Friday, November 18, 2016

Worth The Gamble

A fully stayed year and a day suspension has been imposed by the Louisiana Supreme Court of an attorney who made three improper withdrawals from his firm's trust account

Respondent made these withdrawals to obtain cash so he could gamble at a Shreveport casino. The conversion resulted in a $9,300 overdraft of the client trust account on December 29, 2006.

Shortly thereafter

In early January 2007, respondent consulted with a gambling addiction therapist, Dr. Kent Dean. On the advice of Dr. Dean and a local representative of the Judges and Lawyers Assistance Program (“JLAP”), respondent contacted JLAP and was referred to CORE, a gambling addiction program. Thereafter, respondent self-reported his misconduct to the ODC. By January 11, 2007, the converted funds were restored to the client trust account by Mr. Hamauei. The following day, [his law partner] Mr. Hamauei was reimbursed by respondent’s father and respondent was admitted to the CORE program. Respondent was diagnosed with “Pathological Gambling D/O” and successfully completed the CORE program after thirty-six days of inpatient treatment.

Key findings by the hearing committee

  1. Respondent’s actions, which occurred more than nine years ago, were caused solely by his addiction to gambling. He immediately sought and successfully completed treatment with the CORE program. He also voluntarily excluded himself from all gambling establishments in Louisiana by placing himself on the Louisiana gambling exclusion lists in 2007.
  2.  On January 8, 2007, respondent self-reported his violations of the Rules of Professional Conduct in a telephone call to the ODC. He followed up with a self-reporting letter, which was faxed and mailed to the ODC on January 11, 2007.

The court

In this matter, respondent violated Rule 1.15 of the Rules of Professional Conduct when he converted client funds, which he then used to gamble at a casino. Although respondent acted knowingly and intentionally, no actual harm occurred because the converted funds were quickly replaced. Nevertheless, respondent’s dishonest and selfish motive caused the potential for serious harm.

The court followed the board's sanction because it was "not unreasonable"

The record supports the aggravating and mitigating factors found by the disciplinary board. Additionally, the mitigating factor of timely good faith efforts to make restitution or to rectify the consequences of the misconduct is present.

During his hearing testimony, respondent indicated he repaid his father for the funds his father gave Mr. Hamauei; therefore, even that harm has been rectified. The record also reflects respondent voluntarily left the practice of law between 2007 and 2014. The ODC was aware of respondent’s intention to not practice law during this time and, arguably, chose to stay the disciplinary proceedings instead of moving them along in a timely manner. As soon as respondent informed the ODC he wanted to return to the practice of law working for Mr. Cooper, the ODC filed formal charges against him. As such, the delay in the disciplinary proceedings should also be taken into account as a mitigating factor. Finally, respondent indicated he has been active in Gamblers Anonymous since leaving the CORE program, and his wife indicated he usually attends a Gamblers Anonymous meeting once a week.

This result seems entirely appropriate given the seven years of self-suspension and long track record of recovery. I speculate that Disciplinary Counsel withheld the charges until the attorney was ready to return to practice with the blessing of the bar's recovery program. 

The attorney will be on probation for at least two years. (Mike Frisch)

November 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Where There's A (Lost) Will

A lost will led to a criminal conviction and disbarment by the New York Appellate Division for the First Judicial Department.

On April 13, 2016, respondent pleaded guilty in Supreme Court, New York County, in satisfaction of two separate indictments, to two counts of criminal possession of a forged instrument in the second degree in violation of Penal Law § 170.25, a class D felony, and one count of offering a false instrument for filing in the first degree in violation of Penal Law § 175.35, a class E felony. The charges arose out of respondent's efforts to conceal the fact that he had failed to perform legal work in two Surrogate's Court matters that he was handling.

On June 9, 2016, respondent was sentenced, concurrently on all three charges, to a three-year conditional discharge and 500 hours of community service. While not part of the plea conditions, respondent agreed to reimburse funds to two of the victims of his criminal acts.

The crimes to which respondent pleaded guilty are felonies under the laws of this State, and therefore upon his conviction thereof, he ceased to be an attorney by operation of law.

The ABA Journal had reported

A New York estate lawyer has been arraigned on charges that he forged a fake receipt to hide the fact that he had misplaced a dead man’s will.

James Robbins, 62, was arraigned Wednesday on one count of possessing a forged instrument and one count of offering a false instrument for filing, the New York Daily News reports. He pleaded not guilty.

Robbins is accused of stringing along a grieving family for more than a year after misplacing the dead man’s will. It’s not clear how Robbins misplaced the will, the Daily News reports. His lawyer, James Schiff, declined comment to the newspaper.

Robbins allegedly gave relatives a variety of excuses for the delay, including that the will he drafted might be published in the New York Law Journal, prosecutors said.

“For more than a year and a half, the defendant made one false statement after another to the decedent’s family,” Assistant District Attorney Jaime Hickey-Mendoza said.

Robbins did not profit from the ruse and never even billed the family for his services, prosecutors said.

November 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Who Raped Unconscious Client Consents to Disbarment

The web page of the Pennsylvania Supreme Court reports the consent disbarment of a convicted attorney.

Philly.com had the story of the criminal case in October 2016

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

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

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

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

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

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

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

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

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

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

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

His victim did not attend the proceeding.

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

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

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

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

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

No date was set Tuesday for Cirillo's sentencing.

(Mike Frisch)

November 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Leaving A Firm Is Hard To Do (If You Are Stealing from Your Partners)

The Wisconsin Supreme Court has approved a proposed 18-month suspension of an attorney who stole from his law firm.

According to the amended complaint, Attorney Hotvedt was formerly employed at the Burlington, Wisconsin law firm of Lloyd, Phenicie, Lynch, Kelly, Hotvedt & Terry, S.C. He was a stockholder, director, and officer of the firm and had practiced with the firm since he graduated from law school. By common and accepted practice, and pursuant to written employment agreements, all attorneys at the firm understood and agreed that revenues generated by the practice of law belonged to the firm.

In January 2014, Attorney Hotvedt and Attorney Todd Terry told firm shareholders that they would be withdrawing from the firm and establishing their own law practice in Kenosha. The shareholders of the firm agreed to dissolve the corporation effective May 31, 2014. All firm members signed a dissolution agreement winding up the corporation.

Subsequent to the dissolution of the firm, and in connection with the winding up of the firm, Attorney Dennis Lynch, the former President of the firm, noticed billing discrepancies attributable to Attorney Hotvedt, including writing off substantial amounts of firm billings in the years 2011 through 2013. In many instances, Attorney Hotvedt had written off client billings, but clients reported to the firm that they had paid legal fees directly to Attorney Hotvedt.

Review of firm accounts showed that Attorney Hotvedt had deposited client fee payments directly into his own personal bank account rather than depositing the fees into the law firm account. Attorney Hotvedt did not disclose to the firm's shareholders that he was depositing firm funds paid by clients into his personal bank account. Attorney Hotvedt continued his conduct of depositing client funds belonging to the firm into his personal bank account during 2014, after he had announced his departure from the firm and after he had executed a dissolution agreement.

As part of its investigation into the grievance filed against Attorney Hotvedt, the OLR discovered that in 2014 Attorney Hotvedt established his own consulting company, JBG Consulting Services, during the time period in which he was preparing to leave the firm. Through this consulting company, Attorney Hotvedt converted additional attorney's fees belonging to the firm. The OLR's investigation revealed that the total amount of identifiable client funds converted by Attorney Hotvedt from his former law firm was over $173,000.

Sanction

The referee went on to say that an 18-month suspension for a relatively new attorney who recently started a new firm is a significant discipline, particularly considering the additional time it may take for him to be reinstated under the reinstatement procedures dictated by SCR 22.28(3). The referee noted that Attorney Hotvedt has no prior disciplinary history; he reached an agreement with his former firm regarding restitution; and he ultimately was willing to enter into a stipulation and no contest agreement. Upon consideration of all those factors, the referee said he had no difficulty agreeing to recommend the 18-month suspension recommended by both the OLR and Attorney Hotvedt as part of the stipulation.

(Mike Frisch)

November 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Cautionary Tale

Consistent with its high level of transparency, the Ohio Supreme Court has posted the disciplinary charges (with links) in matters scheduled to be heard in the near future.

The list of cases is notable for its volume - 20 bar disciplinary matters set to be heard over a two-month period.

This suggests not that Ohio is a place notable for rampant attorney misconduct; rather, it is a notable jurisdiction that takes policing potential attorney misconduct as a serious obligation.

Also notable is that in only three of the twenty matters is the accused attorney represented by counsel.

One case is a cautionary tale of in house counsel failing to keep up with registration requirements as alleged in recent charges filed against an attorney.

The attorney's suspension involved failure to complete CLE obligations.

Approximately one year later, on November 3, 2014, respondent was hired as Staff Counsel and Director of Institutional Compliance by ValMark Securities ("ValMark").

The legal position at ValMark required respondent to be a member in good standing of at least one state bar.

The charges

On December 4, 2014, respondent completed a Uniform Application for Securities Industry Registration or Transfer, which was a requirement of her employment at ValMark. On this form, respondent falsely attested that she has never had her authorization to act as an attorney revoked or suspended.

On or about October 26, 2015, Va!Mark's Chief Legal Counsel, Shelly Goering, mentioned to respondent that she had not received respondent's request for reimbursement of attorney registration fees. After speaking to respondent, Goering checked respondent's registration status on the Supreme Court of Ohio's website, and learned that respondent's license had been suspended since 2013. Goering brought the information to respondent regarding her license suspension.

On November 3, 2015, after not receiving an update regarding the license suspension, Goering met with respondent. Respondent admitted she was aware that her license to practice law had been suspended and that she delayed filling out the Uniform Application for Securities Industry Registration or Transfer form because she knew she would be answering falsely. Respondent was terminated from ValMark the same day.

On November 9, 2015, respondent filed an Application for Reinstatement.

On November 16, 2015, respondent was reinstated to the practice of law.

In response to relator's investigation that began in December 2015, respondent falsely asserted that she was unaware that her license to practice law was suspended. Respondent admitted that she failed to complete her continuing legal education requirements. Respondent further admitted that she failed to open letters that she received from the Supreme Court of Ohio.

In an unrelated matter, the Pennsylvania Supreme Court imposed a six-month suspension of an attorney who practiced while suspended as in house counsel to a number of entity clients in In re Megan Clark. (Mike Frisch)

November 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 17, 2016

Nine Month Suspension For Threesome With Babysitter

A consent suspension of nine months from the South Carolina Supreme Court

During the evening of December 16, 2011, respondent and his wife provided alcohol to an eighteen (18) year old female guest at their home in Augusta, Georgia. The guest had formerly worked for the couple as a babysitter. Marijuana was also used in the home that evening. Respondent and his wife engaged in sexual intercourse with the guest. According to respondent, the marijuana belonged to his wife, and the sexual intercourse was consensual. On December 21, 2011, the guest contacted law enforcement to report the incident. 

On March 6, 2012, respondent was indicted on one count of Rape and one count of Furnishing Alcohol to a Person under Twenty–One in violation of the laws of the State of Georgia. Because of the pending indictment, respondent was placed on interim suspension by order of this Court on March 27, 2012. In the Matter of Neal, 397 S.C. 496, 727 S.E.2d 27 (2012).

On June 6, 2012, respondent pled guilty to three misdemeanor charges: Disorderly Conduct, Furnishing Alcohol to a Person under Twenty-One, and Possession of Marijuana. The indictment for Rape was dismissed and a nolle prosequi was granted by the trial court.

Respondent was sentenced to twelve (12) months of probation on each charge, with all sentences to run consecutively. Respondent was ordered to have no contact with the victim or the victim's family, submit to random drug screens, and perform 100 hours of community service at a wastewater treatment facility. Respondent was also fined $1,000 for each charge.

On June 21, 2012, respondent filed a motion to withdraw his guilty plea on the charge of Possession of Marijuana because he stated he was not informed he would lose his driver's license for 180 days as a result of his plea. The court granted respondent's motion on March 29, 2013, and allowed respondent to substitute a plea of nolo contendre nunc pro tunc on the Possession of Marijuana charge. The order providing for the substituted plea modified respondent's sentence to include a requirement that he offer himself as a speaker to each of the five law schools in the State of Georgia regarding "issues which arose in this case."

Respondent complied with all conditions of his probation, and his probation was terminated on June 6, 2015.

WISTV10.com reported on the criminal case.

The 18-year-old said she was drunk the night of the alleged incident and to learn what happened, she texted Neal the next day. The sexually graphic texts the two exchanged were read aloud in the courtroom.

In texts, Neal referred to himself as a "sex god" and told the teen she could be their "sex slave and babysitter" the young woman said during that conversation she learned there was sexual intercourse she was too drunk to remember...

Neal accepted the plea bargain through tears.

As a part of the agreement he pled guilty to three misdemeanors: disorderly conduct, possession of marijuana and furnishing alcohol to a person under 21. The judge also ordered 3 years of supervised probation and sentenced him to 100 community service hours at the waste water treatment facility - the sewage plant, for his behavior.

After he left the courthouse, Neal said, "I'm a sinner, you know, but I love God and he's forgiven me for the sins I've committed, I did not commit a crime," Neal continued saying, "Sex is usually a private matter, this was a private motive that someone used for ulterior motives to destroy my reputation."

The trial for Neal's former wife, Caroline is expected to begin June 18th. She faces the same charges as Neal.

The court concluded that the conduct violated Rule 8.4(b). (Mike Frisch)

November 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Facebooking Judge Suspended

A judge's Facebook proclivity has led to a six-month suspension by the South Carolina Supreme Court.

An estate was opened in Oconee County for the estate of Z.H. Z.H.'s parents had filed a wrongful death suit on behalf of the estate against the Seneca Police Department. The case was settled with the family for the sum of $2,150,000. Due to the public nature of the case, the settlement received extensive press coverage. 

Despite the matter being before the probate court for administration of the estate, respondent expressed his opinion about the settlement on Facebook posting: "In the end it's all about the money. Always. Unfortunately, I see it EVERYDAY." Respondent later added: "Once ck is in hand, they'll disappear."

A review of respondent's Facebook account revealed that he has made extensive political posts, including ones in which he appears to endorse the presidential candidacy of one candidate. A review of respondent's Facebook account further revealed a post in which he engaged in fundraising for a local church. Respondent's Facebook account identifies himself as the probate court judge for Oconee County and the account, along with all of respondent's posts, were accessible to all members of Facebook.

Respondent greatly regrets his conduct with regard to the estate of Z.H. matter and is sorry for any distress that it may have caused Z.H.'s family. Respondent recognizes that, while he did not mention the estate of Z.H. by name on Facebook, it was inappropriate for him to make the statements as it would be clear in the community to what he was referring. Respondent also recognizes that it was inappropriate for him to make political posts and to post information about a fundraiser for a local church.

Respondent has now removed reference to himself as a judge on his Facebook page. He submits that he is deeply embarrassed about the matter and seeks to assure the Court that, in the future, he will not make reference to anything involving his court and will refrain from making political posts or posting fundraising information on Facebook or any other social media. Respondent is extremely proud of the Oconee County Probate Court and wants to assure the Supreme Court that he will do nothing further that could damage the reputation of the probate court.

Sanction

We find respondent's misconduct warrants a six (6) month suspension from judicial duties, retroactive to April 12, 2016, the date of his interim suspension. We therefore accept the Agreement for Discipline by Consent and suspend respondent from office for six (6) months.

(Mike Frisch)

November 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Winnie-The-Pooh And the Failed Reinstatement

A District of Columbia Hearing Committee has recommended that reinstatement be denied to an attorney who had consented to disbarment in 2009.

The case is In re James Q. Butler.

Petitioner consented to disbarment while facing more than one hundred complaints of misconduct involving allegations of multiple Rule violations – including the violation of the most serious rules prohibiting fraud, dishonesty, misappropriation, commingling funds, rampant neglect, and a pattern of aggressive marketing to, and taking money from, vulnerable incarcerated clients without providing meaningful services. Following his disbarment, the D.C. Bar Clients’ Security Fund paid out over $650,000 to clients harmed by Petitioner’s misconduct. To date, Petitioner has made restitution of $300...

The majority – but far from all – of the misconduct complaints arose in connection with Petitioner’s and his law firm’s representation of clients who were incarcerated as a result of criminal convictions and who wished to pursue potential post-conviction remedies. At some point during 2006 and 2007, Respondent and his firm had relationships with the Christian Civil Liberties Union (“CCLU”), Corrections and Prison Reform International, and Justice4All. DCX 6 at 2. Petitioner held himself out as associated with all of these entities and as the General Counsel for CCLU. All of these entities, with Petitioner’s knowledge and participation, distributed false and/or misleading advertising to incarcerated potential clients regarding the legal services Petitioner and/or the organization would provide. Id

One of the methods employed by Petitioner was to offer potential clients a “case evaluation” that would include an investigation of the client’s case for a fee between $500 and $700. Id. at 3. A client who paid the fee for the “case evaluation,” received a written document purporting to evaluate the client’s legal options. Id. However, the “case evaluation” was not client-specific and did not analyze the client’s procedural and/or substantive legal issues, or accurately or competently assess the client’s legal matter. Id. Instead, the “case evaluation” was an ambiguous, generalized, one-size-fits-all form that did not specifically analyze or describe the client’s legal options. Id. For example, seven of the ten case evaluations included in DCX 13 contained similar language in the “Actual Innocence” section which summarized the actual innocence standard set forth in a trio of U.S. Supreme Court cases: Murray v. Carrier, 477 U.S. 478 (1986), Kuhlmann v. Wilson, 477 U.S. 436 (1986), and Smith v. Murray, 477 U.S. 527 (1986). See DCX 13 at 2-3 (Ronnie Matthews), 8-9 (Maurice Williams), 15-16 (Nakia Davis), 20-21 (Kenneth White), 41-42 (Norris Bernard Ellis), 69-70 (Jody Williams), 77-78 (Roosevelt Broadus). Nine of the ten case evaluations contained the same language in the “Right to Effective Assistance of Counsel” section, which summarized the Sixth Amendment right to assistance of counsel case law, including: Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainright, 372 U.S. 335 (1963). These nine case evaluations also included a discussion of the Strickland v. Washington, 466 U.S. 668 (1984) line of cases setting forth the standard for determining ineffective assistance of counsel, but did not apply the standards to the facts of the client’s case. See DCX 13 at 4-6 (Ronnie Mathews), 10-12 (Maurice Williams), 16-18 (Nakia Davis), 22-24 (Kenneth White), 34-36 (Warren Ivory), 49-51 (Norris Bernard Ellis), 65-67 (Lewis Watson, Jr.), 70-72 (Jody Williams), 78-80 (Roosevelt Broadus). Finally, nine of the ten case evaluations included the exact same language in the “But For Prejudice” and “Components of Ineffectiveness Claims” sections. See DCX 13 at 6-7 (Ronnie Matthews), 12-13 (Maurice Williams), 18-19 (Nakia Davis), 24-25 (Kenneth White), 37-38 (Warren Ivory), 58-59 (Norris Bernard Ellis), 67 (Lewis Watson, Jr.), 72-73 (Jody Williams), 81 (Roosevelt Broadus). Only one of the ten case evaluations included in DCX 13 contained a different analysis regarding the client’s case, but the case-specific analysis is only two sentences. See DCX 13 at 30-31 (Steven Patrick Diffendal). Petitioner admitted that these “case evaluations” were “substandard,” used “generic,” “boilerplate,” or “template” language, and were provided to the clients in order to get them to sign a retainer with the firm. Tr. 280, 466-69; see also Tr. 495-96 (Flippen: “They simply changed out the client’s name and maybe some information about who might be touching that case.”).

An interesting tidbit

On January 30, 2009, Petitioner and Disciplinary Counsel filed a Petition for Negotiated Discipline agreeing to a one-year suspension with reinstatement conditioned on a showing of fitness, in response to allegations against Petitioner of dishonesty, neglect, lack of communication, and failure to return unspent funds that had been advanced to pay expenses in ten different matters. DCX 3. After an extraordinary outpouring of outrage from his former clients objecting to the leniency of the proposed disposition, the Hearing Committee rejected the disposition as not “justified” under D.C. Bar R. XI, § 12.1(c) and Board Rule 17.5(a)(i)-(iii). See Order, In re Butler, Bar Docket Nos. 2007-D311, et al. (H.C. Rpt. May 1, 2009).

The story starts in 2006

In November 2006, the first client complaint, from Mr. Wardrick, was docketed for investigation and sent to Petitioner for a response. DCX 23 (Wardrick). Three more complaints were docketed against Petitioner in 2007. Id. (Drummond, Bar Counsel, Durham).

On January 31, 2007, Petitioner agreed to a diversion program in the Wardrick case. DCX 24 at 4. This diversion was approved by a Board member on June 6, 2007.

...The Wardrick complaint and resolution afforded the Petitioner an opportunity to rein in his ambitious expansion of his practice and firm, and focus on the provision of quality legal services within his competence. This wake-up call was not heeded. 

When then-Bar Counsel sought a consent suspension

A number of Petitioner’s former clients submitted strikingly powerful letters to the Hearing Committee considering the Petition for Negotiated Discipline, describing the mental, emotional, and financial harm Petitioner caused to them and their families by his dishonesty and neglect. DCX 18 at 3 (“dashed out all rays of hope”), 6 ¶ 1 (“suffering”), 19 ¶ 4 (“dark hole”), 20 ¶ 2 (“ruined my life”), 28 ¶ 4 (“lost a great deal of sleep from the stress on my  family and me”), 39 ¶ 4 (“predatory lawyers”), 47 ¶ 5 (“abused his oath”), 49 ¶ 4 (“tarnished my feelings for the justice system”), 58 (“caused me stress, depression and regression”). 

The hearing committee then rejected the proposed consent.

Feelings have not softened

Considered quantitatively, Petitioner’s case is both extreme and severe. Qualitative consideration of the impact his misconduct had on his clients leads to the same conclusion when time limits ran out on clients’ limited access to post conviction relief from criminal convictions. In a coda to the outcry in response to the original negotiated discipline in 2009, more than two dozen former clients and family members of former clients submitted letters opposing readmission for Petitioner,

The hearing committee on reinstatement

Petitioner’s blithe expressions of ignorance, and his failure even to give thoughtful attention to the letters submitted in connection with this proceeding, are inconsistent with any meaningful recognition of the seriousness of his misconduct. Petitioner’s testimony was more consistent with a desire to put the past behind him than to demonstrate that he had learned from his experiences: “With no disrespect to those clients that were harmed, I have already acquiesce[d] to this misconduct and I don’t dispute that any of the misconduct named in the negotiated discipline occurred.”

And this

the record betrays a pervasive false insinuation that this was all the fault of the mysterious Anthony Andelino, who was affiliated with Petitioner for a time to build the “postconviction relief practice” and is purported to have impersonated him when dealing with clients. E.g., Tr. 271 (“These cases came from Andelino . . . .”). Petitioner testified that telling the story of his own misconduct without mentioning Mr. Andelino would be like “telling a story about Winnie-the-Pooh without ever mentioning Winnie-the-Pooh’s name.” Tr. 276. Hardly. Petitioner is the main character in this story and his persistent minimization of his own role is a signal of Petitioner’s failure to come to terms with why he was disbarred. Petitioner conceded that Mr. Andelino, whose admission to any Bar has not been demonstrated, was gone from the firm as of mid-2007. Tr. 383. Many of the complaints post-date Mr. Andelino’s departure, and recount inperson meetings with Petitioner.

The weak restitution effort did not help. (Mike Frisch)

November 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Notre Dame Defeats ESPN

A decision issued yesterday by the Indiana Supreme Court

An ESPN reporter requested information from the Notre Dame Security Police Department regarding 275 student-athletes. The Department declined, claiming that Notre Dame is a private university and its police force is not a "law enforcement agency" subject to Indiana’s Access to Public Records Act. The trial court agreed, and dismissed ESPN’s suit. We too find that a private university police department is not a "public agency" for the purposes of APRA, and affirm the trial court...

We acknowledge the importance of an open government, as well as the broad access granted to government records by APRA. See Ind. Code § 5-14-3-1. However, the job of this Court is to interpret, not legislate, the statutes before it. Under APRA as it is currently written, the Department is not a "public agency" under any of the three subsections identified.

(Mike Frisch)

November 17, 2016 in Current Affairs | Permalink | Comments (0)

Shameless

The New Jersey Supreme Court has disbarred an attorney who "shamelessly" misappropriated trust funds.

The Disciplinary Review Board report

 The record clearly establishes that respondent systematically helped himself to trust funds either to suit his own personal needs or those of other clients or third parties. What is clear is that he did so shamelessly, without authorization, and to the substantial detriment of those clients and third parties. For this, he must be disbarred. In light of our finding, there is no need   to address respondent’s additional ethics violations.

Details

 On multiple occasions, even when given "credit" for hundreds of thousands of dollars of trust funds that he already had misappropriated, as detailed under counts two through seven above, respondent’s trust account fell well below the balance that he was required to maintain in behalf of his clients and/or third parties. Between June 30, 2012 and September 30, 2013, respondent’s trust account was short in amounts varying between at least $86,468 and $138,943. All of these shortages were caused by respondent’s unauthorized use of funds belonging to his clients and/or third parties whom he served in a fiduciary capacity.

The DRB rejected his "bank error" explanation. (Mike Frisch)

November 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Good Day Sunshine

Any day that sees the District of Columbia Court of Appeals approve a consent discipline in a bar case is a good day.

The court ordered a stayed suspension and probation on these agreed facts

Respondent acknowledged that he (1) failed to serve his client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters; (2) failed to represent his client zealously and diligently within the bounds of the law; (3) intentionally failed to seek the lawful objectives of his client; and (4) engaged in dishonesty, deceit, and misrepresentation, thereby violating Rules 1.1 (b), 1.3 (a), 1.3 (b)(1), and 8.4 (c) of the District of Columbia Rules of Professional Conduct. The Committee considered the mitigating circumstances, which included the following: (1) respondent cooperated with Disciplinary Counsel; (2) respondent took full responsibility and acknowledged his misconduct from the outset; (3) respondent has no prior discipline; (4) the misconduct occurred during a time when respondent suffered from Bipolar Disorder and Attention Deficit Hyperactivity Disorder ("ADHD"); (5) respondent’s Bipolar Disorder and ADHD substantially affected the misconduct, excluding the violation of Rule 8.4 (c); (6) respondent has been substantially rehabilitated from his Bipolar Disorder and ADHD; and (7) respondent fully compensated his client for his misconduct. Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a eighteen month suspension effective thirty days from the date of this opinion, six-months stayed in favor of six-months of unsupervised probation, with the requirements that respondent shall: (1) during the one-year suspension and six-month probation, submit monthly reports to Disciplinary Counsel self-certifying his compliance with the treatment directions of his treating psychiatrist; (2) waive any privilege otherwise applicable to his treatment to the extent necessary for Disciplinary Counsel to verify compliance with terms of the probation; and (3) not be found to have engaged in any misconduct in this or any other jurisdiction. Further, additional sanctions, including a fitness requirement, may be imposed if respondent violates the term of his probation. After reviewing the amended petition for negotiated discipline, considering the supporting affidavit, conducting a limited hearing, and holding an ex parte meeting with Disciplinary Counsel, the Committee concluded that the amended petition for negotiated discipline should be approved.

 The court division consisted of Associate Judges Glickman and Thompson and Senior Judge Reid. (Mike Frisch)

November 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 16, 2016

Salem's Lot

As an attorney of over 40 years experience, I am of the opinion that the enforcement of binding arbitration clauses where parties have grossly unequal bargaining power in the contract process has significantly and unfairly diminished the rights of consumers.

A decision of the West Virginia Supreme Court of Appeals well illustrates my concerns - nursing students who enrolled in Salem International University were denied the ability to seek class action relief due to the school's arbitration clause.

Justice Workman concurred only because of binding U.S. Supreme Court precedent

the opportunity for the nursing students to seek class relief is of particular importance to the enforcement of West Virginia laws protecting consumers because it provides a mechanism for the spreading of costs. The class action device allows plaintiffs with individually small claims the opportunity for relief that would otherwise not be economically feasible, allowing them to collectively share the otherwise exorbitant costs of bringing and maintaining the lawsuit. "In many cases, the availability of class action relief is a sine qua non to permit the adequate vindication of consumer rights." State ex rel. Dunlap v. Berger, 211 W.Va. 549, 567 S.E.2d 265, 278 (2002). "The class action is one of the few legal remedies the small claimant has against those who command the status quo." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186 (1974) (Douglas, J., dissenting, in part).

In light of Concepcion, however, I join the majority opinion grudgingly but note Justice Ginsburg’s sagacious observation that the arbitration decisions rendered by the United States Supreme Court over the last decade "have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer-protection laws." DirectTV, 136 S.Ct. at 477, (Ginsburg, J., dissenting).

Salem University failed miserably in managing its nursing program but that did not stop it from making a convincing sales pitch to these students that they would get the training and degree required to secure high paying jobs as nurses upon graduation. Salem University worked hard to sign up prospective nursing students by assuring them the program was in sound shape even though the university knew it was in the process of losing its accreditation. Regrettably, these nursing students and their classmates were left holding the bag with no degree, no nursing careers, and student loans that are collecting interest and weighing them down financially.

 These nursing students, negatively impacted by Salem University’s conduct, filed the putative class action complaint against the university in the Circuit Court of Harrison County alleging violations of the West Virginia Consumer Credit Protection Act, negligence, breach of contract, breach of duty of good faith and fair dealing, and conversion of personal property. Were it not for the binding precedent of the United States Supreme Court discussed by the majority, I would have found that the students were entitled to litigate these disputes in our State courts.

 (Mike Frisch)

November 16, 2016 | Permalink | Comments (1)

Suspension Is No Joking Matter

The California State Bar Court Review Department has recommended a suspension of a state court prosecutor.

 During plea discussions in a child molestation case, Kern County prosecutor Robert Murray added two fabricated lines of testimony to the defendant’s transcribed statement that made it appear that the defendant had admitted to having sexual intercourse with a 10-year-old child—an offense that carries a life sentence. Murray then transmitted the false document to the public defender. When confronted by the public defender nine days later, and despite several opportunities to correct the record, Murray claimed it was all a joke. The Kern County Superior Court did not see Murray’s actions the same way and found his conduct to be so "egregious," "outrageous," and "conscience-shocking" that it violated the defendant’s constitutional rights to counsel and to a fair trial. In light of the prejudicial impact, the superior court dismissed all criminal charges against the defendant. The California Court of Appeal affirmed the dismissal in a published opinion.

 The matter was referred to the State Bar. A hearing judge found Murray culpable of grossly negligent conduct amounting to moral turpitude and recommended a 30-day actual suspension. The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals, arguing the discipline is "grossly inadequate" given Murray’s intentional behavior and the magnitude of the harm he caused, and requests a one-year actual suspension. Murray does not appeal and  contends, as the hearing judge found, that he was trying to create a moment of levity and ease relations with the public defender, and that he did not intend to deceive anyone or affect the outcome of the case.

 After independently reviewing the record (Cal. Rules of Court, rule 9.12), we agree with the courts of record in this matter. We find that Murray deliberately created and inserted a fraudulent document into a criminal prosecution while he was actively negotiating a resolution by plea agreement. This altered evidence bore no indicia of being a "prank," and Murray made no prompt effort thereafter to control the consequences. Murray’s behavior is wholly inappropriate and unbecoming of an experienced prosecutor, who is expected to adhere to the highest standards of ethical conduct and to act as a gatekeeper to the fair administration of justice. We therefore recommend a one-year actual suspension to protect the public and to maintain integrity and confidence in the legal profession.

The added lines

[Officer Martinez]: You’re so guilty you child molester.

[Palacios]: I know. I’m just glad she’s not pregnant like her mother.

Then

During normal business hours that same day, Murray emailed the altered transcript to [defense counsel] Hinman from his office email account. Nothing in the text, font, or formatting of the alteration, or in the manner in which the altered document was delivered, signaled anything unusual. And there was some truth in Murray’s manufactured admission because, in fact, the girl’s mother was pregnant by Palacios. After sending the transcript to Hinman, Murray turned his attention to other pressing matters, and claimed he forgot about it.

Murray later defended his actions as a "joke." He testified in these proceedings that he was carrying an unusually heavy caseload at the time, including several infant homicide cases, and he underestimated the emotional toll it was taking as he struggled to cope with it. He stated that it was out of character for him to play a "prank" like this, but it was an attempt to deal with the stress through humor.

Hinman read the altered transcript within several days of receiving it. He did not recognize the false confession to be anything but genuine and had no reason to believe Murray was playing a "prank" on him. He testified: "There were some jokes over the years [with Murray], but the relationship between us was not one of, you know, playing a prank with a piece of evidence. I’d never seen that or heard of that before, ever. . . . I wouldn’t have expected any prosecutor or defense attorney on a case to do that." Instead, Hinman was troubled that his copy of the transcript was incomplete. He was also reluctant to raise the issue directly with Murray; he did not want to alert Murray to any incriminating statements by Palacios that Murray might have overlooked.

Hinman then conducted a videoconference with his incarcerated client, asking him about the last two lines of the transcript, and informing him that an admission of penetration could be used to file more serious charges against him. Palacios denied making the statement. He later testified to the superior court that he initially had a good relationship with Hinman and was comfortable with Hinman representing him at trial; however, after Hinman approached him with falsified evidence, he "did not feel safe" and "[did not] even trust in [his] attorney anymore."

There was substantial character evidence but

Murray had time and opportunity yet did nothing to set the record straight in the Palacios case until confronted by Hinman. He took no prompt, remedial action, and, as a result, significant damage was done to the public, the profession, and the administration of justice.

Bakersfield.com had a story on the bar charges.

The opinion (unlike many in California) is for publication. (Mike Frisch)

November 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 15, 2016

The Price Of Prostitution

The Oklahoma Supreme Court has issued an order to show cause as a result of a criminal plea

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), has forwarded to this Court certified copies of the Criminal Information and Plea, in which W. Mark Hixson entered a plea of nolo contendere to two misdemeanor counts of Soliciting Prostitution, in violation of 21 O.S.2011 §1029, occurring on August 1, 2016, and August 8, 2016. The OBA also forwarded a certified copy of the Deferred Sentence.

Thus

W. Mark Hixson has until December 28, 2016, to show cause in writing why a final order of discipline should not be imposed, to request a hearing, or to file a brief and any evidence tending to mitigate the severity of discipline. The OBA has until January 13, 2017, to respond.

KFOR.com reported

A Yukon attorney is charged with offering more than just legal help to a client.

Police said he offered her money for sexual favors.

El Reno police said the evidence is in phone records.

Detectives said, while investigating an unrelated case, they searched a woman’s phone and that is when a text message from a well-known lawyer popped up.

The alleged conversations between attorney Wendell Mark Hixson and his former client are documented in a court record.

After receiving a provocative photo, police said Hixson responded “I like what I am seeing, but I would like to get the real thing!”

Police said he went on to say “What will it take?”

After the woman asked “What you be willing to do?” Hixson allegedly said “$100?”

During another text chat, officers claim Hixson asked the woman “What would you charge for just straight sex? What else are you willing to do and the cost? A picture might wet my appetite.”

Days later, police said the woman sent a text message to Hixson telling him she had gotten in more trouble and she did not have the money to pay for an attorney.

At some point during the conversation, detectives said Hixson wrote “Would you want to do favors for a fee.”

Hixson was booked and released from jail.

Thursday, NewsChannel 4 stopped by his office to get his side of the story.

The woman at the front desk said he was not there and they had no comment.

Hixson is charged with two counts of soliciting prostitution.

And the day after the arrest (from the same source)

Wednesday attorney Mark Hixson resigned from the Office of Juvenile Affairs effective immediately. That same day he was charged with two counts of soliciting prostitution from a client...

Hixson was appointed to the Office of Juvenile Affairs board of directors by Governor Mary Fallin with the consent of the Oklahoma Senate.

(Mike Frisch)

November 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Bulk Discount" For Multiple Failures To Respond To Bar?

A reprimand for non-cooperation has been imposed by Hearing Division Tribunal of the Law Society of Upper Canada.

From Raj Anand

At a summary hearing, the respondent admitted that over a period of about five months he failed to provide prompt and complete responses to communications from the Law Society’s Complaints Resolution Department in relation to four investigations. The day before the hearing, he sent two e-mails to the Law Society containing the remainder of the outstanding information. I made a finding of professional misconduct and gave brief oral reasons...

 Here, the respondent has no prior disciplinary record. On the other hand, as the Law Society pointed out, there were four investigations involving four complainants that could not move ahead, each of which could have founded a separate finding of misconduct. Counsel argued that the licensee does not merit a “bulk discount” where several acts of professional misconduct occur during the same time period, and there was no case involving four investigations where compliance before the hearing rescued a respondent from a suspension.

As to  sanction

there are mitigating personal circumstances here. Mr. Montes testified about the dissolution of his marriage, acrimonious and draining litigation, battles over child support, custody and access, and the impact that these circumstances had on his practice and his income. The matrimonial litigation occupied over two years, and the last six months coincided with the period of his non-compliance in 2015 with the first two Law Society investigations.

In this regard, however, there is no evidence of a causal link between the respondent’s sympathetic circumstances and his inability to spend a few hours to meet the information requests of his regulator.

Bottom line

 While there is no inflexible rule, the charts show that in the vast majority of non-co-operation cases, a clear disciplinary record and compliance before the hearing will lead to a reprimand. Moreover, none of the 14 cases cited involved full co-operation before the initial hearing date, which is what occurred here. The three decisions that are most closely on point – Kulidjian, Szpirglas and Warder – all involved full co-operation after the application came before the Tribunal, but before the conclusion of the hearing. A reprimand was ordered in the first case, and a suspension in the other two.

Mr. Montes’ compliance before the first hearing date and the absence of a prior disciplinary record point unambiguously toward a reprimand. I have also balanced the mitigating and aggravating circumstances that I mentioned above. While this is a close case because of the number of investigations in question, a reprimand is sufficient to satisfy the public interest, maintain the reputation of the legal profession and effect specific and general deterrence.

(Mike Frisch) 

November 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Denied In Michigan

The Michigan Attorney Discipline Board affirmed a panel order denying a petition for reinstatement.

The misconduct

 Petitioner, in his capacity as the trustee ofthe Robert Schultz Trust, took personal loans in the total amount ofapproximately $95,000 from the trust without disclosing the terms ofthe loans in writing to Mr. Schultz, or obtaining Mr. Schultz's consent to the loans in writing. Additionally, the loan arrangement between petitioner and the trust did not provide for a rate or schedule for the return ofthe personal loans taken by petitioner. Petitioner pled no contest to the charges contained in the amended formal complaint in Case No. 12-45-GA, specifically, that he committed professional misconduct when he entered into a business transaction with a client in which the transaction and terms were not fair and reasonable to the client and were not fully disclosed and transmitted to the client in a manner that can reasonably be understood by the client, in violation of MRPC 1.8( a)(l); entered into a transaction with a client in which the client does not consent to the transaction and its terms in writing, in violation of MRPC 1.8(a)(3); and, violated the Rules ofProfessional Conduct, in violation of MRPC 8.4(c).

Petitioner's license to practice law was suspended by consent for 180 days, effective December 18, 2012. The Order of Suspension and Restitution with Condition (By Consent) issued by the panel required petitioner to pay restitution of$101,871.09 to Robert M. Schultz and included a condition that petitioner would not be eligible to petition for reinstatement until he made full restitution to Mr. Schultz.

A hearing on the petition was conducted

At the hearing, the Grievance Administrator took the position that petitioner had "a systemic ongoing inability to accept responsibility," and that there were "some very significant and serious red flags" which the panel should consider. (Tr 7/22/15, pp 126, 128.) Petitioner's counsel argued that petitioner had been candid and forthright with the panel and that ''with the exception ofthat one blemish ... he's led a good honorable life." (Tr 7/22/15, p 125.)

 The panel noted a discrepancy between the petitioner's characterization of the misconduct and the facts recited in the suspension order.

Petitioner's characterization of his misconduct was not the only issue causing concern about his eligibility for reinstatement, however. The Grievance Administrator's investigative report, and supplemental investigative report, both flagged issues regarding petitioner's finances, personal bankruptcy, his "gift" of approximately $30,000 from the sale of his mother-in-law's home, and his child support arrearage. The hearing panel's report noted that petitioner conceded that pleadings filed on his behalf contained "significant inaccuracies," and that, beyond testifying that he brought those inaccuracies to his attorney's attention, he failed to produce any evidence of his attempts to have corrective action taken. More important, however, is the hearing panel's assessment of petitioner's credibility..

Finally, while it may not have been articulated as an enumerated factor in the panel's ultimate determination to deny reinstatement, we find it worth mentioning that, in our view, exemplary conduct could include evidence that petitioner's improved financial circumstances prompted him to voluntarily increase the amount ofhis monthly payments to the CPF.

(Mike Frisch)

November 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 14, 2016

When Brevity Is The Soul Of Wit

A recent report of the District of Columbia Board on Professional Responsibility is notable in a number of respects.

And, for once, the news is all good.

The case is In re Sherlock V. Grigsby and involves four separate docketed matters that were opened for investigation throughout 2013.

Then-Bar Counsel filed charges of intentional misappropriation and other misconduct that were sustained in some respects by an Ad Hoc Hearing Committee.

The committee filed its report recommending disbarment on June 20, 2016.

Then

Disciplinary Counsel took no exception to the Report and Recommendation of the Hearing Committee. Respondent filed an exception, but did not file a brief in support of his exception, and thus waived oral argument. The Board has decided the matter based on the available record. See Board Rule 13.4(a) (a party who fails to file a brief waives the right to oral argument, and the Board will decide the matter based on the available record).

The Board, having reviewed the record, concurs with the Hearing Committee’s factual findings as supported by substantial evidence in the record, with its conclusions of law as supported by clear and convincing evidence, including the finding that the misappropriation was intentional, and with the recommended sanction of disbarment.

The Hearing Committee found ample evidence of misappropriation.  In the Franklin matter, the Hearing Committee found that Ms. Franklin – the mother of Respondent’s client – provided $2,000 to Respondent on May 11, 2011 as a partial payment toward a $3,000 flat fee. See H.C. Rpt. at 23. These funds were to be held in trust until earned. See In re Mance, 980 A.2d 1196, 1202 (D.C. 2009).

Yet, the Hearing Committee found, and we agree, that Respondent transferred the funds from his escrow account to his operating account before he earned them, and thus engaged in misappropriation. See H.C. Rpt. at 81-82. Respondent testified that he reviewed more than 2,500 pages of material before he was paid and, thus, earned the fee. See H.C. Rpt. at 26 n.34. The Hearing Committee found this not credible for two reasons that we find persuasive. First, because that “would require an extraordinary reading speed of between 208 and 250 pages per hour,” which was rendered even less credible because Respondent testified he was looking for“extremely difficult” points of error. H.C. Rpt. at 83. Second, the physical status of Franklin’s files in Respondent’s possession indicated that the records appeared not to have been touched, and there was no other evidence Respondent had done any work on them. Id.

For these and other reasons set forth in the Hearing Committee’s Report and Recommendation, which is attached hereto and adopted and incorporated by reference, we recommend that Respondent be disbarred, the sanction mandated by Addams.

That's it.

Rather than spend a year or more rewriting a well-reasoned hearing committee report, the board reviews the record and adopts it within a month of submission.

This is truly revolutionary. May this impulse spread like a communicable disease.

And their promptness in the face of the respondent's appellate default is equally remarkable.

Bravo Board on Professional Responsibility.

 You read that here. (Mike Frisch)

November 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Amended Complaint In Judicial Robe Case

The Illinois Administrator has filed an amended complaint in the case involving a would-be judge who prematurely donned the robe

 1. From August 2011 to August 2016, Respondent was employed as a Law Clerk/Staff Attorney for Office of the Chief Judge of the Circuit Court of Cook County. From August 2011 until May 2015, Respondent worked at the Daley Center Courthouse and was responsible for research and writing assignments given to her by Chief Judge Timothy Evans. In May 2015, Respondent was transferred to the Markham Courthouse in the Sixth Municipal District ("Markham"), where she maintained her position as Law Clerk/Staff Attorney and was responsible for research and writing assignments given to her by any of the judges at Markham. Judge Marjorie Laws ("Judge Laws"), the presiding judge in Markham, was Respondent's supervisor at Markham.

2. At no time has Respondent held the office of Judge or Associate Judge in Illinois pursuant to Article VI of the 1970 Illinois Constitution. As a result, at no time was Respondent authorized to act as a Judge or Associate Judge in a Circuit Court of this State of Illinois.

3. In March 2016, Respondent won the primary election for the office of judge in the Circuit Court of Cook County, First Judicial Subcircuit. Respondent is currently unopposed on the general election ballot for November 2016. Subsequent to winning the primary election, Respondent began observing judges at Markham during their court calls in preparation for the likely possibility that she would be elected to the office of judge in November 2016.

4. On August 11, 2016, Judge Valarie Turner ("Judge Turner") was assigned to Courtroom 098 in Markham ("Courtroom 098") for court calls scheduled to begin at 9:00 a.m., 10:30 a.m., and 1:00 p.m. On August 11, each of the three court calls involved traffic tickets that had been issued in the Village of Dolton. The Village of Dolton prosecutor working in Courtroom 098 that day was Luciano Panici, Jr. ("Panici, Jr.").

5. On August 11, 2016, at approximately 9:00 a.m., Respondent was seated in the witness box to the left of the judge's bench in Courtroom 098. Shortly thereafter, Judge Turner entered Courtroom 098 wearing her judicial robe, took the bench, and began the 9:00 a.m. call. Respondent remained seated in the witness box throughout the 9:00 a.m. and 10:30 a.m. calls, between which there was no recess.

6. At approximately 12:00 p.m., the court recessed for lunch. At that time, Judge Turner introduced Respondent to Panici, Jr. and asked, "Have you met Judge Crawford?" Respondent did not correct Judge Turner's statement that she was a judge. Panici, Jr. introduced himself to Respondent and left Courtroom 098.

7. Judge Turner's statement that Respondent was a judge in paragraph six, above, was false because Respondent was not a judge on August 11, 2016, nor has she ever been a judge.

8. Respondent knew that Judge Turner's statement in paragraph six, above, was false because she knew she was not a judge. Respondent's failure to correct Judge Turner's statement in paragraph six, above, was dishonest and misleading.

9. At approximately 1:00 p.m., Panici, Jr. returned to Courtroom 098 for the afternoon call beginning at 1:00 p.m. At that time, Officer Derrell White also arrived at Courtroom 098 for the afternoon call. Officer White sat in a chair in a row of chairs located to the left of and slightly behind the witness box. Respondent again sat in the witness box to the left of the judge's bench. Judge Turner began the afternoon call at approximately 1:00 p.m.

10. At some time near the end of the 1:00 p.m. call, Judge Turner announced to the people in Courtroom 098, "We're going to switch judges" and gave her judicial robe to Respondent. Respondent did not correct Judge Turner's reference to her as a judge and put on Judge Turner's robe in plain view of the people in Courtroom 098.

11. Judge Turner's reference to Respondent as a judge in paragraph ten, above, was false because Respondent was not a judge on August 11, 2016, nor has she ever been a judge.

12. At the time Judge Turner referred to Respondent as a judge in paragraph ten, above, Respondent knew Judge Turner's statement was false because she knew she was not a judge. Respondent's failure to correct Judge Turner's reference to her as a judge in front of the people in Courtroom 098 was dishonest and misleading.

13. After putting on Judge Turner's robe, Respondent sat down on the bench and began purporting to preside over at least three cases on the 1:00 p.m. call. Judge Turner stood behind Respondent.

14. As a result of Judge Turner's previous introduction of Respondent, at the time Respondent put on Judge Turner's robe and began purporting to preside over cases, Panici Jr. believed Respondent was a judge.

15. After Respondent had put on Judge Turner's robe and sat on the bench, the court clerk called the case of defendant Maliq Giles ("Giles"), ticket YE-334-458. At Giles' request, Respondent purported to continue the matter until October 26, 2016. Respondent reflected her purported decision by writing "MD 10-26-16" on the back of ticket YE-334-458.

16. After Giles' matter, the court clerk called the case of defendant Angel LaSalle ("LaSalle"), ticket YB-701-075. When LaSalle stepped up to the bench, Respondent said to LaSalle, "Officer is not in court." Panici, Jr. then made a motion to continue the matter. Respondent turned to Judge Turner and asked, "Can I deny his motion?" Judge Turner replied, "Yes, you can deny the motion" and Respondent purported to deny the motion. Panici, Jr. then made a motion to non-suit the matter, which Respondent purported to grant. Respondent then reflected her purported decision by writing "ONIC" (Officer Not In Court) and "MCNS" (Motion City Non-Suit) on the back of ticket YB-701-075.

17. At some point while Respondent was wearing Judge Turner's robe and seated on the bench, she called the case of defendant Kendrah Blackshear ("Blackshear"), ticket YE-250-620. Blackshear stepped up to the bench before Respondent and presented a valid driver's license. Panici, Jr. made a motion to non-suit the matter and Respondent purported to grant the motion.

18. At the time Blackshear stepped up in front of Respondent, described in paragraph 17, above, Blackshear believed Respondent was a judge as a result of the facts that Respondent was wearing a judicial robe, sitting behind the bench in the Judge's chair, and presiding over cases being called by the clerk.

19. After the 1:00 p.m. call concluded, Respondent returned Judge Turner's judicial robe to her. At that time, Officer White approached Respondent to congratulate her on her judgeship. Officer White asked Respondent if she would be assigned to Markham and Respondent replied that she was in Markham now but would probably be assigned downtown.

20. Respondent's statement to Officer White referenced in paragraph 19, above, was false and misleading because she was not a judge assigned to Markham on August 11, 2016.

21. Respondent knew that her statement to Officer White referenced in paragraph 19, above, was false and misleading because she knew she was not a judge assigned to Markham.

22. After being apprised of what had occurred, Judge Laws conducted an investigation of Respondent's conduct. As a result of that investigation, Judge Laws placed all three tickets referred to in paragraphs 15-17, above, back on the court's docket. On September 1, 2016, Judge Laws heard all three matters, tickets YE-334-458 (Giles), YB-701-075 (LaSalle), and YE-250-620 (Blackshear). Panici, Jr. was the prosecutor and motioned to non-suit each matter. Judge Laws granted the motions and dismissed the tickets nunc pro tunc to August 11, 2016.

The complaint also charges that the above-recited facts establish criminal conduct and making a false statement in the bar investigation.

30. On September 22, 2016, Respondent appeared at her counsel's office to give her sworn statement in relation to investigation number 2016IN03486. At that sworn statement, Respondent made the following statements regarding her conduct on August 11, 2016:

  1. That putting on Judge Turner's robe did not mislead people in Courtroom 098 to think that she was, in fact, a judge; and

  2. That it was clear, based on how things were happening in Courtroom 098 on August 11, 2016, that Judge Turner was trying to teach Respondent.

31. Respondent's statements in paragraph 30, above, were false because Respondent knew that Judge Turner had introduced her as "Judge Crawford" to Panici, Jr. earlier that day and that Judge Turner announced to Courtroom 098 that they would be "switching judges," and that, therefore, the people in Courtroom 098 thought she was a judge.

32. At the time Respondent made the statements referred to in paragraph 30, above, she knew that her statements were false.

(Mike Frisch)

November 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, November 13, 2016

Facebook And Judicial Ethics

A recent decision of the Texas State Commission on Judicial Conduct orders a reprimand and education requirements of a justice of the peace.

Two of the counts involve misconduct in cases in which the judge presided. 

The third charge is more interesting

Judge Uresti has a public Facebook page that identifies her as: “Yolanda Acuna Uresti – Judge Elect for JP Pct. 4 Pl. 2.”

The page includes her photo and identifies her as a “politician.”

Judge Uresti has not utilized available privacy settings that would prevent members of the public from accessing and viewing her Facebook page.

On June 4, 2014 and July 1, 2014, while a candidate for judicial office, Judge Uresti’s Facebook page included links, photos, and posts promoting the real estate business of Jennifer Uresti, the judge’s daughter-in-law.

On March 3, 2014, while a candidate for judicial office, Judge Uresti’s Facebook page included a link, photo, and post promoting a former judge’s business as a wedding officiate.

In her written responses to the Commission’s inquiry, Judge Uresti acknowledged that she had a Facebook page, but denied that she was identified on that page as a “politician,” despite the fact that her Facebook page expressly included the description of her as a “politician.”

Further, Judge Uresti denied responsibility for the Facebook posts promoting the businesses of Jennifer Uresti and the former judge, claiming the posts were “illegal,” “unauthorized,” and the result of someone “hack[ing]” her Facebook page.

According to Judge Uresti, none of the posts promoting these businesses were ever accessible to the general public.

Although Judge Uresti claimed to have deleted her Facebook account, as of the date of this sanction it remains accessible.

When asked if she reported the “hacking” of her Facebook account to the appropriate authorities, Judge Uresti stated that she had not.

Judges and Facebook

With regard to the Facebook posts that promoted the financial interests of her relative and a former judge, the Commission notes that at the time of the original posts, Judge Uresti was a judicial candidate and not yet a judge. While the Commission does not have jurisdiction over the pre-bench conduct of a judicial candidate, Judge Uresti’s failure to remove the posts from her public Facebook page after she assumed the bench in 2015, and the fact that these posts continue to be visible to the public sixteen months into her term as judge, even after the Commission brought the concerns to the judge’s attention, constitutes a continuing violation of the canons. Viewers of Judge Uresti’s public Facebook page would continue to perceive that Judge Uresti has lent the prestige of her judicial position to advance the private financial interests of these individuals and has conveyed or permitted others to convey the impression that they were in a special position to influence the judge.

Sanction

In condemnation of the conduct described above that violated Canons 2A, 2B, and 3B(2) of the Texas Code of Judicial Conduct, and Article V, §1-a(6)A of the Texas Constitution, it is the Commission’s decision to issue a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION to the Honorable Yolanda Uresti, Justice of the Peace, Precinct 4, Place 2, San Antonio, Bexar County, Texas.

Pursuant to this Order, Judge Uresti must obtain eighty (80) hours of instruction by repeating the curriculum provided by the Texas Justice Court Training Center for new judges, in addition to her required judicial education for Fiscal Year 2017. Such training may be obtained at the judge’s own expense or at the expense of Bexar County if so approved.

Judge Uresti shall complete the additional eighty (80) hours of instruction by May 1, 2017. It is Judge Uresti’s responsibility to contact the Texas Justice Court Training Center and schedule her attendance at each of the programs designated for new judges, starting with the Stage I seminar scheduled for December 11-15, 2016, in Austin, Texas.

Upon the completion of the eighty (80) hours of instruction described herein, Judge Uresti shall provide the Commission with a certificate of completion from the Texas Justice Court Training Center, along with the completed Respondent Judge Survey indicating compliance with this Order. Failure to complete, or report the completion of, the required additional education in a timely manner may result in further Commission action.

Pursuant to the authority contained in Article V, §1-a(8) of the Texas Constitution, it is ordered that the actions described above be made the subject of a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION by the Commission.

Failure to cooperate with the investigation was treated as an aggravating factor. (Mike Frisch)

November 13, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Bar Discipline In Action

For those who have never seen an oral argument before the District of Columbia Board on Professional Responsibility (and wish to cure this deficiency), be there this coming Thursday at 2 p.m. for the oral argument on the hearing committee report in the case of former Judge Roy Pearson in connection with the so-called Pants litigation.

Board Oral Arguments are held in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals located at 430 E Street NW, Washington, DC 20001.

Please contact the Office of the Executive Attorney at (202) 638–4290 to confirm the date, time, and location of Board oral arguments, as schedules are subject to change. 

Our prior coverage of the disciplinary case is linked here and here. 

One of the issues is the inexplicable and inexcusable delay in bringing bar charges.

My take from one of the above-linked posts

The case -  where the facts were largely uncontested and which was the focus of national scrutiny in a bygone age - took seven years for now-Disciplinary Counsel to file charges.

In other words, business as usual.

I for one am eager to hear whatever excuse/explanation is offered for the delay other than "sorry" and "no harm/no foul." 

Unfortunately, there is no publicly-available remote access to these BPR oral arguments.

In the interest of transparency (to which much lip service is paid without any real commitment to delivering public information), there should be. (Mike Frisch)

November 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)