Sunday, November 13, 2016

Facebook And Judicial Ethics

A recent decision of the Texas State Commission on Judicial Conduct orders a reprimand and education requirements of a justice of the peace.

Two of the counts involve misconduct in cases in which the judge presided. 

The third charge is more interesting

Judge Uresti has a public Facebook page that identifies her as: “Yolanda Acuna Uresti – Judge Elect for JP Pct. 4 Pl. 2.”

The page includes her photo and identifies her as a “politician.”

Judge Uresti has not utilized available privacy settings that would prevent members of the public from accessing and viewing her Facebook page.

On June 4, 2014 and July 1, 2014, while a candidate for judicial office, Judge Uresti’s Facebook page included links, photos, and posts promoting the real estate business of Jennifer Uresti, the judge’s daughter-in-law.

On March 3, 2014, while a candidate for judicial office, Judge Uresti’s Facebook page included a link, photo, and post promoting a former judge’s business as a wedding officiate.

In her written responses to the Commission’s inquiry, Judge Uresti acknowledged that she had a Facebook page, but denied that she was identified on that page as a “politician,” despite the fact that her Facebook page expressly included the description of her as a “politician.”

Further, Judge Uresti denied responsibility for the Facebook posts promoting the businesses of Jennifer Uresti and the former judge, claiming the posts were “illegal,” “unauthorized,” and the result of someone “hack[ing]” her Facebook page.

According to Judge Uresti, none of the posts promoting these businesses were ever accessible to the general public.

Although Judge Uresti claimed to have deleted her Facebook account, as of the date of this sanction it remains accessible.

When asked if she reported the “hacking” of her Facebook account to the appropriate authorities, Judge Uresti stated that she had not.

Judges and Facebook

With regard to the Facebook posts that promoted the financial interests of her relative and a former judge, the Commission notes that at the time of the original posts, Judge Uresti was a judicial candidate and not yet a judge. While the Commission does not have jurisdiction over the pre-bench conduct of a judicial candidate, Judge Uresti’s failure to remove the posts from her public Facebook page after she assumed the bench in 2015, and the fact that these posts continue to be visible to the public sixteen months into her term as judge, even after the Commission brought the concerns to the judge’s attention, constitutes a continuing violation of the canons. Viewers of Judge Uresti’s public Facebook page would continue to perceive that Judge Uresti has lent the prestige of her judicial position to advance the private financial interests of these individuals and has conveyed or permitted others to convey the impression that they were in a special position to influence the judge.

Sanction

In condemnation of the conduct described above that violated Canons 2A, 2B, and 3B(2) of the Texas Code of Judicial Conduct, and Article V, §1-a(6)A of the Texas Constitution, it is the Commission’s decision to issue a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION to the Honorable Yolanda Uresti, Justice of the Peace, Precinct 4, Place 2, San Antonio, Bexar County, Texas.

Pursuant to this Order, Judge Uresti must obtain eighty (80) hours of instruction by repeating the curriculum provided by the Texas Justice Court Training Center for new judges, in addition to her required judicial education for Fiscal Year 2017. Such training may be obtained at the judge’s own expense or at the expense of Bexar County if so approved.

Judge Uresti shall complete the additional eighty (80) hours of instruction by May 1, 2017. It is Judge Uresti’s responsibility to contact the Texas Justice Court Training Center and schedule her attendance at each of the programs designated for new judges, starting with the Stage I seminar scheduled for December 11-15, 2016, in Austin, Texas.

Upon the completion of the eighty (80) hours of instruction described herein, Judge Uresti shall provide the Commission with a certificate of completion from the Texas Justice Court Training Center, along with the completed Respondent Judge Survey indicating compliance with this Order. Failure to complete, or report the completion of, the required additional education in a timely manner may result in further Commission action.

Pursuant to the authority contained in Article V, §1-a(8) of the Texas Constitution, it is ordered that the actions described above be made the subject of a PUBLIC REPRIMAND AND ORDER OF ADDITIONAL EDUCATION by the Commission.

Failure to cooperate with the investigation was treated as an aggravating factor. (Mike Frisch)

November 13, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Bar Discipline In Action

For those who have never seen an oral argument before the District of Columbia Board on Professional Responsibility (and wish to cure this deficiency), be there this coming Thursday at 2 p.m. for the oral argument on the hearing committee report in the case of former Judge Roy Pearson in connection with the so-called Pants litigation.

Board Oral Arguments are held in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals located at 430 E Street NW, Washington, DC 20001.

Please contact the Office of the Executive Attorney at (202) 638–4290 to confirm the date, time, and location of Board oral arguments, as schedules are subject to change. 

Our prior coverage of the disciplinary case is linked here and here. 

One of the issues is the inexplicable and inexcusable delay in bringing bar charges.

My take from one of the above-linked posts

The case -  where the facts were largely uncontested and which was the focus of national scrutiny in a bygone age - took seven years for now-Disciplinary Counsel to file charges.

In other words, business as usual.

I for one am eager to hear whatever excuse/explanation is offered for the delay other than "sorry" and "no harm/no foul." 

Unfortunately, there is no publicly-available remote access to these BPR oral arguments.

In the interest of transparency (to which much lip service is paid without any real commitment to delivering public information), there should be. (Mike Frisch)

November 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, November 12, 2016

Call for Proposals: Institute for Law Teaching and Learning’s Summer '17 Conference

The conference, “Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302,” will take place July 7-8, 2017 at the University of Arkansas at Little Rock William H. Bowen School of Law. 

The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,”  such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.” The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills. The deadline to submit a proposal is February 1, 2017. Submit proposals via email to Kelly Terry, Co-Director, Institute for Law Teaching and Learning, at ksterry@ualr.edu.

A Word doc -- Download CFP Summer 2017 Bowen Conference -- has full information on proposals, or attending. Enjoy! [Alan Childress]

November 12, 2016 in Conferences & Symposia | Permalink | Comments (0)

Friday, November 11, 2016

Whatmore Can I Say?

A now-retired attorney who failed to disclose adverse authority in a "driving while disqualified" case was reprimanded by the Law Society of Saskatchewan. 

The evidence tendered on behalf of the Investigation Committee was largely comprised of the transcript of a trial in the Provincial Court of Saskatchewan at Kindersley on March 18, 2014, on a charge of driving while disqualified.  The Member represented the accused at the trial.  At the close of the Crown’s case the member made what turned out to be an unsuccessful application for non-suit.  One of the arguments he advanced in support of his application was that the Crown had failed to satisfy an onus to prove that, at the time of the alleged offence, the accused was not registered in Saskatchewan’s alcohol ignition interlock device program.  The court ultimately held that the Crown bore no such onus and dismissed the non-suit application.

In support of this argument, the Member referred the court to an annotation to the offence section in Alan D. Gold, The Practitioner’s Criminal Code(LexisNexis, 2013 Edition).  The annotation reads in part:

On a charge of operating a motor vehicle in Canada while disqualified from so doing, contrary to s. 259(4) of the Criminal Code, the Crown was required by the terms of s. 259(4) to prove, as elements of the offence, that the accused was not “registered in an alcohol ignition interlock device program established under the law of the province in which the [accused] resides” and, if the accused was so registered, that the accused was not in compliance with the conditions of that program.

This excerpt was linked to a footnote containing the following list of cases and further commentary:

  1. R. v. Lariviere (2000), 2000 CanLII 8295 (QC CA), 38 C.R. (5th) 130, [2000] Q.J. No. 3086 (Que. C.A.); R. v. Liptak, [2009] A.J. No. 1271 (Alta. Prov. Ct.); Contra R. v. Whatmore, 2011 ABPC 320 (CanLII), [2011] A.J. No. 1147 (Alta. Prov. Ct.) (onus on accused to prove registration and compliance with interlock program).

Neither the trial judge nor the prosecutor had a copy of this same annotated Criminal Code and the Member did not have copies of the relevant pages to provide to them.  Consequently, they were not able to follow along as the Member made his submissions in relation to the annotation.

The Formal Complaint rests on the manner in which the Member advanced the principle contained in the above-referenced annotation and his reference to the Lariviere and Liptak decisions in support of the principle, while failing to mention the more recent decision in Whatmore rejecting the principle.

As the Member began advancing the principle and referring to Lariviere, it was clear the trial judge was struggling, both to be sure he understood the argument and then to accept it.  He indicated to the Member that he was unaware of the case and was surprised by the principle for which it was being cited.  He indicated he would have to read the case.  However, the Member did not have a copy of either this case or the Liptak

The Member went on to cite Liptak as further authority for the same principle.  However, he made no mention of the Whatmore decision. 

The non-disclosure came to light when the trial judge took a recess and asked to see the member's annotated copy of the code provision.

The reasoning

The facts central to the determination of the complaint are not in issue.  The Member acknowledged he was aware of the Whatmore decision, which was adverse to the position and the case authority he was citing.  While he may have suggested to the trial judge that his failure to mention Whatmore was innocent, this position is not tenable when considering the whole of the discussion recorded in the transcript, and counsel for the Member did not advance this in the Hearing...

 To act “fearlessly” on behalf of a client charged with a criminal offence is a useful and powerful characterization of the lawyer’s obligation to his or her client.  However, it must be tempered by the lawyer’s other potentially competing obligations. 

Counsel for the Member expressed concern that a finding of conduct unbecoming here would cast too wide a net and necessitate discipline proceedings in multiple cases in the future.  We acknowledge the validity of a cautionary note and the importance of striking an appropriate balance.  That balance must be found by criminal defence counsel, by judges hearing criminal cases and by the Law Society when it considers a complaint, including in the initial stages of a complaint.  The balance may be difficult to find at times.  However, we do not see this is as one of those times.  There are two factors present here that will separate this case from many others.

  First, the authorities, for and against, were relevant to an issue the Member placed before the court.  Neither the trial judge nor opposing counsel would reasonably have anticipated a need to address the issue and prepare accordingly.

Secondly, the trial judge clearly demonstrated to the Member that he wanted more input in relation to the position the Member was advancing and the two cases supporting it.  It is difficult to understand how the Member could not conclude the court would be keenly interested in knowing of the contrary authority of which the Member was clearly aware.

Sanction

Having considered the circumstances of this case within the context of those cases, we find that the recommended penalty of a reprimand falls within an appropriate range.  We find as well that the recommended penalty is neither unfit nor unreasonable nor contrary to the public interest.  Our conclusion in this respect is based in part on the fact the Member is retired.  Consequently, we accept the recommendation.

(Mike Frisch)

November 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Shoplifting Shoes Leads To A Pair Of Disbarments

Reciprocal discipline has been ordered in Pennsylvania based on an attorney's recent Alaska disbarment.

The July 2016 Alaska Supreme Court decision tells the story of conduct that led to a consent sanction there

On December 30, 2010, Pohland and a friend entered a store with shopping carts and reusable shopping bags. The women obtained a wire cutter from the hardware section of the store and used the wire cutter to cut security tags off of shoes. The women put the shoes into the reusable shopping bags and returned the empty shoe boxes to the shelves. They added items from throughout the store to the bags. They concealed a total of $1,020.08 of merchandise in the reusable bags and combined the bags into one cart. Pohland's friend pushed the cart out of the store without paying for the merchandise. Pohland accompanied her.

Store policy is to stop and arrest the person pushing the cart. Pohland's friend was detained. Pohland was allowed to leave the premises before police arrived.

Surveillance video documented the actions of the two women. Persons watching the video during a monthly meeting between Loss Prevention employees of the store and Anchorage Police Department detectives were able to identify Pohland as a good friend of and current tenant living in an apartment at the house of the woman who had been detained.

At the time of the shoplifting incident, Pohland was an attorney at the Alaska Department of Law and her friend was working for the Alaska State Employees Association (ASEA).

On September 9, 2011, Pohland pleaded guilty to concealment of merchandise in violation of AS 11.46.220(a) and AS 11.46.220(c)(2)(A), a misdemeanor shoplifting offense.

The court sentenced Pohland to 90 days in jail with 90 days suspended. She was ordered to perform 100 hours of community service and placed on a three-year probation.

There were other violations involving misuse of her official position as a state government attorney.

As an assistant attorney general Pohland provided legal advice and counsel to the Alaska Department of Labor and Workforce Development. In June 2010, the staff of the Alaska Labor Relations Agency (ALRA) met with Pohland to discuss their concerns about potentially forged interest cards used to support a demand for an election to organize several hundred employees of the University of Alaska. The staff discussed their suspicions that Pohland's friend was involved in the submission of forged interest cards.

Pohland provided legal advice to ALRA staff on multiple occasions between June 9 and June 24, 2010. At trial, two assistant attorneys general and the former assistant commissioner for the Department of Labor and Workforce Development testified that Pohland consulted with them about the forged interest cards and how to handle the issue. At the time she provided legal advice to the ALRA staff, Pohland engaged in regular text messages with her friend about the petition prepared by the ASEA.

In August 2010, a former employee of the ASEA notified Alaska State Troopers to report her concerns about the allegedly forged interest cards. Following a criminal investigation, the State charged Pohland and her friend with criminal misconduct. On February 25, 2013, Pohland's friend was convicted of forgery in the second degree, a class C felony.

On October 21, 2015, following trial, a jury convicted Pohland of official misconduct, a class A misdemeanor. She was sentenced to 120 days in jail with 120 days suspended. She was fined $5,000 with the fine to be offset by restitution due to ALRA on August 21, 2018. Pohland was placed on probation for three years.

And

During investigation of Pohland for official misconduct, evidence was discovered that Pohland and her friend engaged in multiple shoplifting thefts and that the single act of theft when she was caught was not an isolated act as Pohland represented to the court.

ADN.com reported on the official misconduct charges.

A former assistant attorney general and her union organizer friend are facing criminal charges in an alleged 2010 scam to inflate the number of state employees interested in joining a union.

It's not the first time the pair have been named together in a charging document.

Last January, Anchorage police charged former state labor lawyer Erin Pohland, 32, and ex-union organizer Skye Rubadeau McRoberts, 31, with stealing more than $1,000 in shoes from a Fred Meyer store. Both later pleaded guilty.

The current charges accuse McRoberts of felony forgery and business record falsification and Pohland with misdemeanor official misconduct, all related to an effort by the state's largest union to organize University of Alaska employees.

KTVA Alaska reported on the disposition of these charges.

Judge Jo-Ann Chung sentenced Pohland to a $5,000 fine and a suspended jail sentence. Although she faced up to a year in jail, Chung said jail time was not warranted even though Pohland was convicted of a “serious charge,” the DOL statement says. Pohland was also placed on informal probation for three years.

“Judge Chung determined that a suspended imposition of sentence was not warranted, which leaves Pohland with a permanent record for her conviction,” the DOL says. “Judge Chung explained that this case was about ‘public trust’ of the Alaska Attorney General’s Office.”

(Mike Frisch)

November 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Bar Complaint From Ex-Husband's Girlfriend Leads To Suspension

The Iowa Supreme Court is having a big bar discipline day with four published opinions.

This case involves an attorney who had failed to pay taxes for an extended period of time and split the court on sanction with the majority imposing at least a six-month suspension.

The attorney had stipulated to the facts

After the parties submitted briefs on the question of the appropriate sanction, a division of the grievance commission held a hearing to determine what sanction it would recommend to this court. By the date of the hearing, Taylor had already filed her federal and state income tax returns for tax years 2003 through 2013.

During the hearing, Taylor testified regarding her work and personal history, the circumstances that led to her failure to file her federal and state income tax returns, and the recent efforts she had made to address her outstanding tax liabilities with federal and state authorities. Taylor also expressed remorse for her actions, acknowledged her conduct violated her ethical obligations, and accepted responsibility for her actions without attempting to offer excuses or shift blame to others.

In 1997, Taylor was married. A few years later, in approximately 2002, her husband stopped earning a regular income. In 2004, the couple believed they did not have the money to pay their income taxes. Consequently, they procrastinated on filing their federal and state income tax returns for tax year 2003. Towards the end of her marriage, finances became a major issue. Taylor and her husband struggled to pay their bills for the next several years. They consistently failed to file their federal and state income tax returns.

In 2010, Taylor filed a petition for dissolution of the marriage. It had been approximately nine years since her husband had earned a regular income, and the couple had failed to file federal and state income tax returns for years. The court dissolved the marriage. The decree entered by the district court upon the dissolution of the marriage ordered Taylor and her former husband to file their outstanding federal and state tax returns separately.

Following the entry of the dissolution decree, Taylor and her former husband shared joint legal custody and joint physical care of their two minor children, and Taylor paid her former husband $657 per month in child support. Though Taylor initially began working with an accountant to file her delinquent tax returns, she ultimately persisted in her failure to file the returns despite the court ordering her to file them in the dissolution decree.

In 2014, Taylor became concerned the relationship between her former husband and his girlfriend had caused his relationship with their children to deteriorate. In August, Taylor informed her former husband that she was contemplating filing a petition to modify the joint physical care award in the dissolution decree. The following day, her former husband’s girlfriend filed a complaint with the Board alleging Taylor had not filed her income tax returns for tax years 2002 through 2007.

Taylor eventually filed a petition seeking modification of the joint physical care award in the dissolution decree. Following a child custody modification hearing, a district court awarded Taylor primary physical care of her minor children. Months later, her former husband began paying her $752 per month in child support. The court of appeals subsequently upheld the district court decision awarding Taylor physical care of the minor children. Thus, at the time of her hearing before the grievance commission, Taylor resided in a rented house in Waukee with her two minor children and an adult son who was in college.

Upon learning the complaint alleging she failed to file her tax returns been filed with the Board, Taylor responded in writing. In the response, Taylor acknowledged she had failed to keep current on filing her federal and state income tax returns, indicated she had already hired an accountant to assist her with preparing the delinquent returns, and anticipated she would file the delinquent returns within thirty days.

Though Taylor stated she accepted full responsibility for her actions, she also indicated she believed her former husband’s girlfriend filed a complaint against her with the Board in an attempt to destroy her law practice and get even with her for issues related to the custody dispute. Following its investigation, the Board filed a formal complaint against Taylor with the grievance commission on June 30, 2015. 

The majority on sanction

We conclude the one-month suspension the grievance commission recommended is an inadequate sanction based on the following significant aggravating circumstances present in this case. The period during which Taylor persisted in failing to file her tax returns far exceeds the period during which the attorney in Schall failed to do so. See Schall, 814 N.W.2d at 214 (suspending attorney’s license for a minimum of six months). Moreover, though only the attorney in Schall engaged in additional conduct that clearly constituted an independent violation of our ethical rules, see id., Taylor repeatedly violated a court order when she persisted in her failure to file her tax returns after the court issued the dissolution decree. We also find Taylor’s conduct is not as egregious as the conduct in Cross. Cross involved trust account violations and misrepresentations on his client security commission form. 861 N.W.2d at 218–30. In Cross, we suspended Cross’s license for only one year. Id. at 230.

Were it not for the numerous mitigating circumstances counseling in favor of a lighter sanction in this case, we would conclude a suspension longer than that we imposed in Schall to be appropriate. In light of those mitigating circumstances, however, we conclude a sanction in line with the one we imposed in Schall to be appropriate. We therefore conclude suspending Taylor’s license to practice law for at least six months is the appropriate sanction for her misconduct. 

Justice Waterman

I respectfully dissent because the majority’s six-month suspension is too lenient in light of our precedent. Attorney Taylor willfully failed to pay any self-employment taxes or income taxes or file her state and federal tax returns for eleven years. The majority acknowledges without elaboration that “Taylor had a substantial income over this time period that would have allowed her to pay her taxes.” Her actual income, of course, is relevant to the sanction. This is not a case where the lawyer failed to realize her income was high enough to require a tax return, or where the lawyer was incapacitated or financially unable to pay. In fact, Taylor’s net business income averaged $138,000 annually. She knowingly failed to pay tens of thousands of dollars owed to our state and federal governments every one of those years. She candidly admitted in 2015 that she “managed to increase [her] disposable income by thirty or forty percent each year by not paying income tax.” Specifically, her tax accountant belatedly determined that during the years 2003 through 2013, she owed state taxes totaling $83,048 and federal taxes totaling $385,025, for a combined total of $468,073 exclusive of interest and penalties...

What we said in Bromwell remains true: There is “no significant moral distinction between willfully cheating a client and willfully cheating the government.” 221 N.W.2d at 780; see also Katz, 116 A.3d at 1013 (holding cheating the government “is equally as reprehensible as cheating a client”).

For these reasons, I would impose a one-year suspension.

Justice Zager joined the dissent. (Mike Frisch)

November 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Legal And Illegal Stealing In Iowa

In a case that may signal a future "sea change" in sanctioning conversion, the Iowa Supreme Court has rejected a proposed reprimand in favor of a short suspension

This attorney disciplinary case arises from a lawyer’s missteps that resulted in the dismissal of an appeal. His clients disputed the amounts their business owed to the plaintiffs in a mechanic’s lien action and went to trial against his advice. The clients were disappointed in the trial outcome and chose to appeal but fell behind in paying his legal fees. The court reporter insisted on an advance payment of $1400 to prepare the trial transcript required for the appeal, and the clients tendered that amount to the lawyer. The lawyer failed to pay the court reporter. Seven weeks later, our court granted the appellees’ motion to dismiss the appeal after extended deadlines to file the transcript were missed. The lawyer applied the $1400 against the fees his clients owed him, prompting the ethics complaint prosecuted by the Iowa Supreme Court Attorney Disciplinary Board. The Grievance Commission of the Supreme Court of Iowa found the attorney violated several disciplinary rules and recommended a public reprimand. On our de novo review, we conclude the attorney violated several rules and suspend his license to practice law for thirty days.

The attorney was admitted in 1989 and practices commercial law. He had assumed the representation when another attorney unexpectedly died. 

He admitted most of the facts and the court found

...Morse and his clients understood the $1400 check he received January 4, 2013, was to pay for the trial transcript. Morse never forwarded that payment to Hayes, despite receiving the $1400 check seven weeks before we dismissed the appeal for failure to file the transcript. He had ample time to verify the $1400 check had cleared. We conclude Morse violated all four disciplinary rules. Lawyers are not required to advance costs and may withdraw from a case on grounds of nonpayment subject to the provisions of rule 32:1.16. See Iowa R. Prof’l Conduct 32:1.16(b)(5), (c), (d). But Morse crossed the ethical line by pocketing his clients’ $1400 payment intended for the court reporter—resulting in dismissal of the appeal his clients had chosen to file.

The court rejected a claim of entitlement based on the general lien provisions of the retainer agreement

The Stephensons sent Morse the $1400 payment for a special purpose—to pay for the trial transcript needed for their appeal. Morse failed to forward the money to the court reporter for seven weeks before the case was dismissed. This violated the Stephensons’ reasonable expectations that their $1400 payment would go to the court reporter. We agree with the commission and Board that Morse violated rule 32:1.15(d) by failing to promptly forward the funds to Hayes. Morse’s inaction resulted in dismissal of the appeal and thereby thwarted the special purpose for which the funds were tendered. We decline to reward his misconduct by allowing him to assert his lien against funds tendered for a special purpose he thwarted.

On sanction

Morse, denying any ethical violation, seeks dismissal of the charges against him. The Board did not recommend a specific sanction in its appellate brief but asked us to consider the harm to Morse’s client, his failure to admit the wrongfulness of his conduct, his prior disciplinary record, his experience, and the multiple rule violations as aggravating factors. At oral argument, the Board urged that a suspension would be an appropriate sanction...

Morse has received three private reprimands during his twenty-six years of practicing law. He was privately admonished in 1999 for overcharging a client for a transcript. In 2006, he was privately admonished for failing to file a lawsuit within the statute of limitations after the client reneged on payment obligations. In 2002, Morse received a private admonition based on his failure to comply with appellate deadlines that resulted in dismissal of an appeal for want of prosecution. That admonition is an aggravating factor here because it reminded Morse that failing to follow court deadlines to prosecute a client’s appeal violates our disciplinary rules. Although “ ‘[p]rivate reprimands are not discipline,’ they provide notice of deficiencies in regards to particular ethical requirements by attorneys.”

Mitigation

Morse grades bar exams every year, and he takes bankruptcy cases from the Volunteer Lawyers Project annually. He regularly volunteers at a booth that gives free legal advice for Alcoholics Anonymous and Narcotics Anonymous participants on debtor/creditor or landlord/tenant issues. Morse is also the president of the Family Promise of Greater Des Moines homeless shelter.

Justice Zager concurred and notes that the attorney was not charged with conversion

I write separately to express my general agreement that it may be time to reevaluate our approach to cases involving misappropriation and conversion of funds as advocated by Justice Wiggins in his dissent. However, this can only be done when there is a properly charged and litigated case of alleged lawyer misappropriation or conversion of client or third-party funds. The dichotomy of legal versus illegal stealing has long troubled some members of the court and the bar. But this is not the case where such a sea change in our disciplinary analysis should occur. As with any dramatic change, we prefer to take a thoughtful and incremental approach after a full development of the facts, arguments, and law are completed. See, e.g., Miranda v. Said, 836 N.W.2d 8, 17–22 (Iowa 2013) (discussing the gradual-change approach to developing contract and tort law). Another approach that could be considered is rulemaking where all interested parties may give input into what standards and analysis of discipline for lawyers should apply. These approaches provide fairness and justice to the Board and the lawyers in this state. I think it is time to begin this discussion.

Justice Wiggins concurred and dissented

In the past, our court has determined a sanction when an attorney has misappropriated client’s funds by distinguishing between what I label “legal stealing” and “illegal stealing.” “Legal stealing” allows an attorney to receive a lesser sanction when the attorney misappropriates a client’s funds so long as the attorney has a colorable future claim to the funds misappropriated. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lubinus, 869 N.W.2d 546, 552 (Iowa 2015). However, if an attorney commits “illegal stealing” and misappropriates funds without a colorable future claim to the funds, we revoke that attorney’s license. Id.

...the distinction between legal and illegal stealing is absurd. A person who knowingly converts the property of another does not have the character traits we want in a lawyer serving our citizens. Furthermore, the criminal law of this state does not make such a distinction for that very reason.

Justice Wiggins favors implementation of the ABA Standards for imposing discipline in such cases

The majority says there was harm to the client, but it is minimal and for this reason, Morse should only get a light suspension. I disagree. Losing the right to appeal is great harm. The right to appeal is fundamental to due process of law. The majority also concedes the district court made a math error of $1708 and acknowledges that amount would be recoverable on an appeal, but then offsets that amount against the cost of the transcript. What the majority does not realize is that if the Stephensons were successful on appeal, we would assess the costs of the appeal, including the cost of the transcript, against the other side. Additionally, $1708 may not mean much to the majority, but to persons in the Stephensons’ financial situation it is a great sum of money.

If the majority would use the objective factors of the ABA’s Standards for Imposing Lawyer Sanctions, the sanction against Morse would surely be more than a thirty-day suspension. The court should stop using the legal and illegal stealing dichotomy when sanctioning a lawyer for conversion. For these reasons, I dissent as to the sanction.

Note the dissent's shout-out to an Iowa Law Review 2015 article authored by Allison Schmidt, a recent Iowa College of Law graduate. (Mike Frisch)

November 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 10, 2016

Lies From The Pit Of Hell

The Florida Supreme Court has approved sanctions against a judge

In this case, we review the Findings and Recommendations of the Florida Judicial Qualifications Commission (JQC). The JQC recommends that Judge John P. Contini receive the sanction of a public reprimand plus the conditions that he hand deliver a written apology letter, continue active judicial mentoring for three years, set up and complete a stress management program, and be assessed the costs of these proceedings. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the JQC’s findings and recommended discipline.

The judge assumed office in January 20155

the[] violations manifested themselves threefold: (1) sending an ex parte e-mail to the Broward Public Defenders Office; (2) failing to seek a recusal or transfer when an appeal effectively froze his division; and (3) making impertinent and belittling remarks in open court about a pending matter.

The ex parte email was sent while the judge was attending judicial college. As a result

...on April 9, 2015, the State, through the Attorney General’s Office, petitioned the Fourth District Court of Appeal for a writ of prohibition seeking to disqualify Judge Contini from a list of 962 cases. On June 10, 2015, the Fourth District issued an order to show cause concerning the writ, which stayed further proceedings in the cases to which it applied. Although there was no formal stay in effect until the show cause order was issued, all parties acted as though a stay was in effect between March 26 and June 10. Judge Contini’s division—the criminal division—was essentially frozen, yet he neither recused himself sua sponte nor sought an administrative transfer. Instead, he remained within the division hoping for personal vindication.

While the judicial conduct charges relating to the email were pending

It appears that Judge Contini became increasingly frustrated until he lost his temper in open court during August 11 and 12, 2015, hearings. In one instance, he said, “And if a prosecutor, someone with the AG’s office, wants to put that person’s case on their disingenuous list of cases that are pending sentencing, that’s  a lie from the pit of hell, and that is a fraud on the Fourth [District].” He wished that the Fourth District would “spank the person who put [a case on the] disingenuous list” and “ream out the idiot who put [that case] on the list.” The assistant attorney general who signed the initial list, Heidi Bettendorf, was not present. However, Judge Contini chastised her by name for “misleading” and committing “fraud on the Fourth [District].” In another instance, Judge Contini threatened a state attorney with contempt while raising his voice and accusing him of inappropriate behavior. Judge Contini demanded that the state attorney admit to assisting Bettendorf with the creation of the list and ordered bailiffs to escort the attorney from the courtroom after the exchange.

The judge must appear before the court to be reprimanded. (Mike Frisch)

November 10, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Crime Fraud Exception Permits Civil Discovery To Go Forward

The Maine Supreme Judicial Court has in the main affirmed findings that a defendant in civil litigation could not claim attorney-client privilege with respect to certain communications that had included a third party.

Paul Coulombe and two LLCs under his control—PGC1, LLC, and PGC2, LLC—appeal from discovery orders entered in the Business and Consumer Docket (Murphy, J.) that required the disclosure of specific communications over the assertion that those communications were protected by the attorney-client privilege. Coulombe contends that the court erred in determining that (A) Coulombe’s communications with his attorney that included a third party were not privileged and (B) the crime-fraud exception to the attorney-client privilege applied to allow the disclosure of other communications between Coulombe and counsel. We affirm the judgment except with respect to one communication that we conclude the trial court must consider further on remand.

The case involves a broken promise to hire the plaintiff to manage a golf course

Relevant here, Harris alleged that Coulombe, with assistance from his attorneys, Hawley Strait and John Carpenter, was secretly seeking a different golf course manager while Coulombe was simultaneously reassuring Harris that Harris was to manage the golf course. Harris alleged that it did not learn until March 2013—after ceasing independent efforts to purchase the Club, selling nearby JJR property to Coulombe at a discount, and beginning to manage Coulombe’s golf course after Coulombe purchased the Club—that someone else, Dan Hourihan, would be hired as the manager of the course.

The court applied the crime-fraud exception

 In this context, fraud must be understood broadly “as [a] generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick,cunning dissembling, and any unfair way by which another is cheated.”

... Ultimately, in determining what must be proved for the crime-fraud exception to apply in Maine, we must balance the need for clients to have the protection of privileged communications with their attorneys in order to obtain effective representation regarding current legal concerns or any past wrongdoing, against the need to prevent attorneys in the honorable practice of law from being used to perpetrate ongoing or future wrongdoing. Striking the proper balance is critical in assuring that attorneys can serve their clients effectively without having their legal services used for fraudulent or criminal purposes.

In order to strike that balance, and to maintain the high standards of the legal profession, the focus in determining whether the fraud portion of the crime-fraud exception applies must be on the elements within the control of the client that involve either the engagement in or the planning of a fraud. Because proof of planned fraudulent activity can result in the exception being applied, fraudulent activity may, for purposes of the crime-fraud exception to attorney-client privilege, be activity that, although deceptive and fraudulent, falls short of the fully realized civil tort of fraud.

Although proof of the complete tort is not necessary for the exception to apply, a party seeking to establish that a client was engaged in or planning fraudulent activity must offer evidence of the client’s intention and expectation that the party alleging injury would rely on the client’s misrepresentations, omissions, or other deceptive actions...

 Here, the court’s findings demonstrate that it applied the proper legal test. It found, for purposes of the discovery motion, that Harris had demonstrated by a preponderance of the evidence that (a) Coulombe was engaged in or planning fraudulent activity when the attorney-client communications took place and (b) Coulombe’s communications with counsel were intended by him to facilitate or conceal the fraudulent activity.

The evidence was sufficient for discovery with a caveat

 There is one possible exception to our decision affirming the trial court’s determination, however. Although Coulombe does not specifically argue that any particular pages of the materials submitted for the court’s review were improperly included in the court’s disclosure order, one email exchange appears to be unrelated to Coulombe’s dealings with Harris and may have been inadvertently ordered disclosed. We therefore remand for the court to clarify whether it intended to include that email exchange, which appears at pages 15626 through 15633 of the materials submitted for review, in its order requiring disclosure.

 

November 10, 2016 in Privilege | Permalink | Comments (0)

The Law Of Urban Gun Battles

The District of Columbia Court of Appeals has affirmed a second-degree murder conviction on the basis of the "urban gun battle" theory of causation.

Because the decision relies on a 2005 court precedent, there is an impassioned concurrence and call for en banc consideration by Associate Judge Easterly

At the time Michael Jones was shot and killed, there were people around him shooting guns at each other. Bernard J. Fleming may have been one of the individuals shooting at Mr. Jones and his companions. No witness ever saw and no videotape ever showed Mr. Fleming shooting a gun, and he was never found in possession of a weapon. He was, however, seen with another man up on a second-floor balcony where police found bullet casings and a bullet; he was also seen before the shooting bringing an object—possibly a gun—to the balcony and removing an object when the shooting was over; and he could have hidden two guns later discovered by the police under a stairwell in the building, one of which might have been used in the shooting. But even if Mr. Fleming possessed a gun and was one of the persons shooting at Mr. Jones and his companions, no evidence connected any shot he might have fired to the shot that killed Mr. Jones. The bullet retrieved from Mr. Jones’ body was so fragmented that it could not provide  an evidentiary link to the shooter. Moreover, evidence showed that Mr. Jones was shot in the back of the head, making it possible that he was shot by Mr. Hamlin.

Nonetheless, Mr. Fleming was held accountable for Mr. Jones’ death. He was convicted of second-degree murder while armed based on the "urban gun battle" theory of causation that this court announced in Roy v. United States, 871 A.2d 498 (D.C. 2005), i.e., the proposition that a defendant who exchanges gunfire with another individual "proximate[ly] cause[s]" any death that results, whether or not the defendant fired the fatal shot, id. at 506. I assume the division is bound by this court’s decision in Roy to uphold Mr. Fleming’s conviction. But I cannot vote to affirm without commenting on the dangerous incoherence of Roy’s "causation" analysis. In truth, it dispenses with causation altogether, and, by thus reducing the government’s burden of proof for murder, captures in its net individuals who can only be proved to have committed far less serious crimes. Roy was wrongly decided. Moreover, I cannot sign on to the division’s opinion applying Roy, which effectively expands its illogic. I write separately to explain the flaws with Roy’s causation reasoning and to call for en banc review to reject Roy’s urban gun battle theory of guilt for murder.

Judge Easterly views Roy as creating a new crime

Courts may feel "pressure" to somehow find criminal liability in cases "where the culpable consequence of [the] defendant’s action is some unintended but voluntary action of another," but Professor Kadish warns that "[t]here is no way to extend liability in these cases . . . in a way that does not require a significant departure from doctrinal premises." Kadish, supra, at 399–400, 402–03. This court’s urban gun battle theory is a case in point. With no real causation  requirement (and no complicity requirement), this theory is unmoored from established common law principles of criminal culpability.

In effect, the court in Roy made a policy choice to create a new crime that allows an individual to be convicted of murder without proof that he caused (or was complicit in) a murder. If the objective was to ensure that certain homicides beget at least one murder conviction, it is antithetical to another "cardinal principle of Anglo-American jurisprudence that, in Blackstone’s immortal words, better ten guilty persons should go free than one innocent person be convicted." United States v. Greer, 538 F.2d 437 (D.C. Cir. 1976) (citing 4 William Blackstone, Commentaries on the Laws of England 352 (1769)). Indeed, the creation of this new crime leads to a perverse result: in contrast to cases where the government shoulders its burden to prove the identity of the killer, in urban gun battle cases, the government can successfully prosecute more people for murder based on far less proof. But the biggest problem with this court’s decision in Roy is that we exceeded our judicial role. It is not our job to create new crimes. We do violence to the law when we purport to apply the common law doctrine but in fact act as a legislature. Before more damage is done,24 we need a course correction. Roy should be overturned by this court en banc, not revised and effectively extended by the panel in this case.

The opinion is authored by Associate Judge Glickman and joined by Associate Judge Fisher. (Mike Frisch) 

November 10, 2016 in Law & Society | Permalink | Comments (0)

Wednesday, November 9, 2016

The Greeting Card

The Louisiana Supreme Court has disbarred an attorney for misconduct in her own divorce and her commission of other crimes

By way of background, respondent and David Molaison were married and had one child together. In May 2011, David filed a petition for divorce. Subsequent to the filing of the petition, but prior to the entry of a judgment of divorce, respondent entered into a sexual relationship with Bryan Pfleeger. In response to David’s discovery requests, respondent admitted to her adulterous relationship. Respondent provided copies of e-mails between her and Mr. Pfleeger, and a greeting card purportedly from Mr. Pfleeger as documentary proof of the relationship. Respondent signed a sworn affidavit attesting to the truthfulness of her responses to the discovery requests.

In July 2011, David filed a supplemental petition for divorce based on respondent’s adultery. The e-mails and greeting card were presented to the court as support for obtaining a divorce based on adultery.

The matter went to trial in August 2011. Respondent testified under oath that she committed adultery with Mr. Pfleeger. She also testified to the authenticity of both her e-mails to and from Mr. Pfleeger and to the greeting card she allegedly received from Mr. Pfleeger. All documents were admitted into evidence and the divorce was granted based on adultery.

The ODC has since confirmed respondent’s post-filing adultery with Mr. Pfleeger, and has authenticated the e-mails between respondent and Mr. Pfleeger regarding same. However, the greeting card that respondent attributed to Mr. Pfleeger and that she submitted to the opposing party and to counsel during discovery was found to be fabricated by respondent without Mr. Pfleeger’s knowledge or consent. Respondent allowed this false evidence to be submitted to the court during the underlying proceedings.

In September 2011, respondent e-mailed David and claimed her testimony regarding adultery with Mr. Pfleeger was false. Respondent confirmed to David that the greeting card attributed to Mr. Pfleeger was also false. In November 2011.

David informed his lawyer, Barbara Ziv, of respondent’s claim of false testimony and of the fake greeting card.

In December 2011, Ms. Ziv informed Mr. Pfleeger of respondent’s recent statements to David. Mr. Pfleeger confirmed his adulterous relationship with respondent and confirmed the authenticity of his e-mails to and from respondent; however, Mr. Pfleeger denied any involvement with the greeting card in question. Ms. Ziv then informed Mr. Pfleeger that, under the circumstances, she was obligated to file a disciplinary complaint against respondent.

During this time, respondent and David were litigating custody issues. Mr. Pfleeger informed respondent that Ms. Ziv planned to file a disciplinary complaint against her. In response, respondent instructed Mr. Pfleeger to inform Ms. Ziv that she would concede custody of the minor child to David if Ms. Ziv refrained from filing the complaint. Mr. Pfleeger, who is an attorney, was not representing respondent in the domestic litigation and was hesitant to relay this message to Ms. Ziv, but ultimately did so at respondent’s request. Ms. Ziv rejected this “offer” and filed the complaint against respondent.

In March 2012, respondent responded to the complaint filed against her by Ms. Ziv. In doing so, respondent made the following statements to the ODC:

Ms. Ziv tailored her discovery in order that a quick adultery divorce might be obtained. In these responses, I falsely claimed to have had an affair with a friend of long duration. A card was created as corroborating evidence in order to obtain the divorce quickly. This was a mistake that I do regret …

The shoplifting

In June 2005 in Honolulu, Hawaii, respondent shoplifted merchandise from Macy’s valued in excess of $300. Respondent was charged with second degree theft, pleaded no contest to the charge, and moved to defer acceptance of the plea. In September 2008, an order was signed granting respondent’s motion. During the five-year period of deferral, respondent was placed on supervised probation with specific conditions, which she completed.

The court

The evidence in the record supports a finding that respondent presented fabricated evidence to a tribunal in her own divorce proceeding, shoplifted merchandise valued in excess of $300, was arrested for multiple traffic violations including DWI, and was charged with possession of cocaine. This conduct amounts to a violation of the Rules of Professional Conduct as charged in both sets of formal charges...

Considering the totality of the misconduct in light of the aforementioned jurisprudence, we will adopt the board’s recommendation and disbar respondent.

Justice Crichton concurred.

Justice Clark dissented and would impose permanent disbarment.

The Disciplinary Board report is linked here. (Mike Frisch)

November 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Change Of Heart Is A Material Change In Circumstance

The Law Society of Upper Canada Appeal Tribunal has ordered an interlocutory suspension of an attorney who had avoided an earlier proposed suspension by claiming she had been duped by the fraud of her former romantic and law partner.

The Law Society first brought a motion for an interlocutory suspension of the respondent’s licence in March 2015. The first motion was brought relatively early in the Law Society’s investigation into alleged misappropriation of trust funds held by the now defunct Windsor, Ontario law firm of Shulgan Martini Marusic LLP (SMM). One of the three partners, Claudio Martini (Mr. Martini), admitted he had misused trust funds held for one of his corporate clients. The Law Society relied on undisputed evidence that the respondent, a partner at SMM, co-signed with Mr. Martini three cheques, totaling $1,264,108.87, by which trust funds held for the company were transferred to the firm’s general account on account of fees, at a time when the conditions for the release of fees had not been met.

As to that first motion

The Respondent says that she, like many others, was a victim of Mr. Martini’s deceitful ways. She described him as being able to win and maintain the trust of many intelligent and otherwise highly careful and perceptive people. She makes the point that the misconduct established in Mr. Martini’s previous discipline proceeding did not include any suggestion that he had misused trust funds. She deposed that she is “shocked and appalled” that she may have been asked to sign cheques transferring amounts from trust when there remained unfulfilled trust conditions, and that her personal relationship with Mr. Martini has ended. 

The basis is for the renewed motion to suspend

The respondent and Mr. Martini were two of the three partners at SMM. The partnership dissolved in early January 2015. The respondent and Mr. Martini began an intimate relationship in 2001. At the first hearing, the evidence before the panel was that the relationship ended in March 2015. As is described in more detail below, on the motion to vary the June 1, 2015 order, the respondent acknowledged that their intimate relationship resumed in August 2015...

The majority decision accepts that the resumption of an intimate relationship between the respondent and Mr. Martini is a “material change in circumstances.” As the majority noted, this is so because the First Hearing Panel placed importance on the evidence of the respondent that she and Mr. Martini had parted. However, the majority significantly understates this point. Reading the First Hearing Panel’s decision as a whole, it is apparent that the respondent’s testimony that she had ended her relationship with Mr. Martini and viewed herself as another victim of his deceit was a significant factor for that panel in addressing the issue of risk to members of the public and restoring public confidence.

The changed circumstances merited the interlocutory suspension but

Given that the Law Society’s investigation is still at such an early stage we are persuaded that this is a case where our order must take into account the possibility that the hearing on the merits may not proceed with dispatch. Accordingly, the respondent should be entitled, by motion, to require the Law Society to show that the interlocutory suspension should continue, after it has been in place for five months. Without fettering the authority of a subsequent panel, in our view, a period of five months would likely constitute a “material change in circumstances” within the meaning of Rule 27.07(1) 3 of the Rules of Practice and Procedure.

Our earlier coverage of the Hearing Tribunal Division denial of the motion is linked here. (Mike Frisch)

November 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Where There's A Will: Deceit, Dishonesty And Censure

An Illinois Hearing Board has recommended a censure for this misconduct

In this case, the Administrator requested the sanction of suspension for 30 days. (Tr. 173, 177). Respondent argued that the appropriate discipline is a reprimand. (Tr. 187).

The misconduct committed by the Respondent was serious. He failed to consult and discuss with his 86-year client three estate planning documents prepared for the client. Respondent then knowingly and purposefully signed as a witness to the client's Will and Declaration of Trust even though he knew it was improper, dishonest and deceitful for him to do so. He also notarized the client's Deed in Trust and Declaration of Trust when he knew it was improper, dishonest and deceitful for him to do so. Additionally, he involved his long-time secretary in his dishonesty and deceit, by directing her to sign as a witness to the client's Will and Declaration of Trust, when he knew she had not been a witness to either document. Furthermore, at the time he took the foregoing actions, on March 31, 2014, Respondent knew his client had previously died, and knew that none of the documents could be lawfully completed after the client's death. Thus, on March 31, 2014, Respondent knew all three documents, the Will, the Deed in Trust and Declaration of Trust, were invalid as a matter of law, yet he proceeded to record the Deed in Trust and Declaration of Trust in the Sangamon County Recorder's Office.

It is particularly egregious when there is intentional dishonesty in regard to estate documents. In In re Harrod, 90 SH 461, M.R. 6962 (Mar. 30, 1994), the Hearing Board stated that "[e]very lawyer who testified stated that the procurement of a fraudulent attestation clause to a will is an extremely serious professional breach for a lawyer to commit due to the fact that the will is not effective until the death of the testator. There is grave danger that such activity could permit stealing from the dead whose heirs would have no way of contesting the matter. All lawyers who were asked could not think of a more serious professional offense for a lawyer to commit." (Hearing Bd. at 27-28).

On sanction

There is evidence of significant mitigation in this matter. Respondent has been practicing law since 1983, more than 30 years, and he has not been previously disciplined. Three character witnesses, each of whom have known Respondent for at least 25 years, testified favorably as to Respondent's truthfulness and integrity. We found Respondent's testimony to be candid and forthright. He recognizes and understands the seriousness of his wrongdoing, and has accepted full responsibility for his misconduct. Respondent was sincere in expressing his remorse, and in explaining his embarrassment and humiliation for his misconduct. Furthermore, the misconduct was not committed with an evil or self-serving motive, such as for personal financial gain. Rather, Respondent acted out of a misguided effort to assist his client and his client's family.

On the other hand, we found no convincing evidence of any aggravating factor.

(Mike Frisch)

November 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 8, 2016

Non-Witness Protection Program

An attorney who recently pled guilty to federal charges has been suspended on an interim basis in Michigan.

The Birmingham Patch recently reported

A Birmingham attorney and a Homeland Security special agent have been indicted in a scheme to allow illegal immigrants to remain in the country by falsely claiming to be informants with tips on various crimes in exchange for cash.

An indictment unsealed Thursday charges Charles Busse, 58, formerly the Warren City Council president, and Clifton Divers, 48, of Detroit, with bribery, conspiracy to defraud the U.S. government and obstruction of justice, according to the Daily Tribune.

Divers, a special agent with the U.S. Immigration and Customs Enforcement-Homeland Security Investigations, was arraigned Thursday in U.S. District Court, while Busse is expected to be formally charged today.

Busse, who practices out of a Rochester Hills office, also has an office in Dearborn. According to charging documents, Busse and Divers operated a scam from 2009 to 2015 that netted the pair tens of thousands of dollars in legal fees to gain deportation deferrals to allow the illegal immigrants to stay in the United States.

A deferral is a discretionary measure to postpone the removal of an illegal immigrant who actively assists in a law enforcement investigation. The deferrals are typically for one year.

Court documents state Busse worked with Divers to grant deferrals by making up information on criminal activities for use as evidence of cooperation with federal law enforcement officials.

“As part of that conspiracy, Charles T. Busse fabricated information on alleged criminal activities for use as staged cooperations with federal law enforcement agencies when, in fact, the clients had no personal knowledge of the alleged criminal activities,” the indictment states.

Court records show Divers would allegedly provide false information to Homeland Security investigators to fraudulently receive deportation deferrals for Busse.

The indictment illustrates how the case progressed.

The FBI alleges Busse received a $15,000 payment from an Albanian national who was about to be deported. Busse then contacted Divers on behalf of the Albanian man. Several months later, Divers sent an email to Homeland Security falsely saying the Albanian man was assisting in an official investigation.

As a result, the Albanian man’s deportation was deferred, the indictment states.

Another case in the indictment shows Busse received $6,000 from two Iraqi nationals who were about to be deported. Using the same scheme, Divers claimed the Iraqi men were able to provide information on a criminal organization in manufacturing phony identification documents.

(Mike Frisch)

November 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tennessee Supreme Court: Not Especially Aggravated Child Sexual Exploitation

The Tennessee Supreme Court remanded a criminal case predicated on these facts

On a number of occasions in June, July, and August 2012, Thomas Whited ("defendant") hid his cell phone in the bedroom and bathroom used by his twelve-year-old daughter ("Daughter") so as to secretly video Daughter and her fourteen-year-old friend ("Friend") in various stages of undress. In the bathroom, the defendant positioned his cell phone to video Daughter while she was partly to fully nude as she prepared for her shower and performed after-shower bathroom activities. In Daughter‘s bedroom, the defendant hid his cell phone just before Daughter and Friend entered the bedroom in their bikini swimsuits so as to secretly video them as they changed into dry clothes.

On August 15, 2012, the defendant‘s wife ("Wife") saw a cell phone on their bedroom dresser and mistakenly thought it was hers. She picked up the phone, opened the photo gallery, and discovered the videos the defendant had made of Daughter and Friend. That evening she confronted the defendant, and the next day she reported his conduct to the police. The defendant was soon arrested.

 The decision

 the videos are insufficient to support the defendant‘s convictions for especially aggravated child sexual exploitation. Accordingly, we reverse and dismiss the defendant‘s convictions for especially aggravated sexual exploitation of a minor. In light of this holding, we remand  to the trial court for resentencing based on the convictions that were not challenged on appeal. On remand, the State may, if it so chooses, retry the defendant on the lesser-included offense of attempt...

we hold that the offense of especially aggravated sexual exploitation, i.e., producing material that includes a minor engaging in ―sexual activity‖ defined as the ―[l]ascivious exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person,‖ does not include as an element the accused‘s subjective intent or purpose of sexual arousal or gratification. To determine the sufficiency of the evidence, the court must focus on the material at issue and ask whether it includes a depiction of the lascivious exhibition of a minor‘s private body areas. Assessing the videos in the instant case, we conclude that the videos do not include a minor engaging in a lascivious exhibition.

(Mike Frisch)

November 8, 2016 | Permalink | Comments (0)

D.C. Committee Opines On Social Media Use

The Legal Ethics Committee of the District of Columbia Bar has just issued two opinions on social media use.

Opinion 370

As discussed in more detail herein, lawyers must be cognizant of the benefits and risks of the use of social media and their postings on social media sites. Social networking sites, and social media in general, make it easier to blur the distinctions between communications that are business and those that are personal. Communications via social media are inherently less formal than more traditional or established forms of communication. Lawyers and law firm employees must be reminded of the need to maintain confidentiality with regard to clients and client matters in all communications. It is recommended that all law firms have a policy in place regarding employees' use of social networks. Lawyers in law firms have an ethical duty to supervise subordinate lawyers and non-lawyer staff to ensure that their conduct complies with the applicable Rules, including the duty of confidentiality. See Rules 5.1 and 5.3. 
 
Content contained on a lawyer's social media pages must be truthful and not misleading. Statements on social media could expose an attorney to charges of dishonesty under Rule 8.4 or lack of candor under Rule 3.3, if the social media statements conflict with statements made to courts, clients or other third parties, including employers. Similarly, statements on social media could expose a lawyer to civil liability for defamation, libel or other torts.
 
Permissible use
 
There are no provisions of the Rules that preclude a lawyer from participating in social media or other online activities. However, if an attorney connects with, or otherwise communicates with clients on social networking sites, then the attorney must continue to adhere to the Rules and maintain an appropriate relationship with clients. Lawyers must also be aware that, if they are connected to clients or former clients on social media, then content made by others and then placed on the attorney's page and content made by the attorney may be viewed by these clients and former clients. Attorneys should be mindful of their obligations under Rule 1.6 to maintain client confidences and secrets. 
 
Some social networking sites, like Facebook, offer users the option to restrict what some people may see on a user's page. These options also allow a user to determine who may post content publicly on the lawyer's page. It is advisable for lawyers to periodically review these settings and adjust them as needed to manage the content appearing publicly on the lawyer's social media pages. Attorneys should be aware of changes to the policies of the sites that they utilize, as privacy policies are frequently changed and networks may globally apply changes, pursuant to the updated policies.
 
Caution: avoid inadvertent creation of an attorney-client relationship, conflicts of interest and confidentiality violations
 
Protecting client information is of the utmost importance when using social media. Most attorneys are aware of the importance of protecting attorney-client communications, attorney work-product or other privileged information. The obligation to protect this information extends beyond the termination of the attorney-client relationship. 
 
Blog about cases prudently
 
The scope of the protections provided in Rule 1.6 militates in favor of prudence when it comes to disclosing information regarding clients and cases. While lawyers may ethically write about their cases on social media, lawyers must take care not to disclose confidential or secret client information in social media posts. Rule 1.6(e)(1) states that a lawyer may use a client's confidences and secrets for the lawyer's own benefit or that of a third party only after the attorney has obtained the client's informed consent to the use in question. Because Rule 1.6 extends to even information that may be known to other people, the prudent lawyer will obtain client consent before sharing any information regarding a representation or disclosing the identity of a client. Even if the attorney is reasonably sure that the information being disclosed would not be subject to Rule 1.6, it is prudent to obtain explicit informed client consent before making such posts. With or without client consent, attorneys should exercise good judgment and great caution in determining the appropriateness of such posts. Consideration should be given to the identity of the client and the sensitivity of the subject matter, even if the client is not overtly identified. It is advisable that the attorney share a draft of the proposed post or blog entry with the client, so there can be no miscommunication regarding the nature of the content that the attorney wishes to make public. It is also advisable, should the client agree that the content may be made public, that the attorney obtain that client consent in a written form. 
 
Respond to criticism with care
 
The ability for clients to place reviews and opinions of the services provided by their counsel on the internet can present challenges for attorneys. An attorney must monitor his or her own social networking websites, verify the accuracy of information posted by others on the site, and correct or remove inaccurate information displayed on their social media page(s). As set forth in comment [1] to Rule 7.1, client reviews that may be contained on social media posts or webpages must be reviewed for compliance with Rule 7.1(a) to ensure that they do not create the "unjustified expectation that similar results can be obtained for others."
 
In sum
 
Social media is a constantly changing area of technology. Social media can be an effective tool for providing information to the public, for networking and for communications. However, using such tools requires that the lawyer maintain and update his or her social media pages or profiles in order to ensure that information is accurate and adequately protected. 
 
Accordingly, this Committee concludes that a lawyer who chooses to maintain a presence on social media, for personal or professional reasons, must take affirmative steps to remain competent regarding the technology being used and to ensure compliance with the applicable Rules of Professional Conduct.  
 
The world of social media is a nascent area that continues to change as new technology is introduced into the marketplace. Best practices and ethical guidelines will, as a result, continue to evolve to keep pace with such developments.  
 
Opinion 371 deals with the intersection of social media in the provision of legal services with 17 Disciplinary Rules.   (Mike Frisch)

November 8, 2016 | Permalink | Comments (0)

A Hearing Preceded Reinstatement Of A Convicted Attorney

The Wisconsin Supreme Court has reinstated an attorney who had been suspended for two years as a result of a conspiracy to commit securities fraud conviction.

The petition was not opposed by the Office of Lawyer Regulation but there was (unlike in the recent D.C. Scooter Libby reinstatement) a public hearing

In March 2016, Attorney Kranitz filed a petition seeking reinstatement of his law license. In June 2016, the OLR filed a response stating it did not oppose the reinstatement petition. The referee conducted a public hearing in July 2016. At the hearing, Attorney Kranitz testified on his own behalf and called several witnesses, including several business associates, attorneys, and clients who knew, worked, or practiced law with him. The referee filed his report and recommendation in August 2016, recommending reinstatement. No appeal was filed...

The referee noted that several witnesses appeared on behalf of Attorney Kranitz, including attorneys who have known Attorney Kranitz for a long time, and former clients. The referee was particularly impressed by the clients' testimony. They described the extremely high ethical, moral and character standards that Attorney Kranitz adhered to prior to the indictment. Although each of them was very surprised to hear of the indictment, they all testified that their exceedingly high opinion of Attorney Kranitz's character had not decreased and that they would still use him as their attorney, and would refer other clients to him. They described him as an exceptionally qualified attorney who can render a valuable service to the small business community in Wisconsin. The two attorneys who testified in support of Attorney Kranitz's reinstatement were equally laudatory in their testimony. They support his reinstatement petition and praised his extensive knowledge base, which they deem an asset to small businesses in this state.

The court agreed. (Mike Frisch)

November 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Restitution And Suspension For Misconduct In Representing Widow Of Former Cleveland Mayor

The Ohio Supreme Court has decided a case involving two attorneys (brother and sister) who had represented the widow of former Cleveland Mayor Ralph Locher.

Locher retained GM&M in June 2004 to administer the estate of her late husband, Ralph S. Locher, a former mayor of Cleveland and a former justice of the Supreme Court of Ohio. Having come to increasingly rely on Joseph Mamone, on Zoller, and to a lesser extent on Edward Mamone, after the administration of the estate was complete, Mrs. Locher later engaged GM&M to manage her money, to pay her bills, and to handle other aspects of her financial and personal life. Mrs. Locher sought to be able to live independently in her own home, to afford around-the-clock care, and to make generous gifts to her family members and charitable causes.

In November 2013, relator, Cleveland Metropolitan Bar Association, charged Zoller and the Mamones with multiple ethical violations related to services they had performed over a number of years for their client, Eleanor Locher, who had passed away in 2010. We accepted Joseph Mamone’s resignation from the practice of law in Ohio with disciplinary action pending, effective April 18, 2014...

Consistent with the parties’ stipulations, the board found that both Zoller and Mamone violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold a client’s funds in an interest-bearing account with a clearly identifiable fiduciary title), 1.15(a)(2) (requiring a lawyer to maintain a complete record of an account held by the lawyer containing a client’s funds), and 1.15(a)(5) (requiring a lawyer to perform and retain a monthly reconciliation of an account held by the lawyer containing a client’s funds) and that Zoller also violated Prof.Cond.R. 1.5(a) (prohibiting a lawyer from making an agreement for, charging, or collecting a clearly excessive fee). We adopt the board’s findings of fact and misconduct.

As to attorney Zoller

In an August 11, 2014 report, the Board of Commissioners on Grievances and Discipline (now known as the Board of Professional Conduct) found that Zoller had charged Locher excessive legal fees and that Zoller and Edward Mamone had committed other ethical violations in administering an account that the law firm had established to manage Locher’s funds. The board recommended that Zoller be suspended from the practice of law for one year and that Mamone be suspended for six months, with both suspensions fully stayed on the condition that they engage in no further misconduct. But the board rejected the hearing panel’s recommendation that Zoller be required to make restitution to Locher’s estate.

The court remanded for consideration of the restitution issue.

Here, both attorneys were suspended for one year and ordered to pay restitution

We recognize that the calculation of restitution for nonlegal tasks charged at attorney rates in this case is challenging given Zoller’s failure to maintain complete and contemporaneous records of the work she performed for and fees she billed to Mrs. Locher. Given the explanation provided by the parties, however, we are confident that the firm was paid for at least 64.5 hours of nonlegal work at attorney rates. Therefore, we adopt the board’s recommendations regarding restitution...

Nancy Anne Zoller and Edward James Mamone are suspended from the practice of law for one year. Before seeking reinstatement to the practice of law in Ohio, Zoller shall make restitution of $30,466 to Eleanor Locher’s estate and Mamone shall make restitution of $11,116 to Eleanor Locher’s estate. Costs of these proceedings are assessed jointly and severally against Zoller and Mamone.

One dissent would suspend both attorneys for two years.

Another dissent would impose a six-month suspension of Mamone. (Mike Frisch) 

November 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"An Effective But Confrontational Criminal Defense Attorney"

The California State Bar Court Review Department recommends a 30-day suspension and probation 

The hearing judge found that Darryl Wayne Genis, an effective but confrontational criminal defense attorney, violated court orders in two superior courts. However, the judge dismissed charges that Genis filed a false and malicious State Bar complaint and committed acts of moral turpitude. The judge recommended discipline, including a 90-day actual suspension, after finding significant aggravation (multiple acts, bad faith, indifference, and substantial harm) and mitigation (30-year discipline-free career and good character).

Both Genis and the Office of the Chief Trial Counsel of the State Bar (OCTC) appeal. Genis seeks a dismissal; in the alternative, he challenges the aggravation findings and requests no more than a private reproval. OCTC contends Genis is culpable on all counts and is not entitled to any mitigation credit. It renews its trial request for a one-year actual suspension.

We have independently reviewed the record under rule 9.12 of the California Rules of Court, and affirm the hearing judge’s culpability, aggravation, and mitigation findings. Nevertheless, a 90-day suspension is not supported by case law, and fails to take into account the strength of the mitigating circumstances, particularly Genis’s long discipline-free legal career. A period of actual suspension is warranted, however, in light of the applicable standard and the aggravating circumstances, including Genis’s disrespectful attitude toward the superior court. We recommend a 30-day actual suspension and a two-year probation.

One matter involved his failure to appear for a conference because he had gone to New Orleans, He was fined $750.

Mistake: He handled the appeal of the sanction himself.

As the sanction was less than $1,000, Genis was not required to self-report to the State Bar. The appellate division, however, elected to refer him due to his conduct on appeal. The court stated that Genis’s oral argument consisted of “repeated tirades and impertinence, and with a tone wholly condescending and accusatory[.]” (People v. Whitus, supra, 209 Cal.App.4th at p. Supp. 4.) Voicing further concern, the court declared: “Appellant’s conduct is a serious and significant departure from acceptable appellate practice, or for that matter, practice in any court of law. If left unaddressed, this sort of advocacy demeans the profession, lowers public respect, and conveys the impression that it is acceptable and effective.” (Ibid.) Among many examples, the court pointed to Genis’s description of it as “ ‘the fox [watching] the hen house,’ ” and his comment about judges talking “like women in a sewing circle about us lawyers.” (Id. at p. Supp. 12.) Genis also described the trial court judge as an “embarrassment to our profession” who had a “completely sealed and closed shut mind.” (Id. at pp. Supp. 12-13.) The court observed that Genis continued his behavior despite admonishment and that his tone throughout oral argument was “confrontational, accusatory and disdainful.” (Id. at p. Supp. 13.) We consider this conduct before the appellate division in aggravation, even though it was not charged in the NDC.

 Another involved violation of a trial court order limiting cross examination of police officers

The judge imposed $2,000 in sanctions, stating he did so reluctantly because of the consequences for Genis, who “is an extremely talented lawyer who does not need to resort to unethical behavior, to achieve positive outcomes.” At the State Bar Court hearing, the judge reiterated his hesitation, but concluded sanctions were necessary for deterrence and “out of integrity for the orderly administration of justice, and for the system, and for proper decorum and for respect for judicial orders.”

But no violation for this

Genis represented the defendant in People v. Marking-Epps (Super. Ct. Santa Barbara County, No. 1313307) (Marking-Epps). The defendant obtained new counsel, and he so informed Genis in writing on the day of a preliminary hearing. Both Genis and the new counsel appeared. During the hearing, the deputy district attorney stated on the record that she had provided discovery to the new counsel, who had requested it, but not to Genis. Genis voiced his surprise that the deputy had produced discovery before the new counsel became the attorney of record.

Genis quickly prepared a State Bar complaint claiming the deputy had disclosed and provided police reports and confidential information relating to the prosecution of a felonious criminal offense of his former client, in violation of Penal Code section 1054.2,9 which is conduct constituting a misdemeanor. Before sending the complaint to the State Bar, he sent an email to the District Attorney’s Office, virulently complaining about the deputy and attaching a copy of the State Bar complaint.

Also not a provably false statement

In an unrelated case where both Genis and the same deputy from the Marking-Epps case were counsel, Genis filed a motion to strike that contained the following statement: “This is yet another example of [the deputy district attorney] acting in ignorance and breaking the law, all in the name of performing her official duties as a Deputy District Attorney.

The Review Department struggled with sanction but concluded

We find that a 30-day actual suspension is fair and appropriate discipline. A month-long suspension and a two-year probation period is intended to impress upon Genis that his improper conduct toward the courts will not be tolerated.  A lengthier suspension would, however, ignore that he did not harm his clients and has maintained his legal practice for decades without discipline.

The attorney also must take and pass the MPRE. (Mike Frisch)

November 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Snapshot Of Bar Discipline In New Jersey

The web page of the New Jersey Disciplinary Review Board posted five letter decisions that were each approved by the state Supreme Court on November 4.

In each of the cases, the Supreme Court approved the imposition of a non-suspensory sanction. There is one censure and four reprimands.

Reprimand was imposed for negligent misappropriation and failure to supervise a non-lawyer leading to a series of negligent misappropriations. 

The DRB

Generally, a reprimand is imposed for negligent misappropriation of client funds and recordkeeping deficiencies, even when found alongside commingling.

Wow.

Reprimand was also imposed for this misconduct

respondent’s former client, Shanti Sarup, filed a grievance against him, alleging that, more than ten years prior, respondent had given him poor legal advice in an immigration matter and, thus, exposed him to deportation from the United States. In response to the DEC’s investigation of the grievance, respondent fabricated a document and submitted it to disciplinary authorities.

In mitigation, the stipulation recited respondent’s lack of prior discipline, the more than ten-year passage of time since his representation of~ the grievant, and the fact that the fabricated letter was submitted only to the DEC. The stipulation described respondent’s deception as "an unfortunate reflexive response to the filed Grievance" and an "effort . . to mitigate what [respondent] may have perceived as a professional negligence issue."

Submitting  false documents in a bar investigation?

Some places treat that as more than an "unfortunate reflexive response." 

But the censure case takes the prize.

The attorney was "of counsel" to the Porter law firm and was retained by a bankruptcy trustee (Conway)  to handle two matters in New York state and federal courts.

He failed to properly handle the matters and to communicate with the client.

So far, so bad, but there is more.

Despite respondent’s appearance in the New York state and federal courts, he was not licensed to practice law in either jurisdiction. In so doing, respondent engaged in the unauthorized practice of law, a violation of RPC 5.5(a)(i).

Respondent also engaged in a pattern of misrepresentation. From the inception of the case, he misled everyone associated with it -- Conway, Porter, the Pennsylvania bankruptcy court, the New York state court, and the SDNY that he was admitted to practice law in New York, a violation of RPC 8.4(c).

In June 2012, respondent misrepresented to Porter and Conway, by silence, that all was well in the case. That lie continued unabated until Conway learned on his own that respondent’s motion to vacate an earlier dismissal of the complaint had been denied because he was not licensed to practice law in New York. By his silence, respondent again violated RPC 8.4(c).

In addition, respondent made statements in documents filed with three courts containing materially false information about his status to practice law in New York. By misrepresenting himself to them, he lacked candor to those tribunals, in violation of RPC 3.3(a)(i) and (5).

Finally, in October 2012, respondent engaged in his most flagrant misconduct. After Porter terminated his "of counsel" position, respondent exacerbated his earlier lies, using outdated Porter law firm letterhead to send a letter to the SDNY judge seeking the dismissal of the federal complaint. By doing so, respondent again misled the SDNY that he was licensed to practice law in that court and that he was still affiliated with the Porter firm, violations of RPC 3.3(a)(i) and (5). Additionally, by using misleading letterhead, respondent made false or misleading communications about himself, violations of RPC 7.1(a)(1) and RPC 7.5(a).

There was some significant mitigation

In mitigation, this is respondent’s first brush with disciplinary authorities in an otherwise unblemished forty-year career. He also served in Vietnam as a military intelligence analyst, interpreter, and interrogator, and was awarded the South Vietnamese Cross of Gallantry, the Bronze Star, and the Army Commendation medal. His history of community service includes service to the YMCA since 1985, his town’s recreation program, and the New Jersey Vietnam Veterans Memorial Foundation.

That notwithstanding, the Board concluded that the seriousness of respondent’s misconduct rendered his lack of prior discipline, military service, and service to his community insufficient to justify the imposition of discipline less than a censure.

That notwithstanding, New Jersey sure forgives lawyers for their transgressions. (Mike Frisch)

November 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)