Wednesday, April 29, 2015

Divided Supreme Court Upholds Florida Ban On Judicial Election Solicitations By Candidates

The United States Supreme Court has upheld a Florida ban on judicial candidates personally seeking campaign contributions.

The majority opinion of the Chief Justice makes clear the distinction between judicial and other elections.

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrityof their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.

We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court...

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with lifetenure constituted "the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws." The Federalist No. 78, at 465. Jefferson thought that making judges "dependent on none but themselves" ran counter to the principle of "a government founded on the public will." 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given ourNation jurists of wisdom and rectitude who have devotedthemselves to maintaining "the public’s respect . . . and a reserve of public goodwill, without becoming subservientto public opinion." Rehnquist, Judicial Independence, 38U. Rich. L. Rev. 579, 596 (2004).

It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity

Dissenting Justice Scalia takes the majority to task for what he calls "twistification" of the First Amendment

This Court has not been shy to enforce the First Amendment in recent Terms—even in cases that do not involve election speech. It has accorded robust protectionto depictions of animal torture, sale of violent video gamesto children, and lies about having won military medals. See United States v. Stevens, 559 U. S. 460 (2010); Entertainment Merchants, 564 U. S. ___; Alvarez, 567 U. S. ___. Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement ofthe freedom of speech? It is no great mystery what isgoing on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture, protectingthe innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe. I respectfully dissent.

 Justices Thomas joined the Scalia dissent. Justices Alito and Kennedy also wrote dissents. (Mike Frisch)

April 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

No Complainant Left (With) Standing

A dissatisfied bar complainant cannot compel disciplinary action in the courts, according to a decision issued today by the Massachusetts Supreme Judicial Court.

Jay Edward Simkin filed a petition in the county court alleging that certain attorneys had committed breaches of the rules of professional conduct in connection with proceedings involving the revocation and reinstatement of his license to carry firearms. He requested that this court enter findings to that effect, which, he claimed, would lead to bar counsel's reconsideration of her decision not to pursue his complaints against the attorneys. The record indicates that the Board of Bar Overseers (board) reviewed bar counsel's decision not to take further action. A single justice denied Simkin's petition without a hearing, reasoning that an "individual who files a complaint with the board lacks standing to challenge in a court action the board's decision not to prosecute the complaint." Simpkin appeals.

There is no private action for attorney discipline

That is essentially what Simkin seeks to accomplish here. He filed complaints with the board, as was his right; bar counsel investigated but declined to pursue them; and, after review, the board determined not to proceed. Simkin has no further standing in the matter.

The full court affirmed a single justice. (Mike Frisch)

April 29, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Prosecutor's Use Of Law Enforcement Data Base to Harass Ex-Wife

Kathleen Maloney reports this case on the web page of the Ohio Supreme Court

The Ohio Supreme Court has  suspended a Cleveland lawyer and former assistant county prosecutor for two  years following his convictions for using a  law enforcement database for personal reasons and threatening and harassing his  ex-wife.

Rosel C. Hurley III was employed  by the Cuyahoga County Prosecutor’s Office between October 2011 and April 2012.  While going through a divorce at the time, Hurley accessed the Ohio Law  Enforcement Gateway, a statewide law enforcement network that includes criminal  histories and other records. Searching the database for personal reasons was  prohibited, but Hurley accessed it 30 to 40 times for information about his  ex-wife and children. He also made harassing phone calls to his former spouse  and threatened to physically harm her.

Hurley pled guilty to multiple felony  counts of unauthorized property use and misdemeanor menacing and harassment  charges. In February 2013, he was sentenced to community  control for one year and fined $5,000.

Disciplinary Actions       The Cleveland Metropolitan Bar  Association charged Hurley with professional misconduct related to these  matters. In March 2013, the Ohio Supreme Court suspended his license on an  interim basis because of his felony convictions. The state disciplinary board  recommended a two-year suspension with credit for the time he served during the  interim suspension.

Court Adjusts Sanction       In a 4-3 per curiam opinion, the court agreed with the board’s misconduct  findings and sanction but gave no credit for the interim suspension time. The  court noted that this case involves more aggravating factors than a 2012 case  cited by the disciplinary board. Hurley was in a position of public trust, had  a dishonest motive, did not comply with an Ohio Lawyers Assistance Program (OLAP)  contract, and could not recall basic facts about his menacing conviction.

If Hurley applies to be  reinstated to practice law, he must be examined by OLAP and follow its  treatment recommendations, and he must meet his continuing education  requirements and other mandates from the court office that regulates lawyers in  the state. If reinstated, Hurley must serve two years of probation to ensure  his continued compliance with OLAP’s conditions.

Votes       Joining  the court’s majority were Chief Justice Maureen O’Connor and Justices Terrence  O’Donnell, Sharon L. Kennedy, and Judith L. French.

Justices  Paul E. Pfeifer, Judith Ann Lanzinger, and William M. O’Neill would have given  Hurley credit for the time he has served during his interim suspension.

2014-1736. Cleveland  Metro. Bar Assn. v. Hurley, Slip  Opinion No. 2015-Ohio-1568.

(Mike Frisch)

April 29, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Former Oklahoma House Member Suspended

The Oklahoma Supreme has ordered the interim suspension of an attorney convicted of misdemeanor pointing a firearm.

Tulsa World had this January 1, 2015 story

A man Tulsa police said was responsible for a seven-hour standoff Tuesday night after threatening to kill his ex-wife is a former member of the Oklahoma House of Representatives and a licensed Tulsa attorney.

John “Chris” Hastings, 59, was arrested just before midnight Tuesday inside his home in the 6800 block of East 65th Street.

According to Hastings’ arrest report, the former legislator pointed a loaded firearm at his ex-wife’s head, asking her “if she wanted to be shot in the head or stomach.”

According to the report, Hastings also told his ex-wife “you are going to die today.”

The birthdate on Hastings’ arrest report matches the birthdate in his legislative profile.

The address where he was arrested Tuesday matches the address in previous arrest and protective order documents.

No one was physically harmed during the encounter, according to police, and Hastings was eventually removed from the residence by TPD’s special operations team, the affidavit states.

He was booked into the Tulsa jail in lieu of $20,500 on pointing a deadly weapon and resisting arrest complaints, jail records show. He bonded out at 8:36 a.m. Wednesday.

Hastings, who holds degrees from the University of Notre Dame and the University of Tulsa, according to his biography page at his law firm’s website, was elected in 1994.

He left politics in 2005 after his term limit expired and has since been practicing law in the state, according to the Oklahoma Bar Association. The Hastings and Associates website says Hastings founded the law office in 2001.

Phone calls to Hastings and Associates were not returned Wednesday.

In 2011, Hastings’ wife filed for divorce, but later reconciled with her husband, and the divorce was never granted.

The pair also filed protective orders against each other that year — she alleged that he had been abusing drugs and had become violent toward her, and he alleged that his wife had attacked him with both her hands and a knife.

The Hastings eventually divorced last June.

In 2012, two protective orders were granted after Hastings’ brother-in-law alleged he had recorded phone conversations where Hastings had threatened “to kill or have killed me and my family.”

The protective orders also alleged Hastings had threatened and harassed his wife throughout that time.

Those protective orders were dismissed after neither party showed up to a scheduled court appearance last January.

Hastings was charged last February with two misdemeanor counts of domestic assault and battery after his daughter alleged that he had punched her twice in the face.

Hastings’ son and wife said they did not see him punch his daughter, but the affidavit filed states she “had evidence of a bloody nose and redness on her right cheek.”

Those charges were dismissed in May due to an “uncooperative” prosecution witness, court records state.

(Mike Frisch)

April 29, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Don't Mess With Oklahoma

A disciplinary matter involving a prosecutor's misconduct that led to a 90-day suspension in Arizona drew a whopping increase to two years and a day as reciprocal discipline by the Oklahoma Supreme Court.

There is no question that Respondent engaged in multiple conversations with a confidential intermediary appointed by the trial court to aid the defense in a capitol murder case. While the conversations themselves were not the basis for Respondent's discipline in Arizona, this Court considers them to be troubling at the very least. As his own submissions indicate, Respondent is a seasoned and decorated prosecutor. Respondent should have brought his concerns about the defense's interaction with the CI to the trial court. Rather than doing so, Respondent took it upon himself to communicate with the CI on multiple separate occasions from his office and on his cellular phone.

Further, the uncontroverted facts reveal that after others became aware of his contact with the CI, at every stage Respondent failed to be candid with the defense, the trial court, his own co-counsel, and the Arizona Attorney General's Office about the true extent of his interactions. Respondent's initial disclosure of his first conversation with the CI led everyone involved to believe it was the only one, despite other conversations having occurred prior to Respondent mentioning the first one. In response, Respondent contended that he did not disclose his conversations because he did not believe he had an obligation to do so.

On multiple occasions, Respondent failed to disclose that there was a witness to his first conversation with the CI, and his position is that he did not remember that there was one until well into the controversy. More telling, however, is that in multiple filings signed by Respondent submitted to the trial court, he failed to inform the court of the true number of interactions between himself and the CI. He failed to do this based upon his own personal determinations of what should and should not be relevant for the trial court's consideration of the defense's motion to recuse, substituting his own personal judgment for that of the court. His reasons aside, there is no question that respondent misled the defense, the trial court, his co-counsel, and the Attorney General's office, and Respondent agreed that doing so was both prejudicial to the administration of justice and worthy of suspension in Arizona.

A much greater sanction than agreed on in Arizona was deemed appropriate

Respondent was a seasoned prosecutor by the time the events that subjected him to discipline in Arizona occurred. "The well-being of our judicial system to a large extent rises or falls on the trust the people have in those holding either prosecutorial or judicial offices." In the Matter of the Reinstatement of Page2004 OK 49, ¶19, 94 P.3d 80. By continuously failing to provide a complete picture to other counsel and the trial court concerning his interactions with the defense's CI, Respondent violated that trust and potentially compromised the prosecution of an alleged murderer. Respondent had multiple opportunities to provide a complete explanation and timeline of his actions to his co-counsel, the defense, and the trial court, yet he failed to do so. After Respondent was removed from the case by his superiors, his actions left his office scrambling to file a supplemental response to clarify its previous submissions after phone logs finally revealed the full extent of Respondent's interactions with the CI.

Respondent did not tell the court the whole truth. He took it upon himself to decide what the trial court needed to know to rule on a request for his recusal due to his communications with the CI. Respondent's acts were prejudicial to the administration of justice, and there is simply no excuse for his lack of honesty under the circumstances. 

Having handled a number of reciprocal discipline matters myself, I am dubious about the utility of a significant ratcheting up of sanction. This is particularly true in a matter where the original sanction was achieved by consent of the attorney and disciplinary counsel.

This footnote was interesting

Respondent's Response to Complainant's Reply to Show Cause Order and Submission in Mitigation of Discipline provides in part:

In addition to Respondent's direct submissions in support of mitigation, this Court may also consider Respondent's two-decade career in Oklahoma. While prosecuting some of Oklahoma's most difficult and terrible cases, including securing the convictions of defendants after others had been wrongfully convicted and then exonerated, Respondent was never disciplined by this Court. He never had to be; his record is that of an excellent prosecutor who continuously learned from both mistakes and triumphs and worked tirelessly to see justice done.

While Respondent is correct that he has never been subjected to discipline by this Court, the Court of Criminal Appeals has more than once had occasion to cast doubt on Respondent's characterization of his career as an Oklahoma prosecutor. See Mitchell v. Oklahoma, 2006 OK CR 20, ¶103, 136 P.3d 671 (Death sentence reversed based in part upon Respondent's "serious and potentially prejudicial misconduct."); Stouffer v. State, 2006 OK CR 46, 147 P.3d 245 (Characterizing Respondent's questioning as "more akin to prosecutorial misconduct" and "extremely improper and irrelevant.").

(Mike Frisch)

April 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Litigation Privilege Protects Disparaging Opening Statement

The Maryland Court of Special Appeals has held that the litigation privilege requires dismissal of an action brought by a party ("OBG") who had settled a claim with a mutual non-disparagement clause.

After the settlement, the other party went to trial against another defendant. 

This claim was based on OBG's contention that the plaintiff's attorney violated the provision in opening statement by accusations against the defendant who had settled.

Well over 100 years ago the Court of Appeals recognized in Maryland common law an absolute litigation privilege that immunizes litigation participants from liability in tort for words spoken or written in the course of a judicial proceeding. It crafted an absolute litigation privilege for Maryland that is a hybrid of the English and American versions of that privilege. Lawyers are protected by the American version, which immunizes them from liability in tort for words spoken or written in the course of a judicial proceeding so long as the words are relevant to the proceeding... (citations omitted)

Lawyers are duty bound by the Maryland Lawyer’s Rules of Professional Conduct to zealously advocate for their clients, which includes introducing evidence that supports their clients’ positions and presenting argument in furtherance of their clients’ claims or defenses. See Preamble to MRPC (“as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”). The specter of civil liability for words spoken or written in the course of a judicial proceeding will inhibit lawyers from abiding by their professional obligation to advocate zealously, imperiling the rights of their clients. See T. Leigh Anenson, “Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers,” 31 Pepp. L. Rev. 915, 922 (2004); see also Greenberg Traurig, LLP v. Frias Holding Co., 331 P. 3d 901, 903 (Nev. 2014) (explaining that “[t]he policy behind the [litigation] privilege, as it applies to attorneys participating in judicial proceedings, is to grant them as officers of the court the utmost freedom in their efforts to obtain justice for their clients.”) (internal quotation marks and citations omitted) (alteration in Greenberg).

Thus, the contentions at the trial were immunized from the assertion that they violated the non-disparagement clause.

The court also affirmed the trial court's denial of a motion to disqualify counsel as a necessary witness.

Judge Nazarian dissented

The ultimate question...is whether the City agreed, as part of settling its differences with OBG, not to disparage OBG in the Plant Upgrade Case. The outcome of that question depends in the first instance on what the parties intended the non-disparagement clause to cover. The circuit court erred in dismissing the case in the face of that looming factual dispute, and I would reverse and remand on that basis. From there, I would hold that the City could well have agreed to limit its litigation positions in the ongoing litigation, whether viewed as a positional or tactical decision or as a waiver of the litigation privilege, and direct the circuit court on remand to address OBG’s claims against that backdrop. And for those reasons, I respectfully dissent.

(Mike Frisch)

April 28, 2015 in Current Affairs, The Practice | Permalink | Comments (2) | TrackBack (0)

Prosecutorial Misconduct Claims Saved For Direct Appeal

The Massachusetts Supreme Judicial Court has affirmed a denial of a motion to dismiss a criminal case, rejecting the argument that Rule of Professional Conduct 3.8(f) mandated a contrary result

In the Superior Court, Forlizzi (joined by Battista) moved to dismiss the indictments, alleging that, during the investigation leading to the indictments, the Commonwealth had engaged in prosecutorial misconduct. They claimed that the Commonwealth caused the grand jury to subpoena the bank records of trial counsel in violation of Mass. R. Prof. C. 3.8 (f), 426 Mass. 1397 (1998), and that the Attorney General improperly obtained counsels' tax records though the insurance fraud bureau.

A Superior Court judge denied the motion, concluding that the proscription of rule 3.8 (f) does not apply to thirdparty record holders such as banking institutions, but that the mechanism used by the prosecutors to obtain the attorneys' tax records constituted overreaching. The judge determined, however, that dismissal of the indictments as a sanction was not warranted in the circumstances...

 The court

The petitioners' claims generally involve due process considerations, alleged violations of the attorney-client relationship, and infringement on the right to counsel. They have not, as is their burden, demonstrated that those claims involve violation of any right that cannot be remedied in a direct appeal if and when the petitioners are convicted.

(Mike Frisch)

April 28, 2015 | Permalink | Comments (0) | TrackBack (0)

Search Deemed Invalid After Prosecutor's Cars "Egged"

An interesting case from the Ohio Supreme Court is summarized by Kathleen Maloney

The Ohio Supreme Court today  suppressed evidence taken from the computer of a Twinsburg man because the  detective’s statement requesting the search warrant lacked probable cause and the subsequent warrant did not  specifically state the items to look for on the computer.

In the 4-3 decision, the Supreme  Court adopted a test to apply when considering a challenge to a search warrant  in a motion to suppress evidence.

The court, in an opinion written  by Justice Sharon L. Kennedy, reversed the Ninth District Court of Appeals’  judgment and returned the case to the trial court for more proceedings after  eliminating the wrongly obtained evidence.

Prosecutor’s Vehicles Vandalized     In April 2010, Nicholas  Castagnola was charged with selling alcohol to minors by the Twinsburg law  director and prosecutor, David Maistros. Two months later, Maistros found his  vehicles egged and damaged.

An informant shared text messages  from Castagnola with a police officer in which Castagnola gloated about  damaging Maistros’ vehicles. In a secretly recorded conversation, Castagnola also  told the source that he and another man had egged the automobiles, and he  mentioned he had looked up the prosecutor’s address in court records.

Police Seek Warrant to Search House, Computer     A police detective filed an affidavit with the  local court for a search warrant of Castagnola’s home. The document stated that  items found would be taken as evidence of criminal charges for retaliation,  criminal trespassing, criminal damaging, and possession of criminal tools. The affidavit  quoted the text messages and summarized the recorded conversation, but did not  include the recording itself or a transcript of the exchange. A judge issued  the search warrant, and several items, including two computers, were seized  from Castagnola’s house.

When checking for images associated with court web sites, the forensic analyst in the case saw images  she thought might be child pornography, and she requested another warrant.

Defendant Found Guilty     In December 2010, Castagnola  asked the trial court to suppress the evidence taken from the computer. The  court overruled the motion. Castagnola was found guilty of retaliation,  criminal damaging, vandalism, criminal trespassing, and possession of criminal  tools. He was also found guilty of 10 counts of pandering sexually oriented  material involving a minor. The court sentenced him in October 2011 to a  30-month prison term, and he was classified as a tier II sex offender.

Castagnola appealed to the Ninth  District, contesting the legality of the detective’s affidavit and the search  warrant. The appeals court upheld the trial court’s ruling.

Test to Analyze Warrant’s Validity     Based on the recording, the  police detective concluded that Castagnola had found information about Maistro  online and indicated that conclusion in his affidavit requesting the search  warrant. Justice Kennedy noted that probable cause for a warrant is determined  based on the “four corners” of the affidavit when no oral testimony is  presented.

To review the validity of the  warrant, Justice Kennedy adopted a test presented in People v. Caffott (1980), a decision from a California appeals  court. The case examined when police interpretation of facts crosses the line  into usurping a magistrate’s responsibility when issuing warrants.

The test evaluates whether a  hidden inference is relevant to the magistrate’s inquiry in determining whether  to approve a warrant. The test also looks at whether the leap from the facts to  the affidavit’s conclusions is complex enough that the magistrate should have  had the opportunity to review the inference’s validity.

“If the inference is significant,  then the trial court should examine the affiant’s animus,” Justice  Kennedy wrote. “If the affiant acted intentionally or with conscious  indifference, then the warrant should be invalidated and the evidence  suppressed. … However, if the affiant acted negligently, then the misstatement  should be removed, the omitted underlying facts added, and the affidavit  reassessed.”

Probable Cause Not Established     Justice Kennedy explained that  while the detective thought Castagnola checked online for information about the  prosecutor, Castagnola never said anything in the recording about doing an online  search, and the affidavit’s “online” references were relevant to the  magistrate’s decision. In addition, the detective’s inference from the  recording was complex and should have been disclosed to the magistrate, she noted.  She concluded that the undisclosed inference usurped the magistrate’s  authority.

She reasoned, however, that the  detective did not undermine the magistrate’s role intentionally or with  indifference. Following Caffott,  Justice Kennedy reassessed the probable cause basis for the search of  Castagnola’s computer and determined that no evidence from the texts or the  recording indicated that he used a computer at home to further his alleged  crimes. How Castagnola searched for Maistros’ address was unclear, she noted.

While the dissent criticizes the Caffott test because it is from an  out-of-state appeals court, Justice Kennedy wrote that the Supreme Court  regularly turns to other states when considering new legal issues and has  adopted on-point and persuasive reasoning from those cases.

Warrants Must Be Specific, Not Sweeping     The court then turned to whether  the search warrant described in detail what police were to search for on  Castagnola’s computer. Justice Kennedy noted that the warrant allowed the  search of records and documents stored on computers without any limitations.

The Fourth Amendment requires a  warrant to “particularly describ[e] the place to be searched, and the persons  or things to be seized.” Based on that mandate, Justice Kennedy concluded that  details about the records or documents sought from the computer should have  been included in the warrant “to guide and control the searcher and to  sufficiently narrow the category of records or documents subject to seizure.”

“We agree that the Fourth  Amendment does not require a search warrant to specify restrictive search  protocols, but we also recognize that the Fourth Amendment does prohibit a ‘sweeping  comprehensive search of a computer’s hard drive,’” she explained. “The logical  balance of these principles leads to the conclusion that officers must describe  what they believe will be found on a computer with as much specificity as possible  under the circumstances. This will enable the searcher to narrow his or her  search to only the items to be seized.”

Good Faith Exception Does Not Apply     While acknowledging that one  instance of police negligence does not require the related evidence to be  excluded, Justice Kennedy noted “the negligent inclusion of the undisclosed  inference is just the tip of the iceberg here.”

“The affidavit was so lacking in  indicia of probable cause and the warrant was so facially deficient in failing  to particularize the items to be searched for on Castagnola’s computer that the  detective could not have relied on it in objective good faith,” she wrote.

She noted the difficulty of this  case given Castagnola’s “despicably malicious” actions and the “horrifically  objectionable” photos found on his computer.

However, “[a] search cannot  depend on mere suspicion,” she reasoned. “Where a privacy intrusion is based on  blatant conjecture that evidence exists on a computer in a residence because of  a text-message admission of vandalism, the societal benefits of suppressing the  evidence outweigh the societal risks of harm.” 

The case returns to the trial  court to proceed without the evidence obtained from the invalid search.

Votes     The  majority opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell,  and William M. O’Neill.  Justice Judith  Ann Lanzinger wrote a dissenting opinion joined by Chief Justice Maureen O’Connor and Justice Judith L. French.

In Dissent     Justice  Lanzinger rejected the majority opinion, stating  “[w]ithout fully discussing our standard of  reviewing the totality of the circumstances, the majority adopts the reasoning  of a 35-year-old, out-of-state, intermediate court to change the law of Ohio.” She  emphasized her view that the proper standard for determining whether probable  cause exists for a search warrant depends on an examination of the “totality of  the circumstances,” as reiterated by the court this year in State v. Jones.

To  prove a Fourth Amendment violation, a defendant must show that a false statement was made intentionally or with reckless  disregard for the truth, she explained. While the word “online” was not said in  the recording, Justice Lanzinger noted that the detective’s affidavit did not  state that it was quoting Castagnola and that the detective said he honestly  believed Castagnola had mentioned searching online. There was no intentional  deception or reckless disregard, she concluded.

“Under  the majority’s approach, a negligent misstatement within an affidavit causes  the entire affidavit to be subject to reassessment without any deference to the  issuing magistrate,” Justice Lanzinger wrote. In her opinion, the Caffott test is not consistent with case law and does not  follow the U.S. Supreme Court holding that facially-valid search warrants  should not be invalidated unless a false statement was made intentionally or  with reckless disregard for the truth.

She reasoned  that the magistrate had a “substantial basis” for issuing the warrant based on  the listed offenses, the quoted text messages, and the summary of the recorded  conversation.

“For a  search warrant to issue there needs to be only a fair probability that evidence  will be found in a particular place,” she wrote. “Given today’s ubiquitous use  of technology to obtain information, it is more than likely that Castagnola  found the information online.”

Justice  Lanzinger also “strenuously dissent[ed]” from the majority’s determination that  the warrant was not executed in good faith by the officers.

In  addition, she would not have addressed Castagnola’s claims related to the Fourth  Amendment’s particularity requirement. She does not agree that the  particularity issue was implicit in Castagnola’s probable cause arguments, so  she would have concluded that Castagnola failed to raise the issue in the lower  courts.

2013-0781. State v. Castagnola, Slip  Opinion No. 2015-Ohio-1565.

(Mike Frisch)

April 28, 2015 | Permalink | Comments (0) | TrackBack (0)

No Clear Indication

A public reprimand was imposed by the Wisconsin Supreme Court for an attorney's failure to attend to multiple matters

Briefly stated, over a period of several months in 2010, Attorney Stobbe missed a series of filing deadlines for several clients, failed to file appropriate appellate briefs, and then failed to respond to court orders directing filing and imposing sanctions.  The record before us does not clearly indicate what led to this misconduct, but it appears that Attorney Stobbe was in poor health at the time.

The attorney also was required to pay costs, which were under $1,000. (Mike Frisch)

April 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

FDA Violations Lead To Disbarment

An attorney convicted on her plea of guilty to misprision of felony in Virginia federal district court has filed a motion for consent disbarment in Illinois

As part of that plea, Movant admitted that she  held various roles at Gallant including office manager, identifying prospective  customers for Gallant’s misbranded, non-FDA approved drugs, and arranging for  the importation and distribution of the drugs. Included as the imported drugs  were injectable chemotherapeutic agents, injectable cosmetic fillers, and  injectable agents used to treat side effects of chemotherapy, many of which were  subject to federally mandated strict temperature controls which were not  complied with by Gallant.

On May 16, 2014, the Honorable Claude M. Hilton  sentenced Respondent to nine months imprisonment in the Bureau of Prisons,  one-year of supervised release, and a fine of $75,000.

This press release from the United States Attorney for the Eastern District of Virginia summarizes the case

According to  information made public in court, between August 2009 and August 2013, Gallant  Pharma smuggled into the United States and sold more than $12.4 million in  non-FDA-approved chemotherapy drugs and injectable cosmetic drugs and devices,  generating profits of $3.4 million.  Many of these drugs were subject to  strict temperature controls to protect drug potency.  Gallant Pharma shipped  and received such drugs with ice packs, not dry ice as used by legitimate  distributors, and on at least one occasion, a shipment containing such drugs  took more than two weeks to arrive in Virginia from overseas during a July 2012  heat wave.  Many drugs sold by Gallant Pharma were also required to carry  a FDA “black box” warning, which indicates that a drug carries a significant  risk of serious or life-threatening adverse effects.  The versions sold by  Gallant Pharma did not meet this or other FDA labeling requirements.

Law360 had this report on the criminal case against Gallant. (Mike Frisch)

April 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 27, 2015

Witness

An order disqualifying counsel who is a necessary witness in the matter was affirmed by the New York Appellate Division for the First Judicial Department

The motion court providently exercised its discretion in granting petitioner's disqualification motion. Petitioner demonstrated that Wimpfheimer is "likely to be a witness on a significant issue of fact" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]). Petitioner estate alleges, among other things, that respondent Wolf withdrew $65,000 from an account he held jointly with the estate's decedent, after he entered into a written agreement, signed on his behalf by Wimpfheimer, pursuant to which he agreed to turn over to the estate the funds remaining in the account after he made certain agreed upon payments. Since Wolf has asserted as a defense that he was unaware of that agreement, Wimpfheimer has become a significant witness concerning the negotiation of the agreement and whether he had actual or apparent authority to enter into the agreement on behalf of Wolf (see Tatalovic v Nightlife Enterprises, L.P., 69 AD3d 439 [1st Dept 2012]; Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 82 AD3d 586 [1st Dept 2011]). We note that Wimpfheimer's testimony is likely to be prejudicial to Wolf, unless he testifies that he acted without his client's knowledge or authority in entering into the agreement (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[b]).

Appellants' assertion that Wimpfheimer cannot testify in the matter because Wolf would invoke the attorney-client privilege is without merit. Wolf waived the privilege by affirmatively placing the subject matter of his privileged communications (or lack thereof) concerning the agreement at issue in this litigation, "so that invasion of the privilege is required to determine the validity" of his defense, and "application of the privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [1st Dept 2007]).

(Mike Frisch)

April 27, 2015 | Permalink | Comments (0) | TrackBack (0)

Domestic Abuse Of Mother, Other Crimes, Draws Short Suspension

A four-month suspension has been imposed by the Wisconsin Supreme Court for a series of alcohol-related criminal issues:

The referee noted that the allegations in the OLR's complaint involved Attorney Belke's conviction for seven misdemeanor counts.  According to the OLR's complaint, on August 10, 2010, a deputy sheriff responded to a call of an intoxicated person, later identified as Attorney Belke, in the General Mitchell International Airport in Milwaukee.  As a result of his conduct, Attorney Belke was arrested and charged with misdemeanor disorderly conduct.  He entered a guilty plea and was convicted of misdemeanor disorderly conduct.  His sentence included one day in jail and a $500 fine.  Attorney Belke failed to notify the OLR of his misdemeanor disorderly conduct conviction.

There were also a number of domestic abuse incidents against his mother, DUI and bail jumping charges.

pursuant to a plea agreement, Attorney Belke pled no contest to and was convicted of the misdemeanor disorderly conduct (domestic abuse) charge that arose out of the June 6, 2012 domestic disturbance between Attorney Belke and his mother.  He also pled no contest to two misdemeanor bail jumping charges arising out of the July 3, 2012 arrest.  The remaining bail jumping charges were dismissed but read-in at sentencing.  Attorney Belke's sentence included two years of probation with sentence withheld and conditions that he not possess any firearms, maintain absolute sobriety, not be on any premises licensed to sell alcohol by the drink, not possess any alcohol where he resides, undergo and comply with an alcohol and drug assessment, not have any violent contact with his mother, maintain full-time employment, and abide by any other rules or recommendations as imposed by the supervising probation agent.  Attorney Belke failed to notify the OLR of his misdemeanor disorderly conduct (domestic abuse) conviction and his two misdemeanor bail jumping convictions.

Shortly after the plea, he rolled a vehicle over while driving under the influence

Mitigation

The referee noted that Attorney Belke's conduct did not involve dishonesty or failure to represent clients.  The referee also noted that Attorney Belke has been in compliance with all treatment recommendations of all substance abuse providers, has abstained from all alcohol or other mood-altering substances, and has regularly participated in community-based support groups, such as Alcoholics Anonymous.  The referee also pointed to Attorney Belke's lack of any prior disciplinary history.  Based on what the referee termed "these mitigating factors," the referee concluded that a 90-day suspension was appropriate.  As a condition, the referee recommends that Attorney Belke continue to participate in a monitoring contract with WisLAP and that he comply with the contract conditions relating to assessment and treatment.

He must honor the treatment agreement. (Mike Frisch).

April 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Taxing Situation

A three-month suspension was imposed by the New York Appellate Division for the First Judicial Department as a result of an attorney's tax problems

Respondent, a native of the West Indies, worked for the New York City Law Department from 1994 until 2001, at which time he left to start a law firm. Since 2014, he has been a solo practitioner in the Bronx.

Respondent admitted that he failed to timely file his federal and New York State personal income tax returns, and to pay the applicable taxes, for the years 2004 through 2012. By way of explanation, he testified that, beginning in 2004, his attention was focused on providing financial assistance to his mother, who suffered from Alzheimer's disease and had lost her home as a result of Hurricane Ivan. Further, in 2008, respondent contributed $20,000 to help his sister with a struggling catering business.

Respondent did not take steps to address his tax debt until informed by the New York State tax authorities in 2012 that he was under investigation. At that point, he retained counsel, as well as an accountant to prepare and file his delinquent returns.

The court rejected a Hearing Panel's proposed five-month suspension

While respondent's misconduct was protracted, it was nonvenal and mitigated by his unblemished 25-year legal career and the financial pressures resulting from his late mother's and sister's situations. Respondent has accepted responsibility for his conduct; he has paid over $60,000 in restitution; and he is "desperately" trying to make arrangements to resolve his tax debt.

The attorney must affirm his agreement to pay off the remaining obligation. (Mike Frisch)

April 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, April 26, 2015

Stayed Suspension For Failure To Pay Child Support

From the web page of the Colorado Supreme Court

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Bruce A. Logan (Attorney Registration Number 14187) from the practice of law for ninety days, all stayed pending successful completion of a three-year period of probation. As conditions of probation, Logan must comply with court orders issued in a domestic relations case in Arapahoe County District Court and he must report to the Office of Attorney Regulation Counsel on his compliance with those court orders. The probation took effect April 16, 2015.

For about twenty months in total, Logan failed to pay child support as ordered by the Arapahoe County District Court. According to Logan, he was financially unable to meet those obligations. By failing to pay court-ordered child support, Logan violated Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).

In addition, Logan stated on his 2014 attorney registration statement that he was in compliance with child support obligations, even though he knew he was not. By doing so, Logan violated Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

(Mike Frisch)

April 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, April 25, 2015

Suspension For Unauthorized Practice In Two States

A suspension of six months and a day was imposed by the Massachusetts Supreme Judicial Court of an attorney who listed himself as admitted in that jurisdiction while on administrative suspension

The respondent was admitted to the bar of the Commonwealth in 1974. He was administratively suspended by the Supreme Judicial Court in July 2005 for failure to register and pay his dues, and was never reinstated. From at least 2009 and at all relevant times thereafter, he resided in New Hampshire. At no time was he admitted to the practice of law in New Hampshire or in any other state. Following the respondent’s administrative suspension in July 2005, he did not seek reinstatement...

On or about January 4, 2010, the respondent began working at a law firm in New Hampshire. On its website, the firm listed the respondent as a licensed Massachusetts attorney. In May 2010, a couple, who resided the State of Washington, retained the firm to handle a loan modification related to their residential real estate. They signed a fee agreement with the firm agreeing to pay a flat fee for the representation. The fee agreement entered into by the clients described the scope of the representation as including negotiation of a loan modification on their real property, as well as advice on what legal steps they would need to take to settle, reduce or discharge their debts.

In May 2010, the respondent sent a letter to the clients about their mortgage modification. The letter described the respondent as “Attorney Peter Larkowich.” The respondent signed the letter using the title “Esq.” after his name. In June 2010, the respondent sent a letter to the lender indicating that the firm represented the borrowers and formally requested a mortgage modification. The respondent also signed this letter using the title “Esq.” after his name. A copy of this letter was sent to the clients. Twice in August 2010, the respondent sent emails to one of the clients updating her on the status of the mortgage modification. Both times, the respondent used the title “Esq.” in the email.

The attorney thus engaged in unauthorized practice in both New Hampshire and Massachusetts.

The sanction begins once the attorney has secured reinstatement from the administrative suspension. (Mike Frisch)

April 25, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

Not A Big Winner

Not a legal profession case but a decision worth noting from the Iowa Supreme Court

This case requires us to apply ordinary contract principles to an extraordinary event. While playing a penny slot machine, a casino patron obtained a win of 185 credits, or $1.85, based on how the symbols had lined up. However, at the same time a message appeared on the screen stating, "Bonus Award - $41797550.16." The casino refused to pay the alleged bonus, claiming it was an error and not part of the game. The patron brought suit against the casino, asserting breach of contract, estoppel, and consumer fraud. The district court granted summary judgment to the casino. The patron appealed.

On appeal, we conclude the district court’s grant of summary judgment was proper. The rules of the game formed a contract between the patron and the casino, and the patron was not entitled to the bonus under those rules. Further, the patron failed to prove the necessary elements of either promissory or equitable estoppel. At no time did the casino represent to her that a bonus would be available if she played the game, nor did the casino promise to pay the $41 million after the notice was displayed. In any event, the patron did not detrimentally rely on any representation by the casino. Finally, the patron failed to present proof of an ascertainable loss sufficient to warrant recovery on her consumer fraud claim. We therefore affirm the district court’s ruling granting summary judgment to the casino on all three counts.

(Mike Frisch)

April 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Due Diligence Exclusion Negates Malpractice Claim

No legal malpractice was established in a law firm's representation of an investor in a Ponzi scheme, according to an opinion of the New York Appellate Division for the First Judicial Department.

In this action for legal malpractice, defendants, attorney Martin J. Friedman and his firm, McLaughlin & Stern, LLP, represented plaintiff in connection with the acquisition of an interest in two companies. After plaintiff lost the money he invested because the companies turned out to be part of a Ponzi scheme, he commenced this action alleging that defendants failed to conduct due diligence with respect to the companies' finances.

Defendants established their entitlement to judgment as a matter of law by submitting proof that plaintiff, an experienced investor, understood that the retainer agreement excluded due diligence from the scope of representation. Namely, the evidence demonstrates that plaintiff declined his accountant's advice to conduct due diligence and that he advised defendants that none was needed because he trusted the companies' owner and had engaged in numerous business transactions with her. Plaintiff's statements that he did not want any due diligence conducted, set forth in affidavits by defendant Friedman and plaintiff's accountant, are admissible as party admissions.

Furthermore, plaintiff's damages are not attributable to defendants. To the extent plaintiff sustained any non-speculative losses, the motion court correctly concluded that those losses were caused by the fraud committed by the owner of the companies and plaintiff's own misjudgment of the business risks, not by defendants' alleged conduct.

The record belies plaintiff's contention that defendants received undisclosed third-party payments that constituted a conflict of interest (see former Code of Professional Responsibility DR 5—107[A][1] [22 NYCRR 1200.26[a][1]]). Plaintiff knew of and consented to the offer by the companies' owner to pay part of defendants' legal fees. Moreover, payments were made well after the acquisition closed, and plaintiff cites no evidence that the arrangement pre-dated the closing. (citations omitted)

(Mike Frisch)

April 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Unambiguous

A Louisiana Hearing Board has proposed a full-stayed one-year suspension with six months of unsupervised probation of an attorney who (while represented by counsel) violated immunity provisions by suing a bar complainant.

The complainant was his former son-in-law, who had made a series of personal attacks against him that "may have grossly impaired his judgment at the time the charged misconduct occurred."

The committee also found that the Respondent "was not well served by his attorney."

An experienced attorney can thoroughly research a statute and master it. He will know its legislative history, be familiar with the many court decisions involved in the litigation of that statute. Lawyers are trained to seek and find ambiguity in the law (gray areas). Ambiguity in the hands of a good lawyer can be used as a "sword" to protect the rights of citizens. This is not to say that [counsel] and [Respondent] are not good lawyers, quite the contrary. However, the Committee feels they may have been to close to the situation to assess it correctly.

Here, "creativity" crossed the line into the land of frivolity. (Mike Frisch)

April 24, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2015

No Sense Of Irony

I have just returned from the oral argument before the District of Columbia Board on Professional Responsibility in a case on which I previously have blogged.

The case is In re Rohde and it is notable in that the hearing committee filed its "report" (due by rule 120 days after the record closes) over seven years after the hearing was held.

I believe that this is the most flagrant and inexcusable delay in D.C. Bar discipline history, allowing a convicted felon to practice law for all those years while the committee "deliberated."

The most amusing moment was when Assistant Bar Counsel Joe Bowman was asked by a BPR member why the hearing committee took so long.

He gave the proper answer - he had no idea.

My answer?

The delay was caused by the gross inefficiency of a system run by the Executive Office of the BPR and the hearing committees that are selected, trained and advised by that office.

The delay was caused by "responsible" officials entrusted with public duties who do not care a whit about efficiency or the public interest.

The BPR can find the answer to this important question by looking carefully in a mirror. (Mike Frisch)

April 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Law Of Facebook

An interesting decision on authentication of documents from social media from the Maryland Court of Appeals

We shall hold that, in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. We shall hold in Sublet that the trial court did not err in excluding the admission of the four pages of the Facebook conversation. We shall hold in Harris that the trial court did not err in admitting the “direct messages” and “tweets” in evidence. We shall also hold in Monge-Martinez that the trial court did not err in admitting the Facebook messages authored by Monge-Martinez.

The court resolved three criminal cases in its decision.

There is a concurring and dissenting opinion.

 Use of social media as evidence in civil and criminal trials is likely to become increasingly important. Today we advanced our jurisprudence by adopting the “reasonable juror” standard and holding that circumstantial evidence can be sufficient to authenticate social media evidence. But the Majority set bad precedent in holding that a trial judge can establish such a high bar for authentication as the court did in the Sublet case. The Majority muddled our “reasonable juror” standard by refusing to accept Facebook posts as authenticated, based on an undisputed admission by the witness that she made posts referring to the fight at the party in a Facebook conversation with friends the day after the party, but denying the posts on the same topic occurring shortly thereafter. We would enunciate a clearer standard and advance the law more profitably if we affirmed the trial court rulings in Harris and Monge-Martinez, but reversed the trial court in Sublet.

(Mike Frisch)

April 23, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)