Tuesday, March 25, 2014

Suspended And Disbarred In Ohio

Bret Crow of the Ohio Supreme Court web page has this report on two bar discipline matters decided today.

In separate  disciplinary cases announced today, the Ohio Supreme Court disbarred one  northeast Ohio attorney and suspended another from the practice of law.

  • The Supreme  Court disbarred Warren attorney Kenneth N.  Shaw, finding that he represented clients while suspended and paid himself  fees in probate actions without first receiving court approval.
  • The Supreme  Court suspended Cleveland attorney David  A. Streeter Jr. for two years with 18 months stayed on conditions for  misappropriating $230,000, engaging in a Ponzi-like scheme, and not promptly  owning up to his misconduct.

In Disciplinary Counsel v. Shaw, the  court found that Shaw failed to  advise four clients that he had been suspended from the practice of law and  that in two estate matters he did not receive the required court approval – pursuant  to local probate rules – before paying himself attorney fees. The court’s per  curiam (not assigned to a specific justice) decision rejected the recommended  sanction of an indefinite suspension from the Board of Commissioners on  Grievances and Discipline. The Supreme Court noted in its decision that “the  circumstances here require Shaw’s permanent disbarment.”

The  Supreme Court adopted the board’s findings regarding aggravating factors about  prior disciplinary actions, a pattern of misconduct, that “Shaw’s actions  caused harm to vulnerable clients,” and that “Shaw acted with a dishonest and  selfish motive.” However, the Supreme Court added “factors that Shaw committed  multiple offenses and failed to make restitution” in the probate matters.

Noting that  disbarment is the typical sanction imposed for attorneys who continue to  practice law while under suspension, the court found that Shaw’s cooperation in  the investigation as a “lone mitigating factor does not justify a departure  from the presumption in favor of disbarment.”

The  court also differentiated Shaw’s case from the indefinite suspension sanctions  imposed in similar cases because Shaw “was  previously disciplined for serious misconduct.”

In Disciplinary Counsel v. Streeter, the  court again imposed a more severe sanction than recommended by the board, which  did not include an actual suspension from the practice of law. In doing so, the  court sustained an objection by the Office of Disciplinary Counsel.

The  Disciplinary Counsel alleged that Streeter misappropriated more than $230,000 in funds from real estate closings that he  conducted in the operation of his business, Statewide Title Agency, Ltd., to  cover personal and business expenses. In a per curiam opinion, the court  distinguished Streeter’s misconduct from that of another attorney who received  a fully stayed suspension on the ground that Streeter “took affirmative action  to cover up his theft by repaying the money with more misappropriated money  rather than with his own funds.” The other attorney, in contrast, disclosed the  full extent of his misappropriation in response to relator’s first letter of  inquiry.

The  Supreme Court noted that Streeter misappropriated more than three times the  amount that the other attorney had taken and that “he continues to minimize the  extent of his theft by arguing that his Ponzi-like scheme to repay the funds  resulted in a net misappropriation of just $75,001.99.”

In addition, the Supreme Court emphasized that “Streeter’s misconduct,  in contrast, is the result of a crisis that he could have avoided, or at the  very least minimized, with the exercise of due diligence,” the opinion states.  “He testified that when he and his business partner decided to amicably  dissolve their relationship, he assumed full ownership of Statewide Title, its  assets, and its liabilities, without making any inquiry into the financial  condition of the business. He admitted that he did not understand the  accounting side of the business, and that he did not know how to run a  business. Streeter viewed sole ownership of Statewide as an opportunity to  advance his career and proceeded blindly, without conducting any of the due  diligence that one would expect of someone – especially an attorney – entering  into a significant business transaction.”

2013-0923. Disciplinary Counsel  v. Shaw, Slip  Opinion No. 2014-Ohio-1025.

2013-0581. Disciplinary Counsel v. Streeter, Slip  Opinion No. 2014-Ohio-1051.

Video camera icon View oral argument video of this case.

(Mike Frisch)

March 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Attorney Suspended For False Affidavit Against Law School Dean

An attorney who filed a false affidavit in connection with a suit against a law school and its Dean was suspended for a year and a day by the Massachusetts Supreme Judicial Court.

The attorney had filed the suit on behalf of a law school classmate alleging violations of the Americans with Disabilities Act. After a confidential settlement was reached, the attorney alleged that the law school and Dean had breached the agreement.

The client then filed two new actions seeking a restraining order against the Dean and the law school's defense counsel, alleging that they were stalking and harassing him. The client sought injunctive and monetary relief.

The affidavit at issue attested that the attorney

...had investigated the dean by interviewing former students and current attorneys who were African American and/or of Caribbean descent and that those students had described the dean (who is African American) as "unprofessional, sophomoric, and silly." The respondent also attested that "[the dean] was given a free house to live in [a named county], which is paid for by the law school and taxpayer dollars.

The above statement was found to be either knowingly or recklessly false. (Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sued Too Late

 The Connecticut Supreme Court has addressed the following issue

The principal issue in this appeal is whether allegations that a law firm breached its duty of undivided loyalty to a client and failed to follow the client’s instructions regarding the prosecution of a lawsuit sound in breach of contract, to which a six year statute of limitations applies, or in legal malpractice, to which a three year statute of limitations applies.

The court held that the shorter statute applied and that the plaintiff thus had sued too late

Although the Rules of Professional Conduct specify that the ‘‘[v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached,’’ they also acknowledge that, ‘‘since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.’’ 7 Rules of Professional Conduct, scope. Accordingly, even though the plaintiff does not rely expressly on the Rules of Professional Conduct as a basis for her claim, her allegations that the defendant breached its duty of undivided loyalty and its duty to follow her wishes and instructions in its prosecution and settlement of the prior lawsuit are consistent with a claim of legal malpractice that relies on violations of rules 1.7 (a) and 1.2 (a) of the Rules of Professional Conduct as evidence of a breach of the applicable standard of conduct. See Caffery v. Stillman, supra, 79 Conn. App. 197–98 (concluding that complaint alleged violation of minimum standard of care rather than breach of contract).

We thus conclude that the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims.

The judgment of the Appellate Court is affirmed.

(Mike Frisch)

March 24, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

The Perfect Storm Blows On

A decision of the Maryland Court of Appeals gives the reader insight into the often arcane world of reciprocal discipline.

The case involves an attorney admitted in both Maryland and the District of Columbia. He  was suspended in D.C. as a result of his claim that he suffered from a mental illness that made him unable to defend bar charges.

As a result, D.C. imposed what is called a "disability" suspension based on the claim that depression impaired his ability to defend the pending disciplinary charges.

The charges were thus held in abeyance.

Maryland does not have such a procedure.

The court thus placed the attorney on inactive status as "the most appropriate analogous response" to the D.C. suspension.

The court noted that the attorney had claimed in Maryland that the depression was the result of "a perfect storm of emotional issues in which he was ensnared" and that his counsel had argued that "the perfect storm has passed now and, thus, the reason for suspension no longer exists."

The attorney sought a hearing in Maryland on whether reciprocal discipline would result in a "grave injustice."

The court concluded that the attorney's effort to continue to practice in Maryland despite the disability concession in D.C.

would convert Maryland  into an asylum for attorney's wishing to flee from pending disciplinary matters in other jurisdictions....[n]either financial difficulties to Respondent due to his inability to practice law while on inactive status nor 'forum-shopping' for the quickest reinstatement creates a 'grave injustice' warranting a finding that reciprocal discipline is inappropriate...

The court found the nearest comparable sanction to impose and determined that it would contravene the spirit of reciprocity to give the attorney a Maryland license in light of his D.C. status. (Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Removal Excessive For One Time Mistake

Not a legal profession case but worthy of note is a decision last week from the New York Appellate Division for the First Judicial Department finding that dismissal of a tenured teacher was a "strikingly disproportionate" sanction for the behavior at issue:

Petitioner taught Spanish at James Madison High School (JMHS) from 2003 until November 20, 2009. On Friday, November 20, 2009, she ate dinner with colleagues and returned to the school later that evening to watch a musical competition in the first floor auditorium, although she was not required to do so. During the performance, petitioner was allegedly observed in an upstairs classroom "partially undressed (Specification 2) and "engaging in what appeared to be sexually inappropriate behavior with a colleague" (Specification 3). These actions allegedly "caused widespread negative publicity, ridicule and notoriety to [JMHS] and the New York City Department of Education (DOE) when [petitioner's] misconduct was reported in New York area news reports and papers" (Specification 4).

But in mitigation

Petitioner was present at the school as an audience member and not in any official capacity. The incident involved a consenting adult colleague and was not observed by any student. Before the incident, petitioner, a tenured teacher who had made many positive contributions to the school, had an unblemished disciplinary record, and, moreover, was described by her supervisor as one of the best teachers she had ever worked with...

While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake...

Nor is there is any indication in the record that petitioner's conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination...

The matter was remanded for imposition of a lesser penalty. (Mike Frisch)

March 24, 2014 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Hiding Assets In Escrow Draws Disbarment

We regularly encounter cases where an attorney is disbarred for violating Rule 1.15 by misappropriating entrusted funds.

The Maryland Court of Appeals ordered disbarment today for a different type of escrow account dishonest misuse

The gravamen of Respondent’s misconduct is his dishonest and fraudulent practice of depositing personal funds into an attorney escrow account in order to shield those funds from creditors—namely the IRS. We have said before, and it bears repeating here, that “[c]andor and truthfulness are two of the most important moral character traits of a lawyer.” (citation omitted)

I suspect that, if this attorney also is admitted in the District of Columbia, a lesser sanction will be imposed as reciprocal discipline if he objects to an identical sanction. (Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Violation Of Rule On Witnessses

The Indiana Supreme Court imposed a public reprimand of an attorney who assisted in a violation of a witness sequestration order

 Respondent represented a client who was under an order to have no contact with a victim or either of her two sons. After the client allegedly approached one of the sons in a park near the victim's house, a bond revocation hearing was set. At the hearing, the judge entered a separation of witnesses order, admonishing the witnesses not to speak about potential testimony and not to discuss what happened in the courtroom after testifying. Both of the victim's sons testified that the client was in the park in violation of the no contact order. At the end of the hearing, but while the separation of witnesses order was still in effect, one of the prosecutors heard Respondent give details of the State's witnesses' testimony to the defense witnesses.

The attorney had a record of prior discipline but believed that the witnesses she talked to would not be called. (Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension, In Part, For Concealing Marijuana Use In Bar Admission

The Louisiana Supreme Court has imposed a three-year suspension of an attorney by consent:

 The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent was arrested and charged with simple possession of marijuana and that he misrepresented his history of marijuana use to the Committee on Bar Admissions and to a Lawyers Assistance Program evaluator. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 8.1(a), 8.1(b), 8.4(b), and 8.4(c) of the Rules of Professional Conduct.

(Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bad Enough To Get Disbarred In New Jersey

I have been quite critical of late of what I perceive to be an unduly lenient system of lawyer discipline in New Jersey.

So it is with relief I report this from the Disciplinary Review Board in a case involving, among other things, misappropriation:

..,respondent has a serious ethics history: a three-month suspension in 2012 and a six-month suspension in 2013. In both of those matters, he displayed dishonest conduct: in the first, by making a misrepresentation to the ethics investigator that he was safekeeping property that was required to be maintained inviolate, and lying under oath at the ethics hearing; and, in the second, by authorizing his paralegal to make false statements to third parties. In all of his disciplinary utter disrespect for ethics authorities. He was found guilty of violating RPC 8.1(b) in his prior matters and in this one, his second default.

Respondent’s pervasive dishonesty, his refusal to cooperate with ethics authorities, and the overriding need to protect the public from attorneys who, like him, demonstrate a deficiency of character require that he be disbarred. We so recommend to the Court.

The Supreme Court agreed. (Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2014

Path Clears For Former Durham DA Bar Prosecution

The North Carolina State Bar has filed a motion to dissolve the stay of disciplinary proceedings against former Durham County District Attorney Tracey Cline.

The matter has been stayed since September 2012 while Cline sought appellate review of an order removing her from office.

The State Bar attached to the motion the appellate orders affirming the removal and asserted that the stay is no longer appropriate.

The charges and answer are linked. (Mike Frisch)

March 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Former Champion Taken Down

This weekend is a special one for fans of college sports.

For me, the basketball takes a back seat to the NCAA wrestling championships.

In Iowa, wrestling is king.

Thus, it is somewhat ironic that the Iowa Supreme Court today imposed a suspension of no less than six months of a former University of Iowa national champion.

The attorney represented the plaintiff in a civil action.

A few days before the scheduled deposition of his client, he realized that he had not served discovery requests and, as a result, "embarked on a course of dishonest conduct that he will regret for the remainder of his legal career. "

The deception was uncovered when opposing counsel checked document metadata.

The coverup -- which involved a series of elaborate and persistent  falsehoods --was far worse than the mistake with respect to the initial failure to serve discovery requests. (Mike Frisch)

March 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Brady Violation

The Indiana Supreme Court agreed with an appointed hearing officer that ethics charges against a prosecutor were not proven.

The prosecutor faced allegations that she had failed to turn over exculpatory information to the defense.

Although the court incorporated the hearing officer's findings by reference, it not not attached those findings to its order. (Mike Frisch)

March 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2014

What Sanction For Lies?

The web page of the Iowa Supreme Court announces that a decision will be issued tomorrow in a disciplinary case described by KORG.com, an ABC channel

An Iowa City attorney and school board member sought to appeal a law license suspension before the Iowa Supreme Court Wednesday. The Iowa Supreme Court Grievance Commission recommended Jeff McGinness should be fined following evidence of professional misconduct.

Cedar Rapids attorney Gregory Lederer, who represented McGinness, didn't deny McGinness had lied but argued his law license suspension should be reduced citing McGinness' character, work in public service and positive professional record outside of the incident.

“He made a terrible decision but that does not mean he’s without character, that he cannot function as a valuable member of this profession and provide services, quality services, in an ethical manner to clients in the state of Iowa,” Ledrer said.

McGinness faces a six-month suspension of his law license after the Grievance Commission found he had falsified documents in a 2012 civil case and repeatedly lied about it to an opposing attorney and judge.  He later admitted to the violations.

Teresa Vens, who represented the Iowa Supreme Court Attorney Disciplinary Board, argued honesty is pivotal in the legal profession and McGinness committed a series of lies over the course of two months in 2012 despite opportunities to confess.

"This is not just about Mr. McGinness being sorry for his actions but it's about you speaking to all Iowa attorneys and to the public about the importance of honesty in our profession," she said.

Supreme Court Justice David Wiggins said he was concerned McGinness carried the lie for so long.

“Do we want someone practicing law in this state that would go to this extreme to protect the lie?” he said.

Lederer said there was no doubt McGinness had made a career-changing decision but argued the court give McGinness a chance to salvage his career and reduce the suspension to “anything less than six months".

The court did not issue a ruling on the matter Wednesday but will announce its decision sometime before their session concludes June 30.

Read more: http://www.kcrg.com/home/top-9/Iowa-High-Court-241518391.html#ixzz2wXAFO8Ut

(Mike Frisch)

March 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ethics Journal Publication Hits Streets

The Winter 2014 edition of the Georgetown Journal of Legal Ethics is now in print and available on line.

Justin Hansford of St. Louis University School of Law has a piece on "Cause Judging," Rene Reich-Graefe of Western New England School of Law advises that we "Keep Calm and Carry On" in the crisis in legal education and Phoenix School of Law's Keith Swisher contributed an extensive analysis of "The Practice and Theory of Lawyer Disqualification."

Thanks to Jake Itzkowitz and the staff for their valuable contribution to legal ethics scholarship. (Mike Frisch)

March 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Giving Notice, Getting Paid

A lawyer's attempt to recover unpaid fees failed in a decision affirming dismissal of the claim by the New York Appellate Division for the Second Judicial Department.

Except in limited circumstances, where an attorney institutes an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client's right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate (see 22 NYCRR 137.6). A plaintiff's failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, require dismissal of the complaint (see Herrick v Lyon, 7 AD3d 571). Here, the Supreme Court properly dismissed the complaint upon finding that the plaintiff failed to properly serve the defendant with written notice of his right to arbitrate the fee dispute, and upon the plaintiff's failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration (see 22 NYCRR 137.6; Herrick v Lyon, 7 AD3d 571).

In addition, the Supreme Court properly found that the plaintiff failed to comply with the requirements of 22 NYCRR 1215.1 and failed to establish that he was entitled to recover legal fees in quantum meruit. Except in limited circumstances, an attorney must provide his or her client with a written letter of engagement or enter into a written retainer agreement explaining, inter alia, the scope of the legal services to be provided, the fees to be charged, and the expenses and billing practices (see 22 NYCRR 1215.1). An attorney's noncompliance with 22 NYCRR 1215.1 does not preclude him or her from recovering the value of professional services rendered on a quantum meruit basis (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54). Nonetheless, an attorney who fails to comply with rule 1215.1 bears the burden of proving the terms of the retainer and establishing that the terms of the alleged fee arrangement were fair, fully understood, and agreed to by the client (see id.). Here, the court properly found that the plaintiff failed to comply with 22 NYCRR 1215.1 and failed to establish that the terms of the fee arrangement were fair, fully understood, and agreed to by the defendant.

(Mike Frisch)

March 20, 2014 in Clients, Current Affairs, Economics | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 19, 2014

Reprimand For Dishonest Conduct

 The New Jersey Supreme Court has reprimanded an attorney for dishonest conduct.

Specifically, in 2004, when respondent was hired for a position with the Pennsylvania Health Law Project (PHLP), she had passed both the New Jersey and Pennsylvania bar exams and led the PHLP Director to believe that she was taking the steps necessary to complete the application process to be admitted to the Pennsylvania bar. The PHLP personnel manual required attorneys employed by PHLP to pass the Pennsylvania bar examination within two and a half years, but it did not contain any provisions regarding bar admission requirements. The PHLP Director described respondent’s duties as "less legal work and more like administrative paralegal work."

Respondent was admitted to the New Jersey bar in 2004, but not to the Pennsylvania bar. From 2003 through 2006, she suffered from severe rheumatoid arthritis. The disease seriously impacted her mobility, stamina, and physical and emotional health, and prevented her from completing the steps necessary to gain admission to the Pennsylvania bar.

A benefit of working for PHLP was that it paid the annual Pennsylvania attorney fee for full-time staff attorneys. In two separate years, 2004 and 2008, respondent misled the director that she had paid the annual fee. On one occasion, the director had PHLP reimburse respondent for the $175 fee. Rather than return the check, to which she knew she was not entitled, respondent cashed it and used it for other purposes. She ultimately repaid the $175.

In sum, respondent misrepresented her status as an admitted Pennsylvania attorney, during her five-year tenure at PHLP, and improperly used funds that were earmarked to reimburse her for a fee that she did not pay.

The attorney consented to the sanction. (Mike Frisch)

March 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 18, 2014

"The Seven Year Itch" Argument Falls Flat

The Indiana Supreme Court affirmed a conviction for child exploitation on these facts

On February 27, 2010, [defendant] Delagrange left his home in Fort Wayne and drove approximately one hundred miles to the Castleton Square Mall in Indianapolis. He then wandered around for nearly eight hours trying to take "upskirt" photographs of women and girls as they were shopping. After he selected a particular victim, he would approach her from behind and try to inveigle his foot between her legs. Once in position, he would reach into his pocket and pull on a piece of fishing line attached to the cuff of his pants leg, thereby exposing a video camera attached to his shoe. By means of this procedure, Delagrange collected approximately seven minutes of actual images.

Unsurprisingly, Delagrange’s unusual behavior attracted attention, and a store employee contacted police. After a brief confrontation, an officer arrested Delagrange and discovered his camera system. Detectives later identified four girls from the recorded images: K.V., T.G., and C.B., all aged seventeen, and A.K., aged 15. Those images depicted "the area under the skirt and between the legs" of the victims, but did not depict any "uncovered genitals." Ex. at 5.

This argument did not work

...we note that Delagrange’s trial counsel repeatedly drew a parallel between the images Delagrange captured with his ersatz equipment and a famous photograph of Marilyn Monroe standing over an air vent. This analogy was unpersuasive for a lack of similarity between a photograph of a knowing and consenting adult and a video of an unknowing and unconsenting child. The former is legal; the latter is not. 

(Mike Frisch)

March 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Taken To The Cleaners

Kevin Kidder has this summary of a disciplinary case from the Ohio Supreme Court

The Ohio Supreme Court today announced that it will indefinitely  suspend Cincinnati attorney Robert F. Alsfelder Jr. from the practice of law  for failing to respond to repeated court orders for information as part of an  investigation into his alleged misconduct.

In a 7-0 decision, the Supreme Court adopted the findings of  the Board of Commissioners on Grievances & Discipline. The per curiam (not  authored by a specific justice) opinion concluded that Alsfelder violated professional  conduct rules by not complying with investigators or court orders requesting  documents.

Alsfelder was a customer of Eastern Hills Dry Cleaners when  in 2005 he and his wife, an accountant, agreed to manage the “business aspects”  of the company. The couple charged $225 per hour for legal services, and $65 an  hour for business-related services. Alsfelder cashed the checks he received at  various Cincinnati banks.

Between 2005 and 2008, Eastern Hills Dry Cleaners and its  owner, Joseph Witschger, paid more than $152,000 to Alsfelder.

In 2010, a probable cause panel agreed with a two-count complaint  made by the Cincinnati Bar Association alleging that Alsfelder had failed to  maintain records of client funds and had converted funds to his own personal  use, and had improperly used information he received in his role with the dry  cleaners to the company’s detriment.

Two years later the bar association added two more counts,  alleging that he had failed to report income he received from his business  relationship on his federal and state tax returns, and that Alsfelder had not  cooperated with investigators.

In 2011, the Supreme Court found Alsfelder in contempt for not  appearing for a deposition and failing to produce documents, and then suspended  him later that year. In 2012, Alsfelder was found in contempt a second time.

In today’s ruling, the court found that there was  insufficient evidence to establish the underlying misconduct, but held that  Alsfelder had violated professional conduct rules by not cooperating in the  disciplinary proceedings and ignoring at least five board orders and three Supreme  Court orders to produce documents, including certain tax returns.

In determining the appropriate sanction, the court agreed  with the board’s finding of four aggravating factors, including a previous  one-year suspension for misconduct, failing to cooperate with investigators and  the court, and engaging in deceptive practices. The court found no mitigating  factors.

“Alsfelder’s  misconduct goes far beyond the typical failure to cooperate in a disciplinary  investigation. It encompasses a complete and contumacious disregard of this  court’s orders over a period of years,” the court concluded in its decision. “Alsfelder’s  recalcitrance flies in the face of his oath of office, his duties to this  court, and his duties to the legal profession as a whole.”

The court noted that Alsfelder’s new suspension  will not go into effect until he complies with the court’s contempt orders.

2013-0223. Cincinnati Bar Assn. v. Alsfelder, Slip  Opinion No. 2014-Ohio-870.

(Mike Frisch)

March 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Fargo

The North Dakota Supreme Court has ordered the suspension without pay for a month of an elected district court judge for sexually harassing his court reporter.

It statred with this

The Commission found that on May 24, 2010, Judge Corwin injured his hands while at work and his court reporter drove him to a hospital emergency room. Judge Corwin testified that "we came out of [the emergency room incident] with a connection we didn't have before." Because his hands were bandaged from the accident, Judge Corwin would ask the court reporter to come to his office and help him tie his necktie for court appearances. The court reporter did so and found the experiences "[u]ncomfortable but not alarming."

But the situation got worse

On July 15, 2010, Judge Corwin and the court reporter, along with other Cass County Courthouse personnel, went to a Fargo restaurant and bar for an after-work gathering where they consumed alcohol. Judge Corwin invited the court reporter to join him on a bicycle ride that evening. She did so, and after the bicycle ride, Judge Corwin invited her into his home where they each had a glass of wine. While in the home, Judge Corwin engaged the court reporter in a conversation which she reasonably construed as a proposition for a sexual relationship. The court reporter rejected the offer, telling him she had read an article advising "it was a mistake to get involved with your boss." Judge Corwin responded that not all office romances end badly and pointed to his own 20-plus year marriage to his former secretary. As the court reporter was leaving the home, Judge Corwin hugged and kissed her.

On the evening of Sunday, July 18, 2010, Judge Corwin called the court reporter at her home and requested she bring a blind she had taken to wash to the courthouse so he could hang it in a bathroom there. The court reporter told Judge Corwin she would not get involved in a relationship with him. On July 21, 2010, Judge Corwin called the court reporter while traveling to a court appearance in Hillsboro and asked if she would go on a bike ride with him the following evening. The court reporter declined the invitation and reiterated her belief that it was a bad idea for the two of them to become intimate. Judge Corwin became angry. While on an extended lunch break on August 3, 2010, the court reporter received a text message from a coworker telling her Judge Corwin had been in the court reporter's office for 45 minutes with his feet on the desk reading a transcript. This was something Judge Corwin had not done before. He was still there when she returned to her office. The court reporter felt intimidated by the experience.

The court reporter continued to make efforts to rebuff the advances of the judge, who was responsible for conducting her performance review. The review had salary implications.

The court concluded

The evidence establishes that Judge Corwin sought to have an inappropriate relationship with the court reporter after she rebuffed his efforts to do so. Judge Corwin treated the court reporter differently than her coworker on the team. After finally realizing a sexual relationship would not materialize, Judge Corwin suggested the court reporter be switched to another team and told her "'[i]f this were still the law firm, I'd have taken care of the problem a long time ago, but since you work for the state it's going to be a little tougher.'" Judge Corwin then began complaining about the court reporter's work performance to court administrators before and during her biennial performance review. Judge Corwin relies on the testimony of the presiding judge, who recollected that Judge Corwin did not want any disciplinary actions taken against the court reporter. However, the presiding judge did not become involved in this matter until much of Judge Corwin's inappropriate conduct had already occurred.

The judge has announced that he will not seek reelection when his term expires at the end of 2014.

The Forum of Fargo-Moorhead had the story. (Mike Frisch)

March 17, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Subjective Belief No Basis For Malpractice

The West Virginia Supreme Court of Appeals affirmed the grant of summary judgment to the defendants in a legal malpractice claim

 On February 27, 2007, petitioner retained respondent to represent him in a possible claim against Concord University. Petitioner had applied for a plumber’s position at Concord in October of 2006. Concord hired another applicant for the position in January of 2007. Petitioner believed that Concord’s failure to hire him constituted retaliation for his earlier filing of a successful wage claim against one of Concord’s contractors.

Respondent did not file such an action on petitioner’s behalf, nor did respondent timely inform petitioner that its investigation did not support a claim of retaliation, prior to the expiration of the two-year statute of limitations on petitioner’s potential cause of action. In April of 2010, respondent met with petitioner and explained that there was no proof to support his claim. Respondent also advised petitioner that the statute of limitations had run on filing a retaliation claim...

 

This Court notes that respondent failed to file an action on petitioner’s behalf after respondent’s investigation revealed that petitioner possessed no viable cause of action. Petitioner obviously disagrees with his former attorney’s assessment of his claim; however, petitioner’s subjective belief that he had a viable action does not constitute evidence that he did.

(Mike Frisch)

 

 

March 17, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)