Tuesday, March 7, 2017

Sex And Undisclosed Asset Get Bankruptcy Attorney Suspended

The Florida Bar recently posted summaries of a number of sanctions recently imposed on attorneys

One summary

Robert Steven Cohen, 3049 Cleveland Ave., Suite 259, Fort Myers, suspended for 30 days, effective 30 days from a Jan. 19 court order. (Admitted to practice: 1986) Cohen engaged in a sexual relationship with a client he represented in a bankruptcy case. When a trustee found that the client withheld certain information in the case, Cohen withdrew representation and the client was forced to hire a new attorney. (Case No. SC16-2251)

The orders posted on the web page of the Florida Bar reveal that the bankruptcy was filed in September 2010 and discharge granted in January 2012.

The discharge was revoked after an adversary proceeding was initiated over an undisclosed asset.

The discipline was imposed by consent. (Mike Frisch)

March 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Unindicted Co-Conspirator Attorney Disbarred

Reciprocal disbarment was imposed by the New York Appellate Division for the Second Judicial Department who had consented to disbarment in New Jersey.

The court summarized the New Jersey allegations

Count one charged the respondent with violations of rules 8.4(b), 8.4(c), and 1.15(a) of the RPC in connection with his role in a massive fraud known as an "advanced fee fraud" perpetrated by the Harbor Funding Group (hereinafter HFG). In essence, the respondent facilitated the fraudulent transfer and theft of millions of dollars in escrow funds. HFG was a corporate entity that was purportedly in the business of providing funding for real estate transactions. HFG was not a legitimate business operation and was prosecuted by the United States Attorney for the Eastern District of New York. The principal coconspirators were William C. Lange, Joseph Pascua, Brad Russel, Frank Perkins, and Kristofer J. Lange. The respondent was identified as an unindicted coconspirator in the government's filings. In exchange for his cooperation, the respondent was not criminally prosecuted. HFG and its principal coconspirators represented to individuals involved with real estate developers primarily in a region known as the Gulf Opportunity Zone (a region impacted by Hurricane Katrina) that HFG could fund real estate development if the prospective parties provided a 10% advanced fee or deposit. HFG, in fact, had no access to real estate financing. The only fund available to HFG was the 10% advance fee made by numerous real estate investors and parties. HFG and the investors agreed that the fee would be placed in escrow to be held by an attorney. The respondent agreed to be an escrow agent on behalf of HFG.

The respondent was paid an agreed percentage based on the amount of investment. He stated to the OAE that he earned $21,500 for his role in the fraudulent scheme. Escrow agreements were executed, but these agreements contained a provision which permitted HFG to unilaterally request release of the escrow funds. The respondent used the provision to transfer millions of dollars to HFG and the principal coconspirators, ignoring his fiduciary duties owed to the escrow clients. The respondent failed to keep his escrow clients informed, failed to advise them of the disbursement of their funds, and failed to provide them with an accounting of their funds. Count two charged the respondent with violations of rules 1.15(a), 1.4(b) and (c), 8.4(b), and 8.4(c) of the RPC in connection with his role in a real estate transaction as the escrow agent for an earnest money escrow agreement involving Imperial Development Tracewood, LLC (hereinafter the seller), and Kennie Arriola, Ingrid Arriola, Herman Kinscher, Ben Arriola, Imedla Young, and Erik Kinscher (hereinafter collectively the buyers). Pursuant to the escrow agreement, the respondent agreed to hold the earnest money in accordance with the terms of the contract or until written release disbursement instructions were received from the seller.

On July 17, 2008, the buyers wired $100,000 into a trust account maintained by the respondent at Bank of America (account ending 2099), and separately wired an additional $40,000 into the account, for a total of $140,000. Thereafter, on July 25, 2008, the respondent wired $105,000 of the $140,000 to an account held by HFG, and on September 5, 2008, wired the remaining $35,000 to an account held by an unrelated corporation named APV, LLC. In neither instance did the respondent receive written authorization from the buyers or the seller before he disbursed the escrow funds.

Count three charged the respondent with violations of rules 1.15(a), 1.4(b) and (c), 8.4(b), and 8.4(c) of the RPC in connection with his role as the escrow agent of funds received on behalf of his client, OFP/Oliver Byington (hereinafter OFP). On July 24, 2008, the respondent received $200,000 in escrow funds from OFP. Four days later, on July 28, 2008, the respondent disbursed the funds received from OFP to HFG, without obtaining authorization from OFP to release the escrow funds. In addition, the respondent took a fee from the escrow proceeds in the amount of $625 without the knowledge or permission of OFP. OFP's funds were fraudulently transferred by the respondent and misappropriated by HFG.

Count four charged the respondent with violations of rules 1.15(a), 8.4(b), and 8.4(c) of the RPC in connection with his role as the escrow agent for a loan to be provided by HFG to Providence Home Building & Design, Inc. (hereinafter Providence). The escrow agreement provided for the release of the funds on deposit if any of three enumerated conditions occurred. On July 9, 2008, Providence wired $67,000 to an escrow account (account ending 2099) maintained by the respondent at Bank of America. On July 10, 2008, Providence wired $100,000 to an escrow account (account ending 2099) maintained by the respondent at Bank of America. On July 11, 2008, the respondent transferred the $167,000 received from Providence to another trust account (account ending 9648) maintained by the respondent at Bank of America. On September 4, 2008, Providence wired an additional $80,000 into the respondent's escrow account (account ending 2099).

On September 12, 2008, the respondent wired $248,881.72, of which $80,000 consisted of funds received from Providence, from the account ending 2099 to a bank account at First National Bank of Alaska for an unrelated corporate entity called APV, LLC. The escrow agreement did not authorize the respondent to send Providence's funds to APV, LLC.

Count five charged the respondent with violating RPC rule 1.15(d) and rule 1:21-6 of the New Jersey Court Rules based on his failure to comply with various recordkeeping requirements under the Rules, namely, contemporaneous three-way reconciliations.

The New York FBI Field Office posted on the related criminal conviction. (Mike Frisch)

March 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, March 6, 2017

New Ohio Ethics Opinions

The web page of the Ohio Supreme Court notes two new ethics opinions

The Ohio Board of Professional Conduct today issued advisory opinions on lawyer advertising and a judge’s duty to report misconduct by other judges and lawyers.

In Advisory Opinion 2017-01, the Board provides guidance for lawyers who advertise for litigation services provided on a contingent fee basis. 

Lawyers may not use statements such as, “There’s no charge unless we win your case,” or “No fee without recovery,” if the lawyer intends to recover litigation costs and expenses from the client. If a lawyer intends to recover advanced costs and expenses of litigation from the client, a disclaimer is required in the advertisement that explains the client’s obligations for repayment. The opinion holds regardless of the outcome of the litigation and it withdraws Adv.Op 98-9.

In its other opinion today, the Board outlined a judge’s duty to report the misconduct of other judges and of lawyers, in Advisory Opinion 2017-02.

A judge who has knowledge that another judge has committed a violation of the Code of Judicial Conduct that questions the other judge’s honesty, trustworthiness, or fitness as a judge, is required to report it to disciplinary counsel. Similarly, if a judge has knowledge that a lawyer violated the Rules of Professional Conduct regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer, he or she must report it to disciplinary counsel or a certified grievance committee.

A report of misconduct should be made within a reasonable time after the judge knows of the violation.  Additionally, a judge who reports the misconduct of a lawyer is not presumptively disqualified from presiding over cases in which that lawyer appears.  The opinion withdraws Adv.Op. 89-32.

(Mike Frisch)

March 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Holiday Cheer Leads To Extended Probation

A Wyoming attorney admitted in 1984 has a "history of substance abuse, which he has addressed with varying degrees of success over the years."

His disciplinary problems stemmed from a 2016 DUI for which he received a sentence that included a period of jail time.

To his credit, the attorney contacted the Wyoming Professional Assistance Program and entered into a treatment plan. As a consequence, he was able to enter into a stipulated disposition of a stayed six-month suspension with six months disciplinary probation.

He was "generally compliant" with the WPAP program with a single lapse.

But then came Christmas 2016 and, like Jesse James, he should have avoided visiting Northfield, Minnesota.

He went off the wagon and had numerous either positive or missed Soberlink tests at a family gathering with his mother and siblings.

The problem was promptly reported and has led to an order of the Wyoming Supreme Court extending the probation for six months with additional conditions. (Mike Frisch)

March 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Delaware Court Orders Indemnification And Legal Fee Award

The Delaware Court of Chancery has held that a former corporate officer is entitled to indemnification and legal fees in litigation involving his company

The Company opposes Horne’s demand for indemnification. Specifically, the Company contends that certain of the claims in the underlying litigation did not arise by reason of Horne’s service as an officer of the Company and also that certain of the fees charged by Horne’s counsel are unreasonable. Horne disagrees and seeks summary judgment on his claims for: (i) fees and expenses incurred in successfully defending the underlying litigation, (ii) fees and expenses incurred prosecuting this action, and (iii) pre- and post-judgment interest on all amounts. For the reasons that follow, the motion is GRANTED.

The background

The sordid factual background that gave rise to the underlying litigation was described in considerable detail in the Trial Opinion. My focus here is on the facts necessary to inform the indemnification analysis. In September 2012, a Company employee [Geller] reported to Waite that she and Morelli had engaged in a sexual relationship over a period of time and that she believed Morelli had sexually harassed her. This report prompted a series of responses from Horne and the Director Defendants that ultimately led to Morelli’s removal as CEO. In the underlying litigation, Morelli contended that the defendants had been looking to remove him for years and that the reported sexual misconduct with an employee was merely a pretext to allow the defendants to seize to control of the Company.  He alleged that the defendants bribed and coaxed the female employee to make a false claim of sexual harassment as the first step of their plan and then initiated a bogus investigation of the report to provide cover for the challenge they knew would follow his removal as CEO.

In the Trial Opinion, the Court summarized Horne’s very limited involvement in the sexual harassment investigation and subsequent attempt to remove Morelli as CEO. In essence, Horne gave statements to lawyers charged with leading the investigation and pointed out to the lawyers that a stockholders agreement would have to be amended if the Board decided to remove Morelli in order to prevent Morelli from simply replacing the majority of directors as controlling stockholder and then reinstating himself as CEO. When the Board met to consider Morelli’s removal, Horne was not present and did not otherwise participate.

Morelli sued Horne and others

While the Morelli Complaint named Horne in several counts, the claims actually presented against Horne during the six-day trial were much more limited. Indeed, the trial court recounted how the Plaintiffs had either abandoned or waived nine of the claims they alleged in the Morelli Complaint.  As to Horne, the court noted that the primary claim prosecuted against him at trial was that he aided and abetted the Director Defendants in their alleged breaches of fiduciary duty.  The Trial Opinion characterized the Plaintiffs’ claims as “a shifting target and impossible to defend against without enormous expense” and rejected each claim against against Horne out of hand.

Horne then sued for indemnification and his legal expenses

When determining whether fees are reasonable under Section 145(c), the court considers whether: (1) the expenses were actually paid or incurred, (2) the services were in good faith thought prudent and appropriate by competent counsel, and (3) the rates or charges were comparable to those charged in similar circumstances.  The Company does not dispute that Horne incurred fees. Nor does the Company challenge the rates charged by Horne’s counsel. Instead, the Company challenges certain strategic decisions made by Horne’s counsel during the underlying litigation, including the decision to rely upon a witness declaration that was later deemed to be unreliable and the decision to depose a witness who Defendant alleges did not provide relevant testimony, both of which Defendant alleges “were the product of meritless litigation strategies that Horne abandoned prior to trial, but not before racking up considerable expense.”  The Company’s invitation to nitpick counsel’s strategic decisions in this hotly litigated case where Horne ultimately prevailed on every claim is offered with little grace.

This court will review litigation strategy decisions only if they are “unmistakably unreasonable” and constitute “clear abuse.”  The Company has fallen well short of making this showing. Nor has the Company justified its requests for discovery into the fees or that the Court engage in a line-by-line review of counsel’s bill.  Given the complexity of the issues, the duration and scope of discovery, the extensive pre-trial motion practice and the lengths to which Horne was forced to go to defend himself—at trial and post-trial appeal—it is clear that the requested fees are reasonable on their face.

The earlier opinion is linked here. 

In this action, the CEO and the company return to this Court alleging that the four defendants engaged in a long-running and wide-ranging conspiracy that involved, essentially, everyone who disagreed with the CEO‘s management of the company. The plaintiffs seek approximately $50 million in damages, as well as equitable relief in the form of an extension of the stockholders agreement in order to cement the CEO‘s control for another two years. The alleged wrongs range from nebulous breaches of fiduciary duty based on undermining the company‘s strategic vision to breach of contract claims. After extensive pre-trial proceedings, I tried this matter for six days in February 2015. This Memorandum Opinion ("Opinion") reflects my post-trial findings of fact and conclusions of law, as well as my rulings on certain ancillary motions. Because of the far-ranging claims advanced by the plaintiffs and the number of non-party actors who figure in their narrative, the recitation of the facts is unusually lengthy.

Overall, the plaintiffs seek damages and equitable relief for breach of the duty of loyalty, breach of contract, and tortious interference, and they advance secondary liability theories of aiding and abetting and conspiracy. The defendants deny liability on all counts, argue that there was and is no conspiracy, and contend that the CEO is a paranoid narcissist. The defendants also accuse the plaintiffs of having undermined the integrity of the litigation process by engaging in conduct akin to bribing and tampering with witnesses.

The court found that the plaintiffs engaged in serious litigation misconduct

I recognize that parties have a right to vigorously pursue their claims. I also assume that, misguided as I consider it to be, Morelli and his counsel believe their rhetoric regarding a vast conspiracy to take control of Optimis away from Morelli for the alleged insurgents‘ own self-serving motives. But, even so, the conduct I have described here is beyond the pale. Specifically, I find that Plaintiffs‘ conduct was  "prejudicial to the administration of justice" and has undermined the integrity of these proceedings by materially impacting the Court‘s ability reliably and accurately to find the facts. The crucial allegation underlying Plaintiffs‘ breach of loyalty claims is that Defendants used Geller as a pretext to take over the Company. When deposed, she demolished the reliability of the key statements in the Final Geller Declaration that might support a finding that Defendants engaged in a takeover conspiracy and used Geller‘s sexual harassment claims as a pretext. I, therefore, find it appropriate to disregard, in their entirety, all of the documents in the Geller Settlement and to reject any attempt by Plaintiffs to use those documents affirmatively to impeach Geller or any other witness. Relying on those documents is impossible based on the cynical context and manner in which they were created. As a result of Plaintiffs‘ improper conduct, I instead find credible and reliable what Geller said at her deposition and resolve any doubts about her credibility in favor of Defendants. 

Forward Forensics reported on issues of corporate governance at the company. (Mike Frisch)

March 6, 2017 in Current Affairs | Permalink | Comments (0)

Sunday, March 5, 2017

A Short Period Of Retirement

The Daily Record has an announcement

After a little over a month of retirement, former Maryland Bar Counsel Glenn M. Grossman has found new employment, this time helping attorneys navigate the grievance process. Grossman will became of counsel at Eccleston and Wolf P.C. in Hanover on Monday and handle ethics and Attorney Grievance Commission matters.

Longtime Deputy Bar Counsel Raymond Hein is serving as Acting Bar Counsel pending the appointment of Mr. Grossman's successor.

Maryland is a place that has demonstrated a great deal of stability with only either  Mel Hirschman and Glenn serving as Bar Counsel for the past 36 years.

Mel was in the position when I started in February 1984.

He became one of my favorite National Organization of Bar Counsel colleagues and we worked closely together because of the large number of attorneys over whom D.C. and Maryland share disciplinary jurisdiction.

I actually have been watching with interest the process of selecting the next Maryland Bar Counsel and may blog on the subject in the near future. Forewarned is forearmed. 

Every time a new chief disciplinary counsel is selected in a jurisdiction, the soul and conscience of the legal profession there is at stake and at risk.

Note that the District of Columbia  is similarly situated, although there have been seven different Bar (now Disciplinary) Counsel over that same 36 year period of time.  (Mike Frisch)

March 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Singularly Bitter Break Up Leads To A Public Reproval

The California State Bar Court Hearing Department has imposed a stipulated public reproval of an attorney who pled no contest to charges of domestic battery and engaged in frivolous litigation against the victim.

On May 12, 2012, respondent and her then spouse attended a party but left early and returned home due to respondent’s high level of intoxication.

When respondent arrived home, she became irate, began yelling and screaming at her spouse, and began throwing and breaking items in the house.

Respondent’s spouse exited the house to avoid a confrontation and called the police. He then entered the garage and found respondent, who continued to yell profanities at him, seated in his car. As respondent’s spouse attempted to calm respondent down, respondent scratched his arms and hands.

Thereafter, respondent left the garage and reentered the house where she continued to break items including a phone-fax machine, a computer and the glass front door.

Respondent ran to the houses of nearby neighbors and continued to yell and scream profanities, resulting in a least one of the neighbors calling police to report a trespasser.Respondent was visibly intoxicated, had difficulty maintaining her balance and was yelling profanities when Los Angeles Police Department ("LAPD") officers arrived.

During the course of their investigation, the officers observed redness, and scratches and bruises on both respondent and her spouse. LAPD officers arrested respondent for spousal battery. Respondent waived her Miranda rights and stated that she became angry and pushed a computer off a desk. At that time, however, respondent denied scratching or striking her spouse.

Respondent successfully completed probation.

In the ensuing divorce process, the attorney was sanctioned for frivolous litigation against the spouse.

By filing the lawsuits in case nos. LC100377, LC102075 and LC102192, and the appeal in case no. B261082 on behalf of herself that were frivolous, without merit, or prosecuted for improper purpose, respondent failed to maintain such action and proceedings only as appear to her legal or just, in willful violation of Business and Professions Code section 6068

There was mitigation

Respondent’s good character has been attested to by ten individuals, including three attorneys, three former clients, and a banker who are aware of her misconduct and who hold her in high regard, lauding her integrity, honesty, competence, dedication to her clients and her community. Respondent’s character letters are representative of a wide range of members of the general and legal communities who are aware of respondent’s misconduct in connection with the present matters, and as such, respondent is entitled to credit in mitigation for good character.

She had sought treatment for alcohol abuse and had insight into the misconduct

 Respondent acknowledges that alcohol consumption has led her to exercise poor judgment in her personal life in the past and in order to address this problem, she voluntarily enrolled herself in New Directions for Women residential alcohol and drug rehabilitative and sober living program in October 2016. While enrolled in the residential treatment program respondent participated in individual and group therapy counseling, attended Alcoholics Anonymous daily, and worked with her case manager to prepare a comprehensive discharge plan to help her stay sober and return to her community to live a life free from substances. Respondent successfully completed the program in December 2016. By voluntarily enrolling herself into and completing New Directions for Women residential alcohol and drug rehabilitative and sober living program, respondent has demonstrated recognition of her wrongdoing

...respondent recognizes that her zealous self-representation in her dissolution and related legal matters caused her to lose sight of ethical responsibilities and has retained an attorney to assist her with her remaining legal matters. Respondent’s acceptance of and insight into her misconduct suggests that the misconduct is not likely to recur.

There is another reason that the misconduct likely will not recur, as recounted in an opinion of the California Court of Appeal, Second Appellate District, Division Two imposing sanctions for a frivolous appeal

We have no difficulty concluding that this appeal is totally and completely without merit. The trial court found no evidence in appellant’s motion to support disqualification. On appeal, Ms. Perreault has doubled down on a bad bet by failing to present this Court with either the motion to disqualify or the opposition to it, thereby insuring that there would be no evidence on which to even review the trial court’s ruling. Apart from submitting an inadequate appendix to this Court, Ms. Perreault’s brief is incoherent, replete with vindictiveness rather than legal reasoning.

Focusing on appellant’s bad faith, we conclude that this appeal was prosecuted for an improper motive. We observe that Ms. Perreault has a history of tormenting her former husband, the now-deceased Andre Perreault, to the point of physically assaulting him, resulting in her criminal conviction for domestic violence. Though Ms. Perreault was prevented from physically attacking decedent as a result of restraining and protective orders, we may infer that her baseless attack on decedent’s counsel, Mr. Janner, was intended to harass decedent, even as he was dying of cancer, and to force decedent to needlessly expend his energy and financial resources to fend off Ms. Perreault.

To give a concrete example of appellant’s bizarre conduct, this Court notified the parties on August 28, 2015, that a successor-in-interest had to substitute into the case because Andre Perreault died while the appeal was pending. A few days later, Attorney Janner asked for a brief continuance because the matter was pending in the probate department, which appointed a special administrator on September 22, 2015. Ms. Perreault filed meritless opposition to the request for a continuance, submitting to this Court an incomprehensible document weighing nearly one and one-half pounds and containing e-mails, bank statements, her marital dissolution judgment and other items that are entirely irrelevant to the appointment of a special administrator to represent decedent’s interests. Further, Ms. Perreault petitioned to have herself appointed as the administrator of decedent’s estate while she had multiple lawsuits pending against decedent, an obvious conflict of interest.

Ms. Perreault’s conduct falls far short of the professionalism expected of a lawyer. She has lost sight of her responsibilities as an officer of the court while waging a vendetta against her former husband and his family, wasting judicial resources in the process. On its own motion, the Court imposes sanctions of $5,000 against Ms. Perreault to discourage like conduct in the future.

It appears that the late husband was a sound re-recording mixer with The Vampire Diaries and The Originals. (Mike Frisch)

March 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, March 4, 2017

The Wrong Lopez

The California State Bar Court Review Department agreed that a one-year suspension should be imposed (as argued by the Office of Trial Counsel) but also agreed that misappropriation had not been  proven (rejecting OTC's contentions) 

This case arises out of Tina Amouei Nia’s misconduct in two client matters. In one matter, a hearing judge found her culpable of failing to promptly pay client funds. In another, the judge found her culpable of failing to promptly pay client funds, failing to promptly notify clients of receipt of funds, accepting representation of clients with potential conflicts without obtaining their informed written consent, and making a false representation. These findings are uncontested on review.

At issue are two misappropriation counts the hearing judge dismissed (one from each client matter) and the factors in aggravation and mitigation. After weighing the aggravation (multiple acts and bad faith) and mitigation (good faith, extreme emotional difficulties, cooperation, good character, and community service), the judge recommended a 120-day actual suspension.

The State Bar’s Office of the Chief Trial Counsel (OCTC) appeals, seeking a one-year actual suspension. It argues Nia is culpable of the misappropriation counts and not entitled to any mitigation credit. OCTC also asks us to find lack of candor as additional aggravation.

Nia did not appeal or file a responsive brief on review.

After independently reviewing the record (Cal. Rules of Court, rule 9.12), we affirm the culpability findings of the hearing judge. We find no support in the record for OCTC’s theories of misappropriation, and thus affirm the dismissal of those counts. However, we agree that Nia deserves less overall mitigation and significantly more aggravation than afforded by the hearing judge. In particular, we are extremely troubled by Nia’s attempt to pass someone else off as the complaining witness to secure withdrawal of the disciplinary complaint. We also find that her lack of candor at trial on this issue further aggravates her misconduct, increasing our concern. Such deception is inappropriate and unbecoming of a member of the legal profession who is expected to adhere to the highest ethical standards. Accordingly, we find a one-year actual suspension is appropriate and necessary to protect the public and the legal profession.

The failure to prove misappropriation

We find that Nia’s claim of entitlement to the funds was based on several reasons. To begin, both the First and Second Retainer Agreements stated that Nia earned fees on awards beyond anything owed to “3rd party lien-holders.” Since no third party lienholders were owed for Lukens’s property damage claim, Nia believed she was entitled to fees, which Lukens did not question until after Nia withdrew them. Next, Nia testified that she explained to Lukens when she signed the Second Retainer Agreement that Nia would be taking attorney fees from the property damage recovery. The hearing judge found Nia’s testimony credible, and we give this finding great weight. (In the Matter of Respondent H (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 234, 240 [hearing judge’s credibility findings given great weight]; McKnight v. State Bar (1991) 53 Cal.3d 1025, 1032 [hearing judge best suited to resolve credibility questions].) Lastly, Lukens sent Nia’s office an email on October 1, 2010, stating that she was “checking in . . . regarding the loss of use and tow money.” However, she said nothing to indicate that she disputed Nia’s entitlement to fees.

There was, however, bad faith dishonesty with the Bar

Nia intentionally misrepresented to [investigator] Almaguer that Patricia Lopez was on the conference call and wanted to withdraw her State Bar complaint. Nia knew that Sylvia Lopez was the person on the phone, and, significantly, that Patricia Lopez, the actual complaining witness, had clearly declined to withdraw the complaint. Nia’s actions are exacerbated by the fact that she had previously called Patricia Lopez on numerous occasions and “harassed” her to withdraw her complaint. When Lopez refused, Nia resorted to this impersonation tactic. 

We also agree with OCTC that Nia’s lack of candor on this issue at trial further aggravates her misconduct. She testified that she inadvertently called Sylvia Lopez, and did not realize she had the wrong Lopez on the phone. The hearing judge rejected Nia’s account, and, upon our independent review, we also find Nia’s version of events implausible. Nia had called Patricia Lopez several times in close proximity to the conference call with the State Bar, including the day before, when she spoke with her for 30 minutes. Nia obviously knew her phone number, her voice, and her English language skills, and, particularly, that Patricia Lopez did not want to withdraw her complaint.

But there nonetheless still mitigation given for cooperation.

The hearing judge gave Nia slight weight in mitigation for her cooperation with the State Bar. We agree. This case proceeded to trial on nine counts of misconduct in two client matters. Nia stipulated to limited facts that were easily provable and to culpability for only one count of misconduct.

(Mike Frisch)

March 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, March 3, 2017

Call Me Your Majesty: Magisterial Judge Suspended Without Pay

The Pennsylvania Court of Judicial Discipline suspended a judge without pay in light of the allegations in a complaint filed in December 2016.

Among the allegations are harassment of a court clerk that persisted in the face of warnings from judicial officers

In 2012, Judge Hladio demonstrated sulking, vindictive behavior toward N.B. when she refused to go out with him or answer his questions about her personal life.

After learning of N.B.'s relationship with another man, Judge Hladio acted in an angry, retaliatory manner toward N.B.

The charge

By his 2010 through April 2014 conduct of persistently inviting N.B. on dates, inquiring about her personal life and showing up at her home uninvited/ despite her rejection of his unwelcome advances and warnings from the President Judge and Court Administration to stop such behavior, Judge Hladio failed to ensure adherence to and compliance with the UJS Policy and failed to ensure that N.B. was treated in a dignified, civil, respectful and non-discriminatory manner. 

He disparaged her even after her reassignment and he had turned his attention to other victims from staff, counsel, defendants and the police.

In sum, a jerk to all regardless of status. 

On February 24, 2016,  Judge Hladio told J.T., a clerk at his district court, that N.B. is not doing her job and cannot follow directions.

On May 6, 2015, Judge Hladio sat at the bench of his courtroom and spoke with L.D.( a court clerk ( criticizing her job performance while a disruptive criminal defendant waited for 40 minutes in the reception area with police officers in attendance.

On May 6, 2015, Judge Hladio told L.D that he was not satisfied with her job performance because she does not make him "number one."

Judge Hladio has repeatedly told L.D. that her first priority is to make him and his needs "number one," and that she is not complying with that directive.

On May 6, 2015, Judge Hladio continued to speak with L.D., criticizing the job performance of Office Manager N.B. while a disruptive criminal defendant waited for 40 minutes in the reception area with police officers in attendance.

On May 6, 2015, Judge Hladio told L.D. that he was displeased with the work performance of J.T., another court clerk, while a disruptive criminal defendant waited for 40 minutes in the reception area with police officers in attendance.

A female prosecutor had the temerity to get the judge reversed on appeal 

Judge Hladio's demeanor and attitude toward ADA Elias changed dramatically after she prevailed on appeal from Judge Hladio's ruling in Commonwealth v. Moore.

Judge Hladio openly exhibits anger and dislike for ADA Elias when she appears before him in Central Court...

Judge Hladio routinely puts ADA Elias's cases at the end of the day when he presides in Central Court which causes police officers, witnesses and other attorneys to experience long delays pertaining to their cases.

 That is a sampling of the complaint that concludes with this contention

Based upon his numerous meetings with President Judge McBride and Court Administration from 2011-2016, Judge Hladio knew that his court clerks had filed complaints with Court Administration about his conduct in district court.

Based on the January 30, 2015 Board Notice of FIJII Investigation (NOFI), the June 23, 2016 Supplemental NOFI, and the March 10, 2015 and October 26, 2016 Board depositions, Judge Hladio knew that his court clerks had cooperated with the Board's investigation of his conduct.

By his December 1, 2014 through 2016 conduct of refusing to speak to N.B. at times, speaking to her in a sarcastic manner at other times, and ignoring her questions about work related matters, Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

By his December 1, 2014 through 2016 conduct of yelling, acting in an angry manner, and demonstrating sulking and vindictive behavior toward his court clerks, including N.B., Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

By his December 1, 2014 through 2016 conduct of criticizing the work performance of N.B. when speaking with other court clerks, Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

By his December 1, 2014 through 2016 conduct of holding back bills that require his approval from N.B., and thereby interfering with her ability to timely perform her job duties, Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

(Mike Frisch) 

March 3, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Path Now Taken

An attorney who continued to practice extensively after an administrative suspension and failed to appropriately participate in the ensuing bar discipline proceeding was disbarred by the Kansas Supreme Court

On September 24, 2014, the Kansas Supreme Court issued an order suspending the respondent's license to practice law for failing to pay the continuing legal education fee and for failing to comply with the continuing legal education requirements. A copy of the order was sent to the respondent and the respondent knew or should have known of his suspension.

After a bar complaint brought the problem to light, the attorney told the investigator

'I have chosen a different career path. I don't have the time to accommadate [sic] Mr. Hazlett in any way. If they want to simply suspend my license that is fine. For the time being, I am done practicing. I would prefer not to receive any further communications.'

The court on sanction

We agree that disbarment is the appropriate sanction. Respondent demonstrated his blatant disregard for this court's order suspending his license to practice law. His contempt of that order led to his unauthorized practice of law, as evidenced by his court appearances on behalf of multiple clients. Once the disciplinary investigation began, respondent systematically and intentionally failed to cooperate, culminating with his failure to appear before the hearing panel or this court. All of these actions constitute serious and intentional violations of the duties respondent owed to his clients, the public, the legal profession, and the legal system and caused potential and actual harm that warrants the severe sanction of disbarment.

Video of the oral argument is linked here. To quote Major Strasser, the conversation is a trifle one-sided.  (Mike Frisch)

March 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Once Extended, "Professional Courtesy" Enforced In Fee Suit

The Massachusetts Supreme Judicial Court has held that a law firm suing for fees cannot collect waived "professional courtesy credits"

This appeal arises from a fee dispute between a law firm and its former clients. The plaintiff law firm, BourgeoisWhite, LLP, brought this action against the defendants, Sterling Lion, LLC, and its owner, David G. Massad, alleging breach of contract and unjust enrichment following the plaintiff's representation of the defendants in an employment dispute. The judge granted the plaintiff's motion for summary judgment, determining that the plaintiff was owed the $83,681.84 amount sought in the complaint, including $29,944.45 in "professional courtesy credits" that the plaintiff extended and then rescinded, plus prejudgment interest.  We conclude that the undisputed facts establish that the $29,944.45 in credits was written off by the plaintiff law firm and thus waived. Summary judgment therefore should have been granted in favor of the defendants with respect to the credits. We further conclude that the defendants have failed to identify any factual disputes as to the reasonableness of the remaining fees, because they rely solely on unsupported and conclusory assertions about the representation. We therefore remand for the entry of summary judgment in favor of the plaintiff in the amount of the fees sought, less the credits.


...reversal of the professional courtesy credits in this case would not comport with the "highly fiduciary" nature of the lawyer-client relationship. Malonis, 442 Mass. at 692. This type of belated attempt by a fiduciary to claw back fees that were previously "written off" would not be fair and equitable to the client -- the party for whom the relationship exists. 15 See Goldman v. Kane, 3 Mass. App. Ct. 336, 342 (1975) (attorney who made advantageous loan to client "breached his fiduciary duty," because "fundamental unfairness" of loan was "self-evident"); Beatty, 31 Mass. App. Ct. at 612-613 ($721,888 "premium" billing inconsistent with agreement to bill on hourly basis and violated fiduciary duty owed to client). We therefore conclude that the defendants, not the plaintiff, should have been granted summary judgment with respect to the $29,944.45 in credits.

As to the other bills

Summary judgment was, however, properly granted for the plaintiff on the issue of the reasonableness of the remaining fees. The defendants have failed to raise a genuine issue of material fact with respect to the reasonableness of those fees. The defendants argue that they were billed for duplicative and "legally unsound" motions, and that the trial was over staffed. Our review of the record indicates that the allegedly duplicative motions predate the contested bills by nearly a year. The defendants do not identify which motions are "legally unsound," and we are provided no explanation for why the trial was over staffed, given the complexity of the case and the amount in controversy. More is required for appellate argument.

Chief Justice Kafker authored the opinion. (Mike Frisch)

March 3, 2017 in Billable Hours, Clients | Permalink | Comments (0)

Corrected And Admonished

The Indiana Supreme Court has publicly reprimanded an attorney for appellate misconduct

Respondent represented the appellant in a civil appeal. Respondent filed an appellant’s brief that included a one-page Table of Contents and a four-page Table of Authorities. Respondent then moved for leave to correct those two sections. The Court of Appeals granted the motion and specifically ordered Respondent not to make any substantive changes to the brief. Respondent then filed a corrected appellant’s brief in which: (1) the Table of Contents increased from one page to thirty-six pages, with lengthy headings and subheadings; (2) the new Table of Authorities included fifty-nine additional sources not included in the original brief; and (3) the Argument section was improperly labeled, pages were duplicated, and numerous grammatical and editing errors were present. The Court of Appeals harshly admonished Respondent for these actions.

The parties stipulated to a Rule 1.1 (competence) violations.

The Court of Appeals' "harsh admonish[ment]" is linked here. (Mike Frisch)

March 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Waxing Litigious

The New York Appellate Division for the First Judicial Department has held that a high society slip-and-fall case has enough evidence to move forward

Plaintiff [Comtesse Suzanne de Paris], a long-time member of defendant, Women's National Republican Club, arrived at an event at the club between 5:00 and 5:30 p.m on September 7, 2011. She would go to the club maybe twice per week. Although this was the beginning of cocktail hour, plaintiff, who walked with a cane, was "not a drinker" and had only a "sip" of wine. Sometime between 7:30 and 8:00 p.m., she went into the restroom. According to plaintiff, the floor was made of "old marble." When she took her first step with her right foot, and with her cane on the floor, she fell...

The [lower] court found that defendant made a prima facie showing that it did not create the hazardous condition, through the testimony of its employees that it never waxed the floor of the bathroom where plaintiff fell. The court rejected plaintiff's assertion that her description of the floor as "over waxed" gave rise to an inference that defendant created the defect. The court also found plaintiff's testimony, that she saw and felt the wax, to be "mere speculation" and insufficient to constitute evidence that the floor was waxed. The court also found that, even if plaintiff established the presence of wax, there was no evidence that defendant was responsible for its presence on the floor, and there was no evidence of how long it had existed, to raise an issue of fact as to constructive notice. With regard to plaintiff's assertion that defendant created the defect, and so notice was irrelevant, the court again noted that plaintiff's assertion that she slipped on wax was "pure speculation and based on her belief that the defendant waxes the floor in the ladies room." Thus, given that the only evidence here regarding defendant's negligence was speculation, the court granted defendant's motion for summary judgment dismissing the complaint. We now reverse...

Here, there is a triable issue of fact as to whether there was a slippery substance on the bathroom floor that caused plaintiff to fall notwithstanding defendant's assertion that it never used wax in that particular bathroom. Contrary to the motion court's findings, plaintiff's proof was not speculative and was sufficient to defeat the motion, because she set forth a specific reason for the slippery condition on the floor, namely a build-up of wax (see Galler v Prudential Ins. Co. of Am., 63 NY2d 637 [1984]; Gracchi v Italiano, 290 AD2d 484 [2d Dept 2002]; Baisley v Rose, 35 AD2d 841 [2d Dept 1970]). Indeed, as noted above, she "saw a big line, the dent of my shoe in the wax all the way that I fell," suggesting that her shoe gouged out some of the waxy substance where she fell. This was more than just leaving a streak (see Galler v Prudential Ins. Co. of Am., 99 AD2d 720 [1st Dept 1984], affd on different grounds 63 NY2d [*2]637 [1984] [insufficient evidence of negligent waxing of floors, where plaintiff's shoe made a streak on floor near where she fell]), which would happen regardless of the condition of the floor. Villa v Property Resources Corp. (137 AD3d 454 [1st Dept 2016]), recently decided by this Court, is also not dispositive. There, plaintiff merely felt a wetness on her pants and hands that smelled like wax or ammonia, while here, plaintiff saw the dent of her shoe in the waxy substance (see also Aguilar v Transworld Maintenance Servs, 267 AD2d 85 [1st Dept 1999], lv denied 94 NY2d 762 [2000] [plaintiff's claim that she felt wax was insufficient to defeat summary judgment]).

There is a dissent from Justice Andreas. 

The majority concludes that "plaintiff's proof was not speculative and was sufficient to defeat the motion, because she set forth a specific reason for the slippery condition on the floor, namely a build-up of wax." In reaching this conclusion, the majority finds that Villa (127 AD3d 454) and Aguilar (267 AD2d 85) are inapposite because here plaintiff asserts that she " saw a big line, the dent of my shoe in the wax all the way that I fell,' suggesting that her shoe gouged out some of the waxy substance where she fell." However, plaintiff admits that she did not see any wax on the floor before she fell and did not check her shoe for wax after she fell. Moreover, she did not personally see the ladies' room floor waxed that day or at any time before and there were no photographs, wet clothes, or witnesses that could corroborate her conclusory assertions. Nor did plaintiff have any knowledge of the products used to clean the floor (see Galler v Prudential Ins. Co. of Am., 63 NY2d 637 [1984], affg 99 AD2d 720 [1st Dept 1984] ["evidence insufficient to establish prima facie that what plaintiff slipped on was a wax residue" where plaintiff noticed a two foot streak on the floor where she fell and testified that, when she was leaving the hospital to which she had been taken after the accident, she saw a nurse scraping what looked like wax off of her shoe]).

Some background on the plaintiff

Comtesse Suzanne de Paris is a descendent of Charlemagne of the Imperial Providence of France (742-814). Charlemagne was the Holy Roman Emperor of France, Rome and Germany. Her noblesse oblige is inspiring, as she has dedicated her life to making people all over the world, of all walks of life, from housewives to world leaders, look and feel healthier and younger through flawless skin.

Comtesse Suzanne de Paris has been an international skin care teacher and consultant utilizing her unique therapeutic treatment techniques and inventions for the past 40 years. She has taught every client that has walked through her doors along with countless cosmetologists according to her world renowned skin care system.

(Mike Frisch)

March 3, 2017 | Permalink | Comments (0)

"Group Plea" Failed To Explore Attorney's Conflict In Brother- Sister Defense: Missouri Holds Conflict Requires Post-Conviction Hearing

The Missouri Supreme Court remanded a case involving an attorney's alleged conflict in representing two clients charged with crimes

The DePriests are brother and sister. After a maintenance man reported a marijuana growing operation in their apartment, the police searched it and seized several plants, seedlings, packages of marijuana, and a firearm. David and Natalie were charged separately with: (1) producing a controlled substance by cultivating more than five grams of marijuana under section 195.211,2 (2) possession of a controlled substance with intent to distribute under section 195.211, and (3) unlawful possession of a weapon under section 571.020. The DePriests were represented by the same counsel throughout their separate criminal proceedings.

The state offered a joint plea deal to the DePriests of 10 years’ imprisonment with the possibility of probation if they successfully completed a program of shock incarceration under section 559.115. In response, defense counsel wrote a joint letter to the DePriests advising them both not to take the offer. In so doing, he acknowledged that the strength of the state’s case against Natalie was much weaker than its case against David, stating: “I really do not see how the Prosecutor thinks he has any case against [Natalie] for cultivation. Even the charge of possession against Natalie may be rather weak ….”

Defense counsel then filed motions to suppress evidence in both cases and requested a joint preliminary hearing at which to present those motions. In response, the state sent a letter to defense counsel withdrawing the earlier plea offer. Later, the state made a new joint plea offer, this time proposing 15-year sentences with the possibility of probation under section 559.115 for both David and Natalie. Defense counsel rejected this offer and proposed, instead, suspended impositions of sentence for both defendants. The state declined and stated that no further joint offers would be forthcoming.

David and Natalie were not incarcerated during these initial plea negotiations. During the negotiations, however, Natalie was charged with an unrelated misdemeanor for passing a bad check. Based on that charge, the state moved to revoke Natalie’s bond in the present case. The state then sent defense counsel a plea offer for Natalie alone. The prosecutor offered Natalie a better deal if she would testify against her brother, at the same time noting that this created a conflict of interest between counsel’s representation of David and Natalie and that the state might move for disqualification...

The attorney continued to represent both leading to a "group plea"

The DePriests pleaded guilty at a group plea hearing. The court entered guilty pleas for a total of seven defendants simultaneously. The court advised the seven defendants of their rights as a group and questioned them as a group. The court took their pleas moving down the line of defendants. It made no inquiry into the possibility of a conflict of interest due to counsel’s joint representation of Natalie and David, although it was evident at the hearing that they were represented by the same counsel and received the same plea deal even though they played different roles in the crimes to which they pleaded guilty.

 The trial court accepted both DePriests’ pleas. At the sentencing hearing in November 2013, defense counsel argued that the court should suspend the impositions of sentence for both David and Natalie and place them both on probation. The state argued that David and Natalie should each receive the maximum prison sentences on all counts, with no possibility of probation under section 559.115. The trial court sentenced David and Natalie as recommended by the prosecutor to 15-year sentences on the first two counts, to be served concurrently. David received a seven-year consecutive sentence on the weapons count. Neither David’s nor Natalie’s sentence included the possibility of probation under section 559.115.

The trial court had improperly refused conduct a post-conviction hearing on the conflict-rooted ineffective assistance claims

Though it is difficult at times to extract the precise factual allegations in the DePriests’ motions from their surrounding inferences and arguments, both amended motions set forth sufficient facts showing that their joint defense counsel acted under an actual (not merely theoretical) conflict of interest that adversely affected counsel’s representation of each defendant. Even though both motions allege numerous facts and circumstances in support of this conclusion, only a few of them need be highlighted here. First, the motions allege that defense counsel acknowledged, almost from the beginning of the joint representation, that he believed the evidence of David’s guilt was strong but that the evidence of Natalie’s guilt was weak or non-existent. Despite this perceived asymmetry, the motions allege that the initial plea offers from the state tendered the same terms (at least with respect to the first two counts) to both defendants and that these offers were contingent upon acceptance by both defendants.

The actual conflict triggered the necessity of a hearing

David and Natalie entered their guilty pleas as part of a larger, “group” plea. As this Court noted in Roberts, 276 S.W.3d at 836 n.5, group pleas are fraught with unnecessary risk and should be avoided. It cannot be known – and does not matter whether the use of this discredited practice is to blame for the trial court’s failure to react to the obvious possibility that an actual conflict of interest existed between David and Natalie and that this conflict might have adversely affected defense counsel’s ability to represent either of them (let alone both of them) adequately. The possibility that the group plea procedure contributed to the trial court’s failure to inquire into and make findings about these issues on the record, however, should be added to the long and growing list of reasons why this practice should be consigned to judicial history.

Daily Journal Online reported on the criminal sentencing. (Mike Frisch)

March 3, 2017 | Permalink | Comments (0)

Thursday, March 2, 2017

Hardly Sporting

An attorney convicted of federal offenses in September 2016 has been suspended by the Pennsylvania Supreme Court.

From the Department of Justice Office of Public Affairs

A Pittsburgh, Pennsylvania, man was convicted...by a federal jury in the U.S. District Court for the Western District of Pennsylvania of 16 counts of failing to collect, account for and pay over employment taxes, announced Principal Deputy Assistant Attorney General Caroline D. Ciraolo, head of the Justice Department’s Tax Division.

According to the evidence presented at trial, between 2004 and 2015, Steven Lynch, a tax attorney, co-owned and operated the Iceoplex at Southpointe, a recreational sports facility located in Washington County, Pennsylvania.  The Iceoplex included a fitness center, ice rink, soccer court, restaurant and bar.  Lynch controlled the finances for these businesses and was responsible for collecting income and employment taxes withheld from employee wages, accounting for these taxes and filing Forms 941, payroll tax returns, and paying these taxes over to the Internal Revenue Service (IRS).  The jury found that between 2012 through 2015, Lynch failed to timely pay over to the IRS more than $790,000 in taxes withheld from the wages of the employees for these businesses. 

“Employers are entrusted with collecting the taxes withheld from their employees’ wages, and they have an absolute legal obligation to pay that money over to the IRS,” said Principal Deputy Assistant Attorney General Ciraolo.  “The conviction of Steven Lynch serves as a strong reminder to all employers that failure to comply with employment tax obligations has significant consequences, including prosecution and incarceration.  The department, together with its partners within the IRS, will continue to vigorously pursue those who violate our nation’s tax laws and threaten the integrity of our tax system.”

“The jury’s verdict is a clear signal that the criminal tax laws of our country are being enforced and upheld for the benefit of all citizens,” said Chief Richard Weber of IRS-Criminal Investigation (CI).  “Those who attempt to skirt the law will be held accountable.”

Sentencing is scheduled for Jan. 11, 2017.  Lynch faces a statutory maximum sentence of up to five years in prison for each count of willfully failing to collect, account for and pay over employment tax, as well as a period of supervised release and monetary penalties. 

Principal Deputy Assistant Attorney General Ciraolo commended the special agents of IRS-CI, who conducted the investigation, and Trial Attorneys Jeffrey Bender and Brittney Campbell of the Tax Division, who prosecuted the case.  Principal Deputy Assistant Attorney General Ciraolo also thanked the U.S. Attorney’s Office in the Western District of Pennsylvania for their substantial assistance.

Additional information about the Tax Division and its enforcement efforts may be found on the division’s website.

(Mike Frisch)

March 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

For The Sake Of The Children

The Washington State Supreme Court has held that the sentencing of two Halloween candy-robbers ran afoul of the Eighth Amendment

"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII.

The defendants in this case-Zyion Houston-Sconiers and Treson Roberts are children. On Halloween night in 2012, they were 17 and 16 years old, respectively. They robbed mainly other groups of children, and they netted mainly candy. 

But they faced very adult consequences. They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers. They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules. And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.

As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison. Clerk's Papers (Houston-Sconiers) (CPHS) at 227. Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. !d.; RCW 9.94A.533(3)(e). Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154. Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.

To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes. 

We now hold that the sentencing judge's hands are not tied. Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there. We affirm all convictions but remand both cases for resentencing.

(Mike Frisch)

March 2, 2017 | Permalink | Comments (0)

Before He Was A Judge

The Florida Supreme Court has suspended a judge for misconduct as an attorney

 This matter is before the Court for review of the determination of the Florida Judicial Qualifications Commission (JQC) that Circuit Judge Andrew J. Decker, III, has violated certain Florida Bar Rules of Professional Conduct before his judicial campaign and the Code of Judicial Conduct during his judicial campaign. We have jurisdiction. See art. V, § 12, Fla. Const. We conclude that, with limited exceptions, the JQC Hearing Panel’s findings are supported by clear and convincing evidence. For the violations in this case, the Hearing Panel recommended a ninety-day suspension, public reprimand, and payment of costs of the proceedings. Article V, section 12(c)(1) of the Florida Constitution provides that this Court "may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission." We modify in part the  sanction recommended by the Hearing Panel and impose the following discipline on Judge Decker: a six-month suspension, public reprimand, and payment of costs of the proceedings.

 The misconduct

Judge Decker’s misconduct unquestionably warrants the imposition of a serious sanction. In addition to campaign violations, then-attorney Decker (1) violated the Rules of Professional Conduct in failing to advise opposing counsel in the Wells Fargo litigation that he was currently representing the presiding judge in other litigation; (2) violated numerous Rules of Professional Conduct concerning conflict of interest in common representation, including failing to counsel and advise the three clients of the risks and advantages of common representation, failing to withdraw when conflicts were apparent, engaging in representation of one client to the detriment of other current or former clients, reminding opposing counsel in the TD Bank case that even though Judge Bryan was in bankruptcy court, TD Bank could still pursue its claims against Dukes and Woodington; and (3) violated the Rules of Professional Conduct requiring candor to the tribunal by incorrectly stating the status of his representation of Dukes, Woodington, and BWD trust on filings made with the bankruptcy court in Judge Bryan’s case.

When it became apparent numerous times that there was conflict among then-attorney Decker’s clients, then-attorney Decker should have immediately withdrawn from all representation. His inability to understand the serious conflict that existed, and to recognize that conflict when it became apparent on more than one occasion, demonstrates a critical lack of care concerning his clients.

In addition, there were other serious violations of the Rules of Professional Conduct, including then-attorney Decker’s failure to advise opposing counsel in the Wells Fargo case that then-attorney Decker had undertaken representation of Judge Bryan, the presiding judge in the Wells Fargo case. All the violations established by the evidence in this case demonstrate a pattern of poor judgment, and lack of concern for jointly represented clients and for other counsel and their clients. Judge Decker violated numerous Rules of Professional Conduct and Canons of Judicial Conduct, as well as a state statute, and has "exhibited a pattern of behavior that evidences a lack of ethical judgment, along with a lack of understanding and concomitant contrition about the harm caused to his clients and to the public’s trust in the legal system," as the Hearing Panel found. The Hearing Panel was also concerned, as are we, by the fact that Judge Decker was reprimanded by The Florida Bar in the past. This prior discipline, along with the numerous violations proven in this case, demonstrate that Judge Decker "evinces a lack of ability to identify situations that lead to the appearance of impropriety."

However, no evidence suggests that any of Judge Decker’s misconduct in the practice of law caused significant harm to a client or another party. Significant harm is, of course, not necessary to establish an ethical violation. But the absence of such harm is a relevant consideration in determining the appropriate sanction to be imposed. Similarly, simple errors should be treated less severely than willful misrepresentations. So Judge Decker’s culpability for bankruptcy court filings containing misstatements is certainly diminished by the fact that the misstatements were inadvertent.

A concurring opinion would find that a charge of unauthorized communication that the court majority rejected had been proven. (Mike Frisch) 

March 2, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Mule Kicker Blues

The California Hearing Department views a "mule-kick" of a police officer as worthy of public reproval.

The stipulated facts

On February 9, 2016 at approximately 3:10 p.m., Los Angeles Police Department Officers were dispatched to respondent’s home in response to a 911 call placed by respondent’s friend. The 911 caller reported that respondent wanted to commit suicide, and had taken prescription drugs with alcohol. The 911 caller further reported that respondent was distraught after becoming deep in debt. Officers were unable to gain access to respondent’s home due to a security gate. While outside of respondent’s property, officers observed respondent driving away in her vehicle. Respondent ignored officers’ request to get out of her vehicle and fled. A pursuit ensued for less than two miles during which time officers activated their vehicle’s overhead emergency lights and siren. During the pursuit, respondent did not commit any traffic violations. There is no evidence that respondent’s conduct placed the public at risk.

When respondent came to a stop, officers approached her vehicle. Officers turned off respondent’s engine, placed her vehicle in park and engaged the emergency brake. Respondent used both hands to hold onto the steering wheel, and refused officers’ orders to exit the vehicle. Officers pulled respondent’s hands from the steering wheel and placed her in handcuffs. While officers were conducting a pat-down search, respondent mule-kicked one officer on his shin. The officer did not sustain an injury.

The attorney pled no contest to a misdemeanor and served 45 days in jail.

The hearing department saw little real harm

Even respondent’s conduct of mule-kicking a police officer, did not result in any physical injury to the officer. Thus, a level of discipline with a shorter probation period than that imposed in Kelley is appropriate. Therefore, public reproval and one year of probation with mental health conditions is sufficient to achieve the purposes of discipline: to protect the public, the courts and the legal profession; to maintain high professional standards by attorneys; and to preserve public confidence in the legal profession.

The Wiktionary has a definition (with illustration) of the mule-kick. (Mike Frisch)

March 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Proverb For A Paralegal

An applicant for a paralegal license demonstrated rehabilitation after a series of criminal incidents to warrant granting his application by the Tribunal Hearing Division of the Law Society of Upper Canada.

The crimes

On August 28, 2000, the applicant was 19 years old when he was charged with a series of offences arising from an undercover police officer’s purchase of $20 worth of cocaine from him and another individual on a street corner. As a result, the applicant was charged with trafficking cocaine, possession for the purpose of trafficking cocaine, possession of cocaine and possession of proceeds of crime of $145. He was held for a bail hearing and released.

His explanation

At the time I was on summer break from school. There is no question that I was misguided at the time. I viewed the sale of drugs as being a way to make quick money so I could buy material items that my mother could not afford for me. I did not have my education yet, and was immature and short-sighted. I was influenced easily and made poor choices at the time.  It did take some time for me to gain insight into my behavior and poor life choices, but eventually I did realize I was embarking on a very negative path, and that I could in fact still change.


On July 23, 2001, when he was 20 years old, and before the applicant was convicted on the trafficking charge, he was hanging around with several friends. An individual was blasting music and, according to the applicant, “…just acting like that’s their area.” The applicant took that individual’s gold chain and wallet and hit him once. There was no weapon and the victim was not injured. 

The applicant was charged with robbery. He was sentenced to 32 days, time served, given a six-month conditional sentence and one year on probation.

Six years later

In 2007, the applicant was 26 years old and attending York University. He was on the varsity football team. On March 30, 2007, he attended the football banquet. Outside the event, at the end of the evening, a teammate approached the applicant aggressively, angry with him for a perceived slight. The applicant was pushed by his teammate. The applicant hit the teammate with a beer bottle that he was holding.

The applicant described his reaction to his teammate’s aggression as “instinctive.”

The applicant was charged with assault with a weapon and aggravated assault.  Notwithstanding the charge of aggravated assault, the police synopsis of the incident does not describe any injuries to the teammate.

The applicant believed that he acted in self defence but ultimately took his counsel’s advice that the use of the beer bottle would not be considered a proportionate reaction. He pled guilty to simple assault and was given 18 months’ probation.

The 36-year-old applicant had turned his life around

Mr. Clarke’s conduct since 2010 has been exemplary. In addition to exhibiting good character over the past six years, Mr. Clark has demonstrated important qualities of insight, candour, intelligence, compassion, excellent work ethic and dedication to everything he undertakes. In our view, he is now of good character and should be licensed.

There is an African proverb that says: “If you want to go fast, go alone. If you want to go far, go together.”

Mr. Clarke tried the former and he ended up in trouble and alone. Then he decided to try the latter. He made a decision to change his life, he pursued education and sought the help, guidance and mentorship of others. We are convinced that he will go far.

Here's hoping. (Mike Frisch)

March 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

More Sinned Against Than Sinning

The Tribunal Hearing Division of the Law Society of Upper Canada took into consideration a unique mitigating factor in declining to suspend an attorney for a second violation of rules governing practice

Ms. Lyons-Batstone is in her early sixties. She has practised for nearly 30 years. Her mother, whom she takes care of, is a residential school survivor who experienced significant abuse. The evidence shows that the intergenerational effects of the Indian residential school system, the legacy of the treatment of First Nations in Canada, have likely negatively affected Ms. Lyons-Batstone and her family in multiple ways. She cares for a parent and a child with disabilities and she also has medical disabilities herself.

Ms. Lyons-Batstone overcame multiple personal and systemic barriers to get excellent grades and become a successful lawyer. She practises primarily for legal aid clients, serving First Nations communities in particular and working on programs to support those communities. It is apparent that the work she does is of particular importance to Aboriginal people in central Ontario, providing them with legal representation by a person with a particular understanding of their communities and culture.

The decision

David A. Wright:– For the second time in just over a year, the Lawyer, Debora Batstone (“Ms. Lyons-Batstone”) was before this Tribunal admitting to breaking Law Society rules. Last time, she practised while suspended and received a reprimand: Law Society of Upper Canada v. Batstone, 2015 ONLSTH 214 (CanLII) (“Batstone 2015”). This time, she did not keep her books and records properly.

Here, the parties agreed on the facts and that Ms. Lyons-Batstone engaged in professional misconduct. The main question was the appropriate penalty. There are significant mitigating factors, notably the circumstances stemming from her indigenous background and medical conditions. Without these mitigating factors she would almost certainly have been suspended in 2015 and be receiving a longer suspension this time.

Ms. Lyons-Batstone submitted that the application should be dismissed following an invitation to attend, while the Law Society proposed a reprimand and a practice review. My concern with both parties’ proposals was that the misconduct here occurred at the very same time that the importance of following Law Society rules was emphasized to her through a reprimand. Given that, and the evidence at the hearing, I decided that progressive discipline required a stronger penalty to achieve specific deterrence and maintain public confidence. I ordered that Ms. Lyons-Batstone pay a fine of $3,500 and I emphasized to her that she would almost certainly receive a suspension if she was before the Tribunal a third time. I ordered the practice review proposed by the Law Society and an additional $3,500 in costs.

The web page of the University of British Columbia has information about the residential schools.

The term residential schools refers to an extensive school system set up by the Canadian government and administered by churches that had the nominal objective of educating Aboriginal children but also the more damaging and equally explicit objectives of indoctrinating them into Euro-Canadian and Christian ways of living and assimilating them into mainstream Canadian society. The residential school system operated from the 1880s into the closing decades of the 20th century. The system forcibly separated children from their families for extended periods of time and forbade them to acknowledge their Aboriginal heritage and culture or to speak their own languages. Children were severely punished if these, among other, strict rules were broken. Former students of residential schools have spoken of horrendous abuse at the hands of residential school staff: physical, sexual, emotional, and psychological. Residential schools provided Aboriginal students with an inferior education, often only up to grade five, that focused on training students for manual labour in agriculture, light industry such as woodworking, and domestic work such as laundry work and sewing.

Residential schools systematically undermined Aboriginal culture across Canada and disrupted families for generations, severing the ties through which Aboriginal culture is taught and sustained, and contributing to a general loss of language and culture. Because they were removed from their families, many students grew up without experiencing a nurturing family life and without the knowledge and skills to raise their own families. The devastating effects of the residential schools are far-reaching and continue to have significant impact on Aboriginal communities. Because the government’s and the churches’ intent was to eradicate all aspects of Aboriginal culture in these young people and interrupt its transmission from one generation to the next, the residential school system is commonly considered a form of cultural genocide.

From the 1990s onward, the government and the churches involved—Anglican, Presbyterian, United, and Roman Catholic—began to acknowledge their responsibility for an education scheme that was specifically designed to “kill the Indian in the child.” On June 11, 2008, the Canadian government issued a formal apology in Parliament for the damage done by the residential school system. In spite of this and other apologies, however, the effects remain.

(Mike Frisch)

March 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)