Saturday, June 3, 2017

Attorney Suspended For Confidentiality Breach That Led To Client's Death Seeks Reinstatement

A very interesting oral argument last week before the Maryland Court of Appeals on a petition for reinstatement is linked here.

Most of the time is devoted to the arguments of petitioner's counsel, who makes a persuasive and compelling presentation on behalf of her client.

Bar Counsel consents to reinstatement. 

One aspect of the argument involves the petitioner's concession that he should be reinstated subject to monitoring conditions and the court's concerns about that proposal. Bar Counsel acknowledged that Maryland has not previously reinstated a suspended/disbarred attorney with conditions. 

The discipline case that led to the attorney's indefinite suspension by consent is described here by the Baltimore Sun

A Baltimore County attorney who acknowledged having inadvertently disclosed information that led to a client's murder agreed to an indefinite suspension of his law license, records show.

Larry J. Feldman, an attorney for 17 years, will be suspended from practicing law as of Saturday after agreeing that he violated provisions of the Maryland Lawyer's Rules of Professional Conduct when he told Tavon Davis more than four years ago that prosecutors wanted to speak with his client, Isiah Callaway, in a criminal investigation.

Davis had hired Feldman in late 2010 to represent Callaway, 19, a suspect in a check fraud scheme. Documents related to the license suspension say the attorney did not know that Davis also was a suspect in the fraud scheme until after Callaway's murder.

After Feldman told Davis that federal prosecutors wanted to speak to Callaway, Davis hired a hit man to kill Callaway in East Baltimore.

Feldman told The Baltimore Sun in 2011 that, "In a million years, I never thought anything would lead to Isiah's death."

According to documents from the Attorney Grievance Commission, Callaway and Davis referred to each other as brothers and Callaway had insisted that Davis sit in on one meeting with Feldman.

 But in federal criminal proceedings, Davis testified that Feldman joked about having Callaway killed, suggesting that Davis could "send him to Costa Rica or get rid of him the Sicilian way."

Callaway's family alleged in a lawsuit that Feldman had been fully informed of the check fraud scheme and that Davis had told him that he wanted to be insulated from criminal liability. The grievance commission documents show Feldman agreed to a "substantial confidential settlement" in that case.

Feldman's agreement with the commission states that he "wrongly and improperly concluded that he was authorized to speak with Davis" about Callaway's case.

Such sanctions against attorneys in Maryland are rare. The grievance commission receives about 1,900 complaints a year, and in fiscal year 2014 sanctioned 87 attorneys. That includes 26 who were disbarred, down from an all-time high of 47 in fiscal year 2012.

Feldman, who also acknowledged having accepted prostitution services from another client, had not been disciplined previously by the commission. He cooperated with federal investigators and was prepared to testify if needed in the Callaway murder case, and the commission noted that he had provided thousands of hours of free legal work.

Court filings show Davis told a friend that he was the "schmuck of the year" for ordering Callaway's death, realizing the penalty for the original check fraud scheme would have been much less than he faced for having someone killed. Davis was sentenced to 35 years in federal prison in the murder case.

Bruce Byrd, who was convicted of carrying out the shooting, received 40 years in prison. Another conspirator, Frank Marfo, received a life term. Federal authorities said there was no evidence to warrant charging Feldman.

Feldman and his attorney did not return calls seeking comment. A recording at his law office phone number says he is not accepting new clients.

Our earlier coverage (noting civil litigation brought by the deceased client's family)  is linked here.

Update: Reinstatement granted today.

Monitoring

Within fifteen ( 15) days of the date of this Order, Petitioner shall enter into a monitor agreement pursuant to Maryland Rules 19-742( e)(2) and 19-752(i)(8), with a monitor acceptable to Bar Counsel, and that the monitor agreement shall remain in effect until further order of this Court...

(Mike Frisch)

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

Malpractice Claim May Proceed

A legal malpractice claim may proceed per a decision of the New York Appellate Division for the First Judicial Department

The court properly declined to dismiss the corporate plaintiff's claim that it would not have accepted the landlord's buyout offer of the remaining six years on its commercial lease if it had been properly advised by W & S of a $400,000 New York City corporate tax obligation it would have to pay on the buyout figure. Deposition testimony and affidavits offered from the corporate plaintiff's principal assert that it was W & S's responsibility to ensure that the negotiated buyout covered all of plaintiff's anticipated relocation expenses and attendant tax obligations such that plaintiff would not be out of pocket financially when relocating to allow the nonparty landlord to undertake a major renovation of its building. Under the circumstances presented, triable issues exist as to whether, but for W & S's failure to inform plaintiff of the corporate tax obligation, plaintiff would have declined the buyout offer, remained in its existing leasehold and avoided any damages associated with having to pay, out of pocket, a corporate tax on the buyout sum (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007]; Miuccio v Straci, 129 AD3d 515 [1st Dept 2015]).

Another branch of the malpractice claim alleged that but for counsel's negligence in failing to raise the tax issue, the landlord would have offered a higher buyout figure to cover the New York City corporate tax obligation. This branch of the claim is also viable. Although the claim is founded upon a discretionary decision residing in another over whom the corporate plaintiff had no control, the circumstances support plaintiff's contention that the landlord would have agreed to satisfy the tax liability. As we opined in sustaining the malpractice cause of action in the complaint on defendant's motion to dismiss, plaintiff had a strong bargaining position because the amount of time left on the lease, as well as the importance of the leased space to the landlord's conversion plans, would have pressured the landlord to acquiesce to plaintiff's relatively minor request (see Leggiadro, Ltd. v Winston & Strawn, LLP, 119 AD3d 442, 442-443 [1st Dept 2014]; see also Campbell v Rogers & Wells, 218 AD2d 576, 580 [1st [*2]Dept 1995]; Khadem v Fischer & Kagan, 215 AD2d 441, 443 [2d Dept 1995]). W & S has not proffered any new probative evidence to counter this aspect of plaintiff's legal malpractice claim.

(Mike Frisch)

June 3, 2017 in Clients | Permalink | Comments (0)

Attorney Convicted Of Home Invasion Consents To Disbarment

A convicted attorney has filed a consent to disbarment in Illinois.

On December 3, 2014, Movant was formally charged by way of indictment in the Circuit Court of the 19th Judicial Circuit in Lake County with the offenses of home invasion, aggravated discharge of a firearm, reckless discharge of a firearm, aggravated unlawful use of a weapon and criminal trespass to residence in the matter of People of the State of Illinois v. Raymond Clutts, docket number 14 CF 3091. Count Two of that indictment charged Movant with home invasion, in violation of 720 ILCS 5/19-6(a)(3). Count Three of that indictment charged Movant with aggravated discharge of a firearm, in violation of 720 ILCS 5/24-1.2(a)(2).

On February 23, 2017, Movant entered into a voluntary plea of guilty to an amended Count Two, which charged him with attempt home invasion, in violation of 720 ILCS 5/8-4, and Count Three, aggravated discharge of a firearm. As part of the plea agreement, Movant stipulated that a trier of fact could find Movant guilty of attempt home invasion and aggravated discharge of a firearm, based on testimony from Movant’s daughter and former spouse that the women lived at a home in Hawthorne Woods, and that in the early evening hours of November 7, 2014, while both women were at home, Movant entered their home while armed with a firearm and threatened them with the imminent use of force while inside their home.

 Movant further stipulated that if those witnesses were called, they would testify that while in the house he discharged a firearm in the direction of his former spouse.

On February 23, 2017, Judge Victoria Rossetti sentenced Movant to nine years and 11 months in the Illinois Department of Corrections on the amended Count Two, attempt home invasion, and 48 months of felony probation with standard conditions of probation on Count Three, aggravated discharge of a firearm, to be served consecutive to amended Count Two.

The Chicago Tribune covered the criminal case.

The incident leading to the charges against Clutts began when police received a 911 call reporting multiple gunshots fired at his ex-wife's Hawthorn Woods home.

According to authorities, Clutts fired a gun in the home several times when his wife and a child were present.

When police arrived, an officer discharged his weapon but did not strike Clutts, police said, and officers then took him into custody. A gun was recovered at the scene.

The occupants of the house had fled to a neighbor's residence after Clutts began firing the shots, police said. Officials said Clutts was able to enter the home through an unlocked door.

(Mike Frisch)

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

Friday, June 2, 2017

Reprimand For "Aberrational" Sex With A Client In New Jersey

The New Jersey Supreme Court has reprimanded an attorney, adopting  the sanction proposed by the Disciplinary Review Board.

The DRB  letter notes that the attorney handled a divorce as well as an immigration matter for the client. 

On October 23, 2003, [client] Ponti’s Final Judgment of Divorce was entered. Soon thereafter, respondent appeared with Ponti at her citizenship hearing. Her application was denied, however, because she was no longer married to a United States citizen and had not been a lawful permanent resident for at least five years. As a result, Ponti would be required to wait additional time before reapplying for citizenship.

On the day of the hearing, Ponti and respondent met at his office and drove together to the hearing in Newark, New Jersey. Because of the denial of her citizenship application, Ponti was emotionally distraught. After the hearing, Ponti and respondent went to a restaurant in New York. Afterward, they returned to respondent’s office after normal business hours. While they were alone in the office, respondent and Ponti engaged in sexual relations. Although respondent and Ponti disagree on the circumstances under which the initial sexual contact was made, both agree that they had sexual relations on the evening of the hearing.

Respondent admitted that, at a time of emotional turmoil for her, he began a sexual relationship with his client, Ponti. By all accounts, this relationship was consensual. Nonetheless, this conduct violated RPC 1.7(a)(2) because Ponti was emotionally vulnerable at the time. As her counsel, respondent should have exercised better judgment.

 And

between April 26, 2005 and July 18, 2005, Ponti authorized four wire transfers in varying amounts, from her corporate business account, into respondent’s Buffalo Creek Ranch, Inc., checking account. In each instance, within a few days, and, on one occasion, on the same day, respondent repaid the loans by issuing a check either from his Buffalo Creek account or from a personal checking account he held jointly with his wife, and then signed Ponti’s name to the checks and deposited them into her corporate business account.

Respondent failed to provide Ponti with a writing fully disclosing the terms of the loans; failed to advise Ponti, in writing, of the desirability of seeking independent advice regarding the loans and their terms; and failed to obtain Ponti’s written, signed consent for the loans. Hence, he entered into a prohibited business transaction with his client by taking several small loans from her totaling $17,500; a violation of RPC 1.8(a).

The New Jersey law on sex with a client

Although it is not per se unethical for an attorney to enter into a sexual relationship with a client, the relative positions of the parties must be scrutinized to determine whether the relationship was prohibited...

Here, respondent did not engage in a sexual relationship with an appointed client; hence, unlike the attorneys in the above cases, he was not in a superior role vis-a-vis his client. Ponti, however, was in an emotionally vulnerable state in that her citizenship application had been denied, in part, because respondent’s firm made certain mistakes in handling the application in conjunction with her divorce. Thus, his conduct clearly violated RPC 1.7(a)(2).

Sanction

In mitigation, respondent has expressed remorse for his conduct, which was aberrational. He readily admitted wrongdoing, stipulated to the facts, and consented to discipline. He also promptly repaid all loans he received from Ponti; thus, she incurred no economic injury. Finally, respondent has no history of discipline in thirty-seven years at the bar. On its own, in light of the mitigating factors, the discipline for respondent’s relationship with his client would likely be on the cusp between an admonition and a reprimand. Respondent, however, also entered into an improper business transaction with his client. Therefore, the Board determined that a reprimand was warranted.

(Mike Frisch)

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

Practicing Architecture Without A License

The Oregon Supreme Court reversed in part the Court of Appeals and agreed that individuals had practiced architecture without a license

The Oregon Board of Architect Examiners (board) seeks review of a decision of the Court of Appeals that reversed in part the board’s determination that respondents (the Washington firm Twist Architecture & Design, Inc., and its principals, Callison and Hansen), engaged in the unlawful practice of architecture and unlawfully represented themselves as architects. ORS 671.020(1).1 The board urges this court to conclude that respondents, who were not licensed to practice architecture in Oregon, engaged in the “practice of architecture” when they prepared master plans depicting the size, shape, and placement of buildings on specific properties in conformance with applicable laws and regulations for a client that was contemplating the construction of commercial projects. The board further urges that respondents’ use of the term “architecture” in the logo on those master plans and the phrase “Licensed in the State of Oregon (pending)” on their website violated the law prohibiting unlicensed individuals from representing themselves as architects or indicating that they are practicing architecture. For the reasons that follow, we agree with the board. Accordingly, we reverse in part the decision of the Court of Appeals, Twist Architecture v. Board of Architect Examiners, 276 Or App 557, 563, 369 P3d 409 (2016), and affirm the board’s order.

...respondents were paid to plan commercial shopping center buildings for a client who was contemplating the construction of the buildings shown in the plans. Respondents described their services as “architectural design” services and provided their client with master plans that showed details such as the precise size, shape, and placement of the buildings on a specific piece of property in conformance with applicable laws and regulations. In that circumstance, we conclude that respondents “plann[ed]” “buildings” for purposes of ORS 671.010(6), and thus engaged in the “practice of architecture” without licenses to do so in violation of ORS 671.020(1).

And

In addition to prohibiting the unlicensed practice of architecture, ORS 671.020(1) also prohibits one who is not licensed to practice architecture in Oregon from using “any title, sign, cards or device indicating or tending to indicate, that the person is practicing architecture.” Because we have concluded that respondents’ preparation of master plans for Gramor constituted the “practice of architecture” under ORS 671.020(1), respondents violated that statute when they used their logo on those plans. That logo included the words “Twist” and “Architecture,” indicating that respondent Twist was practicing architecture in the preparation of the plans on which the logo was used.

No refuge in the First Amendment

the false statements about pending licensure on respondents’ website, when viewed in conjunction with information on the website about architectural projects in Oregon, could mislead Oregon consumers into believing that respondents were authorized to practice architecture in Oregon. We reject without further discussion respondents’ contentions that such speech was constitutionally protected.

(Mike Frisch)

June 2, 2017 in Comparative Professions | Permalink | Comments (0)

Plagiarism Does Not Prevent Bar Admission In Wisconsin

The Wisconsin Supreme Court admitted an applicant who had engaged in plagiarism as a law student notwithstanding the adverse conclusion of its Board of Bar Examiners.

The Board's refusal to certify that Mr. Nichols satisfied the character and fitness requirements for admission to the Wisconsin bar was based primarily on Mr. Nichols' academic misconduct during his third year in law school and his failure to disclose certain matters on his bar application. After careful review, we reverse and remand the matter to the Board for further proceedings.

We appreciate the Board's concern regarding this applicant. We appreciate the thorough investigation the Board conducted into Mr. Nichols' background and past conduct. Mr. Nichols' application raised significant questions about his fitness to practice law. The duty to examine an applicant's qualifications for bar admission rests initially on the Board, and this court relies heavily on the Board's investigation and evaluation. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating admission to the Wisconsin bar. See In re Bar Admission of Rippl, 2002 WI 15, ¶3, 250 Wis. 2d 519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren, 2003 WI 37, ¶2, 261 Wis. 2d 150, 661 N.W.2d 27.

While we understand the Board's decision, we conclude that the incidents the Board relied upon, while troubling, are sufficiently offset by positive character evidence to warrant our conclusion that Mr. Nichols may be admitted to the practice of law in Wisconsin, albeit with conditions. Accordingly, we reverse.

The applicant had accepted an unpaid internship with the Office of the Lieutenant Governor and 

During the fall of 2014, his third year in law school, Mr. Nichols struggled to manage his work, volunteer service, and academic coursework. He began to neglect his academic work, including a Law of Democracy course. The grade for the course was almost solely based on a thirty-page research paper due at the end of the semester. The syllabus for the course stated that plagiarism would result in a failing grade.

Mr. Nichols submitted a final paper. The professor used an anti-plagiarism software program to check student papers. The report revealed that Mr. Nichols' final paper contained extensive language copied verbatim or nearly verbatim from four published law review articles, without citations. The repetition and nature of the matches led the professor to conclude that this could not have been coincidental. Mr. Nichols did not credit, in any form, the four law review articles from which he obtained the passages. The professor concluded that large portions of Mr. Nichols' final paper were plagiarized.

He admitted the misconduct when confronted

As a sanction, Mr. Nichols received a failing grade on the paper and in the course. The UW-Madison Dean of Students' Office also reviewed the matter and imposed an additional sanction, requiring Mr. Nichols to take an on-line course on academic integrity and research methods. Mr. Nichols did so, and passed the exam.

Also

In the spring of 2015, his final year, Mr. Nichols failed his required Professional Responsibility course because he failed to comply with the attendance policy; a student who received more than three unexcused absences would fail the course. Mr. Nichols retook the course and graduated from law school in December 2015. 

He then sought admission based on diploma privilege but the Board 

The Board serves the critically important role as a gatekeeper to admission to the bar. The Board was right to be deeply concerned by Mr. Nichols' record. Still, as in Jarrett, this court has reviewed this record and has opted to afford this applicant the benefit of the doubt. We conclude that Mr. Nichols can be admitted to the practice of law, subject to the imposition of certain conditions.  In reaching this conclusion we are influenced by the fact that employers who work closely with Mr. Nichols speak highly of him as an individual, and of his work ethic. The omissions on his bar application were careless, but the items omitted do not, themselves, reflect poorly on Mr. Nichols' character. We are also influenced by the fact that the professor of the class in which Mr. Nichols committed academic misconduct supports his admission to the bar. The professor noted that Mr. Nichols had been "forthright in acknowledging his errors and accepting responsibility," and that he seems genuinely contrite. The professor noted further that Mr. Nichols "has paid a real price for his actions, with an F on his transcript and his misconduct made the admission process vastly more time consuming, expensive, and stressful."

Thus

we direct the Board to certify Mr. Nichols' admission to practice law in Wisconsin. Mr. Nichols' admission to the practice of law in Wisconsin is contingent on his compliance with certain requirements set forth in this decision as well as certain conditions on his license to practice law.

We direct the Office of Lawyer Regulation (OLR) to identify and appoint a practice monitor to serve as a mentor to Mr. Nichols and to supervise and oversee Mr. Nichols' practice of law and related professional activities for a period of two years following the practice monitor's appointment. The practice monitor shall be licensed to practice law in Wisconsin and be located in the region of Mr. Nichols' place of employment or residence.

(Mike Frisch)

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

Reciprocal But Not Identical

The Wisconsin Supreme Court imposed a reciprocal six-month suspension based on a sanction imposed by the United States Patent & Trademark Office

We first observe that the USPTO, a federal agency with its own licensing and disciplinary proceedings, is appropriately considered "another jurisdiction" for purposes of our reciprocal discipline rule... Accordingly, we consider the following facts, which are taken from the OLR's complaint and from the certified documents attached to the OLR's complaint relating to the underlying disciplinary proceeding. 

The attorney had defaulted on the PTO charges and failed to notify Wisconsin of the ensuing sanction.

Judge Ann Walsh Bradley concurred

I agree with the court's mandate but I write separately to state my disagreement with the court's statement in ¶14 of the opinion which states, "We agree that identical discipline is not an option in this case so a different sanction must be imposed." The United States Patent and Trademark Office (USPTO) excluded Attorney Carl J. Schwedler from practice. The Office of Lawyer Regulation (OLR) has advised this court that "exclusion from practice" before the USPTO effectively means disbarment for five years. Majority op., fn 1.

We could indeed impose identical discipline. We could revoke Attorney Schwedler's license to practice law in Wisconsin under SCR 21.16(1m)(a)...

Rather, in this case we exercise our discretion and opt to impose a lesser sanction in the form of a six-month suspension of Attorney Schwedler's law license. For the reasons set forth, I write separately.

I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this concurrence.

(Mike Frisch)

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

No Suspension For Former Prosecutor

The West Virginia Supreme Court of Appeals has reprimanded a former prosecutor for domestic battery and violating a court order

This lawyer disciplinary proceeding is before the Court upon the written objection of the Office of Disciplinary Counsel (“ODC”) of the Lawyer Disciplinary Board (“LDB”) to the sanctions recommended by the Hearing Panel Subcommittee (“HPS”) of the LDB. The HPS found that Respondent Mark S. Plants violated three provisions of the West Virginia Rules of Professional Conduct and recommended that Mr. Plants be publicly reprimanded and pay the costs of these proceedings. Mr. Plants does not challenge the recommended sanctions.

The ODC asserts that the appropriate sanction in this case is a suspension of Mr. Plants’s license to practice law for three months based upon the seriousness of the violations involving domestic battery and the knowing violation of a court order by this former elected prosecuting attorney. The ODC also urges this Court to address the admissibility of expert testimony offered on the issue of violations of the West Virginia Rules of Professional Conduct.

...we adopt the sanctions recommended by the HPS. 

The story

The charges filed by the ODC against Mr. Plants arose out of two incidents that resulted in criminal complaints against him. First, on February 26, 2014, Allison Plants, Mr. Plants’s ex-wife (“Ms. Plants”), reported to the West Virginia State Police that Mr. Plants had injured their son by whipping him with a belt. The next day, Ms. Plants filed a Domestic Violence Petition seeking protection for herself and their two minor children. The magistrate/family court issued a Domestic Violence Emergency Protective Order (“Emergency Protective Order”) on February 27, 2014, concluding that Ms. Plants had proved “the allegations of domestic violence or abuse by clear and convincing evidence of immediate and present danger of abuse.”

...On March 17, 2014, while the Emergency Protective Order was in effect, Ms. Plants reported that in the parking lot at the Fruth Pharmacy in Charleston, West Virginia, Mr. Plants spoke to their two children at her vehicle and then spoke to her. During the hearing before the HPS, Mr. Plants admitted that he spoke with his children but denied that he communicated with Ms. Plants. Mr. Plants further acknowledged that he was aware of the terms of the Emergency Protective Order at the time of this incident. The evidence adduced during the hearing was that as Mr. Plants was exiting Fruth Pharmacy, Ms. Plants entered the same location. After exiting Fruth Pharmacy, Mr. Plants observed his children waving to him from inside Ms. Plants’s car in the parking lot and he walked over to speak with them. After Ms. Plants returned to her car, Mr. Plants walked away. The next day, the State Police filed a criminal complaint in magistrate court charging Mr. Plants with violating the Emergency Protective Order based upon this incident. 

Sanction

The ODC urges this Court to impose a harsher sanction than public reprimand in this lawyer disciplinary matter but takes no other issue with the findings of fact and conclusions of law of the HPS. According to the ODC, Mr. Plants’s conduct warrants a stronger sanction to send a clear message that when an elected prosecuting attorney engages in conduct that results in a conflict of interest and knowingly violates the terms of a court order, this Court will suspend that prosecutor’s license because such conduct violates the public trust in the very official elected to enforce the law. The ODC urges this Court to impose a three-month suspension of Mr. Plants’s law license...

In this case, the HPS found three mitigating factors: (1) Mr. Plants did not have a prior disciplinary record; (2) Mr. Plants had been removed from office as the elected Prosecuting Attorney of Kanawha County; and (3) the magistrate court dismissed the misdemeanor criminal complaints against Mr. Plants. The HPS also found one aggravating factor: Mr. Plants refused to acknowledge his wrongful conduct when he maintained that he did not commit a crime by speaking with his children in violation of the Emergency Protective Order. Taking into account these mitigating and aggravating factors, the HPS recommended that Mr. Plants be publicly reprimanded...

As the final arbiters of the discipline to be imposed in this case, we know we must keep in mind our prior decisions involving public officials generally and prosecuting attorneys specifically and take into account our responsibility to consider not only appropriate punishment on a case-by-case basis, but also our goals of achieving a deterrent effect and the restoration of public confidence in the ethical standards of the legal profession. Given the facts and circumstances of this case, we are not persuaded that suspending Mr. Plants would achieve the goal of holding him to a higher standard as a former prosecutor or would send a stronger message than a public reprimand... 

The misdemeanor criminal charges against Mr. Plants were dismissed based upon his full compliance with the requirements of a pre-trial monitoring agreement. He accepted the ruling removing him from office as prosecuting attorney and did not extend those proceedings by filing an appeal. Finally, we note that he had no prior disciplinary record. We agree with the HPS, which observed that “despite the fact that [Mr. Plants] held public office at the time of the incidents in question and, as such, may be held to a higher standard in these proceedings, the sanctions imposed must be justified by the conduct of Respondent, rather than linked to any publicity the matter may have received.” The hearing record is replete with testimony regarding personal and political matters, the discussion of which would not serve our goals for this proceeding. We conclude that given Mr. Plants’s circumstances as a former prosecutor and current sole practitioner, suspension would not serve as a greater punishment to him or deterrent to others than removal from office has already served. 

The court held that the issue of admission of expert testimony - the attorney's former counsel opined as a expert that he had violated no ethics rules - was moot.

During the course of discovery, Mr. Plants retained Robert H. Davis, Jr., who had previously served as his legal counsel, as an expert witness on the Rules of Professional Conduct. In an evidentiary deposition, Mr. Davis testified that Mr. Plants’s conduct did not violate the West Virginia Rules of Professional Conduct. The ODC filed a pre-hearing motion in limine to preclude the expert testimony. The HPS denied the motion, concluding that “having reviewed the transcript in its entirety, [the HPS] will give said testimony such weight as the Hearing Panel Subcommittee members determine appropriate when making the recommended disposition to the Supreme Court of Appeals of West Virginia, pursuant to Rule 3.10 of the Rules of Disciplinary Procedure.”

...In this case, while the HPS ruled in a pre-hearing motion that the deposition testimony could be offered into evidence at the disciplinary hearing, the HPS ultimately gave no weight whatsoever to Mr. Davis’s opinions in its report to this Court. Since we have adopted the HPS’s recommended sanction of public reprimand without modification in this proceeding, the HPS’s admission of the testimony of Robert M. Davis, Jr. is moot. Consideration of its admissibility at the hearing below would avail nothing in the determination of the appropriate sanction to be imposed upon Mr. Plants, which is the only issue before us.

(Mike Frisch)

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

Partners In Crime

The Kansas Supreme Court accepted the consent disbarment of a convicted attorney.

The Kansas City Star (Tony Rizzo) reported in February 2017

A Kansas City lawyer pleaded guilty Friday to conspiring with his former law partner to steal money from St. Luke’s Health System.

Mark J. Schultz pleaded guilty in U.S. District Court in Kansas City to a conspiracy charge.

His former law partner, Alan B. Gallas, pleaded guilty last April to mail fraud and and on Friday was sentenced to one year in federal prison.

Federal prosecutors said in court documents that Gallas had provided “substantial assistance” that led to Schultz being prosecuted.

As a result of his cooperation, prosecutors asked the judge Friday to give to give him a lesser sentence than what is called for in sentencing guidelines.

 Gallas, 65, was ordered to pay restitution of $1,224,264. He was ordered to surrender to begin serving his sentence by April 10.

They had been partners since forming the law firm of Gallas & Schultz in 1992.

St. Luke’s Health Systems was one of the firm’s clients.

The firm was tasked with collecting money from patients who were behind on payments to the hospital system.

Money collected by the firm was placed in a trust account, and periodically the money was forwarded to St. Luke’s.

But according to court documents, between 2009 and 2015 Gallas directed that more than $1.2 million collected for St. Luke’s be transferred to the law firm’s operating account.

According to the documents: 62 payments totaling $89,495 were withheld in 2009; 439 payments totaling $132,167 in 2010; 613 payments totaling $79,776 in 2011; 601 payments totaling $211,391 in 2012; 699 payments totaling $266,696 in 2013; 625 payments totaling $227,892 in 2014; and through July 2015, there were 625 payments totaling $216,845.

In his plea agreement filed Friday, Schultz admitted to conspiring to withhold some of those payments from January 2014 to July 2015.

Prosecutors and defense attorneys do not agree on the amount of money involving Schultz, according to the plea agreement, and will argue that point at sentencing.

Gallas is a former president of the Kansas City Metropolitan Bar Foundation.

He voluntarily surrendered his law licenses in Kansas and Missouri and has been disbarred in both states.

Schultz’s law licenses are still active in Kansas and Missouri, court officials in both states said Friday.

(Mike Frisch)

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

Facebook Post Draws Admonishment For Judge

The Orange County Register reports on a sanction imposed on a judge in part for a Facebook post

An Orange County Superior Court judge was admonished by a state watchdog agency for making an inappropriate comment about a judicial candidate on Facebook and remaining Facebook “friends” with attorneys appearing before him in court.

In a Wednesday statement, the Commission on Judicial Performance publicly admonished Judge Jeff Ferguson for violating the Code of Judicial Ethics.

The agency said Ferguson posted a comment “with knowing or reckless disregard for the truth of the statement.”

On April 26, 2016, an attorney vying for a judicial seat against Orange County Superior Court Judge Scott Steiner posted a statement on the North Orange County Bar Association Facebook page.

The candidate wrote, referring to Steiner’s censure by the commission in 2014 for allegedly having sex in his chambers with two of his former law students: “Scott Steiner uses his office for sex and yet so many aren’t concerned, crazy politics!”

Judge Ferguson, in support of Steiner, wrote in response that the candidate “has sex with defense lawyer whike [sic] shw [sic] is a DA on his cases and nobody cares. Interesting politics.”

Ferguson removed the comment after the candidate responded to the post by writing: “I’m sure The Judicial Commission of Performance would love to know about your blogging!!”

The candidate lost the race to Steiner, who was re-elected last year.

The commission said Ferguson “undermined public respect for the judiciary and the integrity of the electoral process” in his Facebook post.

“The judge claimed to be relying on ‘commonly known information’ from many years ago when he made his post but he could provide no factual support for this reference,” the agency wrote, adding that the candidate and the defense attorney denied any intimate involvement while working on the same cases.

The agency said the judge acknowledged that he was wrong to write the post and recognized that it fell outside the bounds of professionalism.

The judicial commission also admonished Ferguson for being Facebook friends with three Orange County criminal defense attorneys who had appeared regularly before him in court. The judge “unfriended” the attorneys after he was contacted by the commission.

Paul Meyer, Ferguson’s attorney, said in a statement: “Judge Ferguson’s quick, late-night retort was posted for only a few minutes before he voluntarily removed it. Judge Ferguson again apologizes for his thoughtless comment.”

Ferguson was elected in 2014 for a term expiring on Jan. 4, 2021.

The admonishment is linked here.

The commission found that Judge Ferguson's post claiming that Ms. Schatzle was having sex at the time, or had sex in the past, with defense attorney while she was prosecutor on his cases was made with knowing or reckless disregard for the truth. Ms. Schatzle and the defense attorney referred to in Judge Ferguson's post deny any intimate involvement while they were appearing on the same cases. In his response to the preliminary investigation letter from the commission, Judge Ferguson stated that many years ago Ms. Schatzle was frequent subject of discussion for her intimate relationship with the defense attorney, and when he saw her post, he "immediately thought of this commonly known information, and without thought repeated it." Judge Ferguson could provide no factual support for his reference to "commonly known information" that Schatzle and the defense attorney appeared on the same cases during the time they were in an intimate relationship. He submitted declaration from one attorney who purportedly had knowledge of the relationship. The attorney admitted having no evidence that Ms. Schatzle and the defense attorney were working on opposite sides of cases while involved in an intimate relationship. Judge Ferguson acknowledged that he was wrong to write the post, recognized that it fell outside the bounds of professionalism and the decorum expected of bench officer, and apologized for his conduct.

On the ethics of friends

For period of time after becoming judge, Judge Ferguson was Facebook friends with Orange County criminal defense attorneys Jeffrey D. Kent, Ray Dinari and Bob Hickey while they had cases pending and appeared regularly before him in court. The judge did not disclose that he was Facebook friends with these attorneys.

Noting a 2010 opinion

Judge Ferguson stated he agrees with the CJA opinion and that he unfriended the attorneys promptly after being contacted by the commission concerning this matter.

(Mike Frisch)

June 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Shut Up, My Friend

A Hearing Panel of the British Columbia Law Society imposed a $5,000 fine and costs as a sanction based on the attorney's admission of misconduct in an in-court verbal exchange. 

The Respondent’s professional conduct record includes a third conduct review in October 2013.  The Respondent had contacted the Law Society for guidance the day after he realized he had acted wrongly in a matter, but he did not follow the guidance until almost one month later.  At that time, he had moved to Smithers; was unable to obtain employment with a firm and was practising alone; had completed an acrimonious divorce; was regularly communicating with the Law Society for practice advice; had remarried with a woman who had three children; and he and his new wife had a child.

The attorney represented a mother facing an order excluding her from her child's life.

At issue was the client's drug use.

The Respondent interrupted to say reports had been provided to opposing counsel on “an ongoing basis.”  This began a disagreement between opposing counsel and the Respondent during which opposing counsel spoke in a raised, antagonistic voice.

Opposing Counsel:      No, they have not.

Mr. Hudson:               They have so, I have --

Opposing Counsel:      They have not been --

Mr. Hudson:               -- the faxes

Opposing Counsel:      -- provided.

[Father]:                     Am I being --

Mr. Hudson                 Okay.  Your Honour --

[Father]:                     -- am I talking, or?

Mr. Hudson:               -- we can just adjourn this, because it’s clear that somebody is not telling the truth.  And I have confirmations showing those have been sent.

[Father]:                     There was two in June.  I haven’t received any --

[Mother]:                     You just wanna go -- 

[Father]:                     -- since then.

[Mother]:                     -- to court.

Mr. Hudson:               Shhh.  Stop.

[Mother]:                     [Indiscernible/overlapping voices]

Mr. Hudson:               Your Honour, this is -- all just needs -- let a judge hear it.  Because it is clear that [Father] is not open to the evidence that’s actually been provided, and doesn’t wish to actually see any possibility that anybody can change.  Even though she’s complied with the orders -- 

Opposing Counsel:      If my friend is finished --

Mr. Hudson:               -- and he -- 

Opposing Counsel:      -- with his speech -- 

Mr. Hudson:               -- and he also -- 

Opposing Counsel:      -- I wonder if we might move on it -- 

Mr. Hudson:               Could you shut up?

Opposing Counsel:      You shut up yourself.  You shut up.

Mr. Hudson:               No.

Opposing Counsel:      Don’t tell me to do anything back and forth like this.

The Court:                  Counsel.

Opposing Counsel:      I won’t put up with this.

The Court:                  Counsel.

Opposing Counsel:      Who the hell do you think you are anyway?

Mr. Hudson:               Excuse me.

Opposing Counsel:      Just --

The Court:                  Counsel.  Counsel, what are you doing?  What are you doing?

Opposing Counsel:      I -- I’m -- Your Honour -- 

The Court:                  Please.

Opposing Counsel:      -- I have been -- I have been -- listened to my friend make aspersions about [Father] on and on, and this -- this cannot continue.

The Court:                  Oh -- 

Mr. Hudson:               There have been no -- 

The Court:                  -- counsel -- 

Mr. Hudson:               -- aspersions, Your Honour.

The Court:                  -- please.  Look, let me just cut it short.

It is clear from the video and audio recordings and what is set out in the Agreed Statement of Facts that, during this exchange opposing counsel rose to his feet and approached the Respondent.  Initially the Respondent was seated, but rose to his feet after opposing counsel approached him while shouting at him and jabbing his finger in the Respondent’s face several times.

Judge Hoy intervened and expressed his disappointment in the conduct of counsel.  He concluded the case conference, referred the parties to the judicial case manager and adjourned.

Ah, Canada. Where attorneys may refer to another as "my friend" while telling him to just shut up.

The attorney apologized for the incivility

There is no fixed range of discipline for incivility that constitutes professional misconduct.  Recently, Law Society counsel provided a panel with a summary of penalties in panel decisions when members made discourteous or threatening remarks:  the penalties ranged from reprimands to fines ($500 to $3,000) to suspensions (1 week to 6 months). (Law Society of BC v. Foo, 2014 LSBC 21 (CanLII), para. 41)  On the facts in that case and the lawyer’s professional conduct record, the panel imposed a two week suspension.  An application to review was dismissed (2015 LSBC 34 (CanLII)), and the BC Court of Appeal dismissed an appeal.  (2017 BCCA 151 (CanLII))

We conclude that, in the circumstances of this case, a fine is appropriate discipline. 

We find the proposed disciplinary action of a $5,000 fine in this situation is balanced, proportionate and consistent with the principles applied in determining a fair and reasonable discipline in all the circumstances.  Therefore, we accept the proposed disciplinary action.

(Mike Frisch)

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

Thursday, June 1, 2017

Out Shopping

The Illinois Review Board recommends dismissal of dishonesty charges against  an attorney "in his 60s" with no record of prior discipline.

There were allegations against him arising from a grocery store incident and an offensive email

The following facts are based on the testimony of Phillip Munoz, a store manager of the Hy-Vee grocery store in Peru, Illinois. On August 10, 2013, Mr. Munoz was walking through the store when he noticed Respondent pushing a cart of groceries and placing groceries into plastic grocery bags. Mr. Munoz thought Respondent's behavior seemed suspicious so he started watching him. Mr. Munoz testified that Respondent noticed that Mr. Munoz was watching him, and left the grocery cart in the back corner of the store and went to the cafe at the opposite end of the store.

Mr. Munoz, accompanied by another manager, went to the cafe and sat down at Respondent's table, where Respondent was eating by himself. Mr. Munoz asked Respondent what was going on with the grocery cart. Mr. Munoz testified that, at first, Respondent acted dumbfounded or shocked, and then became upset and told Mr. Munoz to be sure of the accusation he was making because he would have no problem suing Mr. Munoz.

Mr. Munoz asked for a receipt for the groceries. He testified that Respondent became belligerent and said he had already purchased the groceries, and that the receipt was in the grocery cart. Mr. Munoz told Respondent he would take a look in the cart. As Mr. Munoz started to walk away from the cafe, he turned and saw Respondent walk out the front door of the store and toward a car. A cashier told Mr. Munoz that Respondent had not paid for his meal. Mr. Munoz got the license plate of the car and called police. The cost of Respondent's meal was $5.99 plus tax. Mr. Munoz testified that he found no receipt in the grocery cart.

Respondent eventually was charged with retail theft, a misdemeanor, for allegedly taking the meal at Hy-Vee without paying for it. The prosecutor assigned to the case and Respondent negotiated a guilty plea to a lesser offense of disorderly conduct. The information charged Respondent with "knowingly creat[ing] a disturbance, while located at the Hy-Vee," in such an unreasonable manner as to alarm and disturb Phillip Munoz, and provoke a breach of the peace." (Adm. Ex. 1 at 2.) Respondent was sentenced to two months' supervision and ordered to pay $300 in fines and costs and $6.44 in restitution to Hy-Vee. He eventually paid those amounts in full, although he was late in doing so.

And

Prior to her death, Respondent's mother lived in a condominium in Chicago. The condominium development had a condominium association, of which Gerlyn Delaney was president and Alfredo Valasco was treasurer.

Over the course of a few days in January 2012, Respondent sent three e-mails to Ms. Delaney, complaining about a plumbing leak in his mother's condo unit, which appeared to be coming from the unit above. In all three e-mails, Respondent used derogatory language about the upstairs owners and condo association board members. In the second e-mail, he threatened to sue the upstairs owners as well as the condo association, and included "The Law Offices of Daniel G. Donovan" at the bottom of the e-mail. In the third e-mail, which he sent minutes after the second one, Respondent stated: "Further, if you really want me to solve this on my own, your asshole co-board member who you are protecting is going to get a crowbar over his head. Maybe in the legs because his head is too hard, he won't get the point." (Adm. Ex. 3, at 5.)

Ms. Delaney testified at Respondent's hearing that she felt scared and threatened by the third e-mail, not only for herself but mainly for Mr. Valasco, whom Respondent was referring to in the e-mail.

While the hearing board had found misconduct and proposed a censure

The only misconduct that the Hearing Board found Respondent committed was dishonesty. It found that Respondent's statement to Mr. Munoz that he had paid for the groceries in his shopping cart was false. That finding, in turn, was based primarily on Mr. Munoz' testimony that there was no receipt in the cart.

Crediting Mr. Munoz's testimony as true, we find it insufficient evidence on which to base a dishonesty finding, because it does not prove clearly and convincingly that Respondent did not pay for his groceries. It proves only that Mr. Munoz did not find a receipt in the cart, which could have been because the receipt fell out of the cart or because Respondent was mistaken about where he left it. Or it could have been because Respondent did not pay for his groceries. But the absence of the receipt, even combined with Mr. Munoz's observation that Respondent walked out of the store, are insufficient to meet the Administrator's burden of proof on the issue of whether or not Respondent made a false statement to Mr. Munoz.

Moreover, Respondent's guilty plea to disorderly conduct is not enough to support a finding of dishonesty. As we noted above, there is nothing whatsoever in the criminal information against Respondent to indicate that he engaged in dishonesty. The fact that Respondent "created a disturbance" in such an unreasonable manner as to alarm and disturb Philip Munoz, and provoke a breach of the peace" does not equate to clear and convincing evidence that he made a false statement to Mr. Munoz.

Other than Respondent's guilty plea to disorderly conduct, and Mr. Munoz' testimony that he did not find a receipt in the cart and that Respondent left the store, only inadmissible hearsay was presented to show that Respondent had not paid for either the groceries or the meal.

We thus believe it was a leap of logic for the Hearing Board to conclude, based on the evidence in the record, that Respondent made a false statement to Mr. Munoz.

The attorney did not participate in the proceedings (Mike Frisch)

June 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"I Am An Immigration Attorney, and I Am Sick and Tired Of Bailing These Foreigners Out Of Jail"

More summaries from the most recent online California Bar Journal

FRANK RUSSELL WILSON [#185591], 48, of Roseville, was suspended March 31, 2017, for 90 days and placed on probation for three years. He must complete the State Bar ethics school and pass the Multistate Professional Responsibility Exam. He must abstain from use of alcohol, narcotics and controlled substances and must obey an array of substance abuse conditions.

Wilson stipulated that he was convicted by a Marin County jury of misdemeanors stemming from a day of binge drinking in 2014, during which he confronted two Farsi speaking individuals in a shopping center parking lot and demanded they speak English. He told them he was an immigration attorney who had the right to arrest them and “take [them] away.” He pushed one of the individuals on his chest with both hands. When one called 911, Wilson followed and harassed him and threatened to “beat the fucking shit out of [you].” When arrested by police, Wilson said, “Well, I guess you can’t kick another guy’s ass in Marin County anymore” and “I am an Immigration Attorney, and I am sick and tired of bailing these foreigners out of jail.” At the time, Wilson was on probation for a 2011 DUI conviction.

In aggravation, Wilson had a prior record of discipline, he committed multiple acts of wrongdoing, he caused significant harm to the public and he failed to comply with terms of his criminal DUI probation. As a practicing immigration law attorney, his conduct was egregious. In mitigation, Wilson acknowledged his misconduct.

PETER JOSSERAND XIII [#146182], 62, of Paso Robles, was placed on probation March 31, 2017, for one year with a one year stayed suspension. He must complete the State Bar ethics school and pass the Multistate Professional Responsibility Exam.

In 2016, the State Bar learned of Josserand’s misdemeanor sexual battery conviction and initiated disciplinary proceedings. Josserand stipulated that in 2004 he grabbed the breast of the operations manager of the janitorial service that cleaned his office, resulting in a court finding of his guilt of misdemeanor sexual battery and a requirement that he register as a sex offender. He also acknowledged touching the breast of a second victim, adding that he hoped that by doing so, she would be aroused and want to proceed sexually. That victim declined to testify.

In aggravation, both victims said that Josserand’s misconduct continues to cause them considerable distress. In mitigation, a psychologist reported that Josserand was in a dysfunctional marriage at the time of his misconduct and that he has “effected a satisfactory adjustment.” However, given the intentional nature of the misconduct, that factor was accorded minimal mitigation. Josserand had no prior discipline at the time of his misconduct toward the first victim. He obtained a termination of his sex registration requirement in 2016. He provided 10 reference letters from persons who attested to his honesty, integrity, trustworthiness, judgment, commitment and knowledge. His risk of repeating the behavior was considered to be low.

(Mike Frisch)

June 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Insufficient Dinero Gets Attorney Disbarred

The June 2017 California Bar Journal reports on a recent disbarment

Kaplan appealed from a State Bar Court Hearing Judge’s decision that he be disbarred for failing to maintain client funds in a client trust account and intentionally misappropriating those funds, but the State Bar Court Review Department rejected his claim that he did not do so intentionally. Kaplan argued that he was grossly negligent in handling the funds during a time of personal and financial stress, but that he deserved only a two-year suspension. Placing the funds in a non-CTA account allowed his bank to seize the funds, leaving him unable to repay his client.

Both the judge and the Review Department found that Kaplan intentionally and dishonestly misappropriated client funds for his personal use and benefit. The disputed funds came from three clients who retained Kaplan to represent them in the sale of a movie script titled “Mucho Dinero" to a producer. The parties agreed on a sales price of $90,000. Kaplan placed the money in a Wells Fargo Bank checking account, not a CTA. He misrepresented to one of his clients that the money was not available for disbursement for several weeks, during which time Kaplan made more than 100 withdrawals for business and personal expenses including restaurant bills, airline tickets, credit care payments and a $15,000 payment to a resort. Kaplan made various excuses for his non-payment to the client for more than a year. The client’s sister, an attorney, demanded payment. Kaplan finally paid, three months after the State Bar filed a notice of charges against him. He testified that during this time he suffered from depressing, was getting a divorce and had significant financial and business problems. He admitted misappropriating the funds, but contended it was not intentional or dishonest and offered no plausible explanation for failing to pay the client what he was owed. In aggravation, he caused significant harm to his client, who had to liquidate stocks he had set aside for college funds and use his credit card to cover expenses while he waited for Kaplan to pay him.

Kaplan committed multiple acts of wrongdoing by making more than 100 withdrawals of the client’s funds for his own use. He showed a lack of candor and cooperation with his client. He did cooperate in the State Bar proceedings, attaining merit for entering into an extensive factual stipulation and for lack of prior discipline over 24 years in practice. He also submitted good character evidence. But he was accorded minimal mitigation for his claims of extreme emotional difficulties, because Kaplan did not show that his problems caused him to misappropriate the money. And he failed to prove that his difficulties no longer pose a risk of future misconduct.

June 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Cell Phone Erasures Draw Suspension In Idaho

A recent disciplinary sanction is summarized on the web page of the Idaho State Bar

On May 30, 2017, the Idaho Supreme Court issued a Disciplinary Order suspending Sandpoint attorney Jeremy P. Featherston from the practice of law for one (1) year, with all but ninety (90) days of that suspension withheld. The Disciplinary Order provides that upon reinstatement, Mr. Featherston will be placed on probation for one (1) year. Mr. Featherston’s ninety (90) day suspension will start June 16, 2017.

The Idaho Supreme Court found that Mr. Featherston violated I.R.P.C. 8.4(b) [Commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects] and I.R.P.C. 8.4(d) [Engaging in conduct that is prejudicial to the administration of justice]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances. 

 In July 2014, Mr. Featherston’s former brother-in-law, S.B., was arrested in Alaska on drug charges. S.B. called Mr. Featherston’s wife from jail and instructed her to erase the data on his two cell phones. Mr. Featherston erased the data on S.B.’s two cell phones, which at that time were in the custody of Alaska law enforcement. The data erased from the cell phones was accessible on other electronic devices. In September 2016, Mr. Featherston pleaded guilty in Alaska to a misdemeanor charge of attempting to destroy or conceal evidence by erasing the data on S.B.’s cell phones. He was sentenced to 80 hours of community service, ordered to pay fines and costs, and placed on a one (1) year criminal probation.

Following reinstatement, Mr. Featherston will serve a one (1) year probation upon the terms of probation specified in the Disciplinary Order. Those terms include that     Mr. Featherston will serve the nine (9) month withheld suspension if he admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for conduct occurring during the period of probation.

(Mike Frisch)

June 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Foul Ball Liability A Legal Error?

The Iowa Supreme Court has announced that it will release its decision tomorrow in a case where a high school baseball player was awarded more than $1 million in damages for injuries sustained when struck in the dugout by a foul ball.

Quad-City Times reported on the jury verdict and the oral argument in the appeal.

...the seven justices peppered attorney Thomas M. Boes, the school's attorney, and Ludman's attorney Steven J. Crowley, with questions.

While they touched on all issues of Assumption's appeal, many of their questions focused on whether the school had the responsibility to protect Ludman from the inherent risks of playing baseball and how past case law applied to the school's defense.

Justice Brent R. Appel, of Ackworth, cited Cleveland Indians pitcher Herb Score's injury in a 1957 game against the New York Yankees to challenge Boes' contention that limited duty, or the theory that people who knowingly participate in a potentially dangerous sport can't sue the sponsors of the event if they are injured.

"That injury to Herb Score was an inherent part of the game. They were playing the game, Score was throwing as fast as he could, as he was supposed to, and (batter) Gil MacDougald hit it as hard as he could," he said. "So those inherent risks might not be subject to recovery of this court, but this isn't inherent risk because Davenport Assumption had a decision to make, had a choice and that included how much fencing to put up.

Both attorneys had a 15-minute argument before the court. Boes had another five minutes to answer addition questions after Ludman's attorney made his case to the court

From the amicus brief of the Iowa High School Athletic Association

In this case, 18-year-old Spencer Ludman positioned himself in the opening of the team’s dugout while his teammate was at bat. That teammate fouled a pitch down the first-base side and into the dugout opening where Ludman stood. Ludman was injured and is now suing Davenport Assumption (the host school) for negligence. He claims that dugouts should have no openings to the field. The jury found in Ludman’s favor, but the main question on appeal is whether this case should have gone to the jury at all...

So the rule is clear, and has been clear for some time: A school is not under a duty to protect players from foul balls, and (stated another way, but to the same end), a school does not act unreasonable—as a matter of law—if a baseball dugout is not screened or fenced. That type of clarity is a rare thing in tort cases. Usually, the common law works in broad strokes, creating rules that must be further applied by a jury on a case-by-case basis. But in this instance, the Court has spoken as a matter of law. No lawyer—and certainly no lay person—could read this Court’s cases any other way.

That’s what makes the district court’s decision so concerning. If a rule, like the Dudley foul-ball rule, can be so easily ignored, then what rules can schools rely on? Precedent, it seems, would be worth very little—if anything at all.

It was therefore an error for the district court to send this case to the jury. And it is an error that, if not firmly and succinctly reversed by this Court, could have broad implications for Iowa high school baseball and Iowa sports in general. The IHSAA therefore respectfully requests that this Court reaffirm the foul-ball rule and reverse the judgment. 

An error leading to an unearned judgment?

The Iowa Association for Justice filed an amicus in support of the injured student.

the rule urged by the Defendant and the Iowa High School Athletic Association is bad policy. The Defendant and the Association argue that the rule should be that high schools should have no responsibility for injuries that occur to high school athletes unless the schools affirmatively do an act to increase the risk or create a new risk. Such a rule gives immunity to high schools that take no affirmative action to control risks thus effectively disincentivizing action. It rewards high schools that do nothing. In an age of escalating education budget cuts, compromising the safety of athletes is not a public policy direction this Court should encourage. Administrators and those who design, manage, and maintain these athletic facilities should always be encouraged to keep an eye toward maximizing safety.

(Mike Frisch)

June 1, 2017 | Permalink | Comments (0)

Judge May Attend Diversity Seminar

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2017-10
Date of Issue: May 16, 2017

ISSUE

May a judge attend a private organization’s seminar, that is neither court nor bar association sponsored, regarding diversity and racial equality at the judge’s own expense?

ANSWER: Yes.

The inquiring judge has been invited to attend a seminar that will focus on diversity and racial equality and will pay the seminar fee personally. The seminar is presented by a private organization and is not sponsored by any court or bar association. Because the JEAC members saw no ethical issues presented by attending such a seminar, we inquired further of the judge. The inquiring judge wanted to ensure that attendance at this seminar would not be viewed as the judge being partial.

As we recently noted, diversity training is mandatory for judges, and participation in programs is typically permitted and encouraged. Fla. JEAC Op. 17-04; see also Fla. JEAC Op. 03-01 (stating that judge may serve in leadership role on nonpartisan board to improve community race relations); Fla. JEAC Op. 93-22 (stating that a judge may participate in group project called “Help Stamp Out Hate” that was intended to promote positive intergroup relations, greater intergroup understandings, and included a cross section of religions, races, and ethnicities). The inquiring judge is aware of Canon 3B(2), which requires judges to be faithful to the law, and Canon 3B(5), which requires judges to perform judicial duties without bias or prejudice and prohibits manifesting favorable or unfavorable racial, ethnic, religious, or other bias or prejudice by words or conduct. Because the JEAC does not evaluate seminars or speakers, each judge must determine whether the seminar he or she wishes to attend is appropriate.

(Mike Frisch)

June 1, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Paul Howes Reinstated In D.C.

The District of Columbia Court of Appeals has reinstated G. Paul Howes to practice in the wake of a high-profile disbarment imposed in 2012.

Respondent's misconduct is decidedly egregious and, though we have not yet sanctioned a prosecutor in like circumstances, it is a logical extension of our prior cases to find disbarment warranted over a lesser sanction. We are not dissuaded from our view that disbarment is the appropriate sanction, despite respondent's exceptions and request for a mitigated sanction, as there is clear and convincing evidence that respondent misused federal witness voucher funds, misled the court and defense counsel, and violated his duties as a prosecutor, resulting in substantial reductions in sentences for several convicted felons. Nor do we accept respondent's contention that his cooperation with Bar Counsel, the absence of prior discipline, the absence of personal financial gain, or the delay in the proceedings are mitigating factors which should preclude imposition of our most stringent sanction. Respondent's misconduct was significantly compounded by the protracted and extensive nature of the dishonesty involved. We conclude, for reason discussed below, that, on this record, disbarment is the appropriate sanction.

Senior Judge Nebeker dissented from the order granting reinstatement

Judge Nebeker would deny the motion to reinstate. Mr. Howes violated a most sacred code as an Assistant United States Attorney for which, in my view, there is no redemption. The gravamina of his misconduct should be held as an example to all AUSAs that what he did will, for his lifetime, be a bar to reinstatement. For a former AUSA this would not be excessive. It would be justice.

Disciplinary Counsel supported the petition for reinstatement. Associate Judges Glickman and Thompson voted in favor.

When Disciplinary Counsel supports reinstatement, the matter is submitted directly to the Court for consideration rather than traveling the path through a hearing committee and the Board on Professional Responsibility as provided in Rule XI, section 16

A petition for reinstatement by a disbarred attorney or a suspended attorney who is required to prove fitness to practice as a condition of reinstatement, which is uncontested by Disciplinary Counsel following a suitable investigation, may be considered by the Court on the available record and submissions of the parties. In every uncontested matter, Disciplinary Counsel shall submit to the Court a report stating why Disciplinary Counsel is satisfied that the attorney meets the criteria for reinstatement. The Court may grant the petition, deny it, or request a recommendation by the Board concerning reinstatement.

(Mike Frisch)

June 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Asleep At The Wheel

A six-month suspension has been ordered by the Wisconsin Supreme Court

The OLR filed a complaint against Attorney Schwitzer on April 6, 2015. On July 13, 2015 the OLR filed an amended complaint alleging five counts of misconduct. The complaint alleged that on February 4, 2014, Attorney Schwitzer was convicted in Brown County of unlawful phone use – threatens harm, in violation of Wis. Stat. § 947.012(1)(a), a Class B misdemeanor; Possession of THC, in violation of Wis. Stat. § 961.41(3g)(e), an unclassified misdemeanor; and Possession of Cocaine/Coca, in violation of Wis. Stat. § 961.41(3g)(c), an unclassified misdemeanor. Other charges relating to possession of drug paraphernalia, narcotics, and illegally obtained prescription drugs were dismissed but read in. The Brown County circuit court withheld sentence and placed Attorney Schwitzer on two years' probation, conditioned on thirty days in jail, to run concurrently on each of the three counts. Attorney Schwitzer was also ordered to comply with his healthcare provider's recommendations, continue psychological and medical treatment, take all prescription medications, surrender a firearm, and have no contact with anyone who uses, sells, or possesses illegal drugs.

On October 20, 2014, Attorney Schwitzer fell asleep or lost consciousness while driving his car, drifted out of his lane of travel, and sideswiped another driver's car. The police officer who interacted with Attorney Schwitzer at the scene observed that Attorney Schwitzer had an unsteady balance, was shaking and sweating, his pupils were dilated, and he was having a hard time forming sentences and was slurring his words.

When the officer asked Attorney Schwitzer to turn off his car, the officer noticed there was a female passenger in the car. The female passenger was not breathing. The officer performed CPR until Fire and Rescue arrived. Fire and Rescue administered Narcan to the passenger, at which time she regained consciousness. The female passenger told a firefighter transporting her to the hospital that she had snorted heroin in Attorney Schwitzer's car and had lost consciousness. Upon searching Attorney Schwitzer's car, officers found a plastic baggie containing cocaine and a rolled up $20 bill which tested positive for cocaine.

On April 3, 2015, in Washington County circuit court, Attorney Schwitzer pled guilty and was convicted of possession of cocaine, as a party to a crime, an unclassified misdemeanor, in violation of Wis. Stat. § 961.41(3g)(c). A second count for possession of drug paraphernalia was dismissed but read in. The Washington County circuit court sentenced Attorney Schwitzer to five months in jail.

After suspension, he continued to have a web site that held him out as an attorney and engaged in trust account violations

On August 20, 2013, while incarcerated in the Brown County Jail, Attorney Schwitzer used a fellow inmate's contraband cell phone to access the trust account and initiated a transfer of $2,000 from the trust account to a personal account belonging to Attorney Schwitzer. Attorney Simon and/or Attorney Feldhausen learned of Attorney Schwitzer's attempt to transfer trust account proceeds and caused BMO Harris Bank to reverse the transaction. In correspondence to the OLR, Attorney Schwitzer admitted attempting to transfer funds from the trust account to his personal account while incarcerated in the Brown County Jail. The OLR's investigation was unable to determine whether Attorney Schwitzer used another inmate's telephone to access the trust account by phone or whether he attempted to transfer funds by using the internet connection through the contraband phone. Pursuant to supreme court rules, disbursements from a trust account may not be made telephonically or by way of internet transactions.

The court concluded that a six-month suspension was the appropriate sanction and lifted its temporary suspension order.

In addition to obtaining reinstatement from the disciplinary suspension imposed by this order, before he is able to practice law in Wisconsin, Attorney Schwitzer will also be required to complete the procedures for reinstatement from the administrative suspensions currently in effect for failure to comply with the mandatory CLE reporting requirements, for failure to pay applicable bar dues and assessments, and for failure to file a trust account certificate.

(Mike Frisch)

June 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Retroactivity At Issue In Tennessee Bar Cases

Two bar discipline matters are scheduled for oral argument before the Tennessee Supreme Court this afternoon

Sean K. Hornbeck v. Board of Professional Responsibility – This case is a review of a hearing panel’s judgment disbarring Mr. Hornbeck for various violations of the Rules of Professional Conduct, including failure to preserve client property, failure to communicate with his client, and unauthorized practice of law.  This decision was affirmed by the chancery court.  The Supreme Court will consider whether Mr. Hornbeck waived his ability to challenge for retroactive application of his disbarment and whether retroactive application is appropriate in this case.

Board of Professional Responsibility v. Robin K. Barry –This attorney-discipline case involves an attorney who was suspended by a hearing panel for failure to communicate with her client and for mismanaging the client’s funds.  The chancery court modified the hearing panel’s sanction, instead ordering the disbarment of Ms. Barry.  The Supreme Court will consider if disbarment is the appropriate sanction and whether that disbarment should be applied retroactively to the date when her suspension began.

(Mike Frisch)

June 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)