Friday, August 15, 2014
The Louisiana Supreme Court has entered into a settlement agreement with the United States Department of Justice with respect to concerns raised by DOJ in the mental health evaluations of bar applicants.
The substance of the agreement is set forth in this announcement
The Justice Department announced today that it has entered into a settlement agreement with the Louisiana Supreme Court that will resolve the department’s investigation of the court’s policies, practices and procedures for evaluating bar applicants with mental health disabilities. The department’s investigation found that during the Louisiana bar admissions process licensing entities based recommendations about bar admission on mental health diagnosis and treatment rather than conduct that would warrant denial of admission to the bar.
The settlement agreement ensures the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession as required by the Americans with Disabilities Act (ADA). It prohibits the court from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment. It also requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities, such as requests for medical records, compulsory medical examinations or onerous monitoring and reporting requirements. Title II of the ADA prohibits public entities, including licensing entities, from imposing unnecessary eligibility criteria that tend to screen out individuals with disabilities, or imposing unnecessary burdens on individuals with disabilities that are not imposed on others.
The department found that diagnosis and treatment, without problematic conduct, did not effectively predict future misconduct as an attorney and did not justify restrictions on admission. Yet the Louisiana bar admissions process imposed unnecessary burdens on applicants and attorneys based on their diagnosis and treatment, in violation of the ADA. Questions about mental health diagnosis and treatment, such as those used by Louisiana, are counterproductive to licensing entities’ interest in attorney fitness because individuals who would benefit from mental health treatment may be deterred from obtaining it by the knowledge that they will have to disclose their treatment to licensing authorities.
“Today’s agreement will ensure that qualified bar applicants with mental health disabilities are able to pursue their dream of becoming licensed attorneys, without discrimination based on diagnosis or treatment,” said Acting Assistant Attorney General Molly Moran for the Civil Rights Division. “Qualified individuals with disabilities, including mental health disabilities, have valuable contributions to make to the legal profession and to their communities. Their diagnosis should not hinder or prevent them from doing so. Though bar licensing entities have the important responsibility of ensuring that all licensed attorneys are fit to practice law, licensing entities must discharge this responsibility in a manner that is consistent with civil rights laws.”
“This agreement is a testament to the United States Department of Justice’s commitment to fighting discrimination against persons with disabilities and further ensures that qualified individuals will have the opportunity to pursue their career goals and make valuable contributions to our community,” said U.S. Attorney Kenneth Allen Polite Jr. for the Eastern District of Louisiana. “The cooperation between the parties in reaching this agreement demonstrates a shared priority of protecting against discrimination.”
Under the agreement, the court will, among other actions:
- Revise its character and fitness screening questions so that they focus on applicants’ conduct or behavior, and ask about an applicant’s condition or impairment only when it currently affects the applicant’s ability to practice law in a competent, ethical and professional manner or is disclosed to explain conduct that may otherwise warrant denial of admission;
- Refrain from imposing unnecessary burdens on applicants with mental health disabilities by placing onerous disability-based conditions on their admission, invading their privacy, or violating their confidentiality;
- Re-evaluate prior and pending applications of applicants who disclosed mental health disabilities under the revised, non-discriminatory procedures set forth in the agreement; and
- Pay $200,000 to compensate a number of affected bar applicants and attorneys.
Since the department’s letter of findings concluding that the court was in violation of Title II of the ADA was issued in February, the court has worked cooperatively with the department to negotiate an agreement and to implement corrective measures.
The department has also raised issues about unnecessary bar application questions related to mental health disabilities with the states of Vermont and Connecticut and with the National Council of Bar Examiners (NCBE). The NCBE revised two of its questions about mental health on February 24, 2014.
This will likely affect the bar admissions processes throughout the country. (Mike Frisch)
A suspension of four months was imposed by the New York Appellate Division for the First Judicial Department of an attorney convicted of criminal facilitation in the fourth degree.
The findings of misconduct were
based upon his plea allocution in which he acknowledged that "in 2007, in the Bronx, after an injured patient was accepted as a personal injury client, [I] paid an employee at Lincoln Hospital for  disclosing the patient's information to [me]." Respondent, who is admitted in Connecticut and New Jersey, promptly notified all three jurisdictions of his conviction.
In the disciplinary matter
At the sanction hearing held on December 10, 2013, respondent testified in his own behalf and called three character witnesses. He also submitted character letters and expressed remorse for his conduct. The evidence adduced at the hearing disclosed that respondent graduated from Brooklyn Law School in 1989 and became associated with Dinkes & Morelli. In 2006, eight years after the dissolution of that firm, while working for the firm Dinkes & Schweitzer, respondent, at the behest of partner William Dinkes, became involved in a scheme of paying hospital employees $500 for referrals. Respondent made eight such payments, but ceased the practice in September 2007 when Dinkes died suddenly. Respondent indicated he did not continue the payments after Dinkes' death since he did not know the source of the funds.
Respondent has had an otherwise unblemished record during his 23 years of practice. He has paid the fine and sanctions and performed the community service through work with the Fortune Society.
Thursday, August 14, 2014
The District of Columbia Court of Appeals has reversed a legal malpractice judgment, concluding that the plaintiff - a non-client - was not owed a duty of care by the defendant attorney.
The plaintiff was in a relationship with a married man. She approached the attorney to secure representation for a divorce for him. The married man eventually retained the attorney, who filed the divorce complaint.
There was delay in serving the complaint and the client died before the divorce was finalized.
A jury awarded the plaintiff damages based on retirement benefits that the client would have received if the divorce was completed and the decedent had married her. The damages exceeded a quarter of a million dollars.
It was undisputed that the plaintiff was never a client of the defendant or his law firm.
The court held as a matter of law that the duty of care did not extend to the plaintiff. Although there are limited situations where an intended beneficiary may sue a lawyer,
...it is not difficult to envision situations where the interests of the client seeking the divorce and his fiancee waiting in the wings could come into conflict, which argues against any dilution of the attorney's obligation to serve the interests of his or her client alone.
On appeal, the attorney conceded negligence in handling the divorce. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department has imposed disbarment for an attorney's felony conviction.
The attorney pleaded guilty in federal court to offenses relating to
...his participation in a scheme, from in or about November 2012 up through and including in or about April 2013, an object of which was to accept a bribe in exchange for authorizing a member of the Democratic Party to appear on the Republican Party primary ballot for New York City Mayor, in violation of New York Penal Law §§ 200.45 and 200.50 (hereinafter the 2013 NYC Mayor Bribery Scheme).
Disbarment was automatic for this felony conviction.
The New York Post reported that the attorney was the head of the Bronx Republican Party. (Mike Frisch)
A misdemeanor criminal conviction has resulted in an attorney's public censure from the New York Appellate Division for the Second Judicial Department.
On or about May 21, 2011, the respondent was involved in an incident at Saratoga Spa State Park, which is located within the City of Saratoga Springs, New York, during which he allegedly tackled David P. Needham, throwing Mr. Needham to the ground and causing Mr. Needham to suffer injuries to his neck and shoulder as well as a head concussion. The respondent also was alleged to have applied pressure to Mr. Needham's throat and neck that impeded Mr. Needham's breathing and caused him to be dazed and shaken and to have memory loss. Based upon the subject alleged incident, the respondent was charged, on or about June 6, 2011, in the City Court for the City of Saratoga Springs, with assault in the third degree, a class A misdemeanor, in violation of Penal Law § 120.00(1), and strangulation in the second degree, a class D felony, in violation of Penal Law § 121.12. On September 12, 2011, with the prosecution's consent, the respondent entered an Alford plea (see North Carolina v Alford , 400 US 25) to the reduced charge of reckless endangerment in the second degree, a class A misdemeanor, in violation of Penal Law § 120.20, in full satisfaction of the charges.
As to the sanction
In determining an appropriate measure of discipline to impose, this Court has considered the Special Referee's determination that the respondent's conduct was spontaneous, "having occurred in the heat of the moment." Additionally, the conduct was unrelated to the practice of law. This Court also has considered the evidence in mitigation offered by the respondent, including character letters attesting to the respondent's outstanding reputation in the legal community and his record of pro bono activities. The respondent has no prior disciplinary history.
A Florida attorney who has never been admitted to practice in South Carolina has managed to get permanently disbarred by the South Carolina Supreme Court.
The attorney set up an office in the Palmetto State ostensibly to engage in a federal immigration practice.
Except for a two-week period in 2012, she had no South Carolina lawyers associated with the practice.
The court found that the attorney's web page and other professional listings failed to indicate her practice limitations and contained other material misrepresentations.
She advertised for clients in matters that required her to be a licensed South Carolina attorney.
Further, despite her initial cooperation, she made false statements and eventually defaulted in the bar investigation.
Although the court characterizes its sanction as permanent, it leave open the possibility that the attorney may seek to have it set aside in the future. (Mike Frisch)
Wednesday, August 13, 2014
The Washington Court of Appeals - Division III sua sponte disqualified an attorney from representing his client in an appeal from the imposition of sanctions in a domestic action.
As the noblest calling, the legal profession demands the highest ethical behavior from its members. A supreme commandment of attorney ethics is undivided loyalty to a client and shunning any self-interest that would conflict with the interests of the client.
The attorney made arguments on appeal of a $55,000 award of attorneys fees and costs that were beneficial to himself but harmful to the client.
The essence of the argument was that the client should be held solely responsible for the sanction.
The court makes clear that, when attorney and client point fingers at each other, a concurrent conflict exists. (Mike Frisch)
The New Hampshire Supreme Court has reversed an order dismissing a legal malpractice case.
The court held that there is no per se rule that requires a legal malpractice plaintiff to offer expert testimony
...the trial court granted the defendants’ motion to dismiss because "the plaintiff . . . failed to disclose an expert capable of establishing the standard of care and the breach of that standard of care as well as the proximate cause of the alleged injuries." The trial court based its decision on a categorical rule that, "[b]ecause the extent to which an attorney, in the exercise of due care, should investigate a claim to file a timely action is not a matter of common knowledge, a jury would not be able to evaluate the adequacy of the attorney’s actions without the aid of expert testimony." (Quotation omitted.) Because we have not adopted such an unqualified rule, the trial court erred as a matter of law in granting the motion to dismiss. See, e.g., Carbone, 151 N.H. at 528-29 (explaining case was not "one of those exceptional cases where [the defendant’s] breach of the standard of care was so obviously the legal cause of [the plaintiff’s] injuries that expert testimony was not required"); Wong, 148 N.H. at 374 (affirming dismissal of legal malpractice claim for lack of expert testimony because evidence of negligence was not "so patent and conclusive that reasonable persons c[ould] reach only one conclusion" (quotation omitted)).
The underlying case was brought by the plaintiff against a defendant wjo was alleged to have removed timber from his property. That case was dismissed on statute of limitations grounds. (Mike Frisch)
Tuesday, August 12, 2014
The Illinois Review Board has recommended a censure of an attorney based on findings of misconduct arising from the representation of a person who survived an airplane crash.
As a result of the crash, [client] Gumus underwent back surgery and was hospitalized for several weeks. Following his release from the hospital, he went to his ex-wife's home in Rotterdam to recuperate. The first evening he arrived at his ex-wife's home, he suffered a heart attack. Sometime after the plane crash but prior to April 19, 2009, he retained a Netherlands law firm called SAP Advocaten ("SAP") to represent him in all claims relating to the crash.
Soon after the crash, Respondent sent representatives to the Netherlands to meet with victims of the crash. Surreya Yigitbasi ("Yigitbasi"), a lawyer in Turkey, worked for Respondent on an hourly basis. He referred clients to Respondent's firm and assisted Respondent with matters relating to the crash. Yigitbasi testified at the hearing in this matter that he received a phone call in April 2009 from Ali Atak ("Atak"), who identified himself as Gumus' uncle. Yigitbasi gave Gumus' phone number to a lawyer from Respondent's firm. On April 19, four individuals visited Gumus while he was bedridden. After a presentation lasting several hours, Gumus signed a document to retain Respondent's firm to represent him in the United States in claims against Boeing Company or any other persons or corporations that could be liable for his injuries arising out of the plane crash.
As of April 19, Gumus had already retained SAP and he had no intention of discharging SAP from representing him. He was in pain during the meeting and did not understand the purpose of the meeting. Within a day after the meeting, Gumus called SAP. He asked SAP to "certify that these are not my lawyers" and asked for assistance to prevent the four individuals from disturbing him any further. SAP lawyer Sander de Lang ("de Lang") explained at his evidence deposition that under Dutch law, a client may cancel any agreement within eight days after signing without incurring any costs. Mr. de Lang assisted Gumus in preparing a document entitled "Notice of Withdrawal of Attorney", withdrawing "the power of attorney for representation" by Respondent's firm. Mr. de Lang sent a letter and the Notice of Withdrawal to Respondent. Respondent admitted receiving the documents. However, Respondent believed that Gumus was simply confused as to why he had hired Respondent's firm. Respondent did not contact Gumus or de Lang after receipt of the letter and the Notice. Instead, she testified she contacted Yigitbasi, who in turn contacted Atak. Atak did not contact Gumus but told Yigitbasi in this same conversation that everything was "okay" and that Yigitbasi could continue. Yigitbasi relayed the content of the conversation with Atak to Respondent. Respondent testified she then proceeded to do work for Gumus and other victims of the crash in 2009 and early 2010.
Gumus was unaware that Respondent was still acting as his lawyer and he did not authorize Respondent to perform any services on his behalf. SAP worked during the same time period on behalf of Gumus. SAP also worked with an associate in the Kreindler & Kreindler law firm in New York named Orla Brady, and with the Chicago law firm of Powers, Roger & Smith.
On March 23, 2010, Respondent filed a lawsuit in the Circuit Court of Cook County on behalf of Gumus and others against Boeing. She did not communicate with Gumus prior to filing suit. Respondent testified she told Yigitbasi to contact Gumus to approve the filing of the complaint. Yigitbasi told Respondent that he was unable to reach Gumus but that Atak said to go ahead and file the complaint. There was no testimony that either Yigitbasi or Atak communicated with Gumus. Gumus testified he never authorized Respondent to represent him or to file a lawsuit on his behalf.
In early May 2010, Mr. de Lang learned from Turkish Airlines that Respondent was claiming to represent Gumus. He immediately sent an e-mail to Respondent stating that Gumus had discharged Respondent and attaching the April 2009 Notice. Respondent's partner, Mervin Mateo, a New York lawyer, responded to the e-mail advising de Lang of the lawsuit and stating that it would be detrimental to Gumus to dismiss the case. Mateo asserted that Respondent would contact the client. Respondent did not contact Gumus although she claimed an associate, Ray Welcher ("Welcher"), sent Gumus a letter dated May 6, advising him of the filing of the action against Boeing. Welcher denied writing or authorizing the letter. Gumus testified he never received a letter from Respondent's office.
After a flurry of e-mails between various lawyers, Kreindler & Kreindler and Powers, Roger & Smith moved to substitute as counsel in the lawsuit. Thereafter, at Respondent's direction, Welcher contacted Orla Brady of Kreindler & Kreindler and told Brady that Respondent's firm would not oppose the motion to substitute if Brady agreed to pay Respondent's firm 50% of any fees received. Brady refused the demand. Respondent did not appear at the hearing on the motion to substitute but sent Welcher to appear for the firm. At the hearing on the motion to substitute, Brady made an oral motion for sanctions against Respondent. The Court granted the motion to substitute but denied the oral motion for sanctions, stating, "Put it in writing and I will reconsider it." There was no testimony that Brady ever requested reconsideration; she reported Respondent's conduct to the ARDC.
The board agreed with the hearing board that the attorney violated Rule 1.16. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has agreed with a hearing committee that a statement by the press spokesperson for the Orleans Parish District Attorney's Office did not violate ethics rules.
The basis of the bar charges was a remark made by the accused attorney after a judge had found the defendant in a high-profile case not guilty.
The newspaper report that led to the charges is linked here.
In reponse to a reporter's query, the spokesperson said
District Attorney Cannizzaro has fought hard to eliminate corruption, unfortunately [the judge] thwarted our efforts today.
Both the hearing committee and found found that the statement was not false and was not intended to impugn the integrity of the judge.
The board ordered the dismissal of the charges. (Mike Frisch)
The Wisconsin Supreme Court declined to reinstate a disbarred attorney notwithstanding the favorable referee report and the lack of opposition on appeal from the Office of Lawyer Regulation.
The OLR had opposed reinstatement at the hearing before the referee.
The attorney was convicted in 1984 of conspiracy to obstruct commerce by extortion. His father and brother were also convicted in the same case.
The court here found that the attorney and referee had minimized his role in the crime, in contrast to the conclusions of the United States Court of Appeals for the Seventh Circuit in affirming the conviction.
The record reveals a pattern of a lack of acceptance of responsibility over the years that have passed since Attorney Balistrieri's conviction. When the [Board on Attorneys Professional Responsibility] recommended against the reinstatement of his license in 1995, in large part based on its conclusion that he had not accepted responsibility for his criminal conduct, Attorney Balistrieri ultimately responded by claiming that BAPR was biased against him because of his Italian heritage. He attacked the integrity of the reinstatement process with a completely unsupported charge of ethnic bias rather than demonstrate how his words and actions showed that he now understood that he needed to obey both the letter and the spirit of the law and the ethical rules governing attorneys.
Later, in a deposition in a civil case, he asserted that the charges against him were brought by "a homosexual child molester with a cocaine habit..."
We are not making a full and unconditional confession of one's crime a prerequisite to the reinstatement of a law license for everyone who has committed a crime. What Attorney Balistrieri was obligated to prove by clear and convincing evidence, however, was that he has a good moral character, that he possesses a proper attitude toward the standards that are imposed upon members of the bar of this state, which includes both the general law and the Rules of Professional Conduct for Attorneys, and that he will act in conformity with them. His grudging acceptance of the fact of his conviction after decades of besmirching the individuals who did their job in investigating and prosecuting him or who acted within their proper role in the lawyer regulation system is not enough to meet that standard.
The court also concluded that the referee had "downplayed" other issues relating to post-disbarment taxes and omissions on the reinstatement application.
Justice Bradley dissented and would reinstate in deference to the referee's credibility findings. (Mike Frisch)
An attorney who had been suspended for two years in New York received identical reciprocal discipline from the Vermont Supreme Court.
The attorney was charged with felony offenses in New York and pleaded guilty to misdemeanor identity theft.
Discipline was imposed in New York as a result of the conviction.
In the Vermont proceeding, the attorney denied that she had defrauded anyone. Rather, she contended that the guilty plea was offered because of her husband's health issues and the legal expenses of fighting the felony charges.
Vermont Disciplinary Counsel agreed and advocated in favor of a public reprimand, contending that the evidence showed that the attorney had "not defrauded anyone" and had entered a "plea of convenience."
The court strongly disagreed, concluding that the guilty plea foreclosed arguments favoring actual innocence.
According to the court, while Disciplinary Counsel plays a "crucial role" in bar discipline matters that entitle its views to the "strongest consideration," it is the court that is the ultimate decisionmaker in attorney misconduct matters.
There is a lesson here - when an attorney is convicted of a crime by plea or trial, courts imposing bardiscipline will not entertain a claim of innocence. (Mike Frisch)
Monday, August 11, 2014
The Connecticut Appellate Court affirmed the findings of misconduct and suspension of five months imposed by the superior court, rejecting a host of contentions of the sanctioned attorney.
It all started in a jazz bar.
The attorney met a couple at the bar who were having marital problems. He and the couple began a social relationship which led to an intimate but non-sexual relationship with the wife.
In her home on several occasions, they held hands, shared wine, "with candles, music and lights dimmed... Their first kiss came on such an occasion on September 24, 2010."
In December 2010, the husband came home and found the two in the above-described "ambience" and was less than pleased.
The husband then moved to disqualify the attorney. The motion was granted.
The superior court held, and the court here agreed, that the attorney's advice to the wife in the divorce amounted to a concurrent conflict of interest and was prejudicial to the administration of justice.
The court here held that the "conduct prejudicial" rule was not void for vagueness and that the attorney's due process and association rights were not violated.
Further, the superior court properly exercised its discretion in imposing sanction.
The ABA Journal reported on the charges in December 2011
The Connecticut Law Tribune reported on Zelotes’ case earlier this month. The disciplinary panel said the evidence was insufficient that Zelotes’ relationship with the woman was sexual. (Zelotes had admitted that the relationship was “intimate” but denied it was sexual.) But the panel found nonetheless that the “burgeoning romantic and intimate relationship” materially limited the representation.
According to the disciplinary panel, Zelotes explained why he thought an intimate relationship with clients is not problematic. “When you are representing someone you have love and affection for, you’re going to work twice as hard and there’s no question about it. It is not a detriment to the relationship,” Zelotes reportedly said. “My advice to a woman going through a divorce is, find a competent trial lawyer and make him your boyfriend.”
Zelotes told the Norwich Tribune that the disciplinary panel report was “replete with errors” and he’s willing to take the issue all the way to the U.S. Supreme Court.
An announcement of new leadership for the National Organization of Bar Counsel from the web page of the Pennsylvania Disciplinary Board
The Disciplinary Board of the Supreme Court of Pennsylvania’s Deputy Chief Disciplinary Counsel, Paul J. Burgoyne has been elected to serve as President-Elect of the National Organization of Bar Counsel (NOBC). In this role, he will serve as the Chair of the Program Planning Committee, as well as serve in the absence of NOBC President, Tracy Kepler. In August 2015, he will become President of NOBC. Previously, Burgoyne served as Treasurer (2013-2014) and Secretary of the NOBC (2012-2013) and served two terms as a Director-at-Large (2007-2009, 2010-2012)...
For more than 32 years, Burgoyne has worked in the Office of Disciplinary Counsel (ODC) in Pennsylvania and has served as Deputy Chief Disciplinary Counsel since 1993. Overseen by the Disciplinary Board of the Supreme Court of Pennsylvania, ODC investigates complaints against attorneys, and when appropriate, prosecutes. In his role, Burgoyne is also responsible for providing educational programs for attorneys and consumers.
“I believe that membership in NOBC is necessary for every lawyer in attorney regulation,” said Burgoyne. “As the practice of law becomes more national and international, the relationships among the member jurisdictions are integral to performing our jobs.”
Prior to his position as Deputy Chief, he was a staff counsel in the Philadelphia office beginning in 1981, and later served as Counsel-in-Charge of the Philadelphia office from 1987 to 1993. He spent five years in private practice limited to criminal law, and three years at Legal Aid of Chester County in West Chester, Pa. Those positions provided experience trying cases in both state and federal courts.
In addition to serving the NOBC, Burgoyne has conducted seminars and participated in panels for organizations such as the Association of Professional Responsibility Lawyers, Pennsylvania Association of Criminal Defense Lawyers, Defender Association of Philadelphia, Conference of County Bar Leaders and the National Association of Legal Secretaries.
Burgoyne received his Bachelor of Arts in Political Science from LaSalle University in 1970, and iscurrently the Immediate Past President of the La Salle University Alumni Association Board of Directors and Chair of the Counsel of Past Presidents. He earned his Juris Doctorate degree from Rutgers University Law School in Camden, N.J., in 1973.
Congrats to Paul and the NOBC for a fine choice. (Mike Frisch)
Sunday, August 10, 2014
An attorney convicted of grand larceny in the second degree has been disbarred by the New York Appellate Division for the Fourth Judicial Department.
Syracuse.com had the story, which involved the attorney and her spouse stealing over $400,000 from the United Methodist Church of Manilus
The couple was originally indicted in October 2013 for thefts from January 2008 to March 2013.
Prosecutors say the couple wiped out the church's endowment in three ways:
1. By writing checks to Osborn's business
2. By writing checks to Osborn himself
3. By writing checks to Meyer
[Attorney] Meyer was church treasurer and Osborn was chair of the finance committee. They served as each other's checks and balances.
The couple wiped out the church's endowment fund. Much of the money was from people who left it to the 150-year-old church in their wills. The fund was used to pay for programs that help people in need locally and around the world.
In New York, disbarment is mandatory for conviction of a felony under state law. (Mike Frisch)
The Minnesota Supreme Court has held that a panel of the Lawyer Professional Responsibility Board acted in an "arbitrary and capricious" manner in bifurcating disciplinary charges against an attorney.
The attorney (not identified by name in the opinion) was accused of violating Rule 8.4 (dishonesty) and 1.5(e) (fee-splitting with an associate from another firm).
The associate staffed his/her law firm's intake hot line. Over drinks, the associate and the accused attorney reached an agreement by which cases the firm declined were referred to the accused attorney in return for a share of any resulting fees.
The law firm filed the bar complaint.
The panel ordered a private admonition for the fee-splitting and authorized charges for dishonesty. The basis for the dishonesty charge was the accusedattorney's failure to advise clients of the fee arrangements.
The law firm appealed to the court, contending that the bifurcation of the charges was arbitrary and capricious.
The court agreed, holding that the disciplinary panel was required to consider the allegations as a whole.
The court vacated the admonition and ordered that the two charges be heard in a single matter.
This principle - that charges of misconduct against an attorney should be heard in a single matter - is an important one that allows the disciplinary system to see the full picture of an attorney's possible misconduct.
I handled a bar prosecution many years ago where there were allegations of both misconduct and mental disability. The hearing committee and the Board on Professional Responsibility held that the matters must proceed on separate tracks. The D.C. Court of Appeals disagreed and remanded for a single hearing where the issues of misconduct and mental health were considered in a single tableaux.
My case is In re Robert Stone. (Mike Frisch)
Saturday, August 9, 2014
The Louisiana Attorney Disciplinary Board has recommended that a disbarred attorney be permanently disbarred for a post-disbarment criminal convition.
The attorney was disbarred after his conviction on charges that he stole a two-gallon gasoline can from his father.
He also broke one of his father's fingers in the encounter.
Here, he was stopped while driving on a suspended license. He told the arresting officers that there were narcotics in the car. The narcotics were approximately 2000 Xanax pills. He pled to drug possesssion charges.
A hearing committee had proposed that this most recent conviction be held for consideration if he ever sought to get his license back.
The board here concluded that enough is enough. (Mike Frisch)
Friday, August 8, 2014
In a case involving whistleblower claims arising from the alleged mistreatment of laboratory mice, the Maine Supreme Judicial Court affirmed judgment for the defendant.
The court did, however, suggest that defense counsel had improperly vouched for his witnesses.
His offending argument
I presented my, I call them my four gals. I’ve known them now for three years since this litigation has started so we’ve grown quite close. So I presented my witnesses. They’ve come before you. They’ve testified. You assess what their intent was. I told you when I opened we want you to find the truth. We’re not afraid of the truth. Find the truth. They told you what they did . . . We’ve shown you who they are. Not in snippets of little testimony from depositions. They came in person and they told you.
The court held that the issue was not properly preserved by objection. (Mike Frisch)
The web page of the Pennsylvania Disciplinary Board reports that an attorney was recently placed on disability inactive status.
Philly.com has some information about the attorney in a June 2014 post
Less than two weeks after she was arrested for allegedly threatening Philadelphia Common Pleas Court Judge Jeffrey Minehart on Twitter, Jennifer Mondesire, the daughter of suspended Philadelphia NAACP leader Jerry Mondesire, has been released on bail.
According to court records, Mondesire, 35, was deemed incompetent after a mental health evaluation, and Judge Marsha Neifield reduced her bail. She has been ordered to comply with in-patient treatment and to stay off all social media.
Mondesire’s Twitter feed, since deleted, contained several messages mentioning Minehart, including at least one direct threat on his life. When reached in his chambers after the arrest, Minehart, who presided over the Kermit Gosnell trial, told us that he didn’t even know what Twitter was and said he had no idea why Mondesire would target him.
Unusually, the Philadelphia Police Department directed all calls about Mondesire to Tasha Jamerson, spokesperson for District Attorney Seth Williams. Normally after an arrest, police release basic details about the defendant and the charges against them — including when mental health issues are involved — but police refused to do so in this case.
Also unusual, police have not released a mugshot of Mondesire and haven't been able to offer an explanation as to why. [UPDATE: Police now say that Mondesire was never photographed, even though she was in custody for more than a week.]
Mondesire's next court date is July 9th. She faces charges of harassment, terroristic threats and marijuana possession. Judge Neifield has sealed the case.
Meanwhile, reports have surfaced that Pennsylvania Attorney General Kathleen Kane has been reviewing a 2009 probe of Jerry Mondesire's finances. And AxisPhilly has been asking a lot of questions about Next Generation Community Development Corporation, the non-profit he created in 1999.
Jerry Mondesire has not responded to requests for comment, and Jennifer Mondesire was unable to be reached.
CNN Justice had this report on the Gosnell case. (Mike Frisch)
The New York Commission on Judicial Conduct has censured a town court justice who imposed sentences in excess of the legal limit in 791 matters.
Respondent testified that he was "shocked" when he learned of the sentencing errors. He itnposed the fines and surcharges from melnory instead of relying on the resources available to him. He acknowledged that "too many mistakes" were made and attributed his errors to "oversight," "mental lapse," "not paying attention," "mis-memoriz[ing] the law," "being overloaded" and "judicial error." He believed that he devoted sufficient time to his judicial duties (about 20 hours a week), but testified that even if he had worked longer hours, "I probably still would have made some mistakes"; he stated, "It's impossible not to make a mistake." He noted that for several months during this 29-month period, he was also doing the work of his co-judge who was unavailable.
The commission also rejected the contention that the fault lay with staff
While respondent attributes many of these unlawful dispositions to the unauthorized actions of his staff, as a judge he bears full responsibility for his clerks' conduct. This is especially so where, as the referee found, the record shows that during this period respondent did "little to nothing" to supervise his clerks, such as reviewing fine notices before they were sent or providing internal controls or written policies or procedures relating to the processing of cases (Report, p 5). Indeed, not until June 2013 three years after being served with formal charges addressing the sentencing errors he attributed to his clerks did respondent prepare a written "Policy Statement" for his staff, describing the court's procedures for handling traffic cases and making it clear that the judge imposes all fines. In view of his ethical obligation to ensure that those subject to his direction and control follow the law and "adhere to the standards of fidelity and diligence that apply to the judge" (Rules, §100.3[C]), respondent is responsible for the sentences imposed by his court staff.
The commission also rejected the contentions that the defendants had an appellate remedy for the excessive sentences and that, in order to discipline him, his motives must have been "vile, improper or impure." (Mike Frisch)