Thursday, July 17, 2014
Kathleen Mahoney has this report on the web page of the Ohio Supreme Court
The Ohio Supreme Court today indefinitely suspended the law license of Bridget M. McCafferty, formerly a judge on the Cuyahoga County Court of Common Pleas.
In August 2011, McCafferty was convicted on 10 counts of making false statements to federal law enforcement about phone conversations she had with former Cuyahoga County Auditor Frank Russo and local businessman Steve Pumper regarding cases in her courtroom. Federal officials had intercepted more than 40,000 calls as part of a federal investigation into countywide corruption. After some counts were merged, the federal court sentenced McCafferty to the maximum term of 14 months in prison with three years of supervised release, 150 hours of community service, and a $400 fine. Following her conviction, the Supreme Court suspended McCafferty’s license to practice law on an interim basis.
In a 4-3 decision today, the court found that the former judge had violated multiple professional and judicial conduct rules.
Justice William M. O’Neill, who authored the court’s majority opinion, noted that McCafferty’s misuse of her judicial position was not charged in the federal criminal complaint against the judge, so that conduct was not part of the disciplinary case before the Supreme Court.
In considering whether to disbar McCafferty, Justice O’Neill explained that the Supreme Court has sometimes determined that permanently prohibiting a judge from practicing law is appropriate when the judge is convicted of a felony, but the court has not always disbarred judges for dishonest conduct.
“Certainly McCafferty’s conduct warrants a severe sanction,” Justice O’Neill wrote. “She was convicted on multiple counts of lying to FBI agents about conversations with people who were the subject of a county-wide corruption investigation. In addition, McCafferty was deceptive about the nature of those conversations, most particularly that those conversations included matters that had been before her in court. Notwithstanding, the conduct that led to the criminal convictions and rule violations occurred during a single impromptu conversation with FBI agents, rather than as a pattern of premeditated criminal conduct. Thus, we agree with the [Board of Commissioners on Grievances & Discipline] that imposition of the system’s most severe sanction is not warranted in this case.”
“But we also do not believe that the appropriate sanction is a fixed-term suspension,” he continued. “Despite McCafferty’s cooperative attitude during the disciplinary proceedings, we are troubled by the contradiction between McCafferty’s assertion that she accepts full responsibility for her actions and her statement that she believed that she had answered the agents’ questions as truthfully as she could. She clings to this claim, despite its utter implausibility in the face of the recorded conversations. Thus, we determine that an indefinite suspension without credit for time served [under the interim suspension] is the appropriate sanction for her misconduct.”
McCafferty’s interim suspension will continue until she completes the terms of her federal sentence. Her supervised release will end on September 17, 2015, as long as she commits no parole violations. Her indefinite suspension from practicing law will begin after she is discharged from the federal court.
The majority opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell, and Sharon L. Kennedy. Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor and Justice Judith L. French.
The dissenters would have disbarred McCafferty.
“I do not see how the majority can square a sanction of a mere indefinite suspension with its statements that ‘[t]his court has stated that judges are held to the highest possible standard of ethical conduct,’” Justice Lanzinger wrote. In her view, the case deserved the full measure of the court’s disciplinary authority.
“The majority focuses solely on McCafferty’s conversation with FBI agents and paints her conduct as a one-time, brief lapse in judgment,” Justice Lanzinger continued. “This narrow characterization is simply untrue; McCafferty’s misconduct was more prolonged and more egregious than the majority admits. Months before she ever spoke to the FBI, McCafferty was swaying judicial outcomes for political associates and giving special consideration to high-ranking politicians. There can be no dispute that this conduct occurred. McCafferty’s criminal indictment outlined her involvement with [then-Cuyahoga County Commissioner James] Dimora and Russo, and she stipulated, at her disciplinary hearing, to engaging in the conduct described in the indictment.”
Two of McCafferty’s disciplinary rule violations relate to her involvement with Russo and Dimora and the abuse of her judicial office, so that misconduct is part of the case before the court, Justice Lanzinger contended.
“If the primary purposes of judicial discipline are to protect the public, guarantee the evenhanded administration of justice, and to bolster public confidence in the institution, then nothing short of disbarment should be imposed in this case,” she concluded.
The New York Court of Appeals has suspended the recently-indicted acting village justice of Waterloo.
The Finger Lake Times reported on the charges
Acting Village Justice Roger Barto is facing nine charges, five of which are felonies, related to a reported attack last summer authorities now say he fabricated.
The nine-count grand jury indictment was unsealed Monday afternoon in Seneca County Court. It charges Barto with felony counts of third-degree grand larceny, fourth-degree corrupting the government, third-degree insurance fraud, first-degree falsifying business records and defrauding the government.
Barto also has been charged with misdemeanor counts of third-degree falsely reporting an incident, official misconduct and petty larceny. The latter charge stems from Barto allegedly stealing gasoline in April while serving as sexton for the village cemetery.
The felony counts are related to an incident the night of Aug. 31, 2013, when Barto told police he was assaulted while locking up the village court following an arraignment. The court is in the village’s municipal building on West Main Street.
Barto told police he was approached from behind by one or two people, and that the assailant or assailants placed an object around his neck and hit him over the head with a toilet tank lid left outside the building due to renovations.
The suspension is with pay. (Mike Frisch)
A Louisiana Hearing Committee found no misconduct in a case where an attorney allegedly made a false representation to a court.
The attorney sought to withdraw his client's guilty plea in a criminal case.
The prosecutor, who could not be present for a morning session of court, had signed a document reflecting that he did not oppose the motion. After signing the pleading, the prosecutor told the attorney he was getting flack from his boss about his position but did not indicate that he had retreated from his consent.
The attorney told the court that the motion was unopposed. The court nonetheless declined to rule in the prosecutor's absence.
When court resumed, the prosecutor advised the court that "negative feedback [from his superior] had ripened into flat out opposition to the motion."
The committee found that these circumstances did not establish that the attorney made a false representation concerning the position of the prosecutor. (Mike Frisch)
Wednesday, July 16, 2014
The Oklahoma Supreme Court has accepted a consent disbarment of an attorney who has been charged with criminal offenses.
Fox 25 reported on the criminal charges, initiated after a report by a female inmate at the Oklahoma County jail
Sheriff Whetsel said the investigation revealed the [attorney] Kirk only pretended to represent the woman who was in jail on drug charges. She discovered the ruse when the public defender's office contacted her about her case. That's when the woman talked to deputies and agreed to assist in the investigation.
Investigators say the woman met with Kirk inside the jail and he is heard on audio tape making advances towards her. The sheriff's office says the woman was told to use the phrase "my pants are too tight" to signal deputies to enter the room. "During his visit, Kirk furnished her with lubricating jelly and a sex toy and as this began our investigators opened the door and arrested Frank Kirk immediately."
According to court documents the female inmate told investigators that Kirk coerced her into performing sexual acts while he watched at least four times.
Deputies found a cell phone with Kirk after his arrest. Bringing a cell phone into the jail is a felony. Kirk is now facing charges of possession of contraband and multiple counts of offering to engage in an act of lewdness.
"The sex toys and lubricant and stuff like that I can't imagine in a million years any lawyer would do anything like that and hopefully there's been a misunderstanding but it doesn't seem that way to me," said defense attorney Scott Adams.
An attorney's self-report of misconduct led to his disbarment by the South Carolina Supreme Court.
The self-report took place in late 2012, when the attorney learned that his law firm's trust account was being investigated by the Office of Disciplinary Counsel.
The attorney admitted that he had been aware of trust account shortfalls for six years and that his partner had a solution of robbing Peter to pay Paul and keep the account afloat.
Respondent did nothing to prevent the implementation of this plan and, as a result, the firm began the self-perpetuating cycle of misappropriation of client funds. Respondent actively participated in this process.
The self-report came in the wake of a client complaint over his partner's misappropriation of the proceeds of a personal injury settlement. The partner committed suicide the next day.
The attorney was placed on interim suspension within a few days of the self-report. He was convicted of mail fraud and confessed to a judgment of over $1.2 million.
Here, he consented to the disbarment.
The Palmetto State reported with respect to the partner
In Schurlknight’s case, after he committed suicide, his clients learned that he had gambled away their money and, not only that, had taken out a life insurance policy that paid money to his bookie to reimburse the bookie for his gambling losses, according to lawsuits on file in the Florence County Court of Common Pleas.
The partner's estate is the subject of a class action lawsuit initiated on behalf of former clients, according to SC Now.com:
The suit alleges that between 2007 and 2012 while practicing personal injury law that Schurlknight on many occasions settled client’s personal injury claims without their knowledge, forged their signatures on the settlement checks and kept the money for himself, while lying to clients that their case was ongoing. There are also allegations that he took out fraudulent loans in his clients’ names as well.
In addition to the allegations that he operated his law practice as “the Schurlknight family piggy bank,” the suit also said that Schurlknight not only kept the funds, but settled for far less than their actual harm.
The suit tallies up $4,262,484 that the plaintiffs say he stole, but claims the ultimate total could be between $6 million and $10 million
While the case will require analysis of the allegations of stolen money prior to Schurlknight’s death, it also hinges on claims that the defendants hid investment-grade life insurance policies from the court after he died.
The plaintiffs allege that the Schurlknight family, while represented by legal counsel, approved an inventory of the late Schurlknight’s assets that was inaccurate, and left out the insurance money that was specifically required by the probate court’s form, even though it is technically not part of the estate and in theory should have been exempt from creditors per South Carolina law.
The suit claims the purpose of the falsified inventory was “luring creditors into believing that pursuing any type of claim against the estate or its beneficiaries was hopeless as there were no funds or other assets of any kind to pursue.”
Since then the $1.5 million, which was deposited in Lee Schurlknight’s account and has been partially transferred to Malinda Schurlknight, was used to purchase three new cars and to pay $80,000 to a creditor, who the suit does not name.
The Pennsylvania Judicial Conduct Board has filed a lengthy complaint alleging misconduct by an Erie County Court of Common Pleas judge.
The complaint notes that the judge "engage[s] in many regional, national, and international educational, charitable and civic endeavors" but
In stark contrast to her record of non-judicial service, the judicial administrative authorities in Erie County have received numerous and consistent complaints regarding [the judge's] demeanor and concomitant behavior both on the bench and off the bench.
On bench, the judge is alleged to have been "impatient, intemperate, belittling, overly-critical, or disrespectful" to court employees, lawyers, litigants and witnesses.
Off bench, same allegations as to treatment of her personal staff.
The Pittsburgh Post-Gazette reports that the judge was first elected to office in 1989. Her attorney is quoted stating that the charges are "devoid of merit." (Mike Frisch)
Monday, July 14, 2014
Kansas has amended several rules governing bar admission.
One significant revision relates to the recent controversy concerning mental health questions.
The Supreme Court changed the language relating to its evaluation of an applicant's mental and emotional fitness to practice by deleting a reference to "mental and emotional health and condition" to "conduct," thus looking to specific behavior as a basis for inquiry rather than the existence of a condition itself.
This is a trend that we can expect to see more of as state bars react to the position of the U.S. Department of Justice (reported here by the ABA Journal) that only conduct, not a diagnosed condition, can properly be considered in the bar admissions process. (Mike Frisch)
The Kentucky Supreme Court has ordered the interim suspension of an attorney who has had a series of criminal incidents involving domestic assault and public intoxication.
The court concluded that the arrests and convictions did not establish that the attorney poses a substantial harm to clients that would merit a suspension pending further proceedings. Nor did her failure to appear for court proceedings establish a basis for interim suspension
However, the court found the attorney's mental health issues did suppport a suspension
In her response, Respondent reveals that she has not accepted a client since November of 2013. Moreover, Respondent stated that she is not currently practicing law because she is focusing on her recovery.
Based on the fact that Respondent is residing in an in-patient treatment facility, coupled with her admission that she has abandoned her law practice, we find it clear that Respondent's alcoholism is a debilitating condition which has robbed her of the mental fitness needed to practice law. Consequently, we agree with the Inquiry Commission that Respondent's license to practice law should be temporarily suspended pending disciplinary proceedings...
A reprimand of a vetrinarian by the Board of Vetrinary Medicine was upheld by the New Hampshire Supreme Court.
The sad facts
The Board found or the record establishes the following pertinent facts. On August 6, 2007, a couple took their male five-month old Shih Tzu puppy, Toby, and two other puppies to see the respondent, a licensed veterinarian, for routine vaccination and de-worming. The respondent asked the couple whether they had any concerns about Toby’s behavior. They responded that they did not. The respondent then inquired as to which puppy was male, picked Toby up, and administered an oral de-wormer. The respondent asked whether they had experienced any dominance issues with Toby. The couple answered that they had not.
The respondent determined that Toby was "dominant" and proceeded to demonstrate a dominance-submission technique, which included picking Toby up by the scruff of his neck and pinching his snout. Toby then began to urinate. The respondent restrained Toby on the examination table. Toby defecated, struggled briefly, lay still, and then began bleeding from his mouth. Toby died later that day. A necropsy revealed the cause of death to be a non-cardiogenic pulmonary edema (NPE).
The court concluded that the board properly concluded that the vertrinarian engaged in "unprofessional behavior" and that the standard was not unconstitutional vague. (Mike Frisch)
The Indiana Supreme Court ordered a suspension of six months with all but 60 days stayed on probation as a result of an attorney's driving offenses
In 1995, prior to his admission to the bar, Respondent was convicted on a guilty plea to Operating While Intoxicated ("OWI"), a class A misdemeanor. Respondent reported this conviction on his application for admission to the bar.
Since his admission to the bar in 1998, Respondent has been charged on seven occasions with traffic violations between April 2003 and November 2012. The first six occasions included a charge of OWI, two of which involved endangering a person. Other charges included exceeding the speed limit, unsafe lane movement, following too closely, and failure to yield. The seventh occasion resulted in a charge of a failure to stop after an accident with non-vehicle damage.
Respondent was convicted on a guilty plea to one count of reckless driving arising from the April 2003 incident. On December 3, 2013, he was convicted on a guilty plea to one count of operating with a B.A.C. of at least 0.15, a charge arising from an incident in July 2009. The remaining charges were all dismissed in conjunction with plea agreements, a pre-trial diversion agreement, or pursuant to Criminal Rule 4 (discharge for delay in criminal trials).
The probation will be supervised by the Judges and Lawyers Assistance Program. The attorney will be suspended without automatic reinstatement if he violates the conditions. (Mike Frisch)
Friday, July 11, 2014
A former assistant state's attorney for Cook County has been charged with ethics violations arising out of an incident described in allegations by the Illinois Administrator.
The complaint alleges that the attorney and a companion attended a Cubs game on September 22, 2012. They drank at the game and later at a bar and restaurant with family and friends.
The complaint recites that they went to an adult merchandise store called Taboo Tabou and caused a disturbance there. An employee called for help from the establishment next door, the Blue Hawaii.
David Boone, the employee from Blue Havana, arrived and repeatedly asked Respondent and [companion] Gould to leave, but they only became more belligerent. Respondent went into her purse again and presented her States Attorney's badge to Boone. Respondent swung at Boone. Boone tried to walk away from her, but Respondent fell. Respondent got up and then began running down the street, yelling that she had been "assaulted." At the same time, Gould began videotaping Boone with his cell phone which he positioned directly in front of Boone's face. The phone hit Boone and Boone hit the phone out of Gould's hand. Gould attempted to hit Boone, but Boone punched him and Gould hit his head on the metal window frame. Respondent then charged at Boone, fell to the ground, grabbed Boone's leg and bit him, breaking the skin and causing injury to Boone's knee. Several bystanders pulled Respondent off of and away from Boone.
The police arrived and placed Respondent in handcuffs and in a police SUV where she managed to get her hands out of the handcuffs. Respondent was taken out of the SUV by a female officer, re-handcuffed and put back in the vehicle. Respondent told the officer at least six times that she was an Assistant State's Attorney. Respondent called the officer "a cunt, slut, bitch whore, and dyke" and slapped at her. Respondent got out of the handcuffs again and was kneeling on the floor of the vehicle attempting to vomit. Respondent was taken out of the vehicle again and, while sitting on the curb, proceeded to try to make herself throw up while screaming obscenities.
After the police interviewed witnesses, Respondent and Gould were arrested. Respondent was ultimately charged with attempted official misconduct, battery, resisting arrest, criminal trespass to property, assault and disorderly conduct.
The attorney and the companion were acquitted of the criminal charges but she is no longer an assistant state's attorney. (Mike Frisch)
A disciplinary record in another jurisdiction is not a bar to admission on motion, according to an opinion granting admission to an applicant by the Nebraska Supreme Court.
The court admitted the attorney based on its de novo review of the adverse decision by the State Bar Commission.
The applicant is an honorably discharged Navy veteran.
She was admitted in Colorado in 2008 and Alabama in 2000. She has no disciplinary record in Colorado but was the subject of several disciplinary invesigations in Alabama.
She is in good standing in both jurisdictions.
Most of the Alabama complaints were "screened out" or dismissed. These were not disclosed in the Nebraska application, which the applicant stated was an oversight.
She disclosed two other actions --a private and a public reprimand.
There were also issues involving non-disclosure of a criminal record and her credit history.
While we do not condone these inaccuracies in [her] application, we are willing to accept [her] explanations and conclude that they are not indicative of reckless behavior which would preclude her admission in Nebraska.
Thursday, July 10, 2014
The Washington State Supreme Court has imposed a two-year suspension of an attorney for conflicts of interest and related violations in his creation and management of an elderly client's estate.
As to conflicts
The hearing officer held that Hall violated [conflicts] RPCs because he named himself as alternate trustee and health care representative, and gave himself power of attorney without fully explaining to the Keens the legal effects of these roles, including the ways in which these roles could conflict with his own interests and, in turn, adversely afiect their interests...
Being in control of Margaret's assets was in Hall's personal interest and thus there was a significant risk that his representation of the Keens could be limited by this interest. Further, there is substantial evidence that Hall did not obtain informed consent to his acquiring a pecuniary interest in Margaret's estate in the form of an $8,000 per year trustee's fee. Hall argues that the waiver provisions in his engagement letter and the will and Trust were sufficient to serve as informed consent. These waiver provisions, however, only purportedly waive the conflict created in Hall being able to hire himself for legal work for the Trust and/or the estate. They do not explain whether Hall was representing the Keens or himself in appointing himself to these roles, as is required by RPC 1.8(a)(3). There was also substantial evidence that Margaret had difficulty even reading the documents she signed and that Hall failed to read them out loud, word for word. Finally, informed consent also requires "adequate information and explanation about ... reasonably available alternatives to the proposed course of conduct." RPC 1.0( e). Here, expert witness Barbara Isenl10ur testified at the hearing that professional trust agencies are a much better option than attorneys because they are more knowledgeable and cheaper. There is no indication that Hall informed the Keens, in writing or otherwise, of such a reasonable alternative to appointing himself as future trustee.
The court affirmed findings that the attorney charged an excessive fee and failed to return original documents.
Finally, the attorney's visit to successor counsel (retained to revise the docum,ents he drew up) was prejudicial to the administration of justice.
Here's the story
On May 25, 2010, Hall made an unannounced evening visit to [attorney] Clausen's residence·---which also served as her place of business-where Clausen was with her husband and infant daughter. In a loud, angry voice, Hall called Clausen an idiot and told her that she had committed malpractice, that she was in "big trouble" and needed to "fix the problem," and that she was going to get disbarred. Verbatim Tr. of Proceedings (VTP) at 198. Clausen threatened to call the police, and Hall finally backed off, mentioning that Clausen "had a lot to lose ... a new baby and a young family and a big house" and that if he went down, she would go down. VTP at 200. Hall then sent a letter to Clausen containing random references to Communist Russia and Nazi Germany and threatening to file a lawsuit against her. Hall was removed as trustee of the Trust on May 28, 2010, but he still refused to return the original documents and continued to accuse Clausen of malpractice.
This violated the rule
...it is certainly against practice norms to show up unannounced at another attorney's home and threaten her and her family to withdraw a grievance she did not file. We affirm as to this count.
Wednesday, July 9, 2014
From the web page of the Ohio Supreme Court
The Ohio Supreme Court today publicly reprimanded a judge serving on the Akron Municipal Court for her conduct related to the 2012 arrest of a lawyer who practiced in her courtroom.
In the 5-2 decision, the court determined that Judge Joy Malek Oldfield violated two judicial conduct rules and one professional conduct rule, but rejected an argument from the Disciplinary Counsel that Oldfield violated an additional judicial conduct rule. The Disciplinary Counsel filed the complaint charging the judge.
In February 2012, Oldfield and her husband attended an evening event that lasted into the next morning. Oldfield’s husband asked Catherine Loya, the public defender assigned to the judge’s courtroom, to drive Oldfield home, and he left.
The judge and Loya left the party sometime after 1 a.m. and stopped in a shopping center parking lot. A police officer pulled up and asked them for identification. Two more police officers arrived soon after. When Loya refused to do field sobriety tests, she was arrested and taken to the police station. Oldfield asked one of the officers to take her to the station to be with Loya. During some of her interactions with the police, Oldfield mentioned that she was a judge.
At the station, Loya’s driving privileges were immediately suspended. An officer then drove both Loya and Oldfield to the judge’s house. Loya stayed at Oldfield’s house for three nights until she was permitted to drive again. For the next two weeks, Oldfield presided over 53 cases in which Loya represented clients.
In today’s majority opinion, Justice Sharon L. Kennedy wrote that the court agreed with the state disciplinary board that the judge violated two judicial rules stating that judges must act in ways that promote public confidence in the judiciary, avoid impropriety and the appearance of impropriety, and disqualify themselves from proceedings in which their impartiality might be questioned. The court also determined that the judge engaged in conduct prejudicial to the administration of justice.
Despite an objection from the Disciplinary Counsel, the court also agreed with the board’s recommendation to dismiss the alleged violation of Judicial Conduct Rule 1.3, which reads: “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”
“Our review of the record supports the findings of the panel and the board,” Justice Kennedy wrote. “[T]he [board’s] panel concluded that the evidence was contradictory and that the record, taken as a whole, did not produce ‘a firm conviction’ that Judge Oldfield used her judicial title to influence the officers to accord her or Loya special treatment or that her conduct gave the appearance that she was using her title for that purpose. We find that the panel reviewed the record using an objective standard to determine whether Judge Oldfield’s conduct created an appearance of impropriety, i.e., whether her behavior would create, in reasonable minds, a perception that she was improperly using her position to gain favor. We therefore overrule [the Disciplinary Counsel’s] objections ….”
In determining the appropriate sanction, the court considered Oldfield’s failure to disqualify herself from more than 50 cases in which Loya was representing defendants to be an aggravating factor. But the court also noted the judge’s lack of any prior disciplinary record, her open disclosure and cooperative attitude in the disciplinary hearings, and her good character and reputation. Based on these circumstances, Oldfield’s conduct, and court precedent, the majority ruled to publicly reprimand the judge.
Joining Justice Kennedy’s opinion were Justices Paul E. Pfeifer, Terrence O’Donnell, Judith L. French, and William M. O’Neill. Chief Justice Maureen O’Connor dissented in part in an opinion joined by Justice Judith Ann Lanzinger.
In her opinion, Chief Justice O’Connor agreed with the majority that Oldfield violated two judicial rules and one professional conduct rule and concurred in the sanction. However, the chief justice dissented from the dismissal of Jud.Cond.R. 1.3.
“Importantly, Judge Oldfield’s first mention of her status as a judge to the officers was gratuitous and, contrary to the majority’s characterization, more than a mere ‘remark,’” she wrote. “During the arrest, Officer Garner asked a ‘yes or no’ question — whether Judge Oldfield was a lawyer. Judge Oldfield testified that she responded, ‘Yeah, actually, I’ve been an attorney for some time and now I’m a judge.’ Judge Oldfield acknowledged that she could have responded truthfully in a number of alternative ways, including by offering simply that she was licensed to practice law. The specific mention of her judgeship in response was not solicited or required, nor should it have been offered. Indeed, it served only one purpose: to make sure that the officer knew that she was a judge.”
In addition, the judge continued to insert herself into Loya’s arrest and booking at the police station, Justice O’Connor noted.
“I find that the evidence as a whole establishes that a reasonable person would believe that Judge Oldfield abused the prestige of her office to advance her and Loya’s interests,” she concluded. “Therefore, I would sustain [the Disciplinary Counsel’s] objection to the board’s dismissal of the Jud.Cond.R. 1.3 allegation and would find that Judge Oldfield violated the rule.”
The Akron Beacon Journal had this earlier story, which reports that the police found the judge and public defender in the backseat of the car and that both were "partially clothed and smelled of alcohol."
Scene and Heard had this report. (Mike Frisch)
A recent judicial ethics opinion from South Carolina
ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 10 - 2014
RE: Propriety of an appellate court judge presiding over matters in which the judge’s law clerk’s parent is counsel of record or another attorney from the parent’s agency is attorney of record.
An appellate court judge has hired a law clerk whose parent is an attorney for an agency that frequently has cases before the court. The judge inquires as to whether the judge can preside over matters in which the clerk’s parent: 1) is an attorney of record but does not physically appear before the court and does not sign any filings for a particular case; 2) an attorney from the same office as the clerk’s parent signs all pleadings and makes a physical appearance but the clerk’s parent is not an attorney of record.
An appellate court judge may not preside over cases where the parent of the judge’s clerk is an attorney of record, appears on the pleadings, or makes any appearance in the case. Where another attorney from the parent’s agency is attorney of record, the judge’s law clerk is disqualified from any involvement in the case, but the judge is not disqualified.
Canon 3.E.(1)(d) states that a judge should disqualify himself or herself where the judge’s impartiality might reasonably be questioned. In addition, Canons 1 and 2 of the Code of Judicial Conduct require a judge to avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary.
When the parent of a judge’s law clerk is an attorney of record and appears on the pleadings in the case, or makes any appearance in the case, the judge is disqualified. In matters in which another attorney from the same agency as the parent is the attorney of record and the parent makes no appearance, the law clerk is disqualified under Rule 506, SCACR, Canon 3E(4), which states that law clerk shall disqualify himself in matters in which he is related by blood or marriage to an attorney in a proceeding. Furthermore, the law clerk should be shielded from any part of the case by what is commonly known as a “Chinese Wall.” However, the disqualification of the law clerk does not extend to the judge. In addition, while the judge is not required to disclose that the judge’s law clerk has a parent who works for the same agency as attorney appearing as counsel of record, it would be wise to do so.
Tuesday, July 8, 2014
Nothing promotes de-cluttering one's office like a move or new furniture. A colleague is retiring; I bought his table and standup desk, and gave up the humungous thing they gave me when I showed up. It meant tossing lots and lots of stuff I never look at anymore (and goodbye hundreds of reprints - may you recycle into something far more valuable).
I found the notes from a talk I gave in Chicago to a 2004 meeting of the firm then called Piper Rudnick - a combination of Piper Marbury of Baltimore and Rudnick & Wolfe of Chicago soon to absorb Gray Cary, and thereafter to merge with Dibb Lupton of Great Britain to become the behemoth DLA Piper.
At the time I was the general counsel of Great Lakes Chemical Corporation. Piper had done a lot of our work under the various EPA-administered statutes that regulated household and other chemicals - TSCA, RFRA (the one dealing with rodenticides and fungicides, not the one dealing with religion), etc. It had succeeded in securing more work through a "Preferred Provider Program" our terrific Associate GC, Joanne Smith, organized. In Chicago, I was on a panel with the general counsel of AON, a senior lawyer from Boeing, and one other I can't recall now. I do remember it was a big room with a lot of people in the audience.
Ten years later, there isn't much here that I'd change - other than I wouldn't have notes on lined paper but would instead have used the Speeches app on my iPad. A reconstruction of the talk from my notes follows the break.
[Cross-posted at PrawfsBlawg and The Legal Whiteboard.]
A lawyer who had consented to disbarment in Pennsylvania received a public censure as reciprocal discipline in New Jersey.
While that might seem unusual, there were some rather unusual circumstances
The record in the matter now before us reveals that respondent’s paralegal, Bonnie Sweeten, had intercepted and concealed from respondent the petition for discipline, the equivalent of our formal ethics complaint, sent to respondent by the Pennsylvania ethics authorities. Sweeten explained her actions in an affidavit, the partial contents of which are contained in an August 25, 2009 Joint Stipulations of Fact and Law between respondent and the Pennsylvania disciplinary authorities...
The affidavit of the paralegal admited to concealing the disciplinary matter from the attorney.
However, the Pennsylvania Supreme Court later vacated the resulting suspension and remanded the matter.
Thereafter, the attorney consented to disbarment of her own accord.
The paralegal achieved a level of notoriety by a false abduction claim and embezzling her way to Disney World and then Club Fed, as reported by the Huffington Post.
But no suspension for the attorney in New Jersey based on the Pennsylvania consent for reasons the Disciplinary Review Board ("DRSB") explains
In conclusion, respondent is guilty of two separate offenses each of which would, on its own, warrant the imposition of a reprimand: practicing law while on inactive status and failing to supervise non-attorney staff. In addition, she failed to communicate with a client, used misleading letterhead and business account checks, engaged in conduct prejudicial to the administration of justice and failure to safeguard client funds. We conclude that a censure sufficiently addresses the totality of respondent’s misconduct.
The Office of Attorney Ethics ("OAE") had sought a suspension with reinstatement conditioned on reinstatement in Pennsylvania, which would be tantamount to disbarment. Remarkably, the attorney did not even see fit to participate in the New Jersey proceedings.
I can understand the position of the OAE, which would not impose disbarment because there is no possibility of reinstatement in New Jersey. OAE's proposed sanction is thus quite reasonable.
The DRB's recommendation makes no sense to me at all. And the court just rubber-stamped it.
It is my experience that an attorney (particularly if represented by counsel) does not consent to disbarment unless disciplinary counsel has the goods. The idea of reciprocal discipline is basically that other jurisdictions respect and enforce a consent unless there is some grave injustice or due process violation.
I don't see any such suggestion here.
I find it quite disheartening that the New Jersey authorities would take a consent disbarment and convert it into no suspension at all as reciprocal discipline.
Notice to all Pennsylvania attorneys who are thinking about engaging in misconduct: join the New Jersey Bar. (Mike Frisch)
An attorney who engaged in a sexual relationship with a client and lied about it to his firm and the Office of Lawyer Regulation has been publicly reprimanded by the Wisconsin Supreme Court.
The client retained the attorney to pursue a civil complaint against her former teacher and represent her in the former teacher's criminal trial. They had not had a previously intimate relationship.
In April of 2009, while the civil and criminal cases were still pending, Attorney Ruppelt and T.W. began a sexual relationship. In mid-April 2009, the Firm became aware that Attorney Ruppelt may have been engaging in a sexual relationship with T.W. while representing her. Attorney Ruppelt continued to represent T.W. until he and the Firm determined he could no longer do so, given the concerns surrounding the nature of his relationship with T.W.
On April 19, 2009, Attorney Ruppelt met with Attorney James Gatzke, and Paul Bucher, another senior attorney at the law firm, to discuss the Firm's concerns about Attorney Ruppelt's relationship with T.W. At the meeting, Attorney Ruppelt falsely represented to Attorneys Gatzke and Bucher that he had not received or exchanged any texts, e-mail, or voicemail messages of any kind with T.W. that were of a personal nature and unrelated to the law firm's representation of T.W. in her civil and criminal cases. In fact, Attorney Ruppelt had received an e-mail from T.W. on April 17, 2009, that was of a personal nature. At the April 19 meeting, Attorney Ruppelt falsely represented that he had not engaged in a sexual relationship with T.W. while representing her. Attorney Ruppelt agreed not to have contact with T.W. following the April 19 meeting. On several occasions after April 19, 2009, Attorney Ruppelt denied to Attorney Gatzke that he was involved in a romantic relationship with T.W.
In May or June of 2009, Attorney Ruppelt acknowledged to Attorney Gatzke that he was engaging in a sexual relationship with T.W. at that time.
The attorney and T.W. were married in 2010. The OLR had sought a 60-day suspension but did not appeal the referee's proposed reprimand sanction.
Justcie Bradley, joined by Chief Justice Abrahamson, dissented as the leniency of the sanction and decision of the majority not to impose full costs
I would impose full costs. SCR 22.24(1m) states the court's "general policy  that upon a finding of misconduct, it is appropriate to impose all costs." The rule then sets forth the factors to consider when determining whether to deviate from that general policy and reduce the costs.
Because the per curiam does not explain or evaluate how those factors apply in this case, there has been no showing that we should deviate from our general policy here.
The Ohio Supreme Court has imposed an interim suspension of a recently-convicted attorney.
The Columbus Dispatch reported on the criminal case
Javier Armengau, who spent the past 15 years trying to keep clients out of prison, is likely headed there after a Franklin County jury convicted him yesterday of multiple sex crimes.
The 52-year-old defense attorney shook his head and at one point wiped his eyes as guilty verdicts were read on nine of 18 counts — one of rape, one of kidnapping, four of sexual battery, two of gross sexual imposition and one of public indecency.
Common Pleas Judge David W. Fais immediately revoked Armengau’s bond. Deputies took Armengau into custody after he embraced his two attorneys as his girlfriend cried in the front row of the courtroom.
Fais scheduled sentencing for Aug. 12. The rape and kidnapping counts carry a presumption of prison. The maximum sentence for all of the convictions would be 41 years.
Jennifer Coriell, one of Armengau’s attorneys, called the verdicts “a miscarriage of justice in every way” and said an appeal will be filed. She said the accusers’ testimony included inconsistencies and the judge allowed jurors to hear “a lot of testimony that should have been kept out.”
Frederick Benton, his other attorney, said he was disappointed for Armengau.
The Ohio attorney general’s office released a statement on behalf of the prosecutors: “We believe this case is a significant victory for victims of sexual assault.” Assistant Attorneys General Daniel Breyer and Melissa Schiffel prosecuted Armengau at the request of county Prosecutor Ron O’Brien, who wanted to avoid a conflict of interest.
The charges were brought on behalf of five women, all of whom testified — three former clients and the mothers of two clients. Armengau was convicted of charges involving three of the women. None was in the courtroom for the verdicts.
Six of the nine guilty verdicts, including the most-serious offenses, involved one woman. Armengau was convicted of rape and kidnapping as well as four counts of sexual-battery of a 46-year-old Venezuelan immigrant who testified that he repeatedly forced her to perform oral sex after she hired him to handle her divorce in 1998. She said she complied with those demands as well as two times when he forced her to engage in intercourse because he threatened she could be deported and separated from her daughter.
The jury acquitted Armengau of four other rape counts involving the woman.
Armengau’s attorneys filed a motion for a mistrial on Thursday, arguing that the attorney general’s office had a duty to inform them that the woman had asked for its help with her immigration status so she could stay in the United States. In a response filed yesterday, the prosecutors said they were under no such obligation because “there was absolutely no agreement between the witness and the prosecution” to provide assistance in exchange for her testimony.
The judge hasn’t ruled on the motion.
The jury also convicted Armengau of one count each of gross sexual imposition and public indecency involving Catherine Collins, the 43-year-old mother of a client. She testified that Armengau grabbed one of her breasts and exposed himself to her on April 4, 2013, when they met at his Brewery District office to discuss her son’s murder case. He was found not guilty of kidnapping her during the assault by restraining her.
Her allegations and audio of secretly recorded phone calls and a restaurant meeting between her and Armengau led to his arrest last year. Although The Dispatch doesn’t usually identify victims of sexual assault, Collins told her story to the newspaper last year and agreed to be named.
The other guilty verdict was for a count of gross sexual imposition of a 33-year-old woman who testified that Armengau grabbed one of her breasts and masturbated in front of her when she visited his Marion office to discuss her criminal case in September 2008. She said she filed complaints with the Marion police and the Ohio Supreme Court, and a new attorney was appointed for her.
The Supreme Court disciplinary counsel was unable to substantiate the complaint, and a police report wasn’t introduced at trial.
The jurors acquitted Armengau of charges related to a 49-year-old woman, who testified that he forced her to perform oral sex in a courthouse conference room after her son was sentenced to prison in August 2008, and a 38-year-old woman, who said Armengau forced her to perform oral sex dozens of times during the years he represented her in cases and she worked part time in his office.
The 49-year-old woman also testified that Armengau tried to get her to perform oral sex on Judge Richard A. Frye, who was handling her son’s cases, at the lawyer’s office on the night before sentencing. That accusation did not result in a criminal charge, but Frye testified for the defense, saying he had never been to Armengau’s office and calling prosecutors “reckless” for including the allegation in their case.
The jury of eight women and four men deliberated for about 11 hours over parts of three days after hearing more than three weeks of testimony. The jurors left the courthouse shortly after their verdicts were announced, declining to speak to the attorneys or reporters.
Armengau testified for nearly 12 hours over three days, denying the allegations and insisting that he was the victim of a personal vendetta by prosecutors and police.
The felony convictions can be the basis of an interim suspension of his law license once the Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline receives a certified copy of the judgment entry, said Joseph Caligiuri, chief assistant disciplinary counsel.
The Columbus Bar Association filed a motion on June 20 asking the Supreme Court to immediately suspend Armengau’s license. The court hasn’t ruled on the request.
Monday, July 7, 2014
An attorney was suspended for not less than one year without automatic reinstatement by the Indiana Supreme Court.
Respondent maintained an account for client funds ("Trust Account"). At least as early as December 2005, Respondent had a negative balance in the Trust Account. The Commission sent him a request for an explanation on March 31, 2006. From that date through 2013, Respondent failed to respond to or made incomplete responses to 25 demands for information by the Commission. On three occasions, the Commission filed petitions to show cause why Respondent should not be suspended for noncooperation. In two cases, Respondent cooperated before entry of a suspension order. In the third case, the Court suspended him before he cooperated sufficiently with the Commission to be reinstated.
Respondent made disbursements from the Trust Account using a check-by-phone system. He made disbursements from the Trust Account for personal purposes; for example, paying for his child's private school tuition. From December 16, 2006, through March 3, 2010, Respondent made approximately 47 transfers from the Trust Account that were not based on written withdrawal authorization or that were made payable to "cash." He failed to create and maintain sufficient records and a contemporaneous ledger for his Trust Account. In addition, Respondent held money on behalf of clients in a PayPal account, which was not an IOLTA account.