Monday, September 29, 2014
An attorney retained in a domestic relations matter violated ethics rules by filing a motion to withdraw from representation eleven minutes before a scheduled hearing regarding change of custody.
An Arkansas Committe on Professional Conduct panel imposed a sanction of a reprimand and fine.
In addition to non-payment of his fee by his client in the Stevens case, in his Response to the Complaint and at hearing Sammons testified that he believed his client to also be impaired by drugs when he met with her about one hour before the hearing and he was in an ethical dilemma as to how to proceed, not wanting to be party to what he perceived would possibly be perjured testimony by his client if she testified. He admitted he did not give the trial judge any hint at court that his client may be impaired. His client testified and attempted to cross-examine the opposing party. Judge Hearnsberger testified she has no reason from what she saw and heard in the hearing to believe Crystal Stevens was impaired during the hearing.
The client had a positive drug test after the hearing.
The attorney also was found in violation of the court order that he proceed as counsel. He stayed for the hearing but did not participate. (Mike Frisch0
The Michigan Attorny Discipline Board rejected a hearing panel's conclusion that an attorney failed to report misconduct but otherwise affirmed findings of misconduct and a 90-day suspension in a matter involving vexatious and frivolous litigation.
The Indiana Lawyer reported on the underlying litigation
A federal judge in Hammond has sanctioned two Detroit attorneys who filed what he calls a frivolous claim demonstrating a pattern of misconduct, fining each lawyer and their client in a sharply worded ruling.
In a 21-page order issued July 31 in Cheryl Janky v. Batistatos, et al., No. 2:07-cv-339, U.S. District Judge Philip P. Simon in the Northern District of Indiana unleashed a written assault against attorneys Gregory Reed and Stephanie L. Hammonds, attorneys on the case that began almost five years ago as a copyright-infringement suit. They represent Cheryl Janky, an Indiana woman who'd sued the Lake County Convention and Visitors Bureau about a doo-wop song she wrote and copyrighted called "Wonders of Indiana," which the bureau used without permission in promotional videos and albums sold at its welcome center. That case culminated with a $100,000 verdict in Janky's favor in 2007; but it wasn't the end of the litigation, and the case resulted in further disputes about procedural issues.
As the District judge on the case, Judge Simon has written about this issue before. In April 2008, he described this as "one of those cases that gives lawyers a bad name," and said what began as a routine copyright-infringement dispute "deteriorated into a nuclear arms race of costly litigation tactics and the worst kind of mean spirited attorney game-playing."
This action came in September 2007 based on claims the defendants made when defending the earlier suit, with Hammonds and Reed contending that the defenses used previously were frivolous and groundless - despite Magistrate Judge Andrew Rodovich's previous rulings to the contrary.
In the latest sanction ruling, Judge Simon takes note of everything from their "flimsy" and "spurious" arguments that had already been dismissed and found to have been supported by law; grammatical and spelling errors in their filings; and a lengthy history of past sanctions in at least four other cases in the Detroit-based Eastern District of Michigan. He notes they'd been warned before in this case and also been sanctioned on the litigation, as well.
"Respondents say that this history of sanctions 'does not establish a pattern of litigation misconduct ...' But a pattern of misconduct is precisely what I see," Judge Simon wrote. "Attorney sanctions are a rare enough event that the presence of even one would be a source of concern. But Reed and Hammonds have been sanctioned on multiple occasions over the past five years, to the point where it almost looks as though they are now flaunting their inappropriate conduct."
He points out that the attorneys' conduct demonstrates a pattern and proof that they're using redundant claims as a leverage and harassment tactic, as opposed to just overzealous advocacy or a failure to understand pertinent legal concepts.
"Enough is enough. It is apparent that neither side can take the hint, and I am half convinced that both parties are treating matters as a joke," the judge wrote. "But the best medicine will be to just end things. Respondents will be sanctioned for their bringing of the current lawsuit, pursuant to the Court's Rule 11 powers. It was the filing of the second federal suit that opened Pandora's Box and is the action most in need of court response in order to prevent further conduct."
Judge Simon fined Reed $10,000, Hammonds $5,000, and client Janky $1,000. The judge also prohibited the attorneys from filing any civil complaints on behalf of Janky in the Northern District without posting a $5,000 bond to cover the "high probability" of additional sanctions.
That verdict appeal reached the 7th Circuit Court of Appeals, which today issued a separate ruling in Cheryl Janky v. Lake County Convention and Visitors Bureau, Nos. 07-2350, 07-2762, and 08-1606, that remands the case to the District Court for summary judgment in favor of the bureau. But this appellate decision isn't directly a part of Judge Simon's sanctions, and it's not immediately clear what impact it might have. The appellate ruling does point to various issues about the counsels' work, particularly unfocused briefs, and a previous $2,500 fine Reed received on the case that he sought to pay off using the verdict money.
Reached by phone this morning, Hammonds told Indiana Lawyer that she needed to more fully review Judge Simon's ruling before making any comments. Reed didn't immediately respond to a message left at his law office.
The sanction here was imposed on attorney Reed. (Mike Frisch)
The Pennsylvania Supreme Court has disbarred an attorney convicted of criminal conspiracy and other offenses.
The attorney served as chief of staff to the Democratic minority whip of the state House of Represeentatives. The misconduct was the subject of widespread publicity in a scheme known as Bonusgate.
Pennlive reported on the conviction
Jeff Foreman, one-time chief of staff to former state House Democratic Minority Whip Mike Veon, was sentenced this afternoon to 11-1/2 to 23 months in the Dauphin County Prison for his admitted role in the Bonusgate scandal.
Judge Richard A. Lewis imposed that sentence on Foreman, 59, of Harrisburg, after defense attorney Royce Morris argued for a probation term.
Lewis ordered Foreman to serve 3 years of probation after completing his prison term. He also ordered Foreman to pay $6,000 in fines and $28,695 in restitution, the amount Foreman received in illegal bonuses for campaign work.
Foreman had pleaded guilty to felony charges of conflict of interest, theft and conspiracy in the scheme by leaders of the House Democratic Caucus to use $1.3 million in taxpayer money to pay staffers for campaign work. He testified for the attorney general's office during the trial of Veon and other Bonusgate defendants earlier this year.
Lewis agreed with Morris that Foreman had a sterling record of professional and community service before the scandal and had cooperated fully with prosecutors.
However, the judge said he couldn't overlook the fact that Foreman was part of the inner circle that concocted the Bonusgate scheme.
Foreman, who surrendered his law license and has forfeited his state pension, told Lewis that he already has suffered dire harm to his community and professional reputations. "I'm disappointed in myself and the mistakes I made," Foreman said. "My problems are of my own making."
Lewis ordered Foreman to begin serving his sentence at the prison work-release center on Jan. 4. Chief Deputy Attorney General Frank Fina said he is satisfied with the penalty Lewis imposed.
Foreman's ex-boss, Veon, is serving a 6-to-14-year state prison term, the most severe sentence yet imposed on a Bonusgate defendant.
The New Jersey Supreme Court has rejected the proposed three-month suspension of its Disciplinary Review Board and publicly censured an attorney.
The attorney had a prior disciplinary record and had defaulted on the charges. The DRB denied his motion to vacate the default.
The misconduct involved his failure to safeguard funds and a conflict of interest in a phony real estate transaction. The transaction itself led to criminal charges against the participants but not the attorney.
The court does not explain its decision to ratchet down the sanction other than to say that "censure is the appropriate quantum of discipline for respondent's unethical conduct." (Mike Frisch)
Friday, September 26, 2014
An attorney who had claimed a specialty in maritime personal injury and death cases on his web page has been absolved of ethics charges by the Louisiana Supreme Court.
Notably, the investigation into the web page was the result of a google search by disciplinary counsel initiated in an unrelated matter.
The court overturned a reprimand ordered by the Attorney Disciplinary Board, concluding thatthe attorney did not have a "culpable state mind." Further, the conduct created no harm to the public.
Thus, the court held that the claim of specialization did not "rise to the level of sanctionable conduct." (Mike Frisch)
A candidate for Orleans Parish District Attorney was held to be disqualified from seeking the office by the Louisiana Supreme Court.
The problem involved his certification that he had filed tax returns for several years.
The court majority found that he had failed to rebut the prima facie case against him.
Chief Justice Johnson dissented and would find that the ccase for disqualification had been rebutted.
Details here from the Times-Picayune. (Mike Frisch)
A North Carolina attorney who purchased prescription pain medication from a criminal client has been charged with ethics violations.
The attorney pleaded guilty to the felony offense of knowingly maintaining a vehicle resprted to by persons using controlled substances.
The State Bar charges allege that the drug transactions and false statements to police involved professional misconduct.
The attorney has been suspended on an interim basis as a result of the conviction. (Mike Frisch)
An unauthorized practice decision of the Ohio Supreme Court is described by Kathleen Maloney
A Lorain County non-lawyer and his corporation engaged in the unauthorized practice of law by providing legal advice to individuals facing criminal charges, according to an Ohio Supreme Court decision today.
The court directed King Ayettey Zubaidah and STAND, Inc., to stop practicing law and ordered them to pay a civil penalty of $20,000 for their involvement in four legal matters.
Zubaidah formed STAND (Striving Towards a New Day!) in 2008 after his experience with the justice system in the 1980s when he was convicted on a drug charge and sentenced to five years probation. STAND’s mission was “to help change the unfair and partial treatment against minorities in the judicial system.”
In each of the four cases brought before the Board on the Unauthorized Practice of Law (UPL), the defendant or a parent of the defendant asked for Zubaidah’s guidance during the criminal case and signed an agreement with STAND, which stated that the organization would assist them. No payment was required. Family members testified that Zubaidah did not claim to be an attorney and they knew he was not one.
In one matter, Isaiah Harris faced several charges in three different cases in 2008 involving the same victim. The court appointed a lawyer to represent him. Harris also signed an agreement with STAND.
The three cases were combined, and before Harris’ trial Zubaidah sent a letter to the judge indicating he had in-depth knowledge about the facts in the case and defending Harris’ actions.
In the midst of trial, Harris’ lawyer negotiated a plea deal for a four-year prison term. Zubaidah attended the trial, but his involvement was disputed. Harris’ lawyer claimed that Zubaidah advised Harris not to accept the deal. Harris rejected the offer and was later convicted and sentenced to 23 years, 6 months in prison.
In the other cases, Zubaidah sent letters to the judges asking for lower bonds, citing cases, and making legal arguments, though indicating that he was not an attorney.
In today’s per curiam opinion, the court noted that an individual who negotiates legal claims for another person and provides legal advice – even without charge and even when stating that he is not an attorney – is practicing law.
While a non-attorney who sends a character-reference letter for someone to a judge is not engaging in the unauthorized practice of law, the court stated that when a letter shifts to advocating specific legal positions for that person, the unauthorized practice of law occurs.
“[D]espite the laudable desire to seek reform in the criminal system, such a desire cannot be realized by legally advising and advocating on behalf of a criminal defendant without violating our prohibition against the unauthorized practice of law,” the opinion stated.
“Zubaidah’s actions extended beyond the permissible conduct of endorsing a person’s character, advocating a social issue generally, advancing personal interests, or providing nonlegal advice to a family member. Despite Zubaidah’s good intentions and intermittent disclaimers, his conduct shows a pattern of advocating legal positions on behalf of defendants and providing legal advice to those defendants, leading to serious consequences for the STAND clients who trusted him.”
The court pointed out that Zubaidah held himself out as “an advocate with legal expertise,” his agreements implied that he had specialized knowledge of the legal system, and his letters to judges “cited case law, raised legal issues, and asked for legal results.”
Adopting the UPL board’s recommendation, the court determined that a $5,000 penalty for each violation was reasonable.
The court’s majority included Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French. Justices Paul E. Pfeifer and William M. O’Neill concurred in part and dissented in part.
While Justices Pfeifer and O’Neill agree that Zubaidah engaged in the unauthorized practice of law, they would instead impose $1,000 for each violation, for a total penalty of $4,000.
Thursday, September 25, 2014
An attorney convicted of criminal sexual assault and sexual abuse has been charged with ethical violations as a result by the Illinois Administrator.
The petition alleges
On or about August 7, 2012, Kelsey E. ("K.E."), a Minnesota resident, was in her hotel room at the W Hotel in Chicago. She had left the door to her hotel room ajar for a friend that she was expecting to arrive. At approximately 2:00 am, Respondent entered K.E.'s hotel room, without permission. Respondent proceeded to push K.E. down on the bed and forcibly hold her down. He fondled her breasts with his hands and mouth. He also vaginally penetrated her by force with his fingers. K.E. was able to kick Respondent off of her. Respondent told K.E. he would be back and then left K.E.'s hotel room. Thereafter, K.E. called the friend she had been expecting and reported the assault. The friend called the Chicago Police and notified hotel security. As K.E. was speaking with Chicago Police officers about the assault, Respondent was seen walking in the hotel hallway on the same floor as K.E.'s room. K.E. identified Respondent as her perpetrator and Respondent was arrested in the hotel.
His trial testimony was reported by the Chicago Tribune
Prosecutors allege that Bergamino, who lived in a condominium building next door to the hotel, took advantage of the fact that the woman left her hotel door propped open for a male friend, sexually assaulting her in the room.
But Bergamino testified he met the woman earlier that night when he made a self-deprecating joke after tripping over a “construction barricade” as the two walked near each other on Ontario Street. They talked for a few more minutes, he testified, and she gave him her room number after he told her his apartment number.
He went to a pub and drank three scotches and a beer, said Bergamino, who admitted he was drunk when he knocked on the door at the woman’s hotel room.
“She opened the door, said ‘Hi’ and led me in,” Bergamino testified. He said they kissed and touched on a bed but did not have sex.
Bergamino denied forcing himself on the woman.
“No, nothing of that sort at all. It was a very consensual engagement, interaction,” he testified.
The Tribune also reported that he was sentenced to a total of six years in prison. (Mike Frisch)
A felony conviction has resulted in automatic disbarment of an attorney by the New York Appellate Division for the First Judicial Department.
The court noted a prior disciplinary matter
...this Court suspended respondent from the practice of law for two years, and until further order of this Court, for his use of obscene, insulting, and threatening language in correspondence addressed to, among others, his former wife and her matrimonial attorneys, and his filing of a meritless federal lawsuit against his former wife, her attorneys, various judges, and others (see 78 AD3d 9 [1st Dept 2010]). To date, respondent has not applied for reinstatement.
The disbarable crime
Respondent's conviction stemmed from his employment with Tadano, a Japanese crane manufacturer. In January 2009, Tadano hired respondent to be the head of its legal affairs and human resources department. Respondent was responsible for contracting with outside law firms to handle Tadano's litigation and for approving payments for legal services. According to Tadano, respondent never informed the company of his suspension from the practice of law in New York.
In April 2011, respondent filed documents with the Texas Secretary of State to form a Texas corporation, Maio & Cardenas, LLC, a fictitious law firm for which respondent was listed as the registered agent and managing member. From approximately May 2011 to May 2012, respondent caused Tadano to issue checks totaling $9,329,546 to Maio & Cardenas for legal services it never performed. Respondent deposited the checks into an account he controlled and then used the funds to purchase, among other things, artwork, collectible comic books and sports memorabilia. Tadano terminated respondent's employment after learning of his fraudulent conduct.
More from Chron
When authorities raided Anthony Chiofalo's home and storage units after he was accused of embezzling more than $9 million from his employer, they found hundreds of valuable items including a baseball signed by Babe Ruth, a first edition Playboy and the first ever Batman comic book, worth about $900,000.
"He had sports memorabilia and very expensive comic books, that are like bearer bonds because they're hard to trace," said Bryan Vaclavik, a financial fraud consultant. "I think he was buying comic books as an investment and we are trying to locate each and every one of those comic books."
He said there are still comic books missing that are worth hundreds of thousands of dollars. Chiofalo, 51, of Spring, appeared Monday in a Harris County court for the first time
Court records show that Chiofalo had hundreds of sports memorabilia collectibles including a boxing robe worn by Muhammad Ali, a signed first edition of Mario Puzo's novel, "The Godfather," and a baseball helmet signed by Pete Rose. Authorities also recovered dozens of signed posters and scores of baseball cards.
The District of Columbia Court of Appeals has imposed the reciprocal discipline of disbarment based on the attorney's disbarment in North Carolina.
The attorney had contended in the D.C. proceeding that he was denied due process in North Carolina and that there were infirmities in the proof of misconduct.
The problem was that he had failed to participate in the North Carolina proceedings
The problem with all these arguments is that respondent may not elect to forgo his disciplinary hearing [in North Carolina] and then complain that certain evidence should have been presented there...While evidence or arguments about what respondent alleges was [his contract paralegal] Driscoll‟s responsibility (for what he refers to as the "train wreck" at his firm) might have affected the Hearing Commission‟s conclusions about the degree of respondent‟s culpability, this was evidence respondent was free to advance at the hearing. Instead, the evidence at the disciplinary hearing was effectively uncontested, and we have no reason "not to respect [the] decision" of the Hearing Commission. (citation omitted)
In reciprocal proceedings, the attorney must show by clear and convincing evidence that an exception to the rule mandating identical sanction has been met.
The court here concluded that the attorney failed to do so. (Mike Frisch)
Last month, the District of Columbia ordered identical reciprocal discipline of a three-month suspension and probation in a matter from Massachusetts.
The Massachusetts proceeding raised the issue of the impact of the attorney's previously undiagnosed "learned helplessness."
Associate Justice Lenk rejected Bar counsel's contention regarding the impact of the attorney's mental health issues for sanction purposes. Bar counsel argued that the Board of Bar Overseers had
erred in considering the respondent's mental illness in mitigation, as the respondent is only in the beginning stages of treatment. Bar counsel appears to challenge any view of a respondent's mental illness as an appropriate factor in mitigation unless the .. respondent can show, essentially, that the course of treatment is at an end and the treatment has been successful.
The court rejected that view.
The imposition of a period of immediate suspension serves to protect he public perception of the integrity of the courts and the bar, even though imposition of a sanction where the misconduct arises from a disability is unlikely to have a deterrent effect on other lawyers. The relatively short period of immediate suspension incorporates the board's determination that the misconduct occurred as a result of the respondent's mental illness, and is unlikely to recur with treatment; thus the cause of the misconduct is a substantial factor in mitigation.
Practicing while serving a disciplinary suspension got an attorney suspended again for a year by the New York Appellate Division for the Second Judicial Department.
The circumstances were not entirely unsympathetic
...the respondent testified at the disciplinary hearing that he had anticipated a suspension in connection with the prior disciplinary proceeding, he had started to wind down his practice, and he already had begun training for a new line of work. The respondent admitted that he knowingly appeared for a client on May 18, 2012, after the effective date of his suspension. The respondent asserted that he had formerly represented the client, and the client unexpectedly notified him that she was coming from abroad for an appearance in Family Court. The respondent tried to arrange for another attorney to handle the court appearance, but was unsuccessful. So as to avoid the trip being a waste for the client, whom the respondent knew was of little means, the respondent appeared on her behalf under the belief that a settlement had been reached and all that was needed was for the court to so-order it. As it turned out, on the day of the appearance, the matter had to be adjourned and nothing of substance occurred.In determining the appropriate measure of discipline to impose, we have taken into consideration the aforementioned mitigating circumstances, including the fact that the respondent did not act for personal gain, and the solitary nature of his misconduct. The respondent, nonetheless, knowingly violated this Court's opinion and order dated April 3, 2012. Under these circumstances, the respondent is suspended from the practice of law for a period of one year.
A Colorado attorney was suspended for 60 days for misconduct summarized here.
In January 2013, [the attorney], who was under the influence of alcohol, was involved in an automobile accident. [She] refused any testing of her blood, breath, saliva, or urine. She was arrested and charged. After her arrest, [she] checked into a thirty-day inpatient treatment program. Intake notes from the program indicate that [she] had not achieved any lengthy period of sobriety since 2008, even though she had earlier told investigators for the Office of Attorney Regulation Counsel that she was sober from 2008 until late 2012.
In June 2013, [the attorney] pleaded guilty to one charge of driving while ability impaired. This was [her] third DUI-related conviction; she also had been convicted of DUI in 1995 and 2008. [She] was sentenced to 180 days’ work release; mental health evaluation and treatment; a complete victim impact panel; no alcohol or drugs; substance abuse monitoring; payment of fees and costs; and education and therapy. [She] was permitted to complete her work release through Boulder Community Treatment Center. In December 2013, however, [she] refused to participate in a scheduled independent medical examination, and her work release was revoked when she violated the terms and conditions of her residency at the Center by failing to take certain prescribed medicines. She was jailed, only to be released in mid-March 2014.
Another Colorado attorney was suspended for 30 days and must petition for reinstatement.
In 1991, [the attorney] was convicted of one count of driving while impaired by alcohol. In 1996, [he] was convicted of one count of driving a vehicle with a blood alcohol level of 0.10 or more. [He] believes he failed to report both of these convictions to the Office of Attorney Regulation Counsel.
On November 17, 2013, [the attorney] drove home after consuming alcohol. According to [him], as he made a left-hand turn an oncoming car failed to stop at the intersection, and he swung his car wide and drove up onto the curb, stopping against a light pole. [He] refused to respond to law enforcement questions and instructions, perform roadside maneuvers, or submit to breath or blood alcohol tests. Later, after changing his mind, a preliminary breath test registered [his] breath alcohol content at 0.203. [He] pleaded guilty to one count of driving while ability impaired and was sentenced to one year in jail, all but ninety days suspended pending compliance with two years’ probation. He was also ordered to attend alcohol education sessions and therapy, undergo drug testing, and perform community service.
In both matters, the Presiding Disciplinary Judge approved conditional admissions of misconduct. (Mike Frisch)
Wednesday, September 24, 2014
The Pennsylvania Supreme Court has accepted the consent disbarment of an attorney convicted of and awaiting sentencing for forcible rape.
The Times Tribune.com had information about the charges
A former Lackawanna County assistant public defender who also specialized in child custody disputes has been charged with raping a 15-year-old Olyphant girl.
In the first encounter last summer, Olyphant attorney Kenneth Andrew Kovaleski, 38, put his hand over the girl's mouth and told her "she had better be quiet," arrest papers filed Wednesday by county Detective Chris Kolcharno and borough police officer Lewis Kline state.
He then pulled off her shorts, kissed her lips and raped her, arrest papers state. When she complained of pain, he again covered her mouth with his hand and said, "I told you to shut up."
Afterward, when she said she was going to tell someone what happened, Mr. Kovaleski said, "No, you're not. I know every single DA in this town and every single police officer. No one is going to believe you," said investigators. The next morning, he acted as if nothing had happened.
The victim, who provided the account of the allegations to investigators at the Children's Advocacy Center in Scranton on July 6, told them he did not use a condom and that it "burned" when she urinated. The Times-Tribune does not identify victims of sexual abuse.
Over the course of a year, from June 2011 to June 2012, investigators said Mr. Kovaleski would go into the girl's bedroom, masturbate and perform oral sex on her.
Mr. Kovaleski, 216 Old Powder Mill Road, Olyphant, is facing seven felony charges: rape forcible compulsion; involuntary deviant sexual intercourse with a person less than 16 years of age; involuntary deviant sexual intercourse forcible compulsion; incest; endangering the welfare of children; unlawful contact with a minor - sexual offense; and aggravated indecent assault with a person less than 16 years of age. He also faces two misdemeanor charges of indecent assault without the consent of others and corruption of minors.
He denied the charges when questioned by Detective Kolcharno at his home with his wife, Joanna, present. Mr. Kovaleski said the allegations are "crazy," and his wife told the detective that the victim has been diagnosed with a psychosis and is medicated.
The attorney was found guilty by a jury in February of this year. (Mike Frisch)
The Vermont Professional Conduct Board had admonished an attorney who had self-reported misconduct that took place in 1982.
The issue arose in a real estate transaction in which the (unnamed) attorney represented the seller. The attorney left funds in the trust account and was aware of the situation from his receipt of monthly bank statements. Unfortunstely, he "took no action to resolve the issue."
The attorney left private practice in 1989 and returned in 1993 with a succession of law firms. He had shredded all his old files in 2013.
Later in 2013, the attorney learned that the State was holding funds from the trust account. He promptly filed paperwork and secured the funds - a bit less than $700.
Eventually, his client received the funds that had been due for 31 years. Perhaps a new record for the longest time that funds havebeen held prior to disbursement.
The board looked to the ABA standards in imposing sanction. (Mike Frisch)
Kathleen Maloney reports on a decision filed by the Ohio Supreme Court
The Ohio Supreme Court today found that part of a rule governing the conduct of candidates running for judge is unconstitutional.
In an opinion written by Justice Judith Ann Lanzinger, the court held that the portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from conveying true information about the candidate or the candidate’s opponent that is nevertheless deceiving or misleading to a reasonable reader violates the candidate’s constitutional right to free speech. The court severed this part of the rule from the Code of Judicial Conduct.
In addition, the court affirmed the public reprimand of Colleen M. O’Toole by a court-appointed commission reviewing the matter for wearing a name badge stating that she was a judge. At that time, she was not a judge but was running for a spot on the Eleventh District Court of Appeals. But the court dismissed a charge concerning language that appeared on her campaign website in light of ruling that the related judicial conduct rule is unconstitutional.
O’Toole served as a judge in the Eleventh District from 2004 to February 2011. In 2012, she ran again for judge on the same court and subsequently won the election.
Before the election, a grievance was filed against O’Toole for certain campaign activities. A five-judge commission appointed by the Ohio Supreme Court found that statements posted on O’Toole’s campaign website were misleading and worded to give the impression she was a sitting judge in 2012. The commission also concluded that a name badge she wore during her campaign, which read “Colleen Mary O’Toole, Judge, 11th District Court of Appeals,” left the impression that she was still a judge at that time.
The commission publicly reprimanded O’Toole and also ordered her to pay a $1,000 fine, the costs of the proceedings, and $2,500 in attorney fees.
O’Toole appealed to the Ohio Supreme Court, in part challenging the constitutionality of Jud.Cond.R. 4.3(A).
Rule 4.3 provides standards for communications by candidates during campaigns for judicial office. Justice Lanzinger noted that “section (A) restricts two categories of speech by judicial candidates such as O’Toole: (1) speech conveying false information about the candidate or her opponent and (2) speech conveying true information about the candidate or her opponent that nonetheless would deceive or mislead a reasonable person.”
The rule is a content-based regulation protected by the First Amendment to the U.S. Constitution, Justice Lanzinger explained. To prove that the rule is constitutional, she added, the government must show that the regulation serves a compelling state interest, and the rule must be narrowly tailored to meet that interest.
The court stated that the Code of Judicial Conduct, including this rule, is designed to promote and maintain an independent, fair, and impartial judiciary and to ensure public confidence in the judicial system – both compelling state interests.
After pointing out that lies do not add to a robust political atmosphere and are not protected by the First Amendment in the same way that truthful statements are, Justice Lanzinger wrote, “The portion of Jud.Cond.R. 4.3(A) that limits a judicial candidate’s false speech made during a specific time period (the campaign), conveyed by specific means (ads, sample ballots, etc.), disseminated with a specific mental state (knowingly or with reckless disregard) and with a specific mental state as to the information’s accuracy (with knowledge of its falsity or with reckless disregard as to its truth or falsity) is constitutional.”
“However, the latter clause of Jud.Cond.R. 4.3(A) prohibiting the dissemination of information that ‘if true,’ ‘would be deceiving or misleading to a reasonable person’ is unconstitutional because it chills the exercise of legitimate First Amendment rights,” she concluded. “This portion of the rule does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners.”
Under its constitutional authority to regulate the practice of law, Justice Lanzinger wrote that the court today “narrow[s] Jud.Cond.R. 4.3(A) to provide that no candidate for judicial office shall knowingly or with reckless disregard do any of the following: ‘Post, publish, broadcast, transmit, circulate, or distribute information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false.’ The remaining language in Jud.Cond.R. 4.3(A), ‘or, if true, that would be deceiving or misleading to a reasonable person,’ is severed.”
The court then determined that O’Toole violated the conduct rule by wearing a badge claiming she was a judge during a time when she did not hold judicial office. The court agreed with the commission that a public reprimand for the misconduct was appropriate.
“This intentional misrepresentation is not protected speech under the First Amendment,” Justice Lanzinger reasoned. “By repeatedly calling herself a judge when she was not, O’Toole undermined public confidence in the judiciary as a whole.”
However, the allegation that O’Toole’s website was crafted in a way to mislead readers into thinking she was a sitting judge running for reelection is dismissed, given the language that has been severed from the judicial conduct rule, Justice Lanzinger explained.
The court also lifted an earlier stay on the imposition of the fine, costs, and attorney fees.
Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor, Justice Terrence O’Donnell, Justice Judith L. French, Judge Vernon Preston of the Third District Court of Appeals, and Judge Patrick Fischer of the First District Court of Appeals. Judge Preston served in place of Justice Sharon L. Kennedy, and Judge Fischer filled in for Justice William M. O’Neill. Justices Kennedy and O’Neill both recused themselves from the case.
Justice Paul E. Pfeifer concurred in the majority’s judgment except for the award of $2,500 in attorney fees. He noted that the original complaint was filed by a friend of O’Toole’s political opponent in the 2012 election and included 12 counts of alleged misconduct. Nine counts were dropped before the hearing conducted by a disciplinary panel, and one was dismissed after the hearing.
The judicial commission ordered O’Toole to pay $2,500 in attorney fees based on two violations of the judicial conduct rules. Because the court has found that O’Toole committed only one violation, Justice Pfeifer would cut the attorney fees in half, to $1,250.
I have taken the unusual step of deleting a blog post from yesterday expressing concern that six employees of the District of Columbia Board on Professional Responsibility Executive Attorney staff attended an oral argument in the Court of Appeals.
While I stand by the view that the board office is grossly overstaffed and a waste of limited disciplinary resources, that situation is the result of a failure of leadership. It is not a reflection of any shortcomings of the line attorney and support staff.
Staff should not be subject to criticism for attending an oral argument. Indeed, I feel nothing but sympathy for the staff that are employed in the most dysfunctional office that I have ever seen.
My decision to publicly rant on the subject was an error in judgment for which I apologize. (Mike Frisch)
Tuesday, September 23, 2014
An attorney who engaged in cfiminal conversion of funds entrusted as a fiduciary was suspended for two years without automatic reinstatement by the Indiana Supreme Court.
The Marion County Bar Association (the "MCBA") is a local bar association that exists in large part to assist in the professional development of African American attorneys practicing in the Indianapolis area. The MCBA elects and/or appoints officers, including the treasurer, who serves a one-year term. The treasurer of the MCBA serves in a fiduciary capacity.
In 2011, Respondent submitted an application to join the organization and applied for the position of treasurer. Respondent served as treasurer from June 2011 until December 2012. As treasurer, Respondent had signatory authority on the MCBA's checking account at Regions Bank.
Respondent admitted that during her term as treasurer of the MCBA, she misappropriated funds that belonged to the MCBA. She admitted that she converted the proceeds of 30 checks drawn on MCBA's checking account. The memo lines of the unauthorized checks often contained false statements in order to make it appear that the checks were used for legitimate MCBA expenses. Respondent also admitted she converted the proceeds of one debit and the proceeds of 21 counter checks drawn on the MCBA's checking account. The sum of all funds that Respondent admitted she converted was over $9,100.
During her tenure as treasurer of the MCBA, the Respondent was also responsible for preparing monthly financial reports. These reports were distributed to all officers and board members of the MCBA. Respondent falsified the financial reports to conceal her thefts from the MCBA.
Respondent testified that one particular transaction was the impetus for her disclosure of the unauthorized transactions. Respondent had misrepresented to the MCBA that a scholarship donation had been made to the Indiana University-Indianapolis law school when in fact she had taken those funds for her own use. If she paid the school the scholarship donation out of her personal account, the MCBA would not be able to list it as a tax deduction. Thus, she could not correct this misappropriation without disclosing to the MCBA what had happened. She denied that she disclosed her misappropriations only when their discovery was imminent.
The court noted that she had resigned and made full restitution. (Mike Frisch)
Monday, September 22, 2014
The North Dakota Supreme Court ordered a one-month suspension of an attorney and barred her from pro hac vice admission
Meidinger was admitted to practice law in Minnesota in October 2006. Although Meidinger has never been admitted to practice in North Dakota, her law office is located in Fargo, North Dakota. Since December 2009, Meidinger has requested and been granted pro hac vice admissions in 17 matters in North Dakota courts. She was previously disciplined for violation of N.D.R. Prof. Conduct 5.5(d).
Because Meidinger has practiced law for more than five years, she is eligible to apply for admission by motion in North Dakota. In an August 2012, letter, the North Dakota State Board of Law Examiners strongly encouraged Meidinger to become licensed in North Dakota because her appearances were more than occasional. Despite that letter, Meidinger has not applied for admission in North Dakota.
The attorney did not answer the summons in the proceeding. (Mike Frisch)