Monday, October 3, 2016

"A Stellar Citizen"

The web page of the Illinois Attorney Disciplinary & Registration Commission reports

[Attorney] Mr. Gold-Smith, who was licensed in 2003, was suspended on an interim basis and until further order of the Court. He was found guilty in the Circuit Court of Will County of solicitation of murder for hire and for solicitation, both Class X felonies. In addition, he is awaiting trial on state charges of aggravated domestic battery (a Class 2 felony), aggravated battery (a Class 3 felony) and unlawful violation of an order of protection (a Class A misdemeanor.

The Chicago Tribune reported

A Homer Glen man convicted of trying to hire someone to kill his ex-wife in 2012 maintained his innocence and described himself as a "stellar citizen" during a sentencing hearing Thursday.

Robert Gold-Smith, 54, faces 20-40 years in prison for the murder-for-hire scheme. Gold-Smith, a former attorney, is representing himself and made his arguments before Will County Judge Daniel Rozak. In March, he was found guilty of the murder-for-hire charges following a bench trial before Rozak.

"I did everything I'm supposed to do as a good citizen of this county," Gold-Smith said.

Gold-Smith landed in jail in 2010 after he punched his then-wife several times following a divorce proceeding in the Will County courthouse. It was during the time he was in the Will County jail in 2012 that Gold-Smith attempted to hire an inmate to kill his wife, prosecutors have said.

And from the Herald-News

A Homer Glen lawyer convicted of trying to buy his wife’s murder from inside the Will County jail had harsh words Thursday for the judge who will sentence him.

Robert W. Gold-Smith, 54, repeated his assertions that a jail inmate fabricated a recording of Gold-Smith asking to have Victoria Smith killed and that Judge Daniel Rozak was biased against him. Gold-Smith, who represented himself in a bench trial earlier this year, faces 20 to 40 years in prison.

Gold-Smith and Victoria Smith were going through a contentious divorce when he allegedly punched her outside a courtroom in November 2010. That case still is pending, although Gold-Smith has admitted to the confrontation. Before court began Thursday, Gold-Smith spoke to Will County Assistant Public Defender Amy Christiansen, who is representing him on the domestic battery case.

“Twenty [years], 30, 40. It’s all the same to me,” Gold-Smith said. “It’s a life sentence. I get out of prison at 75, what good does that do me?”

During sentencing proceedings, Gold-Smith and prosecutor Adam Capelli noted he had no criminal history before the attack in the courthouse.

The same source noted his "Clark Gable" approach to courtroom behavior.

On Friday, Gold-Smith was seated in the jury box with other inmates when bailiff Cheryl Ferguson reminded him that talking before his case was called was a violation of the courtroom rules and he could be kicked out before his case was called.

"Throw me out, I don't give a damn," Gold-Smith told the bailiff.

(Mike Frisch)

October 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

An Exceptional Circumstance That Leads To Less Than Disbarment

Conversion of funds drew a five-year suspension rather than disbarment from the New York Appellate Division for the First Judicial Department.

The record reflects that there were numerous illnesses and deaths amongst members of respondent's close family over the span of three years that included the relevant time period, which led to family conflicts and caused respondent to get off track and "overwhelmed" her.

Respondent's 31 years of practice has included two years as an attorney for Administration for Children's Services, eight years as a law secretary for a Justice of the Supreme Court and 21 years in private practice, all without any blemish. Respondent has handled many estates as a guardian for incapacitated persons and every annual accounting was approved. Since respondent's misappropriation and intentional conversion of guardianship funds is undisputed, the issue presented is whether a sanction less than disbarment is warranted.

And "yes" is the answer.

While respondent in the case at bar converted more client funds, on more occasions over a seven-month period, her misconduct was isolated in its nature, and, is arguably less egregious than that in Molinini-Rivera, which involved more than one client matter, repeated false testimony before the Committee, and deceit before a court. As to respondent's lack of medical evidence in support of the "emotional storm that clouded her judgment and led to the extremely aberrational - though serious - misconduct," and, therefore, the absence of a causal link with the misconduct, respondent explained that she did not seek professional help for her depression and feelings of being overwhelmed because she did not believe in such, and because she did not need a professional to explain why she could not get out of bed for days. Indeed, respondent testified to the stress of her own and her family's illnesses and then deaths during the relevant time period, coupled with being called a "heartless murderer" by her grandmother and others for making the painful decision to discontinue her mother's feeding tube. As the Hearing Panel further concluded, "there is no serious doubt that [respondent] was suffering from extreme emotional duress at this time."

Additionally, as the record supports and the Hearing Panel determined, this was an isolated incident on the part of a lawyer with an otherwise unblemished practice history spanning more than 30 years, and there is virtually no likelihood of a repetition of these actions. Respondent fully cooperated with the Committee throughout these proceedings, she is repaying the money taken, and has expressed sincere remorse for her misconduct...

we agree with the Hearing Panel and the Committee that "this is one of those rare cases where exceptional circumstances have been demonstrated" (Molinini-Rivera, 24 AD3d at 40). We thus grant the Committee's motion to confirm the findings of fact and conclusions of law of the Hearing Panel and respondent is suspended from the practice of law for a period of five years.

October 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sea Change

The Massachusetts Supreme Judicial Court reinstated an attorney who had failed to disclose criminal charges pending at the time of admission.

From the Hearing Panel report

On April 5, 1999. Curtis petitioned the Supreme Judicial Court for admission to the Massachusetts bar. Along with the petition, the petitioner completed and filed the required questionnaire, which asked him to disclose whether or not he had ever been charged with or been the subject of any investigation for a felony or misdemeanor other than a minor traffic charge. The petitioner intentionally did not disclose the pending felony indictments in Norfolk County. Nor did he amend his questionnaire once he was charged with the Suffolk County felonies. In addition, the petitioner was subsequently charged in Suffolk County with one count of tax evasion and one count of willfully filing a false tax return under oath. These crimes are also felonies, and the petitioner failed to disclose them on his bar application. Before his admission to the bar, the petitioner never notified the Board of Bar Examiners or the Supreme Judicial Court that. there were criminal charges pending against him. The petitioner was admitted to the bar on December 13, 1999. He was temporarily suspended from the practice of law on October 5, 2000.

He turned his life around

We credit that the petitioner faced a number of personal tragedies as a young man that led, as he said, to a distortion of his moral compass, leading to a sense of self justification and entitlement ("the world owed me something because I was deprived"), resulting in selfishness and greed that were fueled by alcoholism and depression. In turn, these contributed to his misconduct, before becoming a lawyer, that resulted in his criminal convictions. The petitioner has been sober since 2008 and has remained so with the assistance of, and his participation in, Lawyers Concerned for Lawyers, Alcoholics Anonymous, and psychotherapy. Moreover, we credit that the petitioner now recognizes the danger of trying to handle all of his problems unassisted and note that he has developed a support system. He has also met with the Law Office Management Assistance Program and will continue to Work with them.  Attorney Peter Flynn has agreed to mentor the petitioner if he is reinstated and bar counsel is amenable to this. In part because of this support system, we find that the misconduct is not likely to be repeated. (citations to record omitted)

He was permitted to work as a paralegal in 2014 and presented a significant amount of favorable character evidence.

In our judgment, reinstating the petitioner will not erode public confidence in the profession. To be sure, his misconduct violated fundamental duties to his employers (albeit before he was admitted to the bar) and to the profession. Still, we have received compelling evidence that the petitioner allowed himself to succumb to circumstances, evidenced by conduct for which he accepts responsibility, and that he has reformed himself by effective affirmative efforts, including real changes to how he approaches his life. In our judgment, the public will recognize, as do we, that the petitioner has earned the privilege of once again practicing law in Massachusetts.

(Mike Frisch)

October 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Dinner But Rather Disbarment

An attorney was disbarred by the Georgia Supreme Court for misconduct in the representation of a client but his approach to the process did not help

In several of these e-mails, Nicholson conveyed his contempt for the disciplinary process in general, and in others, he signaled his contempt for the special master in particular, flinging personal insults, unsupported accusations of misconduct, and conspiracy theories along the way.

The above sentence had this footnote

Nicholson referred to his disciplinary proceeding as “a Star Chamber proceeding,” claimed to “know [that the] fix is in,” referred to the special master as the “High Executioner,” and accused the special master of “making up the law and rules as you go to preclude me from having a fair and impartial hearing.” Nicholson asked the special master if she had “any more homemade rules for me,” adding that “[t]his hearing should be a blast.” Nicholson variously questioned the qualifications and impartiality of the special master, alleging that the special master and State Bar counsel were “joined at [t]he hip,” accusing the special master of ruling against him without reading his filings, and writing to the special master: “U r hopeless.” In a few e-mails, Nicholson revealed his failure to appreciate the seriousness of the proceeding and the gravity of the violations with which he was charged, referring to the proceeding as “nonsense,” stating that “[the] whole proceeding is about nothing,” and sarcastically suggesting that the hearing be held at the Varsity restaurant in Athens. He accused the special master and State Bar counsel of lacking “professional courtesy [and] common decency.” He questioned why the State Bar was working with a “rogue judge” in his home circuit, and he claimed that the special master had improper ex parte communications with another judge in his home circuit. He disrespectfully referred to the special master as “Ms. Hyphenated,” and he claimed that the special master wanted only “to show me who has [the] biggest member in the group.” In one e-mail, he inquired whether the special master ever had been married, noting that he wanted to know the name of her husband so as to “get him [the] Congressional Medal of Honor and/or sainthood,” and adding that “[y]ou are one mean[-]spirited and arbitrary woman. You are one of many that are that way.”

At the hearing

 At the hearing, Nicholson — who was representing himself — continued to display his contempt for the disciplinary process and the special master. Notwithstanding the clear direction of the special master about the limited purpose of the hearing, Nicholson repeatedly attempted to offer evidence and argument about the merits of the formal complaint and the circumstances of his default. When the special master attempted to give him further direction, Nicholson responded that “I don’t care what you ask me to do.” He announced that “[t]he fix is in on this case.” He accused the special master of having improper ex parte communications with StateBar counsel and various members of the judiciary. He said to the special master: “This is a Star Chamber proceeding . . . [a]nd you’re here to do a hatchet job on me.” He attempted to talk over the special master and, at one point, to cross-examine her. He repeatedly offered snide and sarcastic asides to the rulings of the special master. He was disrespectful not only to the special master, but to State Bar counsel as well. 

And before the court

In his brief to this Court, Nicholson offers nothing of substance. He identifies no legal error by the special master, he points to no deficiency in the evidence, and he comes forward with no theory of mitigation. He shows no remorse, and he expressly disavows any mental illness. Instead, consistent with his conduct throughout this disciplinary proceeding, he attempts to minimize the wrongfulness of his signing a false affidavit, he questions the qualifications and integrity of various judges in his home circuit, he refers to State Bar counsel as a “dishonest devil,” he speaks of a “hatchet job” undertaken by “[t]his lady special master,” and he compares the disciplinary process to the infamous McCarthy hearings, as well as proceedings in “Nazi Germany and other Communist countries.” He adds that he “has too many cases pending to be suspended.”

With all of the outrageous conduct throughout the disciplinary process, it is easy to forget what this case is about: dishonesty. As admitted by virtue of his default, Nicholson signed a false affidavit. He did so intentionally. He did so in the course of representing a client and in connection with the practice of law. And he did so to the injury of others, to whom he continues to refuse restitution, even after the entry of a judgment against him and the initiation of disciplinary proceedings.

The attorney did not raise the issue of mental illness and the court declined to treat it as a mitigating factor. (Mike Frisch)

October 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Bad Advice

The Georgia Supreme Court disbarred an attorney

As deemed admitted, the facts show that Herbert, who has been a member of the Bar since 1975, was consulted by two individuals in October 2009  concerning their discharge from their former employer. Herbert advised these individuals concerning their discharge and further advised them to start their own company in order to continue serving their customers. In conjunction with this representation, Herbert advised these individuals to destroy physical and electronic records relating to their work for their former employer. In December 2009, the individuals’ former employer brought suit against them, and Herbert was retained to represent the individuals in this action. Herbert filed an answer and defenses, including a counterclaim, on behalf of the individuals, but failed to adequately communicate with the individuals during the course of his representation, did not devote the necessary preparation and thoroughness to his representation, did not conduct any discovery, and allowed the discovery period to elapse without responding to any discovery. In a December 2012 order in that action, the trial court found that the individuals had intentionally spoliated evidence, including the records Herbert instructed them to destroy; struck the individuals’ answer and defenses to the suit; and entered an injunction preventing the individuals from providing services or materials to customers of their former employer. Herbert advised the individuals to file an appeal as to the injunction, they agreed, and Herbert filed a notice of appeal. In the January 24, 2013 notice of appeal, Herbert indicated that, among other items, the transcript of a February 1, 2011 hearing should be included and that such had been requested from the court reporter. In a January 23, 2013 communication with his clients, Herbert indicated that he would order the transcript the next day. Despite this assurance to his clients and a February 18, 2013 letter from the clerk of the superior court indicating that no transcript had been received, Herbert failed to order or file the transcript, which was needed to advance the appeal. After it became clear to the clients in late August 2013 that Herbert had not ordered or filed the hearing transcript, Herbert was discharged from the representation.

The attorney had a record of prior discipline. (Mike Frisch)

October 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, October 1, 2016

Misuse Of Trust Account Draws Suspension In One Case, Reprimand In Another

An attorney who had misused his trust account has been suspended for 120 days by the Hawai'i Supreme Court.

we conclude that, between February 1, 2014 and January 31, 2015, the client trust account maintained by Respondent Wilson primarily received his monthly Social Security payments, with no deposits of client funds identified and, during the same period, Respondent Wilson made 61 withdrawals by check in favor of himself as well as payments by check to a variety of Honolulu businesses and 150 electronic transfers to local and national companies, at a time when there were substantial federal and state tax liens outstanding against him. We further conclude Respondent Wilson misrepresented, in his 2014 and 2015 registration with the Hawai#i State Bar Association, that he was operating his client trust account in accordance with the relevant court rules...

Sanction factors

In aggravation, we find Respondent Wilson had a dishonest or selfish motive, substantial experience of more than 35 years in the practice of law, and one prior discipline in 1992 and that, in the present matter, there were multiple offenses and a pattern of misconduct. We note that, in his initial answer to ODC, Wilson did not admit the wrongful nature of his conduct.

In mitigation, we note Wilson has expressed remorse and a cooperative attitude toward the proceedings and that, once notified of the client trust account violations by ODC, took steps to rectify the situation by opening a regular account and redirecting his benefits to the new account.

The court imposed a public reprimand in a unrelated case in which the attorney had deposited personal funds and paid a debt out of a trust account.

On August 9, 2012, Respondent Smith, in order to pay a personal debt, intentionally deposited $14,361.26 of personal funds into his First Hawaiian Bank client trust account ending in x128. This conduct violated Rule 1.15(c) of the Hawai#i Rules of Professional Conduct (HRPC) (1994). On August 13, 2012, Respondent Smith issued a $12,168.67 check from the client trust account to the management company of his rental unit, for partial payment of maintenance fees, late fees, lease rent, and attorneys’ fees and costs for which he was in arrears, and transmitted the check to the management company. This conduct violated HRPC Rule 1.15(e).


In aggravation, we find Respondent Smith has extensive experience in the practice of law and two prior disciplinary matters on his record. In mitigation, we find Respondent Smith has taken responsibility and expressed remorse for his actions and has evinced, in the past, good character and reputation, including commitment to public service and the provision of legal services to the indigent, and we further find that none of Respondent Smith’s clients suffered any injury as a result of his actions in the present matter. In light of the above, we conclude a public reprimand is warranted.

(Mike Frisch)

October 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 30, 2016

Trust But Verify

The North Carolina State Bar has filed a complaint alleging that an attorney had delegated trust account administration to a paralegal who stole entrusted funds.

Notably, it is alleged that he continued to employ her after learning of the thefts in June 2012. He nonetheless continued to allow her unsupervised access to the account.

He did terminate the paralegal after discovering further thefts in August 2013.

A routine bar audit discovered the problem and led to the charges.

It is alleged that the paralegal stole approximately $79,000.

The Jefferson Post had the story of the criminal case against the paralegal.

According to courtroom testimony, Roark used the credit card of attorney Andrew Jackson to make several personal purchases from Jan. 10, 2012 to Oct. 31, 2013. The prosecution stated that instead of making extravagent purchases, such as a house or boat, she instead used the credit card at several area restaurants and businesses.

Roark wrote a letter of apology to Jackson, but did not make a statement before the court.

Her attorney said that Roark’s family was recently in dire financial straits – they have been forced to take out several mortgages on their house – in the process of raising three children, said her attorney.

Since her arrest, she has found work as an appointment scheduler at a local doctor’s office.

As part of the terms of her probation, Roark is prohibited from being in a future position that would require her to handle money.

(Mike Frisch)

September 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Judge Being Judged

Disciplinary argument involving a judge who refused to perform same-sex marriages has been scheduled, according to a recent report by the Statesman Journal.

The Oregon Supreme Court has scheduled oral arguments regarding the judicial fitness of Marion County Circuit Judge Vance Day. The hearings are set to begin March 22, 2017, and the court will consider whether to sanction Day for ethics violations.

Earlier this year, Oregon's nine-member judicial fitness commission held a two week trial of Day, who was accused of a litany of ethics violations. Prosecutors said he refused to marry same-sex couples; created improper relationships with defendants; allowed a convicted felon to handle a gun; and took money from attorneys that appeared before him, among other accusations.

Day denied the accusations. His attorneys argued that if he did violate any ethics rules, his conduct was protected by the free speech and religion protections of the First Amendment. Day has said his Christian beliefs prevent him from performing marriages for same-sex couples.

The commission — which is comprised of sitting judges, attorneys and members of the public — ultimately said Day violated his oath of office and engaged in criminal conduct. They unanimously recommended that Day be removed from the bench.

Day has said if he's sanctioned, he will appeal to the U.S. Supreme Court, the only venue for appeal of state supreme court decisions.

A former head of the Oregon Republican Party, Day was appointed to the Marion County bench in 2011 by Gov. John Kitzhaber. He was elected to a full six-year term in 2012.

Day continues to sit on the Marion County bench, but has been relocated from the downtown courthouse to the annex building on Aumsville Highway.

(Mike Frisch)

September 30, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Convicted Attorney Suspended

The Tennessee Supreme Court recently suspended a convicted attorney.

The Leaf Chronicle reported on the conviction

Former Clarksville attorney Carrie Gasaway pleaded guilty to one count of theft over $10,000 on Wednesday and will have to spend 40 days in jail in Alabama, according to Montgomery County Circuit Court records.

She had been indicted by a Montgomery County grand jury on three counts of theft in November but the two other cases — for theft of property between $1,000 and $10,000 — were dismissed as part of a plea deal. Wednesday's proceedings were heard in Robertson County by specially assigned judge Paul G. Summers.

Summers sentenced Gasaway to a three-year split sentence, meaning that she will have to serve 40 days in jail, to begin in Henry, Ala., on Aug. 10, be on house arrest for 90 days after her jail time and remain on unsupervised probation for the rest of the three years, according to court documents.

He also ordered that the sentence run consecutive to the sentence she received after being convicted of extortion last year in Montgomery County. In that case, she was sentenced by Summers to two years in prison, which was suspended to four years of probation, two years supervised and two unsupervised.

And also had the story of another criminal matter from May 2015

After nearly 15 hours of deliberation Monday and Tuesday, jurors in the Carrie Gasaway/Fletcher Long extortion trial returned a verdict of guilty.

The jury notified court officers at 3:10 p.m. Tuesday that they had reached verdict for both attorneys after a seven-day trial at the Montgomery County Courts Center.

Long said after the verdict that he honors the jury’s decision, and he is considering changing his profession because it is “too stressful.”

“God has a plan for me, but it’s not to practice law,” he said. “... I think I have some marketable skills.”

Gasaway and Long, two well-known local attorneys, were convicted of trying to extort $50,000 from a client, Michelle Langlois, who hired them to attend the reading of her father’s will in October 2010. The crime is a Class D felony with a sentencing range of two to 12 years with a maximum fine of $5,000.

Carrie Gasaway is the wife of Montgomery County Circuit Judge John Gasaway.

Long has been involved as a defense counsel in two high-profile Middle Tennessee criminal cases. As recently as April, Long was representing Jason Autry, a co-defendant in the kidnapping and slaying of Holly Bobo, a notorious West Tennessee crime.

Long also represented one of four former Vanderbilt University football players accused of raping an unconscious female student in 2013. Long argued at trial in January that his client Brandon Vandenburg did not participate in the rape and was not responsible, but a jury returned a guilty verdict.

In the local trial, the jury did not affix a fine to the convictions, and Judge Paul Summers, who was brought in from another district to hear the case, said a sentencing date will be set within the next 45 days.

Langlois and other family members were emotional as the verdict was handed down.

“It’s been a long road,” she said. “I’ll try to move forward now. I’ll finally get to grieve for my father. It’s been almost five years since his death.”

Long’s attorney Mark Olson, who was essentially the lead counsel for the defense team, said he was “obviously disappointed” with the verdict.

“We look forward to the appealing the decision,” he said. “The court’s last instructions to the jury were erroneous, and I think that really hurt us.”

He said Summers’ answers to two questions from the jury on Tuesday introduced facts into the case that did not pertain to elements of the crime of extortion.

District Attorney Jason Lawson said prosecutors were pleased with the guilty verdict, and he was “glad it got justice for Mrs. Langlois.”

He added that the jury had many pieces of evidence to consider, and he praised their efforts.

The case

During the trial, Langlois testified she hired Long and Gasaway to attend the reading of her father’s will, agreeing only to pay their firm $800. She said afterward Gasaway pressured her to sign a new contract, telling Langlois because of the complexity of the estate, she needed their help to get her inheritance and her father’s house that her step mother was living in.

Langlois opted for a contract paying Gasaway, Long and Associates a $50,000 flat fee for all work involved, and she gave them a $50,000 personal check to hold until she could cash in some of her father’s stocks. Several months passed before Langlois got money from the stocks, and the attorneys had been contacting her about when they would receive their money, threatening multiple times to have her arrested if she did not pay them.

According to testimony, Langlois said when the money was available, she got a certified check for $50,000, of which she faxed a copy to the law office to show she intended to pay them and set up a meeting with Long to deliver it, but canceled because she was sick.

In the meantime, she changed her mind about the contract with Gasaway and Long, and decided to hire another attorney. Langlois took the certified check back to the bank and deposited portions of it in separate accounts, which prevented the attorneys from cashing her personal check.

Long and Gasaway then sought a warrant for Langlois’ arrest, charging her with theft of services for the legal work the firm had done. In the narrative of the warrant, Long wrote that Langlois had given them a $50,000 “bad check” that they were unable to cash for her legal fees.

The criminal charge against Langlois was later dropped because the dispute was considered a civil matter.

Prosecutors contended that Gasaway and Long wanted the $50,000 for a $550,000 real estate deal, and they claim the attorneys took money from another client’s trust account for the 10 percent cash portion of the purchase contract. They intended to replace the money in the trust with Langlois’ $50,000, but the plan went awry when she decided to hire another attorney.

Tuesday questions

Following nearly seven hours of deliberations that began around 2:30 p.m. Monday, the jury returned at 9 a.m. Tuesday to continue its work.

Around 10:30 a.m., the jurors sent questions to Summers, essentially asking if it is legal for a business to hold a check for a customer and to give them more information about a “bad check.” The judge asked the defense and prosecution to help him craft an answer to the questions.

The first answer was a simple yes, so Summers said he would supply the language in the state statute pertaining to a post-dated check.

The defense vigorously objected to the judge supplying a legal definition for a worthless check, which is issued with insufficient funds in the account to cash it.

Olson argued that jury instructions by law, should not include anything that doesn’t apply to the charge the jury is considering. Effectively, passing a bad check is not an element of extortion, which is an attempt to gain personal property or advantage over another person by coercion.

He said the only part of the case involving a bad check was in the theft of services warrant, and nothing connected it with the extortion charge. Introducing it, he said, would likely confuse the jurors.

Prosecutors did not object and said the defendants brought the term into the case via the warrant.

On rebuttal, Olson said if the judge was to give such new instructions to the jury, he should be afforded time for more argument before the jury to introduce new information about the bad check instruction. He added if the new instructions were delivered, “it would give the jury an improper view of what was done.”

Olson said with new jury instructions, “the potential for confusion is remarkable.”

Summers took about an hour to ponder his response, and more discussion followed when he called the defense and prosecution together to let them know his intentions.

Summers said he would answer the jury questions with the definitions, saying the “bad check” referenced in the warrant “was the vehicle that stole their services” and while it is not a worthless check case, “it is part and parcel of this entire litigation.”

About an hour and a half after the judge answered the jury’s questions, they rendered their verdicts.


After the verdict, Lawson said the case, which included a two-year investigation before Gasaway and Long were indicted last year, was prepared in depth “to make sure it was done right.”

He added that he and the judge were brought in from other districts to avoid conflict of interests that might be present with local prosecutors and judges who know and have worked with the defendants.

“This shows that nobody is above the law,” he said.

Another attorney has since been hired to represent Vandenburg in the case, which is set for sentencing in June.

(Mike Frisch)

September 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Erroneous Advice Conflict No Basis To Vacate Conviction

A criminal conviction was affirmed by the District of Columbia Court of Appeals

In this appeal, appellant James Blackmon claims that he is entitled to reversal of his convictions and a new trial because his appointed counsel had a continuing conflict of interest as a result of an error made in the course of considering the government‟s plea offer. We conclude that the trial court recognized the actual conflict of interest that was presented and addressed it in an appropriate manner by appointing other counsel to advise concerning the plea offer, and that the record does not support that there was a realistic possibility of lingering conflict that required a mid-trial hearing or appointment of new counsel for trial. Thus, we affirm the judgment of conviction.

The issue

Before appellant's second trial, the government offered a plea agreement: in exchange for a plea of guilty to all the charges, the government would recommend that appellant receive no more than 25 years of incarceration. One of appellant‟s attorneys, Jason Downs, advised appellant that if he rejected the plea offer and was convicted at a second trial, he could not be sentenced to incarceration for more than the 34 years he had received in his first trial. Appellant rejected the plea. On the first day of trial, realizing his mistake,  Downs disclosed his error to the court and requested “that the Court appoint independent counsel to speak with [appellant].” Downs made clear that he was not withdrawing from the case but felt that he should not be the person to explain appellant‟s options in light of his erroneous advice. Appellant also addressed the court at an ex parte hearing at the bench. He said that he “was basically misled . . . [he] thought that not going back to trial, [he] would . . . just get the original sentence. . . . [He] never thought [he] could get more time.” He added, “[i]f you can get the original . . . plea back[,] I‟ll take it” and asked that the court “sentence [him] today” because he did not “want to come back to this courthouse anymore.”

The trial court appointed counsel to advise the client regarding the plea offer

The trial court recognized the inherent conflict of interest in having Downs advise appellant regarding his options after discovering Downs‟s error and therefore appointed new counsel, Michael Madden, to avoid the conflict. Madden consulted with appellant and repeatedly represented to the court appellant‟s wish to accept the first plea offer, with the sentencing recommendation of 25 years. Once Madden replaced Downs as counsel with respect to the plea and the trial court rejected the argument he presented on appellant‟s behalf, Downs continued to represent appellant as trial counsel.

While the mistake damaged the attorney=client relationship to the extent that counsel sought a mistrial

A breakdown in communication — even a hostile relationship — between counsel and client is not the same, however, as a conflict of interest that leads counsel to act with less than complete zeal and loyalty to his client...

Nor does the record support that the defense strategy was influenced by any conflict perceived by counsel. Originally, appellant and counsel had agreed to argue that the government had the opportunity to plant the DNA evidence. A week prior to trial, however, they jointly decided to instead argue that the DNA evidence was unreliable. After realizing his attorney‟s error in advising him concerning the plea, however, appellant no longer trusted his counsel‟s advice and wanted to proceed under the initial theory that the government could have planted the DNA evidence. Counsel proceeded at trial with the theory that the DNA evidence presented by the government was unreliable, arguing to the jury that mistakes were made in the DNA testing: an expired rape kit was used and the vaginal swab tested — a key piece of evidence — was lost. Counsel also argued that the science of DNA testing has advanced sufficiently so that a new test on the lost vaginal swab could yield different results.

As to the trial court

...appellant argues that the trial court had an affirmative duty to inquire into the effectiveness of counsel because of the possibility of a conflict of interest. Appellant asserts that the trial court failed to conduct an inquiry and, as a result, the potential conflict of interest at issue — “the divergence of [appellant‟s] and defense counsel‟s interests because of the possibility that counsel might face some consequence for his incorrect legal advice” — was never explained to appellant and he was, therefore, not in a position to waive the conflict.

The trial court did not deny the request for new counsel, however, on the assumption that appellant had waived a conflict of interest. The trial court recognized there was a conflict as it related to Downs‟s ability to effectively communicate his error to appellant and to advise appellant about his options in light of that error. The trial court addressed this conflict of interest by appointing independent counsel to advise appellant on that issue.


In conclusion, defense counsel‟s acknowledged erroneous advice concerning the first plea offer was appropriately addressed by the trial court‟s appointment of special counsel to advise appellant concerning his plea options. Our review of the record persuades us that the error in counsel‟s advice did not affect counsel‟s representation of appellant at trial. On this record, the trial court did not need to hold a hearing to decide whether to grant a mistrial and appoint new counsel based on an asserted conflict of interest.

September 30, 2016 | Permalink | Comments (0)

Ohio Bar Hearings Scheduled For October 2016

The Ohio Supreme Court has posted notices of bar discipline hearings scheduled next month.

The Columbus Dispatch had reported on the charges in one of the matters

In a complaint by the Columbus Bar Association, Lindner, 33, of Hilliard, is charged with dishonesty and failing to demonstrate legal competence after being arrested four times. She failed a drug test while on court-ordered probation and admitted to substance-abuse problems.

During 2014, she twice was charged with domestic violence and assault and pleaded guilty each time to a lesser charge of disorderly conduct.

She also pleaded guilty on another occasion to two counts of attempted child endangering in Franklin County Municipal Court. She received suspended sentences and was placed on probation in each case. In a pending case, Lindner is charged with hit-skip, falsification and other traffic charges.

The Chronicle had a story on the other scheduled matter

Former Lorain Law Director Mark Provenza is facing potential sanctions from the Ohio Supreme Court’s disciplinary arm for allegedly failing to provide legal services for two of his clients and then refusing to cooperate with the investigation into allegations against him.

According to a certified complaint filed by the Lorain County Bar Association with the Board of Commissioners on Grievances and Discipline last week, Provenza neglected his responsibilities to the two clients earlier this year.

In one instance Provenza is accused of taking $800 from Robin Maxwell-Smith to file a divorce for her and then not doing any of the work.

Maxwell-Smith paid Provenza $300 on Dec. 27, 2013, for the divorce paperwork to be filed. That money should have been deposited in Provenza’s trust account, where lawyers are supposed to keep money from clients while cases are pending, but that never happened, the complaint said.

Over the next few months, Maxwell-Smith made several attempts to contact Provenza, but never had any meaningful communication with him, although she did pay him another $500 on Feb. 20. That money also wasn’t put into the trust account.

Provenza told Maxwell-Smith to meet him in court March 31, but that day he ignored text messages from her and only talked to her when she had him paged by court staff at the Lorain County Justice Center.

Provenza then told her “that he had not filed any divorce pleadings on her behalf and had forgotten he told her to appear in court for a hearing,” the complaint said.

He also didn’t return the money Maxwell-Smith paid him after she demanded a refund in April, according to the complaint.

In the second incident, Provenza was appointed in March to represent Susan Hughes in a contributing to truancy case in county Juvenile Court and a court appearance was scheduled for April 9.

But Provenza allegedly didn’t make contact with Hughes and ignored her calls. Hughes made several attempts to discuss the issue with court staff, but she was told to get in touch with Provenza, the complaint said.

On May 5, the complaint said, county sheriff’s deputies showed up at Hughes’ house to arrest her on a warrant for failing to show up for her court date, but she wasn’t home.

Hughes continued her efforts to get in touch with Provenza, including reaching out to his family members and another attorney, but she was unable to speak with him until he contacted her May 13, two days before her next scheduled court appearance.

When the two met, the complaint said, Provenza spent only five minutes talking to Hughes before suggesting that she take a plea deal in the case.

“Hughes felt coerced to plead and take the deal as she knew that she could not get another court-appointed attorney, was in tears about the situation, and felt as if she had no other options,” the complaint said.

In both instances, Provenza didn’t have professional liability insurance, something he was required to have under rules for Ohio lawyers.

The complaint also said that Provenza repeatedly failed to provide a written response to the allegations against him when he was contacted by Bar Association attorneys. Failing to cooperate with the investigation is also an ethics violation.

Provenza, who resigned as Lorain law director in 2009 after being sent to serve out a jail sentence for his fourth arrest on drunken driving allegations, declined to comment on the disciplinary complaint Tuesday.

Chris Cook, the Bar Association attorney handling the case against Provenza, said he’s hopeful that Provenza will cooperate.

“My hope is that attorney Provenza engages in the process, otherwise we will be looking at the suspension of his law license,” Cook said.

(Mike Frisch)

September 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)


The Ohio Supreme Court has reinstated an attorney who had been suspended in November 2015.

From the initial disciplinary order

In 2011, DeMarco, while representing a plaintiff in a civil suit, entered into an agreement with defense counsel authorizing Jack Harper, a computer expert whom DeMarco had retained, to search the defendants’ electronic devices pursuant to a strict discovery protocol. Under the terms of the protocol, potentially relevant documents were to be delivered to the trial judge “for an in-camera inspection to determine what documents, if any, [would] be turned over to [DeMarco].” Harper thereafter searched the computers of one of the defendants and placed the results of his search on a disc. Harper, however, gave the disc to DeMarco, who reviewed it and determined that none of the documents would be useful for his case. DeMarco never submitted the disc to then trial judge for an in camera inspection.

At a March 2012 pretrial conference, defense counsel asked DeMarco about the results of the computer search, and DeMarco indicated that there was nothing of value in the documents. After defense counsel questioned how DeMarco could have already come to that conclusion, DeMarco stated that Harper had reviewed the documents and told him that there was nothing relevant. DeMarco denied having possession of the disc containing the documents that Harper had retrieved. After the conference, DeMarco telephoned Harper and left a voicemail essentially admitting that he had lied to the court about having the disc. DeMarco then returned the disc to Harper.

The parties resolved their lawsuit in June 2012, and defense counsel requested that Harper return the disc. When Harper refused, the defendants filed a motion to compel. In response, Harper notified the court that he had destroyed the disc. In November 2012, the trial judge held a hearing for Harper to show cause why he should not be held in contempt, and Harper testified that he had given a copy of the disc to DeMarco and that after DeMarco had advised him that the case was over, he had destroyed all media related to the matter.

In response to Harper’s testimony, DeMarco repeated multiple times—both in the judge’s chambers and in open court—that he had never received the disc from Harper and that he had not reviewed documents on the disc. In fact, when responding to Harper’s specific testimony that DeMarco had lied to the court at the March 2012 conference, DeMarco stated that he “would like to go outside with [Harper]” and that he “never lied to anybody, especially to a Court.” Harper, however, then played DeMarco’s voicemail for the judge. After that, the show-cause hearing quickly ended without the judge taking any punitive action against Harper. Defense counsel and the judge later jointly notified relator about DeMarco’s multiple false statements to the court.

The court had imposed a one-year suspension with six months stayed. (Mike Frisch)

September 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 29, 2016

Lawyer Disbarred For Insider Trading Reinstated

An attorney who had been disbarred as a result of a criminal conviction has been reinstated by the New York Appellate Division for the Second Judicial Department.

The attorney was admitted in 2004 and disbarred in 2008.

CBS Money Watch reported on the conviction

A married couple, both lawyers, pleaded guilty to conspiracy and securities fraud Thursday in what was described as one of the biggest insider-trading cases since the 1980s, a $15 million scam that reached into some of the nation's top financial firms.

Randi Collotta, 30, a former employee of Morgan Stanley in Manhattan, and her husband, Christopher Collotta, 34, who worked in private practice, were among 13 people who were criminally charged in the case. They have each been free on $250,000 bail.

The government said the inside trading network relied on insiders at Morgan Stanley and Co. and UBS Securities LLC to steal valuable secrets from the companies. It also alleged a Banc of America Securities LLC broker accepted cash kickbacks and two former representatives of Bear Stearns & Co. obtained UBS inside information.

The Securities and Exchange Commission has described the case as one of the most pervasive Wall Street insider trading rings since Ivan Boesky and Dennis Levine engaged in notorious insider-trading schemes in the 1980s.

According to prosecutors, Randi Collotta was an associate in Morgan Stanley's global compliance division when she passed inside stock tips to her husband, who gave it to others, resulting in illegal profits of hundreds of thousands of dollars between September 2004 and August 2005.

Others made money from the tips and then paid Christopher Collotta cash that represented a portion of their profits, according to an indictment.

The Collottas and three others had been charged with conspiracy to commit securities fraud and securities fraud, which carry potential penalties of up to 25 years in prison.

When they announced the case in March, prosecutors and SEC officials said the defendants included registered representatives, compliance personnel and hedge fund portfolio managers who illegally used hundreds of tips over five years.

U.S. Attorney Michael Garcia said at a news conferencing announcing the case that Wall Street professionals repeatedly traded on secrets revealed to them by insiders at UBS and Morgan Stanley.

Stock upgrades and downgrades by UBS and impending corporate acquisitions involving Morgan Stanley clients were relayed to others so a few investors could cash in before the news hit the market, authorities said.

The SEC said the ringleaders of the UBS part of the scheme went to great lengths to hide their illegal conduct, with tactics including a clandestine meeting at Manhattan's famed Oyster Bar and eventually the use of disposable cell phones, secret codes and cash kickbacks.

At least three people besides the Collottas had already pleaded guilty to charges in the case and were awaiting sentencing.

The court here reinstated the husband.

NBC News had the story of the sentencing

 A former Morgan Stanley and Co. lawyer and her husband, also an attorney, won leniency Thursday in a major insider trading case that resulted in more than $600,000 in profits for others but only $9,000 for them for their tips.

U.S. District Judge Victor Marrero sentenced Christopher and Randi Collota to six months of home confinement and Randi Collotta, 30, to 60 days in the custody of federal prison authorities on nights and weekends.

The judge cited the severe illnesses of Christopher Collotta, 34, as a reason to sentence the couple to shorter terms than they had agreed to serve when they entered guilty pleas in May to conspiracy and securities fraud. She had faced up to 18 months. He had faced up to 16 months.

It is at least somewhat remarkable that an attorney could be both disbarred and reinstated within twelve years of admission. (Mike Frisch)

September 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Censure For Cocaine Possession

A public censure has been imposed by the New York Appellate Division for the Second Judicial Department for a cocaine possession offense

It was alleged that on or about May 23, 2014, the respondent knowingly possessed a narcotic drug, cocaine, having a weight of one-eighth ounce or more. On January 26, 2015, pursuant to a written plea and sentence contract, the respondent entered a plea of guilty to a reduced charge of criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03, a class A misdemeanor. In his plea allocution, the respondent admitted that on May 23, 2014, he knowingly and unlawfully possessed cocaine. Pursuant to the plea and sentence contract, the matter was transferred to a Nassau County treatment court.

As to misconduct

We find that the Special Referee properly sustained charge two, but improperly declined to sustain charge one based upon the evidence adduced, which established that the respondent engaged in illegal conduct that adversely reflects on his honesty, trustworthiness, or fitness as a lawyer, and that adversely reflects on his fitness as a lawyer, in violation of rules 8.4(b) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0), as alleged in charges one and two, respectively. Accordingly, we grant the Grievance Committee's motion to confirm in part, and disaffirm in part, the Special Referee's report.

And sanction

In determining an appropriate measure of discipline to impose, this Court has considered the following factors in mitigation: the respondent's compliance with the conditions imposed in treatment court, which resulted in the dismissal of the criminal charges against him on January 26, 2016, his sincere statements of remorse, numerous affidavits and affirmations in support of his good character, and his unblemished disciplinary record.

(Mike Frisch)

September 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 28, 2016

The Cocaine In The Denali

A two-year suspension was imposed by the South Carolina Supreme Court as a result of a criminal conviction and misconduct in connection with the representation of a client in a personal injury matter.

The attorney's crimes were described by the United States Attorney for the Western District of North Carolina

According to information contained in court documents and today’s sentencing hearing, Anderson represented Lonnie Maddox on federal drug charges in South Carolina in connection with a large-scale cocaine conspiracy. Court records indicate that from February 21 to March 15, 2013, and on five different occasions, Anderson lied to federal agents concerning his knowledge of the whereabouts of two of Maddox’s vehicles. Maddox had purchased the vehicles with the illegal proceeds of his drug dealings. According to court records, Anderson knew where Maddox’s Yukon Denali sport utility vehicle was located, but repeatedly denied this fact when questioned by DEA and HSI agents. Court records also show that Anderson lied to law enforcement about his participation in moving the Denali, which law enforcement ultimately retrieved from Anderson’s law partner’s residence. According to today’s sentencing hearing, when law enforcement agents recovered the Denali, they found one kilo of cocaine hidden in a concealed compartment inside the vehicle.

In addition to the Denali, Anderson also initially lied to federal agents about possessing another one of Maddox’s vehicles, a classic Chevrolet Chevelle, court records indicate. And despite Anderson later admitting to law enforcement that he had in fact possessed the Chevelle, Anderson lied about the location from where he had obtained the vehicle.

 The suspension was imposed nunc pro tunc to the date of an interim suspension. (Mike Frisch)

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

Client Autonomy Trumps Attorney's Desire To Press Insanity Defense

The New Jersey Supreme Court has held that a competent defendant retains the authority to refuse to pursue an insanity defense notwithstanding the wishes of her attorney.

When a criminal defendant is found competent to stand trial under N.J.S.A. 2C:4-4, he or she has the autonomy to make strategic decisions at trial, with the advice of counsel, including whether to assert the insanity defense. Based on the trial court’s finding that defendant was competent to stand trial, and the detailed explanation that it gave defendant of the potential benefits and risks of the insanity defense, the court should have permitted her to decide whether to assert the defense, rather than invoking it on her behalf. We reverse the trial court’s judgment of acquittal by reason of insanity on the stalking charge, and remand for a new competency determination and, if appropriate, a new trial on this charge. We affirm defendant’s conviction on the weapons charges.

From the court's headnotes

 Through persistent efforts over more than a decade, defendant June Gorthy attempted to commence a relationship with C.L., a mental health therapist residing in New Jersey whom she met only briefly in 1998 at a conference in California. After the conference, defendant repeatedly sent C.L. gifts, letters and phone messages, stating that she was in love with C.L. C.L. categorically rejected these overtures. Defendant then abandoned her home in Colorado and drove to New Jersey, where she repeatedly contacted C.L. Defendant was arrested when she was found sitting on the floor in front of C.L.’s office. Defendant was carrying a knife, and, after a consent search of her truck, the police found several guns, ammunition, including hollow point bullets, another knife and an axe. Upon her release from jail, she initially complied with instructions not to contact C.L., but then resumed doing so.

Defendant was arrested again, and charged with stalking and weapons offenses. Defendant was released on bail, and admitted to pre-trial intervention subject to conditions, including that she have no contact with C.L. Defendant complied until the spring of 2006, when she made seventy-four calls to C.L. over a three-week period. On November 15, 2006, defendant was charged under a superseding indictment with stalking and weapons offenses.

Defendant filed a pretrial motion challenging her competency to stand trial. After reviewing defendant’s medical records and mental health evaluation, and questioning defendant, the trial court concluded that she was competent. Prior to trial, defendant’s counsel served notice that defendant may assert an insanity defense, and submitted the report of a psychiatrist who opined that defendant was psychotic and delusional at the time of the alleged offenses. The psychiatrist further opined that, if defendant were to decide not to assert an insanity defense, she would be doing so knowingly, but not intelligently or voluntarily.

Defendant declined to raise the insanity defense, over the objection of her attorney. The trial court held a hearing at which the judge explained to defendant the consequences of declining to assert the defense, and of asserting it and being acquitted by reason of insanity. Defendant continued to refuse to assert an insanity defense. The trial court concluded that defendant’s delusional condition had limited her ability to knowingly, intelligently and voluntarily determine whether to raise the defense, and then asserted the defense on her behalf on the stalking charge. Defendant was found not guilty by reason of insanity on that charge, and convicted on the weapons charges. The court entered an order of civil commitment on the stalking charge, and probation on the weapons convictions.

Defendant appealed her conviction, challenging the trial court’s decision to assert the insanity defense on her behalf, and also raising several trial errors. The Appellate Division reversed the trial court’s judgment on the insanity defense, and remanded for a bifurcated hearing on the insanity defense and the substantive defenses. This Court summarily remanded for reconsideration as to the insanity defense in light of the Court’s disapproval of bifurcated proceedings where an insanity defense is raised. On the remand, another panel of the Appellate Division, in a published opinion, affirmed the trial court’s judgment of acquittal by reason of insanity on the stalking charge. The panel rejected defendant’s contention that because she was found competent to stand trial, the court should have permitted her to decline to raise the insanity defense, holding that a defendant’s determination not to raise a defense is subject to a higher standard than that set by the competency statute.

The Appellate Division decision is linked here.

Clearly, defendant lacked the ability to make a rational choice on the question of defenses to the stalking count. She wanted validation of the “truth” of her imagined relationship with the victim, a motive irrelevant to the legal decision of waiver, unrelated to trial strategy, or even to any legal question. On the subject of the stalking charge, defendant's reasons for waiving the insanity defense were neither intelligent, nor voluntary, arising as they did from a compulsion.

Accordingly, we find that the trial judge did not err. His conclusion was, indeed, based on “sufficient supporting evidence.” See State v. Purnell, 394 N.J.Super. 28, 50 (App.Div.2007). Defendant's decision to waive the insanity defense was not knowing, voluntary, and intelligent. See Handy, supra, 215 N.J. at 362. The judge's decision to interpose the defense over defendant's objection was correct.

Asbury Park Press covered the trial. (Mike Frisch)

September 28, 2016 in Clients | Permalink | Comments (0)

Disqualification Order Reversed

The grant of a motion for disqualification of counsel motion was reversed by the New York Appellate Division for the First Judicial Department.

This is a legal malpractice action to recover as damages the attorneys' fees incurred in prosecuting the appeal in a prior lawsuit alleging damages caused by defendants' discovery violations. While we agree with the motion court that the testimony of plaintiffs' attorneys, who had represented plaintiffs on the prior appeal, was necessary and that defendants did not engage in undue tactical delay in seeking disqualification on that ground, we find that defendants failed to carry their heavy burden of demonstrating that the attorneys' testimony would be prejudicial to plaintiffs (see Broadwhite Assoc. v Truong, 237 AD2d 162, 163 [1st Dept 1997] ). The deposed attorney's failure to recall certain details during his deposition testimony, the alleged overlaps in his firm's billings, and defendants' speculation concerning the attorney's supervision of an associate not admitted to the bar do not constitute evidence that the attorney's testimony would be adverse to the interests of his clients (see id.).

We decline to consider the other ground on which defendants urge disqualification, which they raise for the first time on appeal. If we were to consider it, we would reject it, because there is no justification for the delay of nearly two years in raising the argument.

(Mike Frisch)

September 28, 2016 | Permalink | Comments (0)

Tuesday, September 27, 2016

The Ungovernable

A Hearing Tribunal of the Law Society of Upper Canada has ordered license revocation of a member deemed to be "ungovernable"

A determination of ungovernability is based on a case by case analysis, the guiding principle of which is protecting the public interest.  It is essential that members of the profession be willing to be governed by the Law Society and adhere to its dictates, otherwise, the public cannot be protected...

The series of suspensions based upon prior findings of professional misconduct is evidence of unwillingness or an inability on the part of the Mr. Cuddy to be governed by the Law Society.  The progressive and increased penalties have not had the desired effect of modifying his behaviour and making him more amenable to compliance and co-operation with the Society’s investigative duties and function.  This is further evidenced by this fourth finding of professional misconduct.

This is confirmed ultimately by the Licensee’s expressed willingness to surrender his licence.  The question is whether or not the Tribunal should grant Mr. Cuddy permission to surrender or impose a penalty of revocation.  That determination turns upon the second branch of the test of ungovernability.  This Tribunal must balance the nature of the misconduct and disciplinary history against mitigating factors.

The factors did not favor resignation

The Tribunal is not without compassion.  However, we are bound to balance the aggravating and mitigating circumstances of the case in respect of penalty.  We must consider the issues of general and specific deterrence, rehabilitation and the interests all lawyers and paralegals share as self-regulating professions in protecting the public. On the issues of specific deterrence and rehabilitation, surrender of licence versus revocation of licence is a moot point.  In both circumstances Mr. Cuddy would no longer practise law.    

On the point of general deterrence, it is important to highlight a licensee’s obligation to co-operate with the Law Society in discharging its duty to protect the public by providing prompt meaningful responses to the Law Society in its inquiries.  The Tribunal concludes that this is a case in which reproof of unresponsive conduct is necessary.  Mr. Cuddy’s repeated conduct of non-compliance has thwarted the Law Society’s critical function of protecting the public interest on several occasions.   As noted in Strong... repeated and habitual non-compliance by licensees with inquiries, correspondence and communications from the Law Society “compromises the credibility of the self-governance regime” that lawyers and paralegals in Ontario enjoy.

Bottom line

Although we have compassion for the Licensee, the behaviour exhibited by the Licensee necessitates revocation.

(Mike Frisch)

September 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Almost Teacher Of The Year

The Louisiana Attorney Disciplinary Board has recommended a fully-stayed one year and a day suspension for conversion of entrusted funds.

In December 2006, Respondent wrote checks drawn on the firm's client trust account totaling $2,900 [sic t to obtain cash to permit him to gamble at a Shreveport casino.

Respondent thereafter self-reported these offenses to ODC and began treatment with Gamblers Anonymous. Full restitution of the funds were made to the firm's account shortly after Respondent reported to the ODC.

Nonetheless, by his acts and omissions, the Respondent has violated Rule 1.15 (conversion of client/third party funds).

As to sanction

The Levith case is similar to the matter at hand in that both respondents converted funds from their client trust accounts to pay for gambling activities. The Board recognizes that Mr. Levith's misconduct was classified as negligent by the Court, and Mr. Miciotto's misconduct was knowing and intentional. Nevertheless, given the mitigating factors present here, including absence of a prior disciplinary record, personal or emotional problems, remorse, and full and free disclosure to disciplinary board or cooperative attitude toward proceedings, the Board finds that the hearing committee's recommended sanction of a one year and one day suspension, fully deferred with conditions, is more appropriate than the harsher sanction imposed in Levith. Further, the Board is impressed with the Respondent's efforts towards rehabilitation and his work from 2007-2014 as a teacher in the Caddo Parish School District. As noted above, the Respondent earned the honor as Teacher ofthe Year at Fair Park High School in 2013 and was a finalist for 2013 Teacher of the Year for the Caddo Parish School District. The affidavit submitted by Schannon Lanclos, his former supervisor at Woodlawn High School and Fair Park High School in the Caddo Parish School District, describes Respondent as an outstanding teacher, coach and employee who was well-respected by students, teachers and school administrators. Given this, the Board will adopt the hearing committee's recommended sanction, with the addition of a two year probationary period.

I accord substantial weight to the voluntary self-report but otherwise view this as a rather lenient response to the misconduct.

Notably, it appears that the self-report occurred in 2007. (Mike Frisch)

September 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Linked Out

A September 6 Judicial Ethics Opinion from Massachusetts:

Linked In: Using Social Networking Site
September 6, 2016

You have asked the CJE whether you may accept Linked in requests from attorneys who appear before you. You have also asked whether you must disconnect from Linked In connections you may have with attorneys who appear before you.

Your question requires us to consider whether our analysis and advice in Letter Opinion No. 2016-01, Facebook: Using Social Networking Site, is applicable to Linked In. We believe that the same overarching principles and concerns stated in Op. 2016-01 apply to all forms of social media that are currently available. Different types of social media networking may, however, pose distinct issues due to their features and the nature and extent of the audience with access to content posted by the judge.

Linked In is primarily a business-oriented social networking site, although some Linked In users post personal updates on and send personal messages through their Linked In accounts. A Linked In user, like a Facebook user, creates a personal profile. The Linked In user may then invite others "to connect" and respond to invitations "to connect" sent by others. Affirmative replies lead to the establishment of a "connection." Users may also "like" a connection's updates and achievements, endorse a connection's skills, and post recommendations. These actions will generally be visible on the profile page of the connection (although a Linked In user may choose not to post endorsements and recommendations). Linked In's default settings permit each user to view each connection's entire list of connections and vice versa. This is considered one of the most useful aspects of Linked In; a Linked In user may ask a connection (a first-order connection) to introduce the user to one of the connection's connections (a second-order connection). While Linked In resembles Facebook by requiring a person's affirmative response to connect with another, many if not most Linked In users seek to grow their number of connections so as to increase their business network. Moreover, Linked In user profiles are generally available to any other Linked In user (even if not a connection) who logs onto the Linked In website and enters the name of any person with a Linked In profile.

In our judgment, and consistent with Op. 2016-01, a judge who uses Linked In may not be connected with any attorney who is reasonably likely to appear before that judge. This conclusion requires a judge to reject requests to connect with and to disconnect from lawyers who are reasonably likely to appear before the judge(1). Because of the prevalence of professional recommendations and endorsements of professional skills that appear on many Linked In profiles, disconnection and disclosure are necessary to protect the independence, integrity, and impartiality of the judiciary. Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows(2) to be a Linked In connection appears before the judge. The existence and nature of the Linked In connection (e.g., whether, while the judge was a practicing attorney, the judge had posted a recommendation or endorsement on the profile page of this lawyer) is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is unwarranted, the judge should both disconnect from the lawyer on Linked In and disclose on the record the existence and nature of the Linked In connection.  See Rule 2.11, Comment [5]. If a judge knows that a lawyer appearing before the judge is a former Linked In connection, the judge should consider the nature of that past connection to determine whether disclosure is warranted. See Rule 2.11, Comment [5B].

As the use of social media continues to grow, we again emphasize judges' obligations under the Code of Judicial Conduct, including the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in their professional and public lives; maintain the dignity of judicial office at all times; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. Judges must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. Each judge who uses social media must take steps to minimize the likelihood that the manner in which that  judge uses social media would lead a reasonable person to question the judge's impartiality.

Judges must, of course, be aware that all social media communications may become public. See, e.g., In the Matter of Archer (Alabama Court of the Judiciary, August 8, 2016) (judge conducted what he regarded as "private" Facebook communications with a Facebook friend who made a copy of these communications and shared them with a reporter).  There may also be sound reasons, apart from ethical considerations, for a judge to exercise restraint when using social media, such as the judge's concerns over the personal safety of the judge or the judge's family members. As we stated in Op. 2016-01, judges inclined to use social media should carefully weigh the risks and benefits.  

(1) This requirement also applies to parties or witnesses reasonably likely to appear before the judge.

(2) The Code defines "knows" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

(Mike Frisch)

September 27, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)