undoubtedly persuaded by the amici, has decided that no crime was committed because the neglect occurred before Olivia was born. While it is certainly not unusual for this Court to be presented with intensely emotional issues, this case in particular amplifies the Court’s challenge to render justice in the face of facts that touch upon deeply personal and diversely-held beliefs. Our role in this case was the same as it is in all others: to apply the law in accordance with our established principles of jurisprudence. The majority’s result oriented analysis proves, however, that it allowed policy implications and social ramifications to play a role in its decision. The rule of law commanded one outcome in this case–affirming the petitioner’s conviction. Because the majority has utterly disregarded the plain language of West Virginia Code § 61-8D-4a and vacated the petitioner’s conviction, I dissent.

It is undisputed that Olivia was born alive on June 12, 2013, and subsequently died as a result of her mother’s injection of methamphetamine into her bloodstream just hours before Olivia was born. While Olivia was delivered by emergency Cesarean section, the treating physician testified that the pregnancy was “full term.” There is no evidence that Olivia had a congenital defect that would have otherwise prohibited her from living a normal, healthy life. Olivia only lived eleven days because the methamphetamine injection caused her mother to suffer respiratory distress that inevitably deprived Olivia of oxygen for a significant period of time resulting in irreversible brain damage. There is no question that Olivia’s death was caused by her mother’s decision to neglect her child’s welfare, a fact that her mother readily acknowledged. When asked if she considered Olivia’s welfare when she took the illegal drug, the petitioner confessed, “I didn’t and I should have.” She attributed her behavior to “stupidity.”

... Rather than apply the law as written by the Legislature, the majority chose to focus on the fact that the neglect that caused Olivia’s death occurred before she was born. Under the plain language of the statute, this fact is immaterial.

Justice Workman joined the dissent. (Mike Frisch)

May 30, 2016 | Permalink | Comments (0)

Saturday, May 28, 2016

Roaming, Hugging and Eating Candy Is No Way To Judge (If True)

The behavior of the trial judge requires the grant of a new trial, according to a decision issued Friday by the Louisiana Supreme Court.

The jury had returned a defendant's verdict in a medical malpractice action

Having reviewed the record and considering the briefs and oral argument of the parties, we are convinced that the trial judge’s actions resulted in a miscarriage of justice. Therefore, considering the unique and narrow facts presented, we conclude a new trial must be granted.

Chief Justice Johnson concurred and explained

In my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand. According to plaintiffs, Judge Ellender failed to preside over the trial from his position on the bench, but rather roamed around the entirety of the courtroom during much of the trial. Judge Ellender would stop and look out of the windows in the courtroom while plaintiffs’ counsel was examining witnesses. Judge Ellender continuously moved around the courtroom, sitting in various chairs, and, inexplicably, sat in the jury box with the jurors while eating candy - all during witnesses’ testimony. The record also contains uncontroverted testimony from the plaintiff that Judge Ellender greeted the defense medical expert, defendant’s medical partner, with a handshake and embrace in front of the jury. Additionally, although neither counsel asked plaintiffs’ medical expert, Dr. Leo Murphy, any questions regarding his fees and expenses during the trial, after Dr. Murphy was released Judge Ellender took it upon himself to question plaintiffs’ counsel about the costs paid to Dr. Murphy in the presence of the jury...Judge Ellender’s insidious actions of leaving the bench, wandering around the courtroom, looking out the windows, eating candy and otherwise failing to pay attention to the proceedings communicated to the jury in a non-verbal way his opinion that the trial was not serious and could be treated as a joke. 

A footnote to the concurrence notes prior judicial discipline imposed on the judge

In re Ellender, 09-0736 (La. 7/1/09), 16 So. 3d 351 (Judge Ellender suspended for thirty days without pay due to his failure to treat a pro se petitioner’s application for protection from domestic abuse seriously, and acting in a condescending and demeaning manner towards her); In re Ellender, 2004-2123 (La. 12/13/04), 889 So. 2d 225 (Judge Ellender suspended for one year, without pay, with six months of that suspension conditionally deferred as a result of his conduct in appearing in public, at Halloween party, in costume with afro wig, black face makeup, and prison jumpsuit).

Justice Weimer dissented and noted that the allegations came from a single post-verdict affidavit rather than a contemporaneous objection

...as a reviewing court, we cannot and should not simply assume that these allegations are accurate, let alone make the additional leap that such allegations justify granting a new trial. It has been aptly stated that “[a]n extraordinary claim requires extraordinary proof.” Similarly, the law requires that, before we overturn the work of a jury, comprised of citizens who take an oath to judge fairly and impartially, we must examine whether the judge has improperly held sway over the jury...

This examination required by law must be based on evidence, not conjecture, and begins with the trial record. In the trial record, there is nothing to substantiate the plaintiffs’ allegations of inappropriate behavior. Most significantly, there is not even an objection in the trial record for any of the allegations leveled against the judge. This court has previously found that the lack of a contemporaneous objection about a judge’s conduct reveals a lack of prejudice.

Justices Clark and Crichton also dissented.

Justice Crichton wrote

I respectfully dissent from the majority’s finding that plaintiffs are entitled to a new trial in this case. Although the majority finds that there is sufficient evidence in the record establishing that the trial judge’s actions during the jury trial of this matter resulted in a miscarriage of justice, in my view, the trial record is devoid of any specific evidence documenting the trial judge’s alleged behavior. Counsel for both parties conceded that they personally did not witness much of the alleged behavior, as it was “behind” them in a large courtroom. As a result, the only “evidence” presented at the post-verdict motion hearing is set forth by the jury foreperson in her arguably inadmissible affidavit and the self-serving testimony of one of the plaintiffs. Plaintiffs’ counsel has also offered little explanation as to why he did not issue subpoenas or compel testimony of others who were in the courtroom during trial to testify regarding the judge’s behavior (such as the bailiff, deputy clerk of court, court reporter, or even Judge Ellender), when the trial judge’s alleged actions are paramount to the plaintiffs’ claims of prejudice resulting from his behavior. Consequently, in my view, there is insufficient evidence to warrant a second bite at the apple...

However, and though the cumulative effect of Judge Ellender’s conduct is troublesome, I fear that this judge’s institutional history of untoward behavior has perhaps influenced the majority’s decision today, which should instead be focused on the evidence presented in this record in this case. In my view, the unsupported allegations of improper conduct in this instance do not warrant the reversal of a jury verdict and remand for a new trial.

Houma Today reported on the 2009  judicial discipline matter involving the judge. (Mike Frisch)

May 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)

Burglary And Theft Draws Suspension

An 18-month suspension has been imposed by the Louisiana Supreme Court of an attorney 

In April 2014, respondent broke into her ex-husband’s home and stole a man’s diamond ring (valued at approximately $13,000) and a woman’s Rolex watch (valued at approximately $6,000). Respondent then sold the ring and the watch to Diamond Distributors Inc. for approximately $2,700 and used the money to gamble. On May 20, 2014, respondent was arrested for felony theft and burglary of an inhabited dwelling and booked into the East Baton Rouge Parish Prison. On June 22, 2014, respondent self-reported her arrest to the ODC.

The attorney defaulted on the charges but offered mitigating evidence.

The court considered mental health issues in determining an appropriate sanction and found the misconduct less aggravated than that in a prior case 

In determining an appropriate sanction, we find guidance from In re: Sterling, 08-2399 (La. 1/30/09), 2 So. 3d 408. In that case, Mr. Sterling went to the apartment of his former fiancée so that he could retrieve her engagement ring and the keys to a car he had given her. Mr. Sterling knocked on the doors and windows of the apartment, but the woman did not respond. Mr. Sterling then kicked in the door and forced his way inside the apartment. Upon discovering the woman in her bedroom with another man, Mr. Sterling grabbed her by the arms and pushed and shoved her around the apartment. Mr. Sterling was arrested on charges of unauthorized entry of an inhabited dwelling and simple battery. He later pleaded guilty to unauthorized entry of an inhabited dwelling. Mr. Sterling also failed to properly notify his clients of his interim suspension, failed to return a client’s file after he was placed on interim suspension, and transferred a client matter to another attorney without the consent of the client...

In the instant matter, respondent did not engage in the crime of battery, nor did she engage in any other attorney misconduct, as was present in Sterling. Furthermore, there are compelling mitigating factors present in this case, notably the absence of a prior disciplinary record and respondent’s significant personal and emotional problems. As such, we find a downward departure from the two-year suspension imposed in Sterling is appropriate.

Justice Weimer

I dissent and would order this matter be scheduled for oral argument so as to better evaluate whether a lesser sanction would serve the interests of the disciplinary system.

Justice Hughes agreed with Justice Weimer. (Mike Frisch)

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