Thursday, February 12, 2015

Profane Magistrate Disciplined

Stephanie Breouger reports on the web page of the Ohio Supreme Court

The Ohio Supreme Court today has suspended a long-time  magistrate accused of abusive and disrespectful conduct.

The Supreme Court ruled 4-2 to suspend Stephen E. Weithman  of Delaware for two years, stayed, for violating  professional conduct rules. Weithman served as a magistrate for more than 30 years,  most recently in the Delaware County Common Pleas Court Domestic Relations Division.

Among the charges brought by the Disciplinary Counsel, Weithman  was accused of making inappropriate comments during a contentious case of a woman  who claimed her ex-husband was in contempt of court for posting nude pictures  of her on the Internet. Weithman lost his temper during a March 2007 hearing  and went on a profanity-laced tirade. During the trial in 2008, Weithman jokingly  told the ex-husband’s lawyer he would pay him a dollar to make the ex-wife cry  on the stand. He was also accused of looking at the ex-wife in a “demeaning and  degrading fashion” in the hallway.

In another case from 2013, he used abusive, vulgar language  and yelled at a husband’s lawyer while threatening to delay the divorce.  Weithman refused to recuse himself, but was later removed from the case by the  trial court after the husband’s lawyer filed a motion challenging his  impartiality.

While the Board of Commissioners on Grievances and  Discipline, now known as the Board of Professional Conduct, recommended  Weithman be suspended for one year, with six months stayed with conditions, the  Supreme Court decided to increase the length of his suspension to two years to “best  protect the public from future misconduct at Weithman’s hand.”

“Weithman’s quick temper, his impatient, disrespectful, and  profanity-laced rants directed toward the litigants and counsel who appeared in  his courtroom, and his failure to curb displays of disrespect and excessive  familiarity exhibited by counsel who had long practiced in his courtroom have  also compromised public trust and confidence in the independence, impartiality,  and integrity of the judiciary,” the court wrote in the per curiam decision.

His suspension will be stayed as long as he doesn’t engage in any further  misconduct and that he remain in compliance with the terms of a contract with  the Ohio Lawyers Assistance Program for treatment of mental health issues.

Justices Terrence O'Donnell, Sharon L. Kennedy, Judith L.  French, and William M. O'Neill joined in the majority opinion.

Chief Justice Maureen O’Connor and Justice Judith Ann  Lanzinger dissented and would have imposed the one-year suspension with six  months stayed.

Justice Paul E. Pfeifer did not participate in  the decision.

2014-0544. Disciplinary Counsel v. Weithman, Slip  Opinion No. 2015-Ohio-482.


This is so goddamn simple. If you give the discovery and don’t do all this bullshit, I don’t have to sit here for hours and listen to this crap. So everybody’s excused.

Goddamn it. Comply with discovery and shut up once in a while. You make 17 hairline things, we’ll do 8 of them but not these 9. Stupid. All Franklin County attorneys are stupid.


I don’t know what it is with the Franklin County Attorneys, these Franklin County Attorneys, but they all have to have these Rule 75 hearings in every case, Rule 75 hearings all the time. I’ll give you your Rule 75 hearing but you won’t get a decision on this until the divorce is tried and I’ll continue this divorce for two more years.

The court found mitigation

His treating psychologist reports that Weithman has been forthcoming, has uncovered major triggers for his anger, and has worked hard to interrupt the pattern and correct the ways in which he shows his anger

(Mike Frisch)

February 12, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tweeting Ethics Explored; Attorney Suspension Proposed

The Louisiana Attorney Disciplinary Board has proposed a year and a day suspension of an attorney charged with using the internet and social media to disparage two judges.

The hearing committee found

Respondent used the internet and social media in an effort to influence Judge Gambrell's and Judge Amacker's future rulings in pending litigation. Respondent's conduct threatened the independence and integrity of the court and was clearly prejudicial to the administration of justice.

Respondent also used her Twitter account to publish multiple tweets linking the audio recordings of the minor children discussing alleged sexual abuse; to publish false, misleading and inflammatory information about Judge Gambrell and Judge Amacker, and to promote the online petition, all of which was designed to intimidate and influence the judges' future rulings in the underlying proceedings.

Respondent knowingly if not intentionally embarked on a campaign using internet, social media and ex parte communication specifically designed to intimidate and to influence the judges' future rulings in pending litigation. Her online campaign to influence judges in pending litigation threatened the independence and integrity of the judiciary. Respondent's conduct also caused the  personal safety.

The board here found that the attorney did not violate the ex parte contact rule but otherwise affirmed the hearing committee's conclusions.

The board

In the instant matter, Respondent made false and misleading statements on the internet and in pleadings. As demonstrated by the cases cited above, the discipline for similar misconduct ranges from suspensions of six months to twelve months. One troubling fact that distinguishes Ms. McCool’s misconduct from these other cases is that she used the internet and social media to facilitate her misconduct. Consequently, the offending language remains present and accessible on the internet today. Furthermore, Respondent has expressed no remorse for her conduct claiming instead it is protected free speech. In addition, Respondent also directly violated several court Orders by releasing and promoting the aforementioned audio recordings which were part of a sealed court record.

(Mike Frisch)

February 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Chapter Two Leads To Chapter 7 Problems

The California state Bar Court Review Department has publicly reproved an attorney for mistakes made after moving from her public defender position to private practice.

 After 14 years as a public defender, respondent...began a new chapter in her career as a bankruptcy attorney. One of her first clients was facing imminent eviction. In her haste to file a Chapter 7 bankruptcy petition to stay the eviction, [she] certified to the bankruptcy court that she had been paid $3,100 as her pre-petition legal fee, when she actually had received $950. Moore carelessly repeated the incorrect amount of her fee in an application for a waiver of filing fees, which she filed three days later. Although she subsequently became aware of these errors, she failed to correct them. However, she voluntarily informed an investigator for the Office of the Chief Trial Counsel for the State Bar (OCTC) that she had overstated her legal fee in the bankruptcy matter when the investigator called her to inquire about two other attorneys in an unrelated matter.

The attorney had done death penalty work as a public defender.

The review department agreed with the hearing judge that a reproval was the appropriate discipline.

[The attorney's] wrongdoing, although related to the practice of law, occurred during a time of stress and appears to be aberrational, given her 14 years of discipline-free practice. Her grossly negligent misstatements occurred within a three-day period, and her intentional failure to correct those misstatements occurred over a five-week period. Rather than conceal her misconduct, Moore voluntarily disclosed it to a State Bar investigator. She also testified that she is ready and willing to be disciplined for her misconduct. She has been cooperative and candid from the outset.

The Office of Chief Trial Counsel had sought more severe discipline. (Mike Frisch)

February 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

D.C. Considers Rule 1.2 Amendments On Scope Of Representation

From the web page of the District of Columbia Bar

The D.C. Bar Rules of Professional Conduct Review Committee (committee) is currently soliciting public comment from members of the Bar on its final draft report and recommendation to amend D.C. Rules of Professional Conduct 1.2 (Scope of Representation). Comments are due by close of business on Friday, March 13, 2015.

In April 2013, the Limited Scope Working Group (Working Group), a joint project of the D.C. Access to Justice Commission and the D.C. Bar Pro Bono Program, issued a report recommending action by the Superior Court of the District of Columbia, the D.C. Bar, and prospective limited-scope lawyers and clients to help increase access to justice through the provision of limited-scope services to underserved communities.  Because the Working Group’s report included a recommendation seeking revisions to the D.C. Rules of Professional Conduct, the report was submitted to the Rules Review Committee for its consideration in May 2013.

After careful consideration of D.C. Rule 1.2 and the Working Group’s report, the committee recommends amendments to Rule 1.2 and Comments to provide more clarity and guidance to lawyers who engage in limited-scope practice to help facilitate access to justice through the provision of limited-scope legal services by members of the D.C. Bar.  In addition, the committee recommends a more comprehensive amendment to Rule 1.2 that will affect the provision of all legal services, including limited-scope legal services. Before submission to the D.C. Bar Board of Governors, the committee requests public comment on the amendments proposed in its final draft report.

The committee recommends that Rule 1.2 be amended (1) to require lawyer–client agreement about the scope and objectives of a representation at the onset of representation, and (2) to affirm and clarify that when a client gives informed consent, the scope of a representation may be limited to only certain aspects of a matter, rather than the matter in its entirety, if the limitation does not preclude competent representation or violate other Rules. The committee also recommends amendments to the Comments to provide more guidance to lawyers providing limited-scope representations pursuant to Rule 1.2.

Read more about this call for public comment, including the committee’s final draft report and recommendations and the April 2013 Report of the Limited Scope Working Group.

Written comments should be submitted by e-mail to, or to the Rules Review Committee, c/o Hope C. Todd, District of Columbia Bar, 1101 K Street NW, Suite 200, Washington, DC 20005, not later than March 13.  For hard copies of the report, please contact LaJuan Evans at 202-737-4700, ext. 3341.

(Mike Frisch)

February 12, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

Moonlight In Vermont

An interesting decision from the Vermont Supreme Court last week involved warring neighbors and the construction of a "spite fence" at issue in the appeal.

 The parties are adjoining property owners in the Town of Brandon.  Michael and Jirina Obolensky own forty acres of land, which they purchased in 1995.  The Obolenskys operate a bed-and-breakfast in a large Victorian house located at the lower eastern end of the property.  Although not directly visible from their house, there is a beautiful view of the mountains from the highest part of the land, accessible by walking from the house uphill through a field.  The adjoining property owners are Robert and Sandra Trombley, who purchased 3.7 acres of land in 2004 and built a home on the lot two years later.  The Trombleys’ lot is at the top of the rise, adjacent to the Obolenskys’ field; the Trombleys have a direct view of the mountains.  The exterior wall of their house is thirty-seven feet from the common boundary with the Obolenskys at its nearest point.

Soon after the Trombleys built their home, the Obolenskys commissioned a surveyor to conduct a boundary survey.  In fall 2007, Mrs. Obolensky placed “no trespassing” signs on a location that she believed (based on the Obolenskys’ boundary survey) was within her lot.  The signs were placed at a location eight feet within an area also claimed by the Trombleys, who had mowed the lawn in the area.  An acrimonious dispute followed, culminating in a call to the police.  The police permitted Mr. Trombley to remove the signs that the Obolenskys had placed on the lawn.  The Obolenskys subsequently filed suit to determine the boundary, and also raised claims of trespass.

 A criminal charge was filed against Mrs. Obolensky in the fall of 2009 following an incident in which she and guests walked onto the mowed area claimed by the Trombleys, Mrs. Obolensky exposed her backside toward the Trombleys, and a man in her group urinated on the lawn.  The charge was dismissed after Mrs. Obolensky successfully completed a diversion program.

As to the Obelensky's "spite fence"

We join our sister courts of New England in adopting the dominant-purpose test.  As the Rhode Island Supreme Court explained, “[t]he very nature of a fence is such that privacy could always be given as the reason for erecting it,” even when the evidence shows “egregious,” “malicious intent” which “plainly outweighs” any benefit gained by the erector of the fence.  Dowdell, 847 A.2d at 831.  We emphasize, however, that the dominant-purpose test and the sole-purpose test are not far apart in practical terms.  Under the test we adopt, a plaintiff still must show that the fence would “strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in his use of his premises.”  Gallagher, 48 Conn. at 393.  This “manifest,” “positive,” and “leading feature” of the fence must be “so predominating as a motive as to give character to the structure,” with any “real usefulness of the structure” being “manifestly subordinate and incidental.”  Id. at 392-93; see also Hunt, 20 A. at 250 (stating that motive of annoyance must be “controlling”).  In addition, for a fence to be considered a “spite fence” within the meaning of the statute, the plaintiff must show that in the absence of intent to annoy, “the fence would not have been built or maintained.”  Lord, 39 A. at 552; Rideout, 19 N.E. at 392 (same).  We think that this rule most carefully balances the competing concerns of protection of property rights and the discouragement of pointless inflictions of harm among neighbors.


we find that the evidence admitted at trial supported the trial court’s findings and conclusions.  The court properly considered the history of intense animosity and conflict between the parties.  Alberino, 2008 VT 130, ¶ 9 (“The cases are uniform in their approval of reliance on the history of relations between neighbors as evidence of intent to annoy.”).  There was ample credible evidence to support the finding of the Obelenskys’ hostility toward the Trombleys.  Moreover, the court properly considered the credibility of the Obolenskys’ claimed reasons for building the fence, and the usefulness or uselessness of a fence for purposes of privacy, security, and quiet enjoyment.  See id. ¶¶ 6-14 (noting that it was proper for trial court to consider fact that fence was “an ugly wall” and that it did not objectively protect defendant’s privacy, ward off wandering dogs, or lessen noise of their barking); accord Gallager, 48 Conn. at 393 (considering structure’s “character, or location, or use” in determining its leading purpose).

In reaching its conclusion, the court did not improperly ignore the legitimate purposes of the fence identified by the Obolenskys.  The court acknowledged that the fence provided them some privacy, although the trees also did so.  The court did not credit the Obolenskys’ testimony that the fence was necessary to protect them and their guests from the Trombleys’ spying, or that it was necessary because Mrs. Obolensky lived in a state of fear of the Trombleys.

We conclude that the trial court’s findings with respect to the stockade fence were supported by sufficient evidence, and that its conclusions were supported by its findings.

The lower court order is linked here. (Mike Frisch)

February 11, 2015 | Permalink | Comments (0) | TrackBack (0)

First Shirt

The North Dakota Supreme Court has reprimanded an attorney for a Rule 3.4 violation in a division of property dispute in the wake of a default divorce matter in which she represented the wife.

The wife rented an apartment from the attorney, who believed that the husband had signed the lease.

The issues before the hearing panel are related to Stanley's actions after the informal disciplinary complaint was filed. After receiving the informal complaint, Stanley called the husband at his workplace at the Minot Air Force Base ("MAFB"). She made multiple calls to MAFB in an attempt to speak to the husband or his "first shirt." A first shirt is a special duty given to a Master Sergeant or higher enlisted rank who acts as a liaison between the enlisted airmen and the command and is in charge of the welfare and morale of the enlisted airmen. The husband stated the signature on the lease was not his and informed Stanley he could not speak to her while he was at work. Stanley then repeatedly called MAFB in an attempt to speak to his first shirt. During the calls, she became frustrated and short tempered after not being put in contact with the husband's first shirt. The hearing panel found the MAFB personnel were not cooperative in directing her call to the appropriate place.

When the husband's first shirt returned Stanley's call, Stanley's statements implied she wanted the husband to be fired. Stanley also asked the first shirt to require the husband to submit to a polygraph test. The hearing panel found Stanley's conduct was retaliation for the disciplinary complaint filing. The hearing panel found her conduct to be harassing, embarrassing, and burdensome to the husband.

The complaint was filed by the husband's new wife. (Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Properly Chastised

An attorney who submitted a redacted letter from a treatment facility in support of a plea for leniency in his client's second offense DUI case was publicly censured by the Pennsylvania Supreme Court.

The client had been discharged from the facility for non-compliance with the program. The attorney had his paralegal take that fact out of the version of the letter and submitted the document with a sentencing memorandum. As a result, it appeared that she had completed the treatment.

He also made false representation at allocution.

The Disciplinary Board noted that the attorney was distracted by other matters and motivated by a desire to assist the client, as successful completion of an inpatient program is a significant factor in such cases.

The board concluded that this "is not a suspension matter" and that the sanction "still permit[s] a properly-chastised but nonetheless reputable member of the bar to continue practicing in that community." (Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Absolved Of Theft Charges; Majority Cites Pleading Defect

The recommendation of an Illinois Hearing Board is summarized below

The Administrator filed a one-count complaint  against Respondent, alleging that she failed to deposit her client's settlement  funds into her client trust account and hold these funds separate from her own  property. The Complaint also alleged Respondent failed to promptly deliver these  funds to her client's medical providers and failed to provide her client with a  written statement regarding the outcome of a contingency matter. In addition, it  was alleged that Respondent dishonestly used her client's funds for her own  purposes and that her use of these funds constituted the criminal act of theft.  Although Respondent admitted that she improperly handled her client's funds and  failed to provide her client with the written statement regarding the outcome of  the contingency matter as required by the Rules, she denied engaging in any  fraudulent, deceitful or dishonest conduct.

Although the majority of the Hearing Panel found  the Administrator proved by clear and convincing evidence that Respondent  engaged in the majority of the charged misconduct, it found the Administrator  failed to properly plead and prove that Respondent engaged in the criminal act  of theft. After considering the nature of Respondent's misconduct, the  mitigating and aggravating evidence, and case law precedent, the majority  recommended Respondent be suspended from the practice of law for one year, with  the last six months stayed by a period of probation for one year, subject to  conditions.

The board majority view on the Administrator's criminal theft charges

The Administrator bears the burden of proving  Respondent committed the underlying criminal act of theft in order to prove a  violation of Rule 8.4(b). As a result, we are dismayed at the Administrator's  failure to plead in the Complaint that Respondent intended to permanently  deprive Mr. Akporido and/or Rehab and Pain Management of the use or benefit of  the funds. As stated above, proof of this element is necessary to establish she  engaged in the criminal act of theft. We strongly believe that if the  Administrator chooses to charge such a serious allegation of misconduct that  carries criminal connotations, he should, at the very least, ensure the factual  allegations pled in a complaint support the elements that constitute the  criminal offense at issue. This is especially the case when a respondent has  neither been charged with nor convicted of the offense. This assures that a  respondent receives proper notice of the charges against him/her.

A dissent on that point from committee member Stein

I think that the Administrator adequately pled his  charge that Respondent intended to deprive her client - Ayi Akporido - of some  $2,260 that he entrusted to her to pay his creditors. Disciplinary complaints  must "reasonably inform the attorney of the acts of misconduct he is alleged to  have committed." Ill. Sup. Ct. R. 753(b). While no discipline can result from  uncharged misconduct, a disciplinary complaint "need not have the same  specificity as a criminal charge, and the Administrator need not plead every  fact []he intends to introduce in evidence." In re Rice, 95 CH 210, M.R.  13391 (Mar. 21, 1997) (Review Bd. at 7) (citing In re Harris, 93 Ill. 2d  285, 292, 443 N.E.2d 557 (1982)).

The Complaint alleges that Respondent used the  balance of Mr. Akporido's money "to pay her own personal and business expenses,  without authority" and without telling Mr. Akporido that she used his money "for  her own purposes" (Compl. at pars. 9-10). The Complaint also alleges that  Respondent's actions consummated "the criminal offense of theft, in violation of  720 ILCS 5/16-1(a)(1)(A) and Rule 8.4(b) of the Illinois Rules of Professional  Conduct. . . ." (Compl. at par. 11(e)). These allegations gave Respondent  reasonable notice that she stood charged with theft.

In addition to adequately pleading theft, I believe  the Administrator proved this charge even though Respondent paid one of Mr.  Akporido's creditors $500 of the $2,260 that her client owed. Returning some or all of another's ill-gotten  property does not undo the intent to steal it.

I find it an uncomfortable result (at best) to see an accused attorney go free from discipline on what at most is a minor pleading defect.

Charges should be resolved on their merits, not on pleading technicalities, if we are to support the profession's privilege of self regulation. (Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Contempt For Non-Compliance with Reprimand Conditions

An attorney has been held in contempt and suspended by the West Virginia Supreme Court of Appeals until she demonstrates compliance with earlier disciplinary orders.

The earlier order

After considering the aggravating and mitigating factors, including the disposition of the 2011 disciplinary matter, and Ms. Price’s remorse, the HPS recommended that (1) Ms. Price be publicly reprimanded; (2) Ms. Price must follow a plan of supervised practice for a period of three years with a supervising attorney, consistent with specifications set forth by the ODC, with the period of supervised practice to run concurrently with the prior case; (3) During the period of supervised practice, Ms. Price must complete nine hours per year (a total of twenty-seven additional hours) of continuing legal education in the areas of law office management, civil or criminal procedure, and the substantive areas in which she intends to practice law; and (4) Ms. Price must pay one-half the costs of the disciplinary proceedings in accordance with Rule 3.15 of the Rules of Lawyer Disciplinary Procedure. Ms. Price did not object to the HPS recommendation, and this Court adopted it in full by order entered May 27, 2014.


The rule to show cause in this case was issued three months ago and made clear that the order would be mooted "by the respondent’s full compliance with the Court’s March 25, 2014 and May 27, 2014 orders." Despite the clarity of this direction, the severity of the possible penalties for contempt, and the ample passage of time to permit Ms. Price to comply with the Court’s orders, she has filed nothing with this Court to demonstrate her compliance or to prove that she is unable to comply. Her unsupported statements at oral argument simply do not suffice. We therefore conclude that Ms. Price is in contempt of this Court for her failure to comply with the Court’s March 25, 2014 and May 27, 2014 orders, and we hereby suspend Ms. Price’s license to practice law, effective February 17, 2015. She may purge herself of the contempt by fully complying with the Court’s March 25, 2014 and May 27, 2014 orders.

(Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Appeal Dismissed: Dissent Contends Dismissal Encourages Discovery Violations Against Law School Clinic Clients

The Ohio Supreme Court has dismissed an appeal and, according to a dissent, endorsed the proposition that fees for discovery violations cannot be awarded to law school clinics as such clinics charge no fees to their clients.

Justice Pfeifer's dissent

As can happen, something we said in one context, where it made sense, is being applied in another context, where it does not. In State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, we stated that “an award of attorney fees as a sanction for a discovery violation must actually be incurred by the party seeking the award.” In that case, there was an ongoing dispute involving compensated attorneys, and an award of attorney fees made sense only if additional fees had actually been incurred. Nothing in that opinion suggests that we were deciding the issue with respect to every situation involving discovery sanctions that might possibly arise in Ohio.

Legal services can be rendered in Ohio by legal interns, including, as here, those working for a law-school clinic. Gov.Bar R. II. In that special context, legal fees are not allowed. Gov.Bar R. II(6) (“A legal intern shall not ask for or receive any compensation or remuneration of any kind from a financially needy client * * *.”)

The lower court’s opinion, as allowed to stand, holds that discovery sanctions can never be granted when the prevailing party is represented by a law-school clinic because attorney fees cannot be incurred by a clinic’s client. Such a conclusion reads too much into Register, an opinion that had nothing to do with law-school clinics and legal interns. Moreover, the holding allows parties to commit discovery violations with some level of impunity. It is also contrary to Gov.Bar R. II(6), which states that a law-school clinic “may be awarded attorney fees for services rendered by the legal intern consistent with the Ohio Rules of Professional Conduct and as provided by law.” Attorney fees as sanctions for discovery violations are attorney fees “provided by law.”

By dismissing the appeal as improvidently accepted, this court is implicitly endorsing a decision that allows attorneys opposing law-school clinics to commit discovery violations without fear of economic sanctions, subverting Gov.Bar R. II(6), and devaluing the efforts of hundreds of legal interns and licensed attorneys who provide pro bono legal services throughout this state.

I would reach the merits of the case before us and reverse the judgment of the court of appeals. I dissent.

Justices French and O'Neill joined the dissent. (Mike Frisch)

February 11, 2015 in Billable Hours, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Assault On Paralegal Leads To Conviction And Suspension

The Pennsylvania Supreme Court has suspended an attorney pending final disciplinary action on his criminal conviction.

The Norristown Patch reported on the story

Former Montgomery County Republican Committee Chairman Robert Kerns will lose his law license, the Pennsylvania Supreme Court’s Disciplinary Board has voted.

The Disciplinary Board on Friday voted to temporarily suspend Kerns’ law license, The Philadelphia Inquirer said.

Kerns in November pleaded no contest to a misdemeanor indecent assault charge.

Under the terms of the plea agreement, Kerns will serve two years of probation and must register as a sex offender for 15 years, CBS reported at the time. He will serve no prison time.

Kerns had faced three counts of indecent assault, two counts of aggravated indecent assault, one count of rape, one count of sexual assault and one count of simple assault, the Pennsylvania Attorney General’s Office said.

Kerns, 67, of North Wales, had been accused of the rape and sexual assault of a paralegal who worked at his law firm.

Charges against Kerns were dropped in March after Montgomery County District Attorney Risa Ferman said lab results had been misread.

At issue was the misinterpretation of a piece of evidence, and the fact that the misinterpretation was presented to a Grand Jury. “The Grand Jury relied upon that inaccurate evidence to make its charging recommendations,” the District Attorney’s Office said.

Members of the Grand Jury were told that the drug zolpidem, or Ambien, was found in the complainant’s system, when in fact no trace of the drug was found, the District Attorney’s Office said. The Grand Jury apparently gave significant weight to that incorrect evidence when deciding whether to hand down indictments.

“While the admission of inaccurate information to the Grand Jury was unintentional, it regretfully happened. Upon discovering the issue, my office immediately took steps to investigate, acknowledge and take corrective actions in the matter,” Ferman said at the time. In dropping the charges, Ferman referred the case to Pennsylvania Attorney General Kathleen Kane.

Kane refiled charges in April.

Kerns in November 2013 was charged with 19 felony and misdemeanor criminal counts. He resigned his party chairmanship on Nov. 14, 2013.

The complainant was an employee at Kerns’ Upper Gwynedd law firm,  Patch reported in November 2013.

(Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fall Of The Legend

The Pennsylvania Supreme Court has held a former attorney disbarred in 2010 in contempt of the court's order of disbarment.

The petition of the Office of Disciplinary Counsel alleged that former attorney maintains a website that describes himself as "A Legend in Liquor Licensing" and "A Pennsylvania Liquor License Specialist."

He performed extensive law-related activities in his business that constituted the unauthorized practice of law.

The court's order froze his fiduciary accounts, ordered him to "immediately cease and desist and be enjoined from all activities in connection with representing individuals and entities before the Pennsylvania Liquor Control Board and it agencies" and to notify all clients/customers and the board of his status. (Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


The New York Appellate Division for the First Judicial Department affirmed the dismissal of a suit brought against Vanity Fair.

Plaintiff failed to state a cause of action for defamation based on allegedly false and disparaging statements in an article published in the September 2010 issue of Vanity Fair ("Cassini Royale") that reports on plaintiff's secret marriage to the late designer, Oleg Cassini, and her conduct in litigation concerning his estate. Contrary to plaintiff's contention, the allegedly defamatory statements, including a quoted statement that plaintiff and her sisters used to throw parties in the 1960s that were attended by many wealthy "older guys looking for action," do not imply that plaintiff was a prostitute and lacked sexual morals. Given the overall context in which the statements were made, a reasonable reader would not conclude that plaintiff was a prostitute or otherwise unchaste. Nor were the statements so "extreme and outrageous" that they would support an action for infliction of emotional distress (citations omitted).

(Mike Frisch)

February 11, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

Thy Sister's Lawyer

A stayed one-year suspension was imposed by the Ohio Supreme Court for misconduct in an attorney's representation of her sister.

The attorney had limited her practice to court-appointed criminal work and had no trust account.

She represented her sister and the sister's husband in a foreclosure action. The misconduct involved misappropriation of entrusted funds.

The court found significant mitigation  (and little danger of future misconduct) in the family circumstances.

As the attorney explained

it was difficult for her to differentiate between her horrible familial relationship with her sister and her role as her sister’s attorney.

The court

The board [of Commissioners on Grievances and Discipline]...considered [the attorney's] uncontroverted deposition and hearing testimony regarding her tumultuous and contentious relationship with her sister. The board noted [her] testimony that once she became a practicing attorney, her older sister expected her to provide legal services for whatever she wanted and whenever she wanted them. Whether it was a speeding ticket or a foreclosure, her sister expected her to drop everything, no matter what was going on in her own life, and fix everything. [She] felt that she could not refuse her sister’s demands because if she did, her sister would call and complain and harass her or their mother and “cause a big family fight and big family drama.” She reported that it had “always been this way” and that it was easier to give in to her sister’s demands than to fight. {she] also testified that while the foreclosure was pending, she also served as the attorney for her grandmother’s estate—which created intense disagreements between the sisters, who were both beneficiaries of the estate.

While the misconduct normally would call for a severe sanction

[The attorney] testified, and the board found, that she and her sister have always had a contentious relationship and that since she obtained her law license, her sister—and her mother—have expected her to drop everything to handle her sister’s legal crises with no reimbursement for her time or the expenses she incurs on her sister’s behalf. She indicated that it was easier to go along with her sister’s demands than to fight them and cause “a big family fight and big family drama.” However, she reports that she has learned her lesson about handling legal matters for her family and that it will never happen again.

(Mike Frisch)

February 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Maine To Maryland

The Maryland Court of Appeals has imposed a reprimand as reciprocal discipline for misconduct that had resulted in a warning and reprimand in Maine.

In Maryland, a hearing is held before a circuit judge in reciprocal matters. Here, the court majority rejected a finding by the circuit judge that the attorney engaged in dishonest conduct.

Without doubt, those violations are serious. Moreover, Respondent is an experienced attorney, practicing in the areas of tax law and the law relevant to the handling of estates. In addition, insofar as the record reflects, Respondent did not advance a reasonable explanation for the delay in filing the estate tax return on behalf of the Estate. Nevertheless, we accord significant credit to the facts that Respondent, evidently, has no prior record of discipline; for the reasons we have explained, there is no evidence that any of Respondent’s actions in connection with this matter were prompted by an improper motive; he selfreported his error to the Overseers of the Bar of Maine; he made a commitment to repay the Estate for any monetary loss incurred as a result of his error; and, once that sum was agreed upon, he made the Estate whole. These facts, considered in their totality, lead us to conclude that a reprimand is the appropriate sanction for Respondent’s misconduct.

A dissent would sustain the circuit judge and raise the sanction to an indefinite suspension

[A] final adjudication in a disciplinary or remedial proceeding by another court, agency, or tribunal that an attorney has been guilty of professional misconduct . . . is conclusive evidence of 773(g),

unless Bar Counsel or the attorney demonstrates by clear and convincing evidence that: (1) the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; [or] (2) there was such infirmity of proof establishing the misconduct as to give rise to a clear conviction that th[is] Court, consistent with its duty, cannot accept as final the determination of misconduct[.] Md. R. 16-773(e) (paragraph breaks omitted).

Instead of determining that there was such infirmity of proof establishing the misconduct as to give rise to a clear conviction that this Court, consistent with its duty, cannot accept as final Panel E’s determination of misconduct, the Majority simply sweeps Panel E’s determination of misconduct under the rug by positing that, “based on [the Majority’s] independent review of the record,” Adams did not violate MLRPC 8.4(c). Maj. Slip Op. at 18. As discussed above, even absent Panel E’s determination of misconduct and Maryland Rule 16-773(g)’s presumption that the same is conclusive evidence of that misconduct, clear and convincing evidence supports the hearing judge’s conclusion that Adams violated MLRPC 8.4(c).

I think that the dissenters are correct that the Maine rule violations should not be rejected in a reciprocal proceeding.

I am less certain that the result of that conclusion is a greatly increased sanction. (Mike Frisch)

February 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Payment Offer To Witness Violated Ethics Rules

The Louisiana Attorney Disciplinary Board has proposed a suspension of a year and a day for an attorney's misconduct in representing a burglary defendant.

This matter came down to credibility. Mr. Bode was a credible witness, with no apparent motive to lie about his interactions with Respondent. For the most part, Respondent admitted to the facts as Mr. Bode related regarding the two visits at the restaurant. The significant divergence was that Respondent contended that the payment was only restitution, and whether Respondent offered $500 to induce Mr. Bode to fail to appear at the trial. However, after hearing the testimony, observing the witnesses demeanors, and considering the logical interpretation of the interactions, the Committee finds that Respondent went to visit Mr. Bode at the restaurant where he worked and offered him $300 as payment if he would to agree to drop the charges against Ms. Winborn. Although Respondent calls the $300 an offer of restitution, it clearly was conditioned the "restitution." Moreover, payment for the loss of the gun was not necessary because Mr. Bode told Respondent that he had found the gun.

The second visit, which occurred ten days later and the day before the trial, included an increased offer of $500 as payment for not showing up on the day of trial. Although Respondent attempted to show that Mr. Bode's memory was failing, the details he did remember - along with a lack of true motive to lie either at trial or the hearing - leads the Committee to believe Mr. Bode's version of the facts.

Thus, clearly the initial $300 was offered not as "restitution," but strictly as a bribe for Mr. Bode to dismiss the charges against Respondent's client. In addition, the $500 was offered, on the day before the trial, and as a last resort, so that Mr. Bode would not appear at the trial and thus make it more likely that the charges would be dropped. Respondent's conduct was a criminal act reflecting adversely on Respondent's honesty, trustworthiness and fitness as a lawyer, and was conduct prejudicial to the administration of justice. His testimony at the hearing also involved dishonesty, fraud, deceit or misrepresentation.

The hearing committee had recommended disbarment. (Mike Frisch)

February 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Altruistic Intent Does Not Excuse Improper Financial Assistance To Clients

The West Virginia Supreme Court of Appeals imposed a reprimand and other sanctions on an attorney

The proceeding involves allegations that Mr. Nessel engaged in professional misconduct by placing small amounts of his personal funds into the prison accounts of certain inmate clients; by soliciting referrals from inmates for possible new litigation; and by refusing to dismiss allegedly frivolous personal injury actions brought on behalf of certain inmates.

 The attorney's practice included representation of female inmate who alleged sexual abuse by corrections officers and others while held in regional detention facilities.

The attorney had provided the clients with small amounts of funds

He advised the Hearing Panel that he knew it was wrong to send money to his inmate clients and that he had taken corrective measures to ensure that it would never happen again.

 The court

There is clear and convincing evidence in the record that Mr. Nessel violated Rules 1.8(e), 5.3(b) and (c), and 8.4(a) and (d) through his provision of financial assistance to litigation clients.  Mr. Nessel’s admission that he violated Rule 1.8(e) is an implicit concession of a connection between the financial assistance he provided and the litigation in which he represented his inmate clients. While Mr. Nessel has stated that his financial assistance was given to enable his inmate clients to purchase necessary items from the prison commissary and because he felt sorry for them, his clearly impermissible conduct is not excused by his stated altruistic intent.

The court found that there was no clear and convincing evidence of the frivolous litigation and solicitation charges. (Mike Frisch)

February 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Heavy Burden

The California State Bar Court Review Department recommends a three-year suspension of an attorney:

 Mark Eugene Huber moved to Utah from California in August 2011 without telling several clients who had given him payment in full for his services. His failure to inform his clients of the move had serious effects on these unsophisticated and financially vulnerable individuals. The bankruptcy cases and personal injury matters the clients had retained him for were not completed, and he stopped communicating with them. In addition, he failed to disclose a conflict of interest with respect to one client, and in another matter, he disobeyed court orders.

The Office of Chief Trial Counsel of the State Bar sought disbarment but the review department deferred to the trial judge's recommendation.

The trial judge was not impressed with his testimony

 The hearing judge found all of the complaining witnesses who testified to be credible, but found Huber not credible. The judge stated in her decision, "after reflecting on the record as a whole, the court finds that almost all of respondent’s testimony on disputed fact issues lacks credibility, if not candor. In numerous instances, respondent’s testimony is inconsistent with reliable documentary evidence, contrived, insincere, and implausible. In stark contrast to respondent’s incredible testimony, is the very credible testimony of each of the complaining witnesses."

 The court found limited mitigation and noted as to sanction

In sum, while Huber’s misconduct is serious, we see no reason to disregard the hearing judge’s recommendation. We agree with OCTC that Huber’s misconduct was sufficiently close to constituting a pattern as to justify a two-year suspension. Importantly, Huber will have to prove his rehabilitation and fitness to practice law before he is reinstated at a formal hearing before the State Bar Court — a heavy burden given his misconduct.

The recommendation would be to stay the third years of suspension if he can satisfy the reinstatement criteria. (Mike Frisch)

February 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Embezzling Paralegal/Attorney

The New York Appellate Division for the Fourth Judicial Department has suspended  an attorney who had been accused of embezzlement while employed as a paralegal in a Florida law firm.

The ABA Journal reported in July 2011

A lawyer working as a paralegal at a small Fort Lauderdale law firm is facing over 80 felony counts in a case concerning her alleged embezzlement from Hermelee & Geffin and an attorney officed there.

Charged yesterday in Miami-Dade Circuit Court with crimes including grand theft and forgery, 53-year-old Brenda Wolcott-Kelly is being held in lieu of $116,000 bail. A New York lawyer, she was working as a paralegal at Hermelee & Geffin because she is not licensed in Florida, reports the Sun-Sentinel.

She is accused of stealing a six-figure sum and an investigation is continuing. However, her lawyer, Morgan Cronin points out that the law firm has also sued her civilly and says she is innocent, facing criminal charges he says were pursued in an effort to put pressure on the parties in the civil case.

Among other allegations, Wolcott-Kelly is accused of transferring over $82,000 from the firm to pay her husband’s credit card bills in 2008 and 2009.

Name partner Alan Geffin characterizes the situation as “heartbreaking,” the newspaper reports. He adds: “She was a valued member of the firm. She was treated like family. We attended her wedding.”

The order of suspension cites the provision of the New York Judiciary Law that authorizes the court to suspend an attorney when there is a "serious" crime conviction. (Mike Frisch)

February 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Stayed Suspension And Probation for Misdemeanor Convictions

From the web page of the Idaho State Bar

On January 29, 2015, the Idaho Supreme Court issued a Disciplinary Order suspending Boise attorney Gregory J. Vietz from the practice of law for a period of 9 months, with the entire 9 months withheld and placing him on disciplinary probation.

The Idaho Supreme Court found that Mr. Vietz violated I.R.P.C. 8.4(b) [Commission of a crime] and 8.4(d) [Conduct prejudicial to the administration of justice].  The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.

In January, 2013, Mr. Vietz was charged in Ada County with two felonies, aggravated assault with a deadly weapon, felony use of a deadly weapon in a commission of a felony, and four misdemeanors, battery, resisting or obstructing officers, discharge of a firearm within city limits and assault on a police dog.  In August, 2013, Respondent entered Alford pleas to two misdemeanors, discharging a firearm within city limits and assaulting a police dog.  The court entered judgment imposing a sentence of 28 days incarceration, a fine, public service, and placed Mr. Vietz on supervised probation for two years. 

In February, 2013, Mr. Vietz completed a 90-day intensive outpatient recovery program and he has attended a continuing care relapse prevention program.  Since August 19, 2013, Mr. Vietz has been randomly tested for alcohol or controlled substances and all tests have been negative.

The Disciplinary Order provides that Mr. Vietz’s 9 month suspension is withheld during his disciplinary probation until February 19, 2016 and subject to the terms and conditions of probation, which include: compliance with the terms of his criminal probation; avoidance of any alcohol or drug related criminal acts, or alcohol or drug related traffic violations; participation in a program of random urinalysis; and if Mr. Vietz admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during his period of probation, regardless whether that admission or determination occurs after the expiration of the probationary period, the entire withheld suspension shall be imposed.

The withheld suspension does not limit Mr. Vietz’s eligibility to practice law.

(Mike Frisch)

February 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)