Monday, November 27, 2017

Bedlam Corners

A town court justice who is also an attorney has been admonished by the New York Commission on Judicial Conduct.

A victim of an alleged crime had been employed by his wife

From August 2014 through September 2014, Ms. M. had been employed by Virginia Curran, respondent's wife, at the Bedlam Comers General Store in Hebron, New York. Respondent was aware that Ms. M. had been so employed

Respondent's wife owns the Bedlam Comers General Store and also serves as respondent's court clerk.

He denied motions to recuse himself and engaged in ex parte contacts relating to the matter over the telephone and at a gas station

A few months after arraigning the defendant on charges of Assault and other offenses and issuing an order of protection, respondent received unsolicited ex parte information from two sources (an individual who approached him out of court and an anonymous voicemail message) claiming that the defendant had violated the order of protection by taking trips with the complaining witness. Respondent was obligated to disclose these out-of-court communications to the prosecutor and defense counsel and to provide the defendant with an opportunity to rebut the information in court. Instead, at a pre-trial conference a few days later, he not only failed to disclose the communications but compounded the impropriety by repeating the information he had received as fact ("I'm aware there's been multiple violations of the order of protection"), notwithstanding that the defendant had not been charged with violating the order. He reiterated the accusations when he accepted a plea agreement, sentenced the defendant and issued a six month order of protection, warning the defendant that he would "get the maximum" if he violated the order "again." These unsubstantiated accusations conveyed the appearance that respondent had received and was influenced by undisclosed, unauthorized information that the defendant, unaware of its source, was unable to refute. Even after defense counsel interjected that if respondent had such information he should not be handling the case, respondent did not disclose the communications.

(Mike Frisch) 

November 27, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

No Liability For Death Of The Bird

The Massachusetts Supreme Judicial Court affirmed the grant of summary judgment to defendants in claims arising from the death of Mark Fidrych

Mark Fidrych owned a dump truck that he used to haul soil. On the morning of April 13, 2009, Fidrych was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the "dump body" of the truck. The medical examiner identified the cause of death as accidental asphyxiation. In her capacity as executrix of Fidrych's estate, his widow, Ann Pantazis, filed a wrongful death action in the Superior Court. She sued, among others, Mack Trucks, Inc. (Mack Trucks), which manufactured the original, stripped-down version of the truck, and Parker-Hannifin Corporation (Parker-Hannifin), which had acquired the assets of Dana Corporation (Dana).  Dana manufactured a piece of equipment known as a "power take-off" (PTO), which was another part of the system used to tilt the dump body of Fidrych's truck. In two separate summary judgment rulings, different Superior Court judges ruled in favor of each of these defendants. We affirm.

Held

we conclude that where, as here, the components manufactured by the defendants included no design defects, and the risks posed by the assembled product arose out of the addition of other components and the decisions made, and actions taken, by downstream actors, the defendants had no duty to warn of those dangers. Resolving the case as we do, we have no occasion to consider the defendants' other arguments, such as their claim that they had no duty to warn of the dangers posed by the exposed auxiliary drive shaft and U-joint in light of the obviousness of such risks, at least to someone with Fidrych's presumed familiarity with the truck that he had owned for over twenty years...

None of this is to say that appellate courts should never recognize exceptions to the component parts doctrine. In fact, this court recognized the possibility of such an exception in Morin v. AutoZone Northeast, Inc., 79 Mass. App. Ct. 39, 51-52 (2011).  Based on the summary judgment record and the arguments raised, the plaintiff has not demonstrated good cause to create an exception here.

(Mike Frisch)

November 27, 2017 in Current Affairs | Permalink | Comments (0)

False Statement Plea Draws Interim Suspension

The Ohio Supreme Court has suspended an attorney on an interim basis for a federal felony conviction.

The Tampa Bay Times reported on the guilty plea

Former WellCare Health Plans general counsel Thaddeus M.S. Bereday pleaded guilty to one count of making a false statement to the Florida Medicaid program, and faces a maximum penalty of five years in federal prison. A sentencing date has not yet been set, acting U.S. Attorney W. Stephen Muldrow of the Middle District of Florida said Wednesday.

On March 2, 2011, Bereday — along with fellow WellCare executives Todd S. Farha, Paul L. Behrens, William L. Kale, and Peter E. Clay — were indicted on various federal criminal violations relating to a scheme to defraud the Florida Medicaid program between 2003 and 2007. Federal officials say the executives made false and fraudulent statements relating to how they spent money on behavioral health care services.

After a 13-week trial in 2013, a jury returned verdicts against former CEO Farha, former CFO Behrens and former vice presidents Kale and Clay.

Bereday, 52, did not participate in the 2013 trial due to health issues. His case was scheduled to be tried this September. As part of his plea, Bereday admitted that he knowingly caused the submission of a false 2006 expenditure report to the Florida Medicaid program.

(Mike Frisch)

 

November 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, November 25, 2017

There Must Be More To This Story

An admonition is summarized on the web page of the Massachusetts Board of Bar Overseers

The respondent was a new associate in the litigation department at a law firm. After an informal discussion in late December 2015 over lunch with a partner and a supervising attorney, the respondent mistakenly believed that he was authorized to post a job advertisement at local law schools for a law clerk position at the firm. The respondent did not show the advertisement to anyone at the firm before posting the job listing. In early January 2016, the respondent set up and conducted interviews with at least three law school graduates at the firm. The respondent did not notify the firm management in advance that he was scheduling or conducting the interviews, share the resumes and writing samples he had collected, or introduce the job candidates to any other lawyers at the firm.

During the interviews, the respondent requested that the job applicants prepare and submit supplemental writing samples based on actual client matters being handled by the respondent at the firm. The respondent provided to the job applicants documents from the clients’ files without first obtaining client consent to release confidential client documents to individuals who were not employed at the firm. The respondent did not inform his supervising attorneys that he was asking job applicants to submit supplemental writing samples based on actual client cases. On January 19, 2016, the respondent filed one supplemental writing sample, a motion to dismiss with supporting memorandum, with slight modifications, in a client matter pending in the U.S. Bankruptcy Court.

By improperly disclosing client confidential information without prior client consent, the respondent violated Mass. R. Prof. C. 1.6(a).

The respondent was admitted to practice in 2010, and had received no prior discipline. The respondent, through the firm, reimbursed the job applicants for the time they spent on the writing assignments. The respondent has now opened his own law practice, and has found an experienced lawyer to act as a mentor. The respondent received an admonition for his conduct, based on his agreement to attend a continuing education program on ethics, and to contact the Law Office Management Assistance Program (LOMAP) for assistance with his solo law office management practices.

Admonitions in Massachusetts do not identify the attorney. (Mike Frisch)

November 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For Confidentiality Violation In Response To Bar Complaint

A public reprimand with terms was imposed by a Subcommittee of the Virginia State Bar Disciplinary Board for what appears to me to be pretty serious misconduct,

The attorney had represented the complainant on criminal matters for a period of about five years beginning in 2007.

When that client filed a bar complaint, the attorney responded by providing the bar investigator with 

a list of 17 witnesses that he believed had detrimental information concerning the complainant, and he provided a summary of the anticipated testimony of each identified witness, which related to the alleged criminal activity of the Complainant.

The conduct violated Rules 1.6 and 3.3.

The effective sanction?

Three hours of ethics CLE.

The order also notes that the attorney had prior discipline. 

Virginia is one of those few jurisdictions where discipline is almost entirely controlled by the Bar with very little oversight of the highest court.

As happened here, it is lamentably true that much serious misconduct gets a reprimand.

That is what happens when regulation is left to the Bar.

Sad! (Mike Frisch)

November 25, 2017 in Bar Discipline & Process | Permalink | Comments (4)

Thursday, November 23, 2017

Judge Reprimanded For Coerced Birth Control And Vasectomies

The Tennessee Court of Judicial Conduct has reprimanded a general sessions court judge in part for two orders that he had entered.

The orders granted two days of credit for time served to inmates who took a state course called the Neonatal Syndrome  Education Program. 

If a female inmate got a free nexplanon implant, she got another 30 days off the sentence. If a male inmate got a free vasectomy. that also drew a 30-day sentence reduction.

While the reprimand noted that he was seeking to promote what he viewed as the  "worthy goal" of preventing the birth of addicted babies, it was nonetheless "unduly coercive."

WSXM.com reported on the orders.

Mary Cantrell was released from the White County Jail two days ago. She said, inside, she was offered a shorter sentence if she agreed to be surgically implanted with a birth control called Nexplanon.

"When we come in the inmates inside the jail was telling us about there was a new birth control thing for women," Cantrell told News 4 outside of the jail.

Judge Benningfield is behind the program. His order signed in May would knock 30 days off a jail sentence for men who agreed to a vasectomy and women who got the implant.

Inmates who took a course from the Tennessee Department of Health Neonatal Syndrome Education Program would have his or her sentence reduced by two days.

Cantrell declined to get the implant, but opted to take course. When she got to the classroom, she said Benningfield was there apologizing.

"[He said] he didn't mean it. He wasn't trying to force us or coerce us into getting the birth control," Cantrell said. "That he was sorry. That he didn't mean to say that he didn't mean to make us feel like that we shouldn't have children, that he just wanted us to wait until we could support them better and use better judgment.”

This week, under nationwide scrutiny, Benningfield filed a ruling rescinding the program.

(Mike Frisch)

November 23, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, November 22, 2017

Lawyering While Intoxicated

A reprimand with conditions has been imposed by the Law Society of Newfoundland and Labrador

The first incident is occurred on February 17, 2014. By decision dated January 18, 2017 this Tribunal found the Respondent guilty of drinking alcohol in Court and of being intoxicated while in Court on a family law matter.  We have set out our findings of fact in the decision on the merits and will only briefly summarize them here. The Respondent was noted to be under the influence of alcohol to the extent that he was not fit to continue with the family law trial. Sherriff’s Officers smelled alcohol on his breath and seized an empty pop bottle from the court room, next to the Respondent’s belongings. The bottle also smelled of alcohol. The presiding Judge confronted the Respondent in the presence of opposing counsel. The Respondent apologized.  The case was adjourned until the following day when the Judge declared a mistrial.  Eighteen months later, the family trial took place with new counsel representing the Respondent’s former client.

 The second incident occurred on August 8 of 2014.  On that date the Respondent was driving a motor vehicle, nearly hit a pedestrian, collided with a pole and then refused to provide a breath sample to a police officer. The police officer noted that there was a very strong smell of alcohol, that the Respondent was very slow moving, staring blankly ahead and had trouble getting out his vehicle. There was a flask of rum on the floor, with one third of the alcohol remaining.  The Respondent refused to provide a breath sample and was convicted for this refusal on December 19, 2014. The Respondent admitted the factual underpinnings of this portion of the complaint, but argued that the Law Society has failed to establish that the conduct in question is deserving of sanction under the Code of Professional Conduct. This argument was rejected.

He has been diagnosed with ADHD

At the time of these offences, the Respondent was suffering from an undiagnosed mental condition. The evidence establishes that he was using alcohol to control his busy mind. He has since sought medical help and is treated with prescription medication. The Respondent’s mental health condition does not absolve him of responsibility for his actions. It is, however, a mitigating factor.

Disposition

we make the following order:

  The Respondent is hereby reprimanded;

  The Respondent shall abstain from the possession or consumption of alcohol for a period of two years;

   The Respondent shall submit to random alcohol testing, the results of which shall be shared with the Law Society, which testing will occur on two business days in every four week period for one year at the business premises of the testing agency used previously;

    The Respondent shall bear the cost of this random alcohol testing; and

     A summary of this decision will be published (and the decision itself) by the Law Society on the expiration of the appeal period.

      Failure to comply with this Order will give rise to further discipline. The Respondent is warned that discipline is cumulative. It is the opinion of this panel that further disciplinary proceedings against the Respondent involving alcohol will demonstrate an unmanageable risk to the public.

(Mike Frisch)

November 22, 2017 | Permalink | Comments (0)

Decision Day In Illinois

The Illinois Supreme Court announced dispositions in a number of bar discipline matters.

Highlights

Mr. Chesloe, who was licensed in 1987, was suspended for sixty days. He prepared a will for a client, met with that client, and then instructed the client to sign the will outside the presence of witnesses. Later, Mr. Chesloe instructed a law office employee and another person to sign the witness attestation clause even though they had not been present when the client signed the will. As a result, the will was challenged and declared invalid after the client’s death. The suspension is effective December 4, 2017.

Ms. Haasis, who was licensed in 2015, was suspended for six months. She submitted employment applications for two different positions to the Illinois Department of Transportation. Both applications contained false information about her previous employment, including the false representation that she had practiced law between 2012 and 2016. She also submitted resumes to IDOT that contained false information about her employment history and made false statements to IDOT’s Salary Administration Manager about her previous employment situation. IDOT hired Ms. Haasis as a property manager, but later terminated her after an internal investigation revealed the false documents and representations. The suspension is effective December 4, 2017.

Ms. Meyer, who was licensed in 2009, was suspended for one year and until further order of the Court. She failed to comply with discovery deadlines in two cases, causing a court to enter summary judgment against one of her clients and monetary sanctions against another. In another unrelated matter, she billed her client for a status conference that she did not attend and falsely told her supervising partner that the case had settled.

Ms. Otero, who was licensed in 2005, was disbarred. She misappropriated over $20,000 that she had been holding in escrow from two real estate transactions and engaged in a conflict of interest by representing opposing parties in a real estate transaction. Additionally, Ms. Otero fabricated court pleadings and engaged in the unauthorized practice of law after her name was removed from the Master Roll of Attorneys.

(Mike Frisch)

November 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Reinstatement For Former Attorney's Hate Crimes

Reinstatement has been denied to an attorney struck from the rolls in 2012 by the New York Appellate Division for the Third Judicial Department. 

The attorney had been disbarred as a result of a felony conviction reported by the Times Union and sought reinstatement when the conviction was vacated.

Between May 2010 and July 2010, Hennessey made upward of 200 phone calls to 38 recipients through a website — http://www.bluffmycall.com — which allowed him to block his phone number. At times he made it appear on victims caller ID that his calls were coming from the Ku Klux Klan in Arkansas.

Prosecutors say Hennessey also phoned real estate agents warning them not to rent homes to black people in his neighborhood near St. Peter's Hospital. And they say he used a computer to alter his voice on the calls. In one of the calls, Hennessey threatened to kill a black woman in his neighborhood. In another, he told a victim that "we are going to kidnap the little black boy who plays outside and tie him up."

Albany police and FBI agents traced calls to Hennessey through documents from the website, Verizon Wireless, a Time Warner Cable account and Hennessey's Internet provider address.

Here the court recounted the misconduct

A full hearing was conducted with respondent represented by counsel. Thereafter, the Referee issued a report substantively sustaining all three charges of misconduct set forth in the petition of charges.  Specifically, the Referee concluded that respondent engaged in professional misconduct when he intentionally made threatening and racist telephone calls to his African-American neighbors, as he admitted to under oath during the prior criminal action. The Referee further did not find credible respondent's current claims that he never recalled engaging in said conduct and that his prior sworn statements to the contrary were the result of, among other things, his poor hearing and the urging of his criminal defense counsel. The Referee therefore concluded that respondent cumulatively engaged in intentionally deceptive conduct that adversely reflected on his fitness as a lawyer, and was prejudicial to the administration of justice.

As to resumption of practice

In this case, it cannot be ignored that the Referee's conclusion that respondent engaged in the unjustified victimization of his neighbors on the sole basis of their race is a matter not to be taken lightly and represents a matter of legitimate concern to the public, as well as the bar. A further indication as to respondent's future capacity as an attorney is the persuasive proof in this record supporting the Referee's finding that respondent did not testify with candor while under oath...

Significantly, the Referee expressly found that respondent's hearing testimony was not credible, particularly discrediting respondent's "claims of either mental illness or drug impairment as justifying his purported lack of recollection of the events leading to his criminal conviction." Upon review of the record before us, we conclude that the record supports the Referee's findings and conclusions that respondent committed the charged professional misconduct by making racist and threatening anonymous phone calls to his neighbors and then falsely claiming that he did not recollect engaging in that conduct for the purpose of covering up or minimizing his actions.

The disbarment order remains in effect. (Mike Frisch)

November 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Maryland High Court To Review Order To Investigate Hillary Clinton Attorneys

From the web page of the Maryland Court of Appeals is a notice granting certiorari

Attorney Grievance Commission, et al. v. Ty Clevenger- Case No. 63, September Term, 2017

Issues – Courts & Judicial Proceedings – 1) Did the trial court err in issuing a writ of mandamus directing Petitioner to investigate a complaint against three members of the Maryland Bar where exclusive jurisdiction over attorney disciplinary matters is vested in the Court of Appeals and Bar Counsel has discretion to determine whether an investigation is warranted? 2) Did the trial court err in vacating its prior order sealing the proceedings where Md. Rule 19-711 expressly provides that all attorney disciplinary complaints and investigations are confidential unless and until formal charges are brought against an attorney?

The underlying case is reported here by the Capital Gazette

An Anne Arundel County judge has ordered Maryland officials to investigate a complaint against three lawyers accused of deleting emails while representing former presidential candidate Hillary Clinton, overruling objections from lawyers representing the state.

Circuit Court Judge Paul F. Harris Jr. ruled Monday after a short hearing in Annapolis that the Attorney Grievance Commission and Office of Bar Counsel Maryland Office of Bar Counsel must investigate attorneys David E. Kendall, Cheryl D. Mills and Heather Samuelson. All three are licensed to practice in Maryland and could face professional sanctions if the commission determines there are guilty of misconduct.

Ty Clevenger, a Texas attorney who lives in New York, filed the complaint, saying they deleted thousands of emails related to a private email server Clinton used during her time as Secretary of State. He argued they engaged in misconduct by destroying evidence.

Clevenger said he is writing a book on political corruption and called the Clinton email scandal a case study of politically affiliated attorneys receiving preferential treatment. Clevenger’s complaint seeks to have them disbarred in Maryland. He unsuccessfully filed a similar complaint with the Washington, D.C., bar.

As should be apparent from the certified issues, this litigation calls into question the exercise of investigative discretion by bar disciplinary authorities. 

Notably, the Maryland Attorney General is defending the Bar Counsel and Attorney Grievance Commission.

My own view of this is that greater transparency in Maryland bar proceedings is necessary and appropriate. The public is entitled to know exactly how bar discipline works - or fails to work - and whether Bar Counsel exercises discretion in a responsible manner free from favoritism toward well-connected attorneys.

Thus, I believe that Bar Counsel's disposition of any complaint should be made available to the public.

Rules mandating confidentiality of dismissal letters (which nearly all jurisdictions have) are contrary to the public interest and should go the way of secret hearings (which were the norm thirty years ago). 

However, I believe that a Circuit Court judge has no authority to order Bar Counsel to do anything as attorney discipline is the exclusive province of the Court of Appeals. 

I also do not favor use of the bar's processes to advance an uninvolved person's political agenda and do not believe that such a complainant should have the same rights as an aggrieved client, counsel or judge. 

Further opinions to follow. Forewarned is forearmed.

Such issues rarely see the light of day. This case is worth watching. (Mike Frisch)

November 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Stern Sanction For Neglect

A six-month suspension has been imposed by the District of Columbia Court of Appeals, rejecting the attorney's various contentions

First, although respondent contends that his rule violations were not established by the requisite clear and convincing evidence,  Disciplinary Counsel in fact presented overwhelming proof of respondent‟s neglectful and incompetent representation of his personal injury client throughout the course of his multi-year engagement. Respondent‟s errors and omissions, as found by the Hearing Committee and detailed in its report appended to this opinion, included (but were  not limited to) suing the wrong defendants; failing to amend the complaint to name the proper defendants after they became known to him; failing to conduct discovery or to investigate the accident; failing to prepare his client for his deposition; failing to take steps to preserve evidence; failing to request an extension of time to produce an essential expert‟s report; and repeatedly violating local court rules, required pretrial procedures, and court orders. As the Committee report also notes, the federal courts contemporaneously castigated respondent for neglecting the case and violating court orders and rules. Respondent‟s conduct exposed his client as well as himself to the threat of sanctions and ultimately led the district court to enter judgment for the defendants. Moreover, the Hearing Committee found respondent‟s explanations for his actions unworthy of credence. We are satisfied that the Committee readily could find that Disciplinary Counsel established respondent‟s Rule violations by clear and convincing evidence.

Respondent‟s second objection focuses on the Board‟s statement in its report that it “concurs with the Hearing Committee‟s factual findings as supported by substantial evidence in the record.” He argues that the Board, like the Hearing Committee, was required to find his Rule violations to have been proved by clear and convincing evidence. This is not correct, however...

Lastly, respondent claims the Board disregarded its procedures and violated Board Rule 7.16 (a) by failing to consider motions he filed to dismiss the charges and to strike expert witness testimony. The record does not support this claim. Rule 7.16 (a) required the Board to “rule on” respondent‟s motions “in its disposition in the case” after receiving the Hearing Committee‟s “proposed disposition” of the motions “and the reasons therefor.” D.C. Bar Rule XI, § 9 (c) allowed the Board to “adopt” the Hearing Committee‟s recommendation as its disposition. In its report to this court, that is how the Board complied with Rule 7.16 (a) – after acknowledging that respondent‟s motions were before it, the Board ruled on (and denied) them by expressly adopting (“incorporat[ing] by reference”) the Hearing Committee‟s entire report and recommendation.

The court ruled that the motions had no merit and concluded that a "stern sanction" was required.

Note that there is a more recent BPR report proposing a suspension of two years and fitness of the same attorney. (Mike Frisch)

November 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Sin To Be In Cincinnatti

The Ohio Supreme Court approved an application to sit for the bar examination

 Applicant, Shannon O’Connell Egan, of Cincinnati, Ohio, is a 1998 graduate of the Louisiana State University Paul M. Hebert Law Center. She was admitted to the Kentucky bar in October 1998 and the Indiana bar in October 2014.

In November 2015, Egan applied to register as a candidate for admission to the practice of law in Ohio and to take the July 2016 bar exam. Based on findings that Egan engaged in the unauthorized practice of law (“UPL”) by establishing offices in Cincinnati, Ohio, from which she practiced Kentucky law for more than ten years, the Board of Commissioners on Character and Fitness recommends that we disapprove her current application but permit her to reapply for the February 2018 bar exam. We adopt the board’s findings of fact. Based on evidence of Egan’s exemplary character and professional reputation and the steps she and her firm have taken to rectify her conduct, however, we find that Egan has carried her burden of proving that she currently possesses the requisite character, fitness, and moral qualifications to practice law in this state. We therefore approve Egan’s pending application and permit her to sit for the February 2018 bar exam.

The situation

The evidence presented at the hearing shows that Egan accepted a position in the Cincinnati law office of Lerner, Sampson & Rothfuss in September 2002 and practiced Kentucky law from that office until March 2013, when she accepted a position with another Cincinnati law firm. Lerner, Sampson’s letterhead stated that Egan was “admitted in Kentucky.” Although the letterhead did not affirmatively state that she was admitted only in Kentucky, it so implied, in that it described other attorneys as “also admitted in Kentucky.” The board accepted Egan’s testimony that she limited her practice to Kentucky matters, that she did not hold herself out as an Ohio lawyer or enter an appearance in an Ohio court, and that she neither met with clients nor conducted depositions in Ohio.

She applied for Ohio admission in 2008 but encountered the issue of unauthorized practice

In rejecting that application, bar-admissions counsel reiterated the reasons that Egan’s previous application was rejected and suggested that she contact the Board on the Unauthorized Practice of Law if she had questions about the effect of her legal employment in Ohio. In response to that letter, Graydon, Head & Ritchey moved Egan to the firm’s Kentucky office—though she continued to work in the firm’s Cincinnati office approximately 40 percent of the time—issued her new business cards, and changed her signature block. The firm also sought advice from the Cincinnati Bar Association, who downplayed the UPL issue and advised that Egan would have to take the bar exam and that she would likely be asked questions about potential UPL issues if she applied to take the exam...

The board found that Egan’s testimony seemed honest and sincere and that she has presented evidence that she is a very competent and careful attorney. But it also stated that it was “difficult to believe that she did not have some inkling that there might be a problem” when her applications for admission without examination were twice rejected for practicing law in a jurisdiction in which she was not admitted to the bar.

The court held

Although we find that Egan engaged in the unauthorized practice of law in this state for an extended period of time, we note that she did not engage in the practice of Ohio law, and there is no evidence tending to demonstrate that she caused any harm to her clients or the citizens of Ohio. Based on evidence of Egan’s exemplary character and professional reputation and the steps that she and her firm took to relocate her practice to Kentucky once they realized the import of her conduct, we find that Egan has carried her burden of proving that she currently possesses the requisite character, fitness, and moral qualifications to practice law in this state. Therefore, we approve Egan’s pending application and permit her to sit for the February 2018 bar exam, provided that she satisfies the remaining registration requirements.

In this era of mobile practice, I applaud this result. (Mike Frisch)

November 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Censure For Domestic Assault

An agreed disposition approved by the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Mark A. Ohlsen (attorney registration number 22480), effective
October 24, 2017. The parties stipulated to the application of two aggravating factors and five mitigating factors, including no prior discipline, cooperation, character and reputation, remorse, and the imposition of other penalties. The mitigating factors were accorded significant weight.

In early 2014, Ohlsen was involved in an intimate relationship with a woman who was arrested for a third and fourth offense of driving while under the influence of alcohol (“DUI”). The woman lived with Ohlsen after her arrest. By September 2014, the two had separated. The woman was sentenced to work release in November 2014, and Ohlsen, feeling bad for her, hired her to work as a secretary in his law office.

In early 2015, the woman failed to show up for work. Ohlsen fired her and contacted her probation officer to disclose his belief that the woman was drinking and using drugs. On February 25, 2015, Ohlsen went to the woman’s residence to retrieve the keys to his office, startling her and a friend on the front porch. Once inside the woman’s home, a physical altercation occurred between Ohlsen and the woman. Ohlsen claimed she slapped him; he admitted to pushing her, holding her away from him, and grabbing her.

On January 12, 2017, Ohlsen pleaded guilty to a class-one misdemeanor assault charge, domestic violence-related, and received an eighteen-month deferred sentence. He is subject to a no-contact order for eighteen months. Ohlsen is in compliance with the no-contact order.

(Mike Frisch)

November 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Effective Steps Prevent Disqualification

The Delaware Court of Chancery denied a motion to disqualify counsel

This letter constitutes the Court’s decision on a joint motion that defendants and intervenor Duff & Phelps, LLC filed to disqualify Morris, Nichols, Arsht & Tunnell LLP (“MNAT”) from representing plaintiffs in this action. For the reasons explained below, the motion to disqualify is denied.

Sycamore Partners Management, L.P. (“Sycamore”) is a private equity firm. At the times relevant to this motion, SP Dollar Holdings, Ltd. (“SP Dollar”) was an indirect subsidiary of Sycamore, and Dollar Express LLC (“Dollar Express”) was an indirect subsidiary of SP Dollar. In 2015, Dollar Express acquired approximately 330 discount stores from Family Dollar Stores, Inc. (“Family Dollar”) when Family  Dollar merged with Dollar Tree, Inc. (“Dollar Tree”).

Family Dollar, Dollar Tree, and certain of their affiliates are plaintiffs in this action; Sycamore, SP Dollar, Dollar Express, and certain of their affiliates are defendants. Duff & Phelps intervened for the limited purpose of joining defendants in filing the motion to disqualify MNAT from representing plaintiffs in this action.

MNAT had represented Duff & Phelps

MNAT’s invoice reflects that it assisted in revising Duff & Phelps’ engagement letter with SP Dollar and in reviewing and advising Duff & Phelps on a board book and a solvency opinion letter.

The present matter

On June 1, 2017, MNAT filed an eighteen-count Verified Complaint on behalf of plaintiffs in this action alleging that defendants deliberately failed to pay for tens of millions of dollars of goods and services they purchased from plaintiffs in connection with operating the 330 discount stores that Dollar Express acquired from Family Dollar in 2015. Relevant to this motion, some of the counts allege that the Dividend was a fraudulent transfer and an illegal distribution under 6 Del. C. § 18- 607.10

On September 6, 2017, counsel for defendants discovered MNAT’s May 2016 invoice to Duff & Phelps and thus learned that MNAT had provided legal advice to Duff & Phelps regarding its solvency analysis and opinion for the Dividend. On September 7, 2017, defendants’ counsel contacted MNAT and asked it to withdraw from this action. That same day, S. Mark Hurd, MNAT’s General Counsel, instructed MNAT personnel to implement an ethical wall between the Duff & Phelps Matter and this action.

Hurd investigated the alleged conflict, personally interviewing the two MNAT partners who worked on the Duff & Phelps Matter.  The two confirmed that they have had no involvement in this action and that they have not discussed the substance of their work for the Duff & Phelps Matter with the MNAT attorneys involved in this action. Hurd also confirmed that the MNAT attorneys involved in this action have not discussed any confidential information regarding MNAT’s prior work in the Duff & Phelps Matter with the MNAT attorneys who were involved in the Duff & Phelps Matter, nor have they accessed any of the records from the Duff & Phelps Matter.

As part of his investigation, Hurd instructed IT personnel at MNAT to examine the electronic files from the Duff & Phelps Matter. That examination confirmed, consistent with Hurd’s interviews, that none of the MNAT attorneys who has appeared in this action ever accessed any confidential information from the records in the Duff & Phelps Matter.

Movants failed to establish an attorney-client relationship with MNAT 

Based on my review of the record, including documents submitted in camera, I find it would not have been reasonable for defendants to have believed that MNAT was acting as their counsel in connection with the Duff & Phelps Matter. To start, defendants were represented by separate legal counsel in connection with the Dividend before MNAT became involved. Duff & Phelps thereafter reached out to have MNAT represent it separately.

And failed to establish that the proceedings would be tainted

MNAT has taken numerous, and in my view, effective, precautions to protect Duff & Phelps’ confidences. Although MNAT did not create an ethical screen from the outset of this litigation, it implemented one the same day that it learned of the issue from defendants’ counsel. MNAT has represented in an affidavit that no attorney who has entered an appearance in this action has ever accessed information from the Duff & Phelps Matter, and the two partners who worked on the Duff & Phelps Matter (for less than eight hours combined) have had no involvement in the present litigation. MNAT also has represented that it will not examine Duff & Phelps in this action. Given these representations, I am comfortable that the fairness of these proceedings has not been prejudiced and that appropriate measures are in place to ensure that they will not be prejudiced in the future.

Based on these findings, there is no need for me to determine whether MNAT has violated Rule 1.9(a), an issue on which MNAT and the movants vigorously disagree, with each of them submitting expert opinions in support of their respective positions on the issue. Indeed, given these findings, it would be inadvisable for the Court to opine on the issue since, under prevailing Supreme Court authority, a trial court does not have the independent authority to enforce disciplinary rules governing attorney conduct when the challenged conduct does not prejudice the fairness of the proceedings.

(Mike Frisch)

November 22, 2017 | Permalink | Comments (0)

Tuesday, November 21, 2017

New Bar Charges Against Larry Klayman

The District of Columbia Disciplinary Counsel has filed new ethics charges against Larry Klayman

In or about January 2010, Respondent undertook to represent Ms. Elham Sataki in connection with her claims of sexual harassment by a co-worker, Mr. Mehdi Falahati, while employed with the Persian News Network (PNN) of Voice of America (VOA). PNN-VOA is managed by the Broadcasting Board of Governors (BBG), a federal agency responsible for the United States Government's international broadcasting. Respondent had not previously represented Ms. Sataki in a legal matter.

They agreed to a contingent fee but (allegedly)

During the course of the representation, Respondent told Ms. Sataki about his desire to establish a romantic relationship with her.

Ms. Sataki declined Respondent's entreaties to establish a romantic relationship.

In or about May 2010, Respondent sent correspondence to Ms. Sataki acknowledging her decision not to become romantically involved with him. Respondent also informed Ms. Sataki that he would change the terms of their contingent fee arrangement, and require 50% of any recovery she may receive.

The lawsuit was filed in the federal district court

On July 26, 2010, Respondent filed in the United States District Court for the District of Columbia, a motion to disqualify the judge presiding over Ms. Sataki's case. As grounds for the motion, Respondent alleged that the presiding judge, Colleen Kollar-Kotelly, who had been appointed by United States President William Jefferson Clinton, was biased against him  because he had filed several lawsuits against the former President and the former First Lady, Hillary Rodham Clinton.

This allegedly was inconsistent with the client's desire for a quiet resolution of her case.

He is alleged to have violated the duty of confidentiality

WorldNetDaily is a periodical that can be accessed on the world-wide web. According to its own website, dated February 19, 2015, "WND currently attracts nearly 5 million unique visitors per month and more than 40 million page views, according to its own internal monitoring software."

On or about April 30, 2010, Respondent authored an article that was published by WorldNetDaily that described, in part, his representation of Ms. Sataki and her claims against alleged to have VOA. Ms. Sataki did not know. that Respondent would author an article concerning her case that would be published. Ms. Sataki did not consent to the publication of Respondent's article. Ms. Sataki was embarrassed by Respondent's disclosure of facts that he gained during the course of the representation.

There are other allegations of similar confidentiality violations, e.g.

On May 21, 2010, Respondent authored another article that was published in the WorldNetDaily that referenced his representation of Ms. Sataki against VOA. Ms. Sataki did not know that Respondent would author an article concerning her case that would be published. Ms. Sataki did not consent to the publication of Respondent's article. Ms. Sataki was embarrassed by Respondent's disclosure of facts that he gained during the course of the representation. Respondent's article, included an advertisement for his book titled "Whores: Why and How I Came to Fight the Establishment."

The case is In re Larry Klayman, Docket No. 2011-D028. The Board on Professional Responsibility web page does not yet have the hearing date posted. (Mike Frisch) 

November 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Existence Of Attorney-Client Relationship At Issue In Ohio Bar Discipline Case

The web page of the Ohio Supreme Court has an excellent analysis of a disciplinary case scheduled for argument this week

Disciplinary Counsel v. Paul A. Mancino Jr., Case no. 2017-1079
Cuyahoga County

The Board of Professional Conduct, which considers complaints against lawyers and judges in Ohio, recommends that Cleveland attorney Paul A. Mancino Jr. receive a public reprimand based on his representation of a criminal defendant in an appeal.

Family Friend Says Defendant Wants to Appeal
In March 2014, Mancino filed a notice of appeal on behalf of Raymond F. Miller, who had pled guilty in a Geauga County criminal case late in 2013. Robert Jirousek, the father of one of the attorney’s clients, knew Miller’s parents and told Mancino that Miller wanted to appeal his conviction. Jirousek agreed to pay the costs.

Mancino filed a brief in the Miller appeal with the Eleventh District Court of Appeals, but he didn’t send a copy of his brief to Miller. Oral argument was held, and the Eleventh District upheld Miller’s conviction and sentence in December 2014. Mancino said he sent the ruling to Miller, who later testified that he received this material.

Mancino formally asked the Eleventh District to reconsider the decision, and the state filed a response with an affidavit from Miller that stated he never requested or authorized anyone to file an appeal in his case and he hadn’t spoken with or received correspondence from Mancino. The trial judge in the criminal case filed the grievance with the Office of Disciplinary Counsel, which investigated the matter.

Mancino acknowledged during the disciplinary process that he never met, spoke with, or received communication from Miller. The attorney also admitted he never contacted Miller or Miller’s parents to find out if the defendant wanted to appeal the case or hire Mancino as his lawyer. Jirousek stated that he hadn’t communicated directly with Miller, either.

Consultation with Client Is Required
The professional conduct board concluded that Mancino violated rules requiring lawyers to consult with clients to decide legal strategy, such as whether to sue or to settle; to promptly inform clients about the case status; and to obtain client consent on case issues and abide by those decisions. The board also found that Mancino violated a rule barring attorneys from taking compensation for representation from someone other than the client unless the client authorizes that payment.

Among the mitigating factors identified, the board’s report to the Supreme Court notes that Mancino had no dishonest or selfish motive, caused no harm to the client, and has practiced for 54 years without any disciplinary action. The board found no aggravating circumstances and recommended that the Court publicly reprimand Mancino.

No Attorney-Client Relationship Was Formed, Lawyer Argues
Mancino objects to the board’s findings and recommended sanction. He contends that there can be no violations of the Rules of Professional Conduct if he had no attorney-client relationship with Miller. Mancino argues that the Supreme Court dismissed disciplinary charges against an attorney in Disciplinary Counsel v. Mamich (2010) because the Court found there was no attorney-client relationship. In that case, the attorney was hired by a father who had opened a credit card in his daughter’s name without her knowledge and received notice about a lawsuit against his daughter for nonpayment of the debt. Mancino states that the Court decided the daughter wasn’t the lawyer’s client because she was never told about the lawsuit and had no reason to think the lawyer was representing her.

In Mancino’s view, his case is identical to Mamich. He points out that the board’s report states that Miller signed an affidavit that Mancino wasn’t his attorney and that he didn’t ask anyone to appeal his case. If Miller wasn’t a client, then Mancino argues he had no duty to communicate with Miller or update him about the case. The violations of attorney conduct rules found by the board in this case should be dismissed and no sanction should be imposed, Mancino concludes.

Attorney Represented Man in Appeal, Disciplinary Counsel Maintains
The disciplinary counsel counters that throughout the disciplinary process Mancino argued that Miller knew and authorized the attorney’s representation, yet now he states he had no attorney-client relationship with Miller. The disciplinary counsel points out that Mancino filed a brief on Miller’s behalf in the appeal, and he identified himself as Miller’s attorney during oral argument before the Eleventh District.

The disciplinary counsel also argues that the attorney in Mamich was aware that the father hadn’t told his daughter he had opened the credit card in her name or informed her about the civil lawsuit. Mancino, however, believed that Miller wanted to appeal his conviction based on information from Jirousek, so Mancino thought he was representing Miller, the disciplinary counsel maintains. As Miller’s attorney, Mancino was obligated to contact and inform his client about the case and to obtain Miller’s consent to allow Jirousek to pay the legal fees, the disciplinary counsel states.

 Kathleen Maloney

(Mike Frisch)

November 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 20, 2017

Tardy Slip

The Tennessee Board of Judicial Conduct has reprimanded a General Sessions and Juvenile Court Judge for

unexplained tardiness for your court dockets. Your tardiness was for a substantial period of time and was, on a number of individual occasions, for significant periods of time. Your tardiness caused inconvenience to parties, witnesses, and attorneys."

The board notes that the "pattern of tardiness ceased" when the judge learned of the complaint. (Mike Frisch)

November 20, 2017 in Judicial Ethics and the Courts | Permalink | Comments (1)

"Not Caring Much Bout The Rules"

Bar charges have been filed  by the Ohio Disciplinary Counsel in a matter in which the attorney was convicted on his Alford plea to soliciting sex.

After his arrest last year, a divorce client filed a complaint alleging a sexual relationship had commenced during the representation.

The complaint alleges that they exchanged over 300 short message services and texts that "contained sexually explicit language and innuendo." 

It is further alleged that when the client said she thought he could not date clients, he responded

"I'm not much caring bout the rules Missy." 

The News Journal reported on the arrest

 An Ashland attorney has been accused of five misdemeanor charges, including soliciting sexual acts for hire.

Thomas Mason will be arraigned at 9 a.m. Friday in Ashland Municipal Court on that charge and charges of possessing criminal tools, intimidation of a witness, obstructing justice and falsification, according to Ashland Municipal Clerk of Courts records.

He was served his summons by the Ashland Police Department.

According to court records, Ashland police allege that in May and June of 2015, Mason offered to pay an adult to engage in sexual activities, paying $80, $80 and $50.

Mason also is alleged by authorities to have knowingly attempted to intimidate a witness to a criminal act during a meeting that took place outside his Main Street office. Mason is accused of yanking the witness' bag from that person's shoulder.

The complaint also alleges that Mason "did on more than one occasion possess or have under his control a device, instrument or article, with the purpose to use it criminally, to wit, a  cell phone." He also is accused of making false statements about the alleged offenses to public officials.

Mason has a bachelor of arts from the College of Wooster and a law degree from Moritz College of Law. He is a member of the Ashland County Bar Association and served as president in 1999-2000.

(Mike Frisch)

November 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

He Fought The Bar And the Bar Won

The Nevada Supreme Court adopted the proposed six-month suspension of the Southern Nevada Disciplinary Board.

In a matter involving his own debt

Representing both himself and his wife, Hafter informed collection counsel that all of their possessions that may otherwise be subject to collections were owned by a family trust. When collections counsel requested documents regarding the trust, Rafter refused to provide any information, asserting that they had no right to it because the trust was not a judgment debtor. Additionally, in response to garnishment interrogatories, Hafter, as manager of the law firm receiving the interrogatories, responded that he "does not earn a salary or take a draw, as he never makes money from the firm's cases and does not own the firm." During both Rafter's and his wife's judgment debtor examinations, they disavowed owning any property or receiving any income and repeated that all of their possessions were owned by the trust. Despite Hafter's and his wife's representations regarding their income, evidence was presented during the hearing demonstrating that Hafter had claimed a substantial income on a car lease application; had recently received sizeable attorney fees and contingency fee payments; had made a large personal donation to his political campaign; and through his law firm, had created companies to purchase a number of properties during the collections process.

The court sustained the violation

the evidence of the attorney fees and contingency payments Hafter's law firm received, the personal donation Hafter made to his political campaign, and the purchase of multiple properties all contradict Hafter's statements, made under oath, that he lacked any income or possessions to satisfy the judgment against him.

Also 

The remaining charges against Hafter stem from a case wherein he represented a doctor defending against a medical malpractice and wrongful death lawsuit. After Hafter's multiple requests to change the trial date due to its conflict with a religious holiday were denied, Hafter posted public comments on Facebook regarding the case alleging that the presiding judge was biased and anti-Semitic, had no justification for denying his requests, and had absolute immunity from trampling on the rights of others. Hafter made similar comments that were published in two newspaper articles about the matter.

There was no basis in fact for Halter's comments that the presiding judge lacked any reason besides bias and anti-Semitism to deny Hafter's requests to change the trial date. The judge specifically stated that the moving of the trial date would cause prejudice to the plaintiffs because they would have to change their experts' schedules and, because Hafter was the attorney that agreed to the trial date in the first place, that the denial had nothing to do with his religion, but rather, lilt had everything to do with [Halter's] ability to control [his] own schedule." While we recognize that disciplining an attorney for statements made regarding a sitting judge can give rise to constitutional concerns, because Hafter's statements respecting the refusal to change the trial date after it was set with his agreement were not truthful, they are not subject to First Amendment protections.

The court considered the debt collection misconduct as the more serious violations. 

The Las Vegas Review-Journal reported on the panel recommendation

Hafter, an orthodox Jew, rushed out of the hearing about 6 p.m. to make it home for the Jewish Sabbath immediately after the panel informed him of its unanimous decision. He told the three panel members before they began 20 minutes of deliberation that he had to be home by sundown.

Throughout the hearing, the outspoken Hafter was combative and critical of the disciplinary process that led the State Bar to file a two-count complaint against him in April over his inflammatory 2014 comments about then-District Judge Valorie Vega.

Hafter, who represented himself on Friday, even once asserted his Fifth Amendment right against self-incrimination.

He accused [Assistant Bar Counsel] Isaacson of having a “vendetta” against him and the disciplinary panel’s chairman, Paul “Luke” Puschnig, of having his mind made up before all of the evidence was heard. Puschnig denied the allegation and said he viewed it as a personal insult.

At one point, Hafter said he no longer was accepting new clients and wanted to get out of the field of litigation in Nevada.

“If the bar continually wants to go after me because I exercised my First Amendment rights, whether they be religious practices or free speech, I don’t really want to be part of such an organization,” he told the Las Vegas Review-Journal during a break in the proceeding. “It makes me sick to be a member of a profession that has such little regard for its members’ constitutional rights.”

 The bar complaint alleged that Hafter publicly chastised Vega in 2014 for denying a motion to alter a two-week civil trial schedule to accommodate a Jewish holiday. At the time, Vega was presiding over the medical malpractice case that Hafter was defending, and Hafter was running for another seat on the District Court bench.

Hafter accused Vega on his Facebook page of religious discrimination and suggested she was “anti-Semitic or racist.” The Review-Journal quoted him as saying, “Either she’s anti-Semitic or she’s biased against me. In either case, she shouldn’t be the judge in this case.”

The complaint also accused Hafter of fraudulent conduct and making misrepresentations in Nevada legal proceedings to evade a $137,000 judgment against his law firm in Arizona.

Puschnig said late Friday the disciplinary panel found that Hafter had violated six of the nine rules of professional conduct alleged in the complaint and that his actions had a harmful impact on the legal community and the court system.

The panel also recommended that Hafter pay the cost of the proceedings, and Puschnig suggested that Hafter needed to deal with anger management issues.

Hafter denied wrongdoing throughout the hearing and argued that the bar’s case was prompted by opposing lawyers engaged in active litigation with him.

The case is Matter of Discipline of Jacob Hafter. (Mike Frisch)

November 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, November 18, 2017

Sex Was Ethical; Lie Was Not But Over Dissent: "The Practice Of Law Is Not A Dating Service"

The West Virginia Supreme Court of Appeals has admonished an attorney who had agreed to accept a 60-day suspension.

The Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) found that Respondent Sarah Campbell violated two provisions of the West Virginia Rules of Professional Conduct and recommended that she be admonished and ordered to pay the costs of these proceedings. Ms. Campbell does not challenge the recommendations of the HPS; however, the Office of Disciplinary Counsel (ODC) of the LDB objected to the sanctions. This matter comes before this Court upon the objections of the ODC.

Based upon the parties’ stipulations, the ODC asserts that the appropriate sanction is a suspension of Ms. Campbell’s license to practice law for sixty days with automatic reinstatement, six months of supervised practice following her suspension, and that she be required to pay the costs of these proceedings.

In order to resolve this case, we must consider whether a sexual relationship between an attorney and her client predates the attorney-client relationship. Given the long history of the relationship in this case, we find that it does.

Even so, this Court finds that there is clear and convincing evidence to support the findings of the HPS that Ms. Campbell violated Rules 4.1 and 8.4(c) of the Rules of Professional Conduct because she misrepresented to her supervisor the nature of her relationship with a client. For the reasons explained below, we adopt the sanctions recommended by the HPS.

The attorney is a public defender appointed to defend her client

In 2002, Ms. Campbell and Mr. H began a romantic relationship; at the time, she was fourteen and he was sixteen years old.  In 2003, this relationship became sexual and continued intermittently until December 2013, when both parties decided to pursue other romantic partners.

In October 2013, Ms. Campbell was admitted to practice law in West Virginia and began working for the Nicholas County Public Defender’s Office. In April 2014, having practiced law for only six months, Ms. Campbell was appointed to represent Mr. H. in an abuse and neglect proceeding.  Shortly thereafter, Mr. H. was arrested on felony charges stemming from the abuse and neglect proceeding and Ms. Campbell was again appointed to represent him.

That same month, due to the nature of their relationship and fully complying with her obligations under Rule 1.7(b), Ms. Campbell initiated a discussion with Mr. H. about her continued representation.  Mr. H. verbally waived the conflict and asked Ms. Campbell to continue representation, adding that he believed it would “lead to more zealous representation.”

In September 2014, Mr. H. told Ms. Campbell he was in love with her and asked her to restart the relationship. At that time, Ms. Campbell advised Mr. H. that they should speak with her supervisor, Chief Public Defender Cynthia Stanton, to make her aware of the preexisting sexual relationship. Mr. H. insisted on seeing Ms. Stanton alone and Ms. Campbell obliged.

During this private meeting, Mr. H. told Ms. Stanton that he was in love with Ms. Campbell, but failed to disclose the prior relationship or that Ms. Campbell had feelings for him as well. As a result, Ms. Stanton believed that Mr. H. was merely asking for permission to date Ms. Campbell. At the same time, Mr. H. led Ms. Campbell to believe that he told Ms. Stanton everything about the preexisting relationship and that she was fine with its continuance. During this meeting, Ms. Stanton did not question Ms. Campbell about the relationship and Ms. Campbell did not inquire as to the extent of Ms. Stanton’s knowledge of it. Still operating on inaccurate information, Ms. Stanton advised Ms. Campbell that she did not believe a judge would grant a motion to withdraw from representation of Mr. H. and that she believed continued representation would be appropriate.

Ms. Campbell met again with Mr. H. and indicated for a second time that he could request new counsel, but informed him that she did not have a problem moving forward with representation. Shortly thereafter, Ms. Campbell and Mr. H. resumed sexual relations. From roughly October 2014 until May 2015 (when Mr. H. was indicted), aside from appointments related to his case, Ms. Campbell saw Mr. H. socially a maximum of five or six times.

Police discovered the relationship during a home detention check and told the assistant prosecutor, whose boss reported it to the ODC purportedly to comply with Rule 8.3. 

Prior to filing his complaint with the ODC, Assistant Prosecutor White advised Ms. Stanton of the allegations. Ms. Stanton contacted Ms. Campbell by telephone and asked if the allegations were true, alerting her that her job depended on the response. Ms. Campbell denied having a sexual relationship with Mr. H. Immediately thereafter, Ms. Campbell filed a motion to withdraw as Mr. H.’s counsel and Assistant Prosecutor White filed the disciplinary complaint against Ms. Campbell.

The attorney denied misconduct

In a May 2016 sworn statement, Ms. Campbell addressed the misrepresentations made to Ms. Stanton and denied violating the Rules of Professional Conduct, stating that the relationship began when the two were in junior high school and continued intermittently until 2013, when it dissipated but did not end.

As to the bar charges

However, as previously stated, the HPS concluded that Ms. Campbell did not violate any of the rules alleged by the LDB. The HPS found no violation of Rule 1.7, deeming it sufficient that Ms. Campbell had consulted with Mr. H. and obtained his consent for the representation, and because there was no evidence that Ms. Campbell’s representation of Mr. H. was materially limited by her personal interest. The HPS further concluded that Ms. Campbell did not violate Rule 1.8(j), because a consensual sexual relationship had existed for more than ten years at the commencement of the representation. The HPS also concluded that Ms. Campbell did not violate Rule 8.1(a) because, for the reasons stated above, she believed that her client had informed Ms. Stanton of the relationship, and therefore she had not made a false statement. Finally, the HPS concluded that Ms. Campbell did not violate Rule 8.4(d) after finding that the relationship itself was not prohibited.

As for the imposition of an appropriate sanction, the HPS concluded that Ms. Campbell violated two rules, both stemming from misrepresentations made to her supervisor and her actions following those misrepresentations, and further concluded that there were no aggravating factors.

Notably

In addition to the mitigating factors listed above, the HPS was particularly troubled by the fact that the disciplinary complaint was filed by opposing counsel in ongoing litigation. This fact is even more pronounced considering the investigation of the relationship ensued within 24 hours of Ms. Campbell having refused to grant a continuance to accommodate the complainant – the prosecutor – in the case against Mr. H...

After being made aware of the proposed 60-day suspension, Ms. Stanton testified that she would recommend to the Public Defender Corporation that Ms. Campbell be able to continue her employment after her suspension and that she believed Ms. Campbell continued to zealously represent clients.

The HPS report is linked here. 

The court agreed as to ethical sex

as the comments to the rule make clear, “[s]exual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship.”  Not only does the evidence fail to support a finding that Ms. Campbell took advantage of Mr. H., but the type of longstanding relationship between the two simply does not present the same concerns associated with new relationships that truly begin after representation begins. For these reasons, we conclude that for purposes of Rule 1.8(j), a longstanding and continuous, albeit intermittent sexual relationship, though dormant at the commencement of an attorney-client relationship, is a preexisting relationship.

The court accepted admonishment as the sanction.

Chief Justice Loughery dissented and would find the sex-with-client rule violated

  in an effort to avoid Rule 8.4(g)/1.8(j)’s unambiguous proscription against sexual relations with clients, the subcommittee and the majority try to retrofit the respondent’s actions within the rule’s exception for existing relationships. This effort fails. The plain language of the exception only allows a lawyer to have a sexual relationship with a client if the sexual aspect “existed between them at the commencement of the lawyer/client relationship.” Id. (emphasis added). Both the respondent and Mr. H. testified under oath that they were not engaged in a sexual relationship when the respondent was court-appointed to represent Mr. H. in April 2014. Instead, the respondent testified about having a prior, intermittent sexual relationship with Mr. H. that had “dissipated” by December 2013, a time when they were each dating other people. The respondent admitted there was no sexual conduct between them until late September or October 2014, which was while she was already engaged in the ongoing legal representation of Mr. H.

In an analysis that would be more suited for the readers of a romance novel, the subcommittee theorized about what the respondent’s and Mr. H.’s feelings were, or might have been, about their prior, intermittent relationship. Reasoning that “relationships do not stop and start with mathematical precision,” the subcommittee found that this was an ongoing sexual relationship. Blindly following the subcommittee’s lead, the majority somehow concludes that the respondent is exempt from the prohibition in Rule 8.4(g)/1.8(j). However, the uncontested facts and unambiguous rule language should not be disregarded based upon the subcommittee’s romantic musings.

Rule 8.4(g)/1.8(j) is plainly-worded and free from ambiguity. As such, it is not subject to interpretation or construction.

He would find a concurrent conflict of interest and conduct prejudicial to the administration of justice

A suspension from the practice of law is an appropriate sanction for a lawyer’s sexual misconduct with a client. For example, in Lawyer Disciplinary Board v. Hewitt, No. 35515 (W.Va. Apr. 14, 2011) (unreported order), a lawyer began a sexual relationship with a client and was convicted of misdemeanor trespassing upon the property of her paramour’s ex-spouse. This Court, inter alia, suspended the lawyer from the practice of law for three months. Id.

The respondent’s conduct in this matter was intentional, dishonest, risked harm to her client because she valued her own personal concerns over those of Mr. H., and subjected the practice of law to extreme disrepute. The practice of law is not a dating service; lawyers are expected to maintain their professionalism at all times. In my opinion, for her multiple violations of the Rules of Professional Conduct, the respondent should receive at least the sanction to which she stipulated: a sixty-day suspension from the practice of law, six months of supervised practice, and payment of costs.

From the "romance novel"

When does a relationship begin? When does it end? The former is perhaps easier to answer than the latter but experience teaches us that when a sexual relationship spans over a course of more than ten years, that relationship and the emotional bond which attends it, does not end simply because the parties are not engaging in sexual intercourse at any particular moment in time. And so it has been with Sarah Campbell and Jackie Hall since 2003...

The continuation of the relationship at the commencement of, during and even after the representation was entirely consistent with the history of their relationship up to that time. It was sporadic and intermittent. To say that their relationship ended in December of 2013 and started anew in October of2014, the position advocated by Disciplinary Counsel, simply goes against the grain of human nature and experience. We are not looking at a prior brief encounter where the parties were not invested with emotional bonds. We are looking at a ten-year, plus, relationship. Relationships do not stop and start with mathematical precision and Rules 8.4(g) and 1.80) do not require such a strained interpretation.

Justice Workman joined the dissent. (Mike Frisch)

November 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)