Thursday, November 14, 2013
A 2011 graduate of Case Western Reserve University Law School has been denied admission to the Ohio Bar.
Although the Licking County Bar Association had recommended approval of the application, the Board of Commissioners on Character and Fitness disagreed but proposed that he be permitted to reapply for the July 2014 bar examination.
The court agreed with the board that admission should be denied, but delayed permission to reapply until July 2018.
The applicant was convicted of second-degree felony of pandering obscenity involving a minor in 2007.
The Kenyon Collegian reported on the charges and provided some family background:
The case has made headlines around central Ohio primarily due to controversy surrounding Daubenmire's father, "Coach" Dave Daubenmire.
The elder Daubenmire was the football coach in London, Ohio, 30 miles west of Columbus when the American Civil Liberties Union (ACLU) sued the school because Daubenmire allegedly started all of the games with a Christian prayer. He is known locally as a "culture warrior" whose ministries include Pass the Salt and Minutemen United, a lobbying organization that counts among its victories a large superstore chain's decision to remove soft-core pornography from their shelves and the removal of a "homosexual bathhouse" from a Columbus neighborhood. Dave Daubenmire also made national headlines when he was arrested protesting the decision to remove Terri Schiavo from her feeding tube by attempting to deliver Schiavo a cup of water.
The elder Daubenmire and his wife released a statement about their son on one of their ministry's websites. "What he has done is shameful, despicable, and repulsive, they wrote. "But he is our son and we love him. We will walk this path together." The Daubenmires also expressed gratitude, saying, "The wound had been exposed. He has come clean. We can finally help him get well."
The court here found him "an unlikely candidate to engage in the conduct that led to his arrest and conviction" as he was raised "in a strict religious household and was a good student and star athlete." He admitted that he began to look at Internet pornography in high school and downloaded pictures of children under eighteen.
His conduct was discovered when his computer malfunctioned and was sent to a repair shop by his father. The repair technician found the files and reported it to authorities. The applicant cooperated with the criminal investigation and pleaded no contest to charges.
The applicant attended law school because he understood that he would be barred from his chosen career as a coach and teacher. He fully disclosed the situation in his law school application and has complied with treatment.
The court decision will permit reapplication after his obligation to register as a sex offender expires. (Mike Frisch)
A majority of the New York Appellate Division for the Second Judicial Department has held that one party to a long term committed same-sex relationship stated a cause of action for breach of an oral agreement.
Each had had a biological child that the other adopted. The plaintiff stayed at home while the defendant continued to work.
They ended the relationship in 2007 and were never married.
The parties lived together in a committed, same-sex relationship for nearly 18 years, and are the parents of two children. After the relationship ended, the plaintiff commenced this action seeking, inter alia, damages for breach of an alleged oral "joint venture/partnership" agreement whereby she would share in assets, including the defendant's retirement contributions and earnings, in exchange for leaving her full-time job to care for the parties' children. The plaintiff also asserted several equitable causes of action predicated upon the alleged oral agreement to share in the defendant's retirement contributions and earnings. For the reasons that follow, we conclude that the complaint is sufficiently pleaded to state a cause of action sounding in breach of contract.
Justice Dillon concurred in part and dissented in part:
Distilled to its essence, the plaintiff in this action seeks "equitable distribution" of the defendant's assets and future pension benefits without alleging in the complaint that the defendant had promised to share them if the parties did not stay together. Indeed, there is no allegation that the parties had any meeting of the minds as to the distribution of property or assets upon a termination of their relationship. Absent such an allegation, and absent an affidavit from the plaintiff clarifying or expanding her description of the parties' agreement to cover such an eventuality, the complaint fails to state a cause of action. The plaintiff's theory of recovery is dependent upon implying terms for the distribution of retirement benefits to circumstances involving the dissolution of the parties' familial relationship. The Supreme Court properly refrained from implying such provisions into the oral contract in determining that, under the circumstances alleged, the "complaint lacks a contract for the court to enforce."
No aspect of this partial dissent speaks to the merits of the New York's more recent enactment of the Marriage Equality Act. This Court is sensitive to the complications occasioned by various forms of familial relationships that necessarily result in financial agreements or entanglements. The judiciary, however, is limited in addressing and determining the ownership and/or distribution of familial assets, absent either the existence of a lawfully recognized marriage or an enforceable expressed contract between persons in a cohabitational relationship.
Wednesday, November 13, 2013
The Minnesota Supreme Court order indefinitely suspending an adjunct professor who taught a sports law class for sexually harassing a student "he had taught and was supervising in an independent clinic" has been posted.
The attorney had "opposed any public discipline."
Justice Lillehaug dissented, noting that the court's order allows the attorney to seek reinstatement after 90 days. As the "common denominator" of the sexual harassment and subsequent "interference with a law school's and law enforcement's administration of justice" was "the use and abuse of power," a longer suspension should have been imposed.
Unlike the majority order, the dissent describes the misconduct in detail.
Personal note: The attorney's father moved the original Washington Senators to Minnesota. I never have and never will forgive him. It takes all the strength of will I possess to avoid dancing here. (Mike Frisch)
An attorney who shot a person in the leg claimed self-defense. He was found not guilty of criminal charges brought as a result of the shooting.
The shooting victim then filed a civil complaint against the attorney, who responded by bringing a third-party complaint against the prosecuting attorney.
The West Virginia Supreme Court of Appeals affirmed the dismissal with prejudice of the third-party action based on the doctrine of absolute prosecutorial immunity.
WV Metro News had this account of the verdict in the criminal case.
The State Journal also reported the verdict and noted charges of witness intimidation against the attorney
After a Clay County jury found former political candidate, Hiram Lewis, not guilty of maliciously shooting another person in the leg, Lewis says he's just glad the trial is over.
"I'm feeling pretty good," Lewis told The State Journal. "It was a great relief. I can get to work now and get back to a regular life."
Lewis said he will continue with his ministry and his law practice. He also plans to create Kayakers for Christ, which would be kayak rentals for youth groups.
However, Lewis is not yet out of the woods. He still faces another charge of intimidation of a witness, which goes to trial Aug. 7.
Prosecutors allege Lewis intimidated former Clay County Sheriff Randy Holcomb, following the initial October shooting incident. Lewis said in a previous interview that he was just exercising his rights for redress of grievances.
In that interview, Lewis said he went to the sheriff's home, following the incident, wanting Holcomb to express a preference to prosecutors about Lewis' guilt. Lewis said the sheriff told him that was unethical, but Lewis argues it wasn't because of a prosecutor's discretion.
The attorney had been a candidate for state attorney general. (Mike Frisch)
The severe consequences that ensue from failing to respond to a bar complaint in New York are again apparent in an order of disbarment from the Appellate Division for the First Judicial Department.
When an attorney fails to respond to a complaint, interim suspension is imposed. If no response is received within six month, the interim suspension matures into a disbarment.
The court described the allegations:
Respondent's misconduct included his failure to satisfy a Civil Court judgment a client obtained against him following the arbitration of a fee dispute. Additionally, respondent failed to cooperate with the Committee's investigation into his conduct.
In the District of Columbia, such misconduct would never be the basis for such a severe sanction. (Mike Frisch)
Tuesday, November 12, 2013
The Colorado Presiding Disciplinary Judge accepted a conditional admission of misconduct and imposed a stayed suspension of six months, with probation of three years, for misconduct in connection with a client that she had hired
to clean her house and to work on her political campaign.
The summary on the court's web page notes that the attorney (1) never specified her hourly rate in representing the client, (2) violated the conflict of interest rule by posting bond, paying rent and vehicle impound fees that were not litigation expenses and (3) gave conflicted tax advice influenced by the attorney's interest in a tax refund. (Mike Frisch)
The web page of the Idaho State Bar reports a reciprocal disbarment based on a sanction imposed in Oregon:
In the Oregon disciplinary case, Mr. Summer represented a plaintiff in a medical malpractice case in Oregon state court. Mr. Summer failed to timely respond to the defendants’ motion for summary judgment. On a date set for hearing on the summary judgment motion, Mr. Summer failed to appear, but he filed an affidavit pursuant to ORCP 47E, in which he swore, under penalty of perjury, that he had consulted with and retained a qualified expert who was available and willing to testify to admissible facts and opinions necessary to establish a genuine issue of material fact. In Oregon, such an attorney’s affidavit is sufficient to avoid summary judgment, and there is no requirement to include evidence from an expert supporting the attorney’s representation. The defendant’s motion for summary judgment was denied based upon Mr. Summer’s affidavit and a trial date was scheduled.
On the date of trial, Mr. Summer appeared and advised the court that the plaintiffs were not prepared to proceed to trial because he was unable to secure the testimony at trial of any qualified experts who were willing to express opinions in favor of plaintiffs and against defendants. The trial court dismissed the case and retained jurisdiction of the case to investigate the factual basis of Mr. Summer’s affidavit filed in opposition to the motion for summary judgment.
The court granted an order compelling Mr. Summer to be deposed about his affidavit. Without obtaining prior relief from the court or the agreement of defense counsel, Mr. Summer failed to appear for the deposition as commanded by a subpoena. The defendants filed a motion for sanctions and motion to show cause against Mr. Summer for his failure to obey the subpoena. Mr. Summer did not appear in court for that hearing, but faxed a letter to the court on the morning of the hearing notifying the court of the reasons for his absence. In that letter, Mr. Summer referenced a consultation with a doctor related to his affidavit. Subsequently, that doctor executed a declaration establishing that Mr. Summer’s affidavit and a letter to the court contained false and misleading statements about the doctor’s willingness to testify in favor of plaintiff. The Oregon Trial Panel and the Idaho Hearing Committee concluded that Mr. Summer filed an intentionally misleading affidavit, blatantly disregarded court orders, intentionally misled the trial court judge, filed the affidavit in bad faith, and prejudiced the decision making process.
The attorney had argued that reciprocal disbarment would be a "grave injustice." (Mike Frisch)
Monday, November 11, 2013
An Illinois attorney accused of sexual misconduct toward three criminal clients has agreed to disbarmant by consent.
The motion for disbarment of the Administrator recites:
On October 11, 2012, Movant, who was then the Coles County Public Defender, was appointed to represent Celia Lawrence in a pending criminal case in Coles County involving charges of possession of methamphetamine and morphine. On October 11, 2012, following a court hearing, Movant and Lawrence met at Respondent’s office. While at Movant’s office, Movant kissed Lawrence on the lips, rubbed her back, and touched her body over her clothing. Movant invited Lawrence to attend a conference with him in Springfield that weekend. Lawrence left the office. On October 18, 2012, following another court hearing, Lawrence met with Movant at his office. Movant locked the door, kissed Lawrence, and again touched her body over her clothes. Lawrence started to leave and Movant told her to come back the following Saturday "when no one was there." Lawrence left the office, and thereafter retained a private attorney in her case...
On July 26, 2010, Movant was appointed to represent Bobbie Beringer in a pending criminal case in Coles County relating to charges of theft over $300. Movant asked Beringer to come to his office on Saturday, August 14, 2010, for an appointment. After Beringer arrived for the appointment, Movant placed his hand on her legs and rubbed her leg slowly. He also rubbed her neck and shoulders. As Beringer was leaving, Movant hugged Beringer closely. Beringer filed a police report that same day, and Movant later withdrew from her case. No criminal charges were filed...
On August 13, 2012, Movant was appointed to represent Tammy Hamilton in a pending criminal case in Coles Count, relating to charges of theft. Movant asked Hamilton to meet him at his office on Saturday, August 18, 2012. After Hamilton arrived at Movant’s office, he asked her personal questions about her relationship with her boyfriend, and touched her face. Hamilton told Movant she felt weird about him touching her face. Hamilton left the office. After Hamilton missed a court date on August 27, 2012, Movant told her he had covered for her, and that "there are different ways to pay me back." Following a hearing on September 4, 2012, Movant sat with Hamilton on a bench outside the courtroom and touched her thigh, over her pants. Hamilton moved away. On November 5, 2012, following another court date, Movant again sat next to Hamilton on a bench outside of the courtroom and touched her thigh over her pants. Hamilton objected, stood up and left.
Our earlier coverage is linked here. (Mike Frisch)
The Louisiana Supreme Court has ordered a stayed two-year suspension of an attorney with treatment supervised by the Lawyer Assistance Program ("LAP").
One count involved the attorney's neglect of a claim by a former wife that her ex-husband had breached a confidentiality agreement.
He told the client that the reason for delay was that her former husband had a "spy" in the clerk's office. The client did not buy that story.
The attorney delayed in turning over the file and unearned retainer after he was fired.
The other count dealt with the attorney's alcohol problem. He was arrested for DWI and voluntarily entered treatment. He did not follow the recovery center's recommendation for ongoing treatment through the LAP program as he "didn't see any reason" to do so.
The bar learned of the conviction and also received a letter from a judge where the attorney was a public defender "concerning respondent's persistent use of alcohol."
The attorney then returned to his in-patient treatment and has fully complied with his LAP agreement.
The court majority found that probation with conditions was appropriate.
Justice Clark dissented and would require a period of actual suspension under the circumstances. (Mike Frisch)
Friday, November 8, 2013
A former assistant district attorney convicted of marijuana distribution has consented to disbarment in Pennsylvania.
The Penn State Daily Collegian reported on the conviction:
Former Centre County Assistant District Attorney Steve Sloane pleaded guilty to five felonies last Thursday related to charges of distributing marijuana, a spokesperson from the Attorney General’s Office said.
Sloane pleaded guilty to three counts of possession with intent to deliver, one count of conspiracy and one count of criminal use of a communication facility. He will be sentenced Sep. 6, the spokesperson said.
Sloane’s charges came after the Modesto Police Department in Modesto, Calif. intercepted a package on Oct. 26, 2011. The package — which was from a man named Steven Ice, and was addressed to Sloane at his law office — included two ounces of marijuana, 20 hydrocodone pills, as well as a receipt given to the person who shipped it for $250, as previously reported.
Police further discovered text messages exchanged between Sloane and Ice that showed Ice was sending drugs to Sloane in packages.
An attorney who led police on a high-speed chase from Mississippi to Louisiana was convicted of driving while intoxicated. She weaved in and out of traffic at speeds over 80 mph and ran cars off the road.
She eventually stopped and failed to comply with police directives. She sentenced to a stayed six-month jail sentence with probation.
The attorney then violated the probation terms and there is presently a warrant out for her arrest.
The attorney's former tenant reported the conviction to Louisiana bar authorities (she did not) and also alleged that she was addicted to prescription drugs.
The Louisiana Supreme Court ordered a suspension of a year and a day. (Mike Frisch)
The Kansas Supreme Court affirmed the dismissal of a legal malpractice suit against a court-appointed attorney and the agency that administers the indigent counsel program.
The client was convicted of sex ccrimes. The conviction was set aside and the client entered a guilty plea to amended charges. He then sued the defense attorneys and the Board of Indigents' Defense Services for legal malpractice.
The court held that the Board is a subordinate government agency that does not have the capacity to sue or be sued.
Because the plea to lesser charges precluded a finding of actual innocence, the trial court did not err in dismissing the malpractice case. (Mike Frisch)
In a significant case involving the rights of witnesses in a bar disciplinary proceeding, the Iowa Supreme Court has held that a complaining witness has a right to be represented at a hearing by counsel "for the limited purpose of protecting rights personal to the witness in the proceeding."
The complaint alleged that a client was the subject of sexual misconduct on the part of the attorney. The Attorney Disciplinary Board filed a complaint based on the allegations and a hearing was scheduled before the Grievance Commission.
Counsel for the complainant entered an appearance and sought a continuance. The commission president invoked Iowa rules making bar procedings confidential and concluded that "the absence of her attorney from the hearing would cause no unfairness to [complainant."
The president thus quashed the attorney's entry of appearance in the matter.
The court here granted interlocutory review and reversed the order. The court held that a witness may have counsel present only when testifying.
Counsel cannot make objections or question the witness, other than to prevent a mistatement from entering the record.
The Board supported the position of the witness. Only the accused attorney objected.
I applaud this decision, although I think that all disciplinary proceedings should be public. (Mike Frisch)
A single retainer agreement sufficed to cover a second matter and entitled counsel to legal fees, according to a decision of the New York Appellate Division for the First Judicial Department:
The record establishes plaintiff's entitlement to recover the unpaid legal fees that arose from its representation of defendants in two underlying actions. Contrary to defendants' contention, the subject retainer agreement governs plaintiff's work on both underlying matters. In compliance with 22 NYCRR 1215.1, which mandates that retainer agreements contain an "explanation of the scope of the legal services to be provided" (22 NYCRR 1215.1[b]), the agreement specifies that plaintiff's services "will include legal representation and advice with respect to specific matters that you refer to the Firm." Although defendants initially sought plaintiff to represent them in only one of the underlying actions, it is undisputed that they requested plaintiff's services with respect to the other action, shortly thereafter. Plaintiff's representation of defendants in the latter matter therefore falls within the ambit of the retainer.
The client did not challenge the invoices when rendered and could thus not attack the reasonableness of the fees. (Mike Frisch)
Thursday, November 7, 2013
The Illinois Review Board has recommended a three year suspension of a former aide to disgraced former Governor Rob Blagojevich:
This matter arises out of Respondent's guilty plea and federal criminal conviction on one count of conspiracy to commit solicitation. The criminal charges against Respondent stemmed from his conduct while serving as chief of staff to former Illinois Governor Rod Blagojevich. As part of his guilty plea, Respondent admitted participating in a conspiracy with the former governor to solicit and demand things of value for Blagojevich in connection with the appointment of a United States Senator to fill the seat vacated by Barack Obama upon his election as President in 2008. In addition to pleading guilty, Respondent cooperated extensively with the government in the criminal matter and testified against the former governor at both of his criminal trials. Respondent received a reduced sentence of ten days in prison, two years of supervised release, and a $1,000 fine. Based upon his criminal conviction, Respondent was suspended on an interim basis by the Illinois Supreme Court on April 6, 2010.
After a hearing, the Hearing Board found Respondent committed a criminal act that reflects adversely on his honesty and fitness as a lawyer, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, assisted another lawyer in committing ethical violations, and engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Hearing Board recommended that Respondent be suspended for three years. The Hearing Board rejected the Respondent's request that the suspension be imposed retroactively to the date of his interim suspension.
Upon review, the Administrator asked that the Review Board recommend that Respondent be disbarred. After taking into account Respondent's extensive cooperation in the criminal matter as well as additional evidence in mitigation, the Review Board recommended that Respondent be suspended for three years. The Review Board also rejected Respondent's request that the suspension be imposed retroactively to the date of his interim suspension.
An attorney was censured by the New York Appellate Division for the Third Judicial Department for misconduct found in a federal district court matter, which concluded that the attorney
...knowingly and in bad faith falsely stated in a declaration filed on September 3, 2010 that she was unaware of the existence of a private annuity agreement, the existence of which was critical to issues before the court, until it was provided to her on July 27, 2010.
The federal court ordered disgorgerment of certain fees and imposed a public admonishment, notwithstanding the objections filed on the attorney's behalf.
The court precluded relitigation of the federal court findings and took into consideration the attorney's "unblemished disciplinary record, and her commendable professional reputation, as evidenced by the letters submitted in her behalf by colleagues..." in determining sanction.
She also was a candidate for judicial office. (Mike Frisch)
A court-appointed guardian ad litem forms an attorney-client relationship with an incarcerated inmate, according to an opinion of the West Virginia Supreme Court of Appeals.
When the incarcerated client directs the guardian ad litem to convey a statement to a third party, however, the attorney-client privilege is waived.
The case involves a domestic violence petition against one Chubby Hosten.
After a meeting with the client, the appointed guardian made an in-court statement at his client's direction. Charges of intimidation and witness harassment were brought based on the lawyer's statement:
what he [the client] said was if she doesn't leave me alone I am going to her place of employment and kill her....I do not believe that I am breaching confidentiality by saying that. I think there's actually an exception to the rules for this kind of information. But I was told by my client to say this, um, so there it is.
The prosecutor sought the lawyer's testimony and admission of the video of the in-court statement. The circuit court determined that the evidence was protected by privilege and the prosecutor appealed. (Mike Frisch)
The West Virginia Supreme Court of Appeals has issued a memorandum decision concluding that a graduate of Bishnu Ram Medhi Government Law College in Guwahati, India is not eligible for admission without examination.
The applicant is admitted in New York and had sought admission in West Virginia on what is "commonly referred to as reciprocity, based on her license to practice in New York."
The applicant was admitted in New York after obtained a Masters of Law and LLM from Fordham.
The Board of Law Examiners concluded that the applicant failed to satify the educational requirements for admission without examination.
The court agreed, finding that the common law education in India and 24 credit hours at Fordham did not meet the 30 credit requirement for admission based on her graduate work.
A non-attorney town court (and former) village justice has resigned from office after hiring his daughter as the village clerk.
It turned out to be a bad hire.
WRGZ.com had the story of the ensuing criminal charges
A village judge in Genesee County was in court Monday, but this time he found himself on the wrong side of the law. Robert Alexander is accused of approving falsified time sheets turned in by the court clerk - who happened to be his daughter.
Alexander is currently a Pembroke Town Judge, but previously served on the bench in the village of Corfu. He stood before a judge today to be arraigned on fraud and misconduct charges stemming from charges against his daughter, Brandi Watts.
Watts served as the Village of Corfu court clerk and is accused of falsifying her time sheets to receive pay for hours she did not work. The charges against her stemmed from an audit of the Village of Corfu by the New York State Comptroller, which discovered that about $10,600 could not be accounted for.
Watts faces 53 counts including grand larceny. She was held briefly in connection with the charges after her arrest last week, but was released on $10,000 bail.
Alexander is charged with coercion and official misconduct and only faces misdemeanors. He was never held in connection with the charges.
The judge spoke with reporters after his court appearance Monday, but would not comment on the charges against him other than to insist that he wouldn't do something like this.
"I won't say anything about the case I'll only say that I love the people of Corfu, and that I would never do anything as a born again Christian and as a man serving them. I would never think of breaking the law in any way, shape, or form," Alexander said.
Both Alexander and Watts plead not guilty to the charges against them.
The judge will be unable to preside over cases, as the State's Commission on Judicial Conduct has ordered that all cases assigned to Town of Pembroke Justice Alexander be reassigned.
The order bars him from future judicial office.
The audit of the State Comptroller is linked here. (Mike Frisch)
Wednesday, November 6, 2013
An attorney who agreed that he had engaged in ethical violations in three matters was suspended for 90 days by the Arizona Presiding Disciplinary Judge.
The agreed-upon sanction includes a requirement of probation for two years on reinstatement with monitoring by the bar's Law Office Management Assistance Program.
Also, the attorney must watch two videos from the bar's CLE program. One is "Ten Deadly Sins of Conflict," the other "Common Courtroom Conundrums: Candor, Confidences, and Courtesy." (Mike Frisch)