Thursday, February 13, 2014
Dane Ciolino (Loyola-New Orleans, Law) has blogged on the recent letter of warning the DOJ sent the state's supreme court and chief disciplinary counsel about the civil and disability rights of its applicants. The 10-page, supported letter is linked by Dane here. As he quotes it:
[W]e find that Louisiana’s attorney licensure system discriminates against bar applicants with disabilities by: (1) making discriminatory inquiries regarding bar applicants’ mental health diagnoses and treatment; (2) subjecting bar applicants to burdensome supplemental investigations triggered by their mental health status or treatment as revealed during the character and fitness screening process; (3) making discriminatory admissions recommendations based on stereotypes of persons with disabilities; (4) imposing additional financial burdens on people with disabilities; (5) failing to provide adequate confidentiality protections during the admissions process; and (6) implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ mental health diagnoses or treatment.
Dane adds, "The irrational methods and procedures Louisiana uses to evaluate the character and fitness of bar applicants have long been questionable. It is refreshing to see that someone else has noticed and may—and can—do something to fix them."
My ethics classes have been watching these C&F issues bubble up lately in this state, including complaints to and involvement by the Department of Justice Civil Rights Division. One student recounts the tale of a friend whose admission was granted conditionally in such a way that her name is published with all the history and conditions. Anyone googling her will quickly find that she self-reported her emotional issues and read the bar's detailing of that and its specific treatment conditions. Had they just admitted her there'd be no public record of her mandatory disclosures on her bar application; by granting conditional admission and publishing it, all the world gets to essentially read her candid C&F form.
This is no way to act professionally when the bar is supposed to be the gatekeeper of professionalism! I agree with Dane that the involvement of the DOJ may stir some serious introspection with the bar apparatus and Court to make its procedures and disclosure comply with the civil rights of the applicants. (Thanks to Lauren Michel and Alston Walker for sending me Dane's link, as well as other students.) [Alan Childress]
An attorney who conditionally admitted misconduct in two matters was suspended for six months with probation on reinstatement by the Arizona Presiding Disciplinary Judge.
One matter involved a boundary dispute between neighbors, one of whom was the attorney's client. The attorney was charged with trespass and sought a "global settlement" that encompassed the crimibal charges against him. The situation created a non-waivable conflict of interest.
The other matter involved a new will that his mother had executed.
After her sudden and unexpected death, the attorney harrassed the attorney who had drafted the will, claiming that the attorney was having a sexual relationship with the attorney's sister. He conditionally admitted that hs conduct was prejudicial to the administration of justice. (Mike Frisch)
An attorney who was paid approximately $600,000 over a four-year period to front for an entity that "helped" people facing foreclosure has been suspended for six months without automatic reinstatement by the Indiana Supreme Court.
The attorney accepted a standard $150 fee to delay foreclosure for close to 4000 vulnerable clients and used a "one size its all" approach to the matters. He never met the clients or responded to their legal needs.
In one example cited in the court's opinion, the attorney failed to pursue the fact that the clients were not, in fact, behind on their payments.
Rather than serve the particularized needs of his clients, the attorney merely served as a vehicle to allow the "foreclosure assistance" entities to engage in the unauthorized practice of law. (Mike Frisch)
This report rom Bert Crow on the web page of the Ohio Supreme Court
A judge is required to recuse from a case handled by a lawyer who participates in the judge’s campaign if there’s a “substantial political relationship” with the lawyer during the campaign fundraising period, according to an Ohio Supreme Court Board of Commissioners on Grievances & Discipline advisory opinion.
Opinion 2014-1 covers Rule 2.11 of the Ohio Code of Judicial Conduct. The lawyer requesting the advisory opinion also asked the board to re-examine a 1992 Advisory Opinion, which addressed some aspects of disqualification questions under the former code. Based on its updated view, the board withdrew the advice given in Advisory Opinion 92-9.
“Jud.Cond.R. 2.11 requires disqualification ‘in any proceeding in which the judge’s impartiality might reasonably be questioned,’” according to the opinion. “The political reality in Ohio is that judges are publicly-elected officials. Lawyers are charged with advancing the administration of justice, which includes participation in the evaluation of candidates for judicial office. This participation often takes the form of supporting a judge during an election campaign.”
“Given this framework,” the opinion continues, “the Board is of the opinion that a lawyer’s mere participation in a current judicial election campaign does not create a reasonable question as to the judge’s impartiality when the lawyer is before the judge.”
“However, if a lawyer’s current campaign activities evidence a substantial political relationship with a judge, a reasonable person would question the judge’s impartiality in cases involving the lawyer.”
Rather than creating a “bright-line test” regarding the judicial campaign activity of lawyers, the opinion lays out the factors for a judge to consider – on a case-by-case basis – to determine whether a substantial political relationship exists.
“If a judge concludes that he or she has a substantial political relationship with a lawyer involved in a case before the judge, disqualification is warranted for the duration of the current campaign fundraising period.”
The opinion goes on to detail criteria for determining when a lawyer’s participation in a campaign is substantial.
“Factors relevant to determining if a lawyer’s campaign activity creates a substantial political relationship with the judge include the length and level of campaign involvement, including whether the lawyer has campaign management responsibilities, the extent of the lawyer’s fundraising activities, whether the lawyer’s name appears on solicitation letters, emails, and the like, whether the election is contested, and the type of election (statewide, multi-county, or local). A lawyer’s title in a judicial campaign may be indicative of a substantial political relationship with the judge, but is not a determining factor in a disqualification analysis.” The board further stated that “[a]ny political ties between the laywer and judge occurring outside the campaign are also relevant.”
In offering this revised guidance to candidates and lawyers involved in campaigns, the board opinion specifically rescinded an earlier opinion from 1992 that had been based on the former Code of Judicial Conduct that was repealed in 2007.
“Because the Board now concludes that under the current Code and affidavit of disqualification cases decided after Opinion 92-9, a lawyer’s campaign involvement may require disqualification if there is a substantial political relationship between the judge and lawyer, … we withdraw Opinion 92-9 in its entirety.”
Tuesday, February 11, 2014
The Virginia State Bar has put out for comment a proposed ethics opinion
This proposed opinion addresses a hypothetical situation in which lawyers Smith and Jones practiced together in the firm Smith & Jones P.C., which used the URL smithjones.com. After Smith withdrew from the firm and began practicing with another firm, Jones changed the firm’s name to “Jones Law Office, P.C.” and established a new website at the URL “joneslawoffice.com.” Jones proposes to automatically redirect anyone who attempts to access smithjones.com to joneslawoffice.com, or alternatively, to put a notice on the smithjones.com website that Smith & Jones, P.C. has now become the Jones Law Office because of Smith’s withdrawal from the firm, providing the date of Smith’s withdrawal and a link to joneslawoffice.com.
In this proposed opinion, the Committee concluded that both of Jones’s proposed alternatives are misleading in the absence of additional information about Smith’s withdrawal from the firm and his continued practice of law. The proposed notice, which would say that Smith & Jones, P.C. “has now become” the Jones Law Office, is misleading without the additional information that Smith continues to practice law, and automatically redirecting website visitors to joneslawoffice.com without providing some explanation is misleading for the same reason.
Comments are due by February 28. (Mike Frisch)
A subcommittee of the Virginia State Bar has imposed a public reprimand without terms of an attorney who
worked in concert with one Jesus Padilla, Jr., a nonlawyer who presented himself as a lawyer and as President of "Latin Unity" ... to Members of the Latino community who were in need of criminal or traffic defense representation. [He] also worked with one Edith Mobley, a nonlawyer who presented herself to prospective clients as an attorney and president of "Latinos Unidos."
The nonlawyers quoted and collected legal fees and engaged the attorney.
The attorney did not place advanced fees in escrow and falsely claimed to bar investigators that he had done so.
Among the laundry list of ethics violations was failure to supervise nonlawyer assistants.
He has since ceased to practice law. (Mike Frisch)
Monday, February 10, 2014
The Tennessee Court of Criminal Appeals has affirmed a conviction for aggravated domestic assault and kidnapping.
One of the issues related to the conduct of a juror, who was dismissed from service after hugging the district attorney during a break in the proceedings.
In the case herein, the trial court inquired whether extra-judicial communication occurred between the district attorney and the juror. The juror testified during a hearing to the trial court that she gave the district attorney a hug because he was her “cousin.” The juror denied sharing this experience with any of the other jurors on the panel. The trial court went on to poll each individual member of the jury separately in order to ascertain whether the juror in question had discussed her interaction with the district attorney. All of the jurors denied knowledge of the event. The trial court dismissed the offending juror and admonished the remaining jurors about their task to determine the proof based on the facts presented during trial and the law as charged by the court. The trial court did not find the communication to be prejudicial. In fact, the trial court found the communication harmless. We agree. Appellant has not shown prejudice or bias in the remaining jury and is, therefore, not entitled to relief on this issue.
Thus, it was not error to deny the mistrial motion. (Mike Frisch)
The former Randolph County Prosecuting Attorney was suspended for three years for the West Virginia Supreme Court of Appeals for serious misconduct in two criminal matters.
The attorney was admitted in West Virgina in 2002 and had practiced in his father's law firm until he became the prosecuting attorney. He resigned in December 2011.
The court explained that the misconduct in office warranted a significant suspension
Balancing the mitigating and aggravating factors in the instant case, we are convinced that the recommendations by the Subcommittee, including a three-year license suspension, are appropriate. There is simply no justification for permitting Mr. Busch’s ability to practice law to go unimpeded after he engaged in such egregious conduct as a public official. As we have held previously, "[e]thical violations by a lawyer holding a public office are viewed as more egregious because of the betrayal of the public trust attached to the office." ...
We find that Mr. Busch’s pattern of misconduct, coupled with his habit of continuing his dishonest behavior even when provided opportunities to remedy the same, was a detriment to the public office, to the State of West Virginia as his client, to the public who deserved efficiency and protection from the public office, to the legal system, and to the legal profession. For those reasons, we adopt the recommendations as set forth by the Subcommittee.
The Iowa Attorney Disciplinary Board has reprimanded two attorneys in a matter that dealt with the meaning of the phrase "individual with whom the lawyer maintains a close familial relationship" exception to the rule that generally forbids an attorney to prepare an instrument that gives a substantial gift to the lawyer or the lawyer's relatives.
The board's letter of admonition states
The Board believes that step-children and a domestic partner would be obvious examples of persons with whom the lawyer maintains a "close familial relationshipfor purposes of the [Iowa rule]. The Board further believes, however, that close familial relationship and close friendship are not synonymous. If the drafters of the ABA Model Rule 1.8(c) - had wanted close friendship by itself to be an excetion to the rule, they would have said so.
The two attorneys practiced in the same firm. One attorney had prepared the instrument from which the attorney benefitted.
The beneficary's mother and brother were "quite close" to the testator and were already beneficiaries from an earlier will. The attorney, by contrast, did not have a longtime friendship with the testator. He received a $75,000 bequest, which he later disclaimed.
The letters may be accessed through this link. The attorneys are Timothy Klima and william Hochstetler. (Mike Frisch)
Friday, February 7, 2014
An attorney's misconduct in the wake of the death of his romantic partner has resulted in an indefinite suspension imposed by the Kansas Supreme Court.
The attorney was employed at a law firm where he began a relationship with a firm associate. At the time, both were married to other persons.
The associate suffered from depression and alcohol abuse. She left the law firm but the relationship continued.
At her family's urging, the associate entered inpatient treatment for alcohol abuse. The attorney supported her in treatment and attended her graduation.
She starting drinking together on the way back from the graduation and they drank together over the next few days.
After a night of drinking
The respondent drove J.A. from the restaurant to her apartment. They left J.A.'s car at the restaurant. As a romantic gesture, the respondent carried her from her car to her apartment. The respondent set J.A. down on the landing inside her front door, in a sitting position, said goodnight, and went to his residence. The landing inside the front door of the apartment is at the bottom of stairs.
The attorney was unable to contact J.A. the next morning. He went to her residence and discovered her lifeless body. She had died after falling down stairs. He went back to the restaurant where they were the night before and moved her car to her residence.
The misconduct involved altering the scene, concealing evidence and false statements
At some point, the respondent...deleted the text message conversation between the respondent and J.A. on the respondent's telephone.
When questioned at the scene by the police officers, the respondent provided false information. The respondent falsely told the police officers that he found her deceased at 11:20 a.m. The respondent also falsely told the police officers that the last time he saw J.A. was at the Plaza the day before at 5:30 p.m. Finally, the respondent falsely told the police officers that they had not consumed any alcoholic beverages together the day before. In addition to the false statements, the respondent failed to inform the police officers that he discovered J.A.'s deceased body at 8:40 a.m., that in an attempt to wake her he had moved her body, that he had retrieved her car from the restaurant, and that he had driven home to change clothes before returning to her apartment and calling for emergency assistance.
The respondent knew that he should have been honest with the investigating officers. The next day, Monday, January 31, 2012, the respondent contacted attorney Tom Bath and told Mr. Bath what had occurred [and] that the respondent wanted Mr. Bath to schedule an appointment with the investigating officers so that the respondent could correct his false statements.
Mr. Bath made the necessary arrangements and on February 1, 2012, the respondent met with the investigating officers and told the officers the truth.
The attorney explained that he was motivated by concerns about the reaction of J.A.'s family.
Remarkably, the Board for Discipline of Attorneys had found that the attorney violated no ethics rules. The Disciplinary Administrator sought disbarment.
A minority of the court would impose public censure because the attorney had promptly recanted the false statements and the misconduct did not impede the police investigation.
The oral argument is quite interesting and is linked here. Much of the argument of Respondent's counsel is devoted to seeking a remand for mitigation evidence if the court found misconduct.
Notably, the attorney follows his counsel to the lecturn and, in effect, testifies at some length. (Mike Frisch)
An interesting opinion from the New York Appellate Division for the First Judicial Department sounds like a New York, New York kind of a story
This case, apparently one of first impression, aptly illustrates the well-known axiom that cautions against mixing business with pleasure. The question presented is whether a so-ordered stipulation, agreed upon by plaintiff and defendant Valenti in Family Court and which precludes all contact between them except by counsel, renders impossible the performance of two prior contracts between plaintiff and Jayarvee, Inc., Valenti's artist management company. We hold that it does.
Plaintiff is a well-known professional jazz singer. Valenti is the sole shareholder and president of Jayarvee, a corporation that manages musical artists, produces musical recordings, and owns and operates the well-known jazz club Birdland. Plaintiff and Valenti met in 2003 while plaintiff was performing at Birdland, and the two quickly kindled a romantic relationship. By early 2004, plaintiff had moved into Valenti's Manhattan apartment. They became engaged that year, and for some years held themselves out as husband and wife, although they never married. They also developed a professional relationship, many details of which are still at issue in Supreme Court.
By 2011, the couple's personal relationship had deteriorated. Plaintiff alleges that in or about March 2011, Valenti obtained her private electronic materials — in part by physically overpowering her — and subsequently made repeated threats to release those materials to the public. He allegedly stated that he would ruin plaintiff's professional career and personal life by posting the data on the internet.
Despite the ongoing personal drama between plaintiff and Valenti, their professional relationship continued. Plaintiff and Jayarvee — with Valenti signing as the company's president — entered into a recording contract and a management contract in April 2011 and June 2011, respectively. Plaintiff moved out of their shared residence in May 2011.
Nonetheless, in October 2011, plaintiff commenced a Family Court proceeding in which she sought an order of protection against Valenti. The court granted a temporary order of protection that, inter alia, prevented Valenti from contacting plaintiff, either directly or through third parties. The order was extended on consent several times through June 2012.
Plaintiff commenced the instant action on November 21, 2011 — while the Family Court proceeding was pending — against Valenti, Jayarvee, and plaintiff's accountant, Howard Weiss (who is not a party to this appeal). Among other things, plaintiff sought rescission of the contracts and a declaration that Jayarvee was in breach. In April 2012, defendants answered, Valenti counterclaimed for the return of an engagement ring he had given to plaintiff, and Jayarvee counterclaimed for breach of the contracts. Defendants then moved for a default judgment against plaintiff for failure to timely respond to the counterclaims; the motion was ultimately denied. In their verified answer, Valenti and Jayarvee — and Valenti, in his affidavit in support of defendants' motion for default — argued that the temporary order of protection had made performance of the contracts impossible.
Plaintiff and Valenti resolved the Family Court matter on June 13, 2012, by entering into a stipulation, so-ordered by the court. Under the terms of the stipulation, plaintiff withdrew her petition without prejudice, and both parties agreed to have no further contact with each other. The stipulation specified that "[n]o contact shall include no third party contact, excepting counsel." Following that provision, there is language, visibly crossed out, that would have allowed for contact by "other individuals at Jayarvee or [Valenti's] place of business." Thereafter, plaintiff moved for partial summary judgment on her claims for rescission of the contracts. Supreme Court granted the motion and declared both contracts terminated on the ground of impossibility. We now affirm.
The court intrepeted and applied the doctrine of impossibility. (Mike Frisch)
The Illinois Administrator has filed an amended complaint alleging that a candidate for judicial office made false statements concerning his opponent's work as a public defender:
The front side of Respondent’s campaign mailer referred to a 1989 case in St. Clair County in which Rodney Woitdke ("Woidtke") had been convicted of murder. The mailer stated that Woidtke spent 12 years in prison for a murder that he did not commit, and it cited an opinion of the Illinois Appellate Court for 5th Judicial District in 2000 that reversed the denial of Woidtke’s post-conviction petition and remanded for his case for a new trial, on the basis of a conflict of interest on the part Woidtke’s trial counsel, then-Assistant Public Defender Brian Trentman ("Trentman"). Respondent’s mailer then stated the following:
"Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian Trentman ‘were NEGLIGENT in their representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his wrongful conviction of murder of Audrey Cardenas.’ (Source: Woidtke v. St. Clair County, St. Clair Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No. 02-4223, May 2003) (sic)"
In the above-quoted text, Judge Lopinot’s name was in a very large font and all capital letters, while Trentman’s name was in a very small font and with only the first letters capitalized. See Exhibit One.
On the mailer, accompanying the above-quoted text, was a photograph of Judge Lopinot that bore the epigraph "NEGLIGENT" and was imposed over a larger photograph of a man whose wrists and mouth are bound.
Respondent’s representations that Judge Lopinot had supervised Trentman in the Woidtke case, and that Judge Lopinot was negligent in the case, were false. Judge Lopinot had no involvement in the Woidtke case in 1989.
Respondent knew that his representations that Judge Lopinot had supervised Trentman in the Woidtke case, and that Judge Lopinot was negligent in the case, were false, or he made the representations with reckless disregard as to their truth or falsity.
The answer is a vigorous denial of all the allegations.
The Respondent alleges that the charges against him are motivated by the fact that he ran as a Republican:
On information and belief, the prosecution here may be instigated for political purposes, with the complainants hoping to use this process to gain political advantage and/or to cover up their own wrongdoing. [Respondent] Duebbert was a Republican candidate for judicial office, and made a strong showing in the 2012 election, including receiving more votes than Lopinot in Monroe, Perry, Randolph, and Washington County (with a final tally of 55.57% to 44.43% in Lopinot's favor). Further, even if Lopinot did not supervise Trentman in his (conflicted) defense of Woidtke, three persons who recently ran for Democratic judicial office were involved in the Woidtke prosecution, and - based upon their roles therein - might have deemed themselves aggrieved by Duebbert's reference to the Woidtke case.
The answer also contends that the speech at isssue was protected by the Supreme Court's decision in Republican Party of Minnesota v. White. (Mike Frisch)
Thursday, February 6, 2014
The husband was receiving disability payments and was obligated to report income. He pleaded guilty to a felony charge.
The attorney was sanctioned for violating Rule 8.4(c).
The court noted that the attorney was suffering from a severe head injury at the time of the misconduct. (Mike Frisch)
A stipulation of facts has been entered into in the Tennessee judicial disciplinary proceeding involving the Magistrate who changed a child's name from Messiah to Martin.
The stipulation notes that the "father [of the child] and his family were concerned about the child being named Messiah."
Further, it is stipulated that the magistrate found that the name change was in the child's best interests, that only Jesus Christ may hold the title and that the name Messiah "places an undue burden on him as a human being, he cannot fulfill." (Mike Frisch)
The former General Counsel and Chief Administrative Law Judge at the Indiana Utility Regulatory Commission ("IURC") has been publicly reprimanded by the Indiana Supreme Court.
The attorney actively participated in matters and hearings involving Duke Energy. Duke Energy posted an attorney position on its website. He wished to apply for the position, but was told by IURC chairman not to do so "because it was not an opportune time."
A prior IURC executive director who became Duke Energy's president, nonetheless encouraged the attorney to apply for either an attorney or executive position at Duke. He applied for the executive position. The president emailed him, "[h]ang in there, still think this will get done."
The attorney later applied for and was offered the attorney job.
At that point, the IURC chairman gave consent for him to apply and screened him from Duke Energy cases.
The attorney sought an ethics advisory opinion at that juncture but did not provide the information about his earlier negotiations for employment with Duke Energy. A subsequent investigation by the state Inspector General revealed the conflict of interest. As a result, the attorney was fined and banned from future state employment.
The violation was of Rule 1.11(d) for negotiating private employment while a public officer. In mitigation, an internal IURC audit concluded that he did not exert undue influence in decisions involving Duke Energy. (Mike Frisch)
The Ohio Supreme Court has imposed an interim suspension of an attorney as a result of a felony conviction.
The offense was described in this ICE release
Jason C. Grossman, 31, of Westerville, Ohio, pleaded guilty in U.S. District Court to one count of receipt of child pornography, a crime punishable by at least five years and up to 20 years in prison.
According to the investigation, in December 2012, Grossman met a man online who claimed to be the father of prepubescent children. Grossman discussed the possibility of engaging in sexual activity with the man's daughter. Grossman was actually communicating with an undercover task force officer patrolling the Internet.
Grossman scheduled an in-person meeting for the planned sexual activity. When Grossman arrived for the meeting Jan. 9, task force officers arrested him. Officers then executed a search warrant at Grossman's home and seized computers and media storage devices. Forensic examinations revealed Grossman had downloaded approximately 49 images of child pornography from the Internet.
Grossman remains on house arrest until sentencing.
The District of Columbia Court of Appeals has affirmed the divorce decree, initial custody and visitation orders in a domestic dispute that involved the twin sister of Jill Kelley, noted for her role in the General Petraeus downfall.
The litigation had been the subject of numerous media reports because of the Petraeus connection.
The court remanded for further proceedings a motion to modify the custody award to the father and dismissed an appeal to the attorney's fees award "for lack of a final order."
The National Organization for Women Foundation filed an amicus brief on behalf of the mother.
Judge McLeese wrote the division's opinion. (Mike Frisch)
From yesterday's Santa Barbara Independent:
Darryl Genis, Santa Barbara’s most famously and flamboyantly combative defense attorney, had his right to practice law suspended for a 90-day period by the State Bar of California, had his professional license placed on probation for two years, and was ordered to attend anger management counseling from a licensed professional twice a month for the duration. Richard Honn, judge of the State Bar Court, ruled that Genis had engaged in “multiple acts of wrongdoing, bad faith, significant harm to the administration of justice, indifference toward rectification or atonement for the consequences of his misconduct and contemptuous attitude” toward a panel of appellate judges. In rendering his punishment, Honn said Genis’s “lack of insight raises concerns as to whether his misconduct may recur and is particularly troubling to this court.”
Genis, a specialist in DUI defenses, has emerged as one of the county’s best-known attorneys, having won several high-stakes, high-profile cases in recent years in which he’s attacked the personal credibility, integrity, and competence of law enforcement officers, prosecuting attorneys, and at times, the judges themselves. Honn described Genis’s style as “very aggressive,” noting the zealousness with which he pursued his clients’ interests. But in at least two cases, Honn found that Genis went too far, crossing the line of ethical conduct. Honn found Genis guilty of “willful disobedience” for repeatedly ignoring a San Luis Obispo judge’s order to show up in court in 2011 to represent a client charged with driving under the influence. Frustrated by multiple delays in the case, the judge ordered Genis to appear rather than send an associate, as he had at least twice, who was either not prepared or authorized to move the matter forward. Genis knowingly ignored the judge in one instance, Honn said, so he could attend a legal education seminar in New Orleans.
In Santa Barbara, Honn found that Genis ignored Judge Brian Hill’s repeated admonitions during a 2012 case to not ask two Santa Barbara police officers — Aaron Tudor and Kasi Beutel — any questions in front of the jury regarding allegations of perjury. Such questions, Hill had insisted at the time, would serve to improperly prejudice the jurors against the two officers. Genis asked anyway, prompting Hill to impose a $2,000 sanction. “Respondent [Genis] harmed the administration of justice,” Honn wrote. “His failure to obey court orders required the courts to repeatedly admonish him. Honn added that Genis’s insistence that he did not understand the admonitions were “unbelievable and disingenuous.”
But Honn rejected two of the four allegations against Genis filed by State Bar prosecutors. In those instances, Honn found that Genis acted in a good faith — if erroneous — belief that a county prosecutor had committed a misdemeanor. In that case, Genis had threatened to file a misconduct complaint against a prosecutor who’d turned over otherwise confidential legal notes to an attorney taking over a case before the transfer had been authorized by a judge. Prosecutors fumed that Genis acted with malice by filing the complaint, which they saw as an over-the-top intimidation tactic. The judge disagreed.
Genis said he will “almost certainly appeal” the decision, adding, “In the end, I believe I will be fully exonerated.” If not, he said, he would take comfort in having “worked tirelessly as an advocate for my clients.” If he loses his appeal, he said the suspension would allow him to spend time with “my beautiful two children and my beloved wife.” In conclusion, Genis noted that even Judge Hill had described him as “probably the best DUI lawyer on the Central Coast,” and because of his prowess the District Attorney had “gone to extraordinary lengths to try to muzzle me.”
Honn’s verdict must be upheld by a three-judge state bar panel to which Genis can appeal. After that, the California Supreme Court must uphold it as well. Every year, about 250 California attorneys are either suspended or disbarred in disciplinary actions.
Thanks to Patrick O'Donnell for sending this our way. (Mike Frisch)
Wednesday, February 5, 2014
In a 4-3 decision, the Missouri Supreme Court extended an attorney's probation with additional conditions.
The dissenting judges would revoke probation and impose the stayed suspension order.
From the court's summary
Because of concerns with prior excessive alcohol use, Nathan Forck was admitted to practice law in Missouri in April 2006 pursuant to a monitoring agreement requiring him to abstain from alcohol and verify that he regularly was attending a support or therapy group. He began working for an attorney with a large elder law and estate planning practice. Following a May 2007 alcohol-related altercation at a bar, Forck was arrested for assault, though the charges later were dropped. Because of his alcohol use, failure to verify his attendance at support group meetings and failure to notify the chief disciplinary counsel of his arrest, the chief disciplinary counsel charged Forck with violating rules of professional conduct. In a joint stipulation, the chief disciplinary counsel recommended that this Court suspend Forck’s license to practice law with no leave to apply for reinstatement for at least six months, stay the suspension and place Forck on probation for two years. This Court accepted the recommendation in December 2007. Forck left the elder law practice and, for about 18 months, worked in a general practice with another attorney. In early 2009, the elder law attorney contacted Forck about taking over his practice. Forck agreed to do so and agreed to retain the attorney’s support staff. Although Forck did not have personal expertise in elder law or Medicaid litigation at the time, relying instead on knowledge he gained from the attorney and the support staff, Forck promoted himself and the firm as experienced in elder law. In 2010, Forck twice asked this Court to release him from probation. Each time, the Court overruled his motion after being advised that the chief disciplinary counsel was investigating complaints against Forck. The parties stipulate that Forck committed five violations in his representation of three clients. Forck and the chief disciplinary counsel jointly ask this Court to extend Forck’s probation for one year and to impose additional terms and conditions beyond those ordered in 2007.
Court en banc holds:
Forck’s conduct, which can be remedied by education and is unlikely to reoccur, warrants an extended term of probation. Forck admits he violated Rule 4-1.1 (competence) and Rule 4-1.5 (fees) in representing certain clients. In the joint stipulation, the parties suggest that application of the applicable standards of the American Bar Association (ABA) and this Court’s rules justify continuing Forck’s probation because the circumstances and factors connected with his earlier issues have changed. The record contains evidence of both aggravating and mitigating circumstances.
Forck’s misconduct arose out of negligence instead of intent to violate the rules and take advantage of his clients. While he knowingly promoted himself and his firm as having expertise in elder law, estate planning and Medicaid litigation, he did so on the misguided, unprofessional practices of the attorney whose practice he took over and the support staff he retained. Forck admits he naively relied on these persons due to their extensive experience in the elder law field. When he learned of the complaints against him, he discharged the support staff and now completes all the legal work himself. Further, all three requirements of Rule 5.225(a)(2)(A-C) to make an attorney eligible for probation have been demonstrated here. He has not committed any misconduct warranting disbarment. It is unlikely he will harm the public during his extended probationary period, as he has maintained his sobriety since 2007 and has undertaken steps to improve his practice. His new relationship with a mentor who is a well-respected elder law attorney and who has agreed to monitor and supervise Forck personally and professionally, his attendance at professional education classes, and reporting requirements will remedy the prior misconduct and permit Forck to perform legal services and practice law in the future without causing the courts or profession to fall into disrepute.
This Court applies progressive discipline when sanctioning attorneys who commit misconduct. While Forck already has received the benefit of an extended probationary period, and the Court could impose the stayed suspension, the chief disciplinary counsel’s recommendation to extend the terms of probation, adding conditions, does impose additional sanctions on Forck and is permitted by the guidelines to the ABA standards and Rule 5.225(f)(2). Moreover, allowing Forck to remain on probation provides him an opportunity to receive additional education, monitoring and support that will improve his law practice and better serve and protect his clients in the future and enables him to make full restitution payments to his harmed clients.
Dissenting opinion by Judge Fischer:
In light of the significant nature of the new violations, the author would revoke Forck’s probation and impose the previously ordered suspension. At no time since his admission six years ago has Forck practiced law without being subject to supervision, and he has demonstrated that allowing him the privilege of continuing to practice law is not worth the risk to the public or the reputation of the legal profession. After he filed his first motion for release from probation, he was advised he was under investigation for additional violations of professional conduct, and yet he failed to comply with the investigation and then filed a second motion for an order of successful completion of probation. At the conclusion of the investigation, he stipulated he committed five new, separate rule violations that caused harm to his clients. Each of these new ethical violations to which Forck admits is a violation of his probation, which required him to abide by the rules of professional conduct. Forck stipulated that his conduct while on probation harmed his clients to the extent that he agreed to pay $22,000 in restitution. Forck’s actions demonstrate he is no longer eligible for the probation imposed for his 2007 conduct. Accordingly, this Court should revoke probation and impose the originally ordered discipline.
The North Dakota Supreme Court has suspended an attorney as a result of criminal charges
The Application asserts that Howe was charged with criminal conspiracy to commit murder in violation of N.D.C.C. § 12.1-06-04 and § 12.1-16-0(1)(a) (a Class AA felony). Documents in support of the Application assert that sufficient information exists that Howe poses a substantial threat of irreparable harm to the public because of the facts attested in the affidavit evidence a criminal conspiracy to obstruct justice by murdering a witness.
WDAZ 8 had this report
The North Dakota Supreme Court, in an emergency action Friday afternoon, suspended the law license of Henry Howe because of the murder conspiracy charge he is facing in Walsh County.
Howe, who has had a law license in North Dakota for 40 years and lived and practiced in Grand Forks since 1980 as a criminal defense attorney, was arrested Thursday morning in Grafton, N.D., as he arrived to represent a client in a felony drug case in state district court.
Howe was charged Thursday with conspiring with two convicted drug felons, and a fourth man working as an undercover informant for law enforcement, to kill a female undercover informant who is a key witness in a drug case against Paul Lysengen, who is Howe’s client.
The charge is a Class AA felony with a top sentence of life in prison without parole. Howe bailed out of jail Thursday in Grafton after paying, through his son, $10,000 cash on a $100,000 bond amount.