Monday, June 16, 2014

Alcohol And Guns

The Georgia Supreme Court accepted a petition for voluntary discipline of a convicted attorney.

The court previously had rejected a voluntary discipline petition and described the offense

Richbourg recites the facts leading to his conviction, which involved an early morning confrontation in the alleyway separating his residence from his neighbor's, after Richbourg had been drinking alcohol. A truck that appeared suspicious to Richbourg pulled into the alley and as two men (one being Richbourg's neighbor) got out of the truck, Richbourg pointed a gun at them and ordered them to the ground. The neighbor tried to tell Richbourg who he was but Richbourg would not listen. Eventually the other man got up and said Richbourg would just have to shoot him because he was going inside the house, and Richbourg withdrew to his property.

The attorney is indefinitely suspended for three years or until he completes obligations under the criminal sentence, whichever is longer. (Mike Frisch)

June 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Working With The Disbarred

The Georgia Supreme Court has imposed a six-month suspension of an attorney on these facts

Tucker admits that in 2012 and 2013 he represented 26 clients in separate bankruptcy cases in the U.S. Bankruptcy Court for the Northern District of Georgia, and that in each of those cases, he worked with Samuel Brantley, a former lawyer who had been disbarred as a result of a conviction to commit wire fraud. Tucker knew that Brantley had been disbarred but nevertheless allowed him to have contact with clients in person, by telephone and in writing; allowed him to meet with clients in Tucker’s office; allowed him to discuss and advise clients about the procedural and substantive aspects of their cases; did not tell the clients that Brantley had been disbarred and told clients Brantley was a lawyer; and allowed Brantley to prepare pleadings (although Tucker signed them and appeared in court). In July 2013 the U. S. Bankruptcy Court entered an order sanctioning Tucker in a case for allowing Brantley to effectively represent the client except for making court appearances, and it suspended him from practice in that court for six months.

Justice Nahmias concurred but would not treat the bankruptcy sanction as a mitigating factor. To the contrary

...the fact that another court felt so strongly about the misconduct that a Georgia attorney committed in its proceedings that it imposed its own sanction, rather than merely referring the attorney to the disciplinary authorities, should signal that the misconduct at issue is particularly serious and  worthy of professional discipline – that is, it should be viewed, if anything, as an aggravating factor.

(Mike Frisch)

 

June 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, June 13, 2014

Ineffective Assistance Found In Criminal Transmission Of HIV Case

The Iowa Supreme Court has held that a defendant who pleaded guilty to criminal transmission of the HIV virus received ineffective assistance of counsel because there was an insufficient factual basis to support the plea.

...we find the guilty plea record did not contain a factual basis to support the plea. We also find the court in this case cannot use the rule of judicial notice to establish the factual basis in the guilty plea record. Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual’s viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person. Accordingly, we vacate the decision of the court of appeals and reverse the judgment of the district court. We also remand the case with directions.

Justice Zager dissented and would apply the strong presumption in favor of effective assistance

There is no way to reconcile the majority’s conclusion. The strong presumption in favor of an attorney’s effective assistance of counsel and the need to suppress hindsight’s temptation in favor of an analysis that takes account of the law and the facts as they were at the time of the conduct under review are the hallmark of ineffective-assistance-of-counsel analysis. In 2008, when counsel examined the record to determine whether the facts met the elements of the criminal-transmission statute, he could have reasonably concluded the guilty plea was factually supported according to the law as it was then. All the necessary facts are in the record, notwithstanding the record’s limitations...

In the months leading up to the criminal offense, and in the subsequent months prior to Rhoades’s decision to plead guilty, we cannot forget it is Rhoades who had all of the relevant facts. Rhoades had all of the medical information regarding his HIV status and his viral load. Rhoades knew whether he should engage in intimate contact, whether this intimate contact needed to be protected or unprotected, the reasons he believed the intimate contact did or did not need to be protected, and whether there was a possibility that the HIV could be transmitted. Nevertheless, Rhoades listed his HIV status on his online dating profile as negative and told A.P. he was "clean" before the two engaged in the intimate contact. After these initial denials, Rhoades finally admitted to A.P. two weeks later in a recorded phone call that he was HIV positive.

 And concludes

Today’s decision must leave counsel with the distinct feeling of having a rug yanked out from under him.

(Mike Frisch)

June 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Disbarment For Billing Misconduct In Court-Appointed Cases

The Tennessee Supreme Court has disbarred an attorney who

accepted appointments to represent indigent defendants for several years in which he failed to keep contemporaneous time records; billed for out of court time as if it were in court time; and billed for the full amount of time he was in court for each case even when appearing on multiple cases during one hearing rather than prorating his time.

The attorney failed to answer the charges and did not appear for the disciplinary hearing. (Mike Frisch)

June 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Sexting A Law Student Gets Attorney Suspended

An attorney who sexted a law student clerk has been suspended for a partially-stayed one year term by the Ohio Supreme Court.

The inappropriate text messages were sent to a third year University of Akron student who had interviewed for a student law clerk position with his firm.

The student accepted the position and shortly thereafter received an invitation to travel to Washington, D.C. with him. When she declined, he e-mailed her that it was strike one and three strikes you are out.

The student resigned the clerkship and reported the conduct to the professor who had posted the position. The professor reported the matter to the bar.

The court

In order to fully recognize the gravity of the misconduct in this case, however, it is necessary to consider the content of the text messages that Mismas sent to this third-year law student who sought employment as a law clerk in his firm—facts that the parties do not set forth in their stipulations and neither the panel nor the board set forth in its report. Although the [interview] conversation began with a general discussion of Ms. C’s commitment to Mismas’s primary area of practice—asbestos litigation—and the psychological toll that the clients’ circumstances can have on those who assist them, it soon took an inappropriate turn.
 The turn was into a discussion about "taking beatings" that became sexual in nature.
The actual text messages are not in the record before the court.The attorney's explanation was that he was intoxicated and the messages were in jest.
 The court rejected a proposed public reprimand and imposed a one year suspension with six months stayed on conditions, noting that unwelcome sexual advances made in the context of continuing employment constitutes particularly egregious misconduct. Thus, the misconduct not only involved the ianappropriate texting but also the abuse of the employment relationship. (Mike Frisch)
 

June 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

Availability Of Other Funds No Defense To Misappropriation

The New Jersey Supreme Court has disbarred an attorney for knowing misappropriation of entrusted funds.

The Disciplinary Review Board rejected a variety of contentions

Respondent admitted that he used the trust account funds for personal expenses, during this time, because his business was doing poorly. Unquestionably, thus, he knowingly misappropriated trust funds.

Respondent’s claim that he was concerned with the bank’s solvency at the time is undercut by the fact that he mentioned this for the first time at the ethics hearing and that he admitted not knowing what the FDIC rules and regulations were with respect to the insured limits on bank accounts. If respondent were truly concerned about the safety of the monies in the trust account, he would have removed the funds, in one lump sum, and placed them in a trust account at another bank, instead of taking them out, in "dribs and drabs.,... to live on," as he so readily admitted.

Moreover, respondent’s argument that, despite his depletion of the trust account, the monies were still in escrow because he had personal accounts that contained enough funds to "cover" the shortages is meritless. First, he was required to maintain those funds in an attorney trust account, pursuant to R__~. 1:21- 6(a)(1). Second, the accounts that respondent had jointly with his wife were not under his complete control and, therefore, were not exempt from depletion. The same is true for the IRA account, which was subject to fluctuations, based on market conditions. Third, his personal accounts, on occasion, did not, in fact, have enough monies to "cover" the total amount of funds that should have been held in the trust account.

That the funds could be replenished with personal monies, as respondent claimed, is of no moment. Restitution or availability of other funds, even if available, is not a defense to knowing misappropriation.

(Mike Frisch)

June 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 10, 2014

Judicial Investigation Powers Upheld

The New York Court of Appeals held that the Commission on Judicial Conduct is authorized to obtain sealed records in aid of an ongoing investigation into alleged judicial misconduct.

The appeal was brought by an attorney who was criminally prosecuted for campaign violations along with a judge. The charges were either dismissed or led to a jury acquittal.

The commission sought the records after the criminal charges were resolved. (Mike Frisch)

June 10, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, June 9, 2014

Corruption Of Minors Conviction Draws Interim Suspension

A Pennsylvania attorney has had his license suspended pending further proceedings as a result of a criminal conviction, according to the web page of the Pennsylvania Disciplinary Board

Citizensvoice. com has the details

A local attorney accused of coercing two teenage girls to a Wilkes-Barre motel for sex pleaded no contest to two corruption of minors charges Tuesday morning in Luzerne County Court.

Luzerne County Judge David Lupas sentenced Attorney Robert Zanicky, 40, of Drums, to one year probation, which consisted of two concurrent sentences for each charge for each victim. Zanicky is not permitted to have contact with the victims or any underage girls during the year.

Zanicky, who has a law firm in Wilkes-Barre and is president of the United Soccer Training Academy, was charged in 2011 with corrupting the morals of two girls, who were 16 and 17 at the time. He was scheduled to go to trial on the charges, but a plea agreement was reached.

Both victims testified at a preliminary hearing in March last year before Magisterial District Judge James Tupper that he sent them sexually explicit test messages, bought them things and took them to the Wilkes-Barre Lodge on Kidder Street.

The victim, who was 17, testified then that she had consensual sex with Zanicky at the Wilkes-Barre Lodge.

The other victim, who was 16, said Zanicky drove her to the same motel, where he wanted to "talk" about his wife being diagnosed with cancer. When they went into the room, she said he kissed her and talked about all the things he wanted to do to her, such as pull her hair and throw her against the wall. She said she ran out of the room to the car and asked him to take her to her friend's house.

The two victims attended the court proceeding Tuesday, but did not testify.

"It's good that the girls didn't have to testify and they could put this all behind them," Assistant District Attorney Jenny Roberts said after the sentencing. "They're both in school now and want to just move on with their lives and this is a step in that direction."

According to the police criminal complaint, the 16-year-old victim said she met Zanicky at Rodano's Pizza in Wilkes-Barre when she was with her two friends. She said he joked around about older men with younger girls. He began texting her later that night while he was on a "date night" with his wife and the communication continued for several weeks.

About a week later, she and her friend met Zanicky and his friend at Mizu Sushi in Wilkes-Barre Township. She said he asked her and her friend about their sex lives and how many sexual partners they have had. The victim told police Zanicky was "getting a littler weird and became more interested in my sex life and became sort of obsessive over the guys I was with."

A few weeks later, he met her and her friend and gave them gas money and said if they had sex with him, he would take care of them and buy them things. He later paid for the one victim to have her nails done and joked about them getting a hotel room.

He demanded to see the one victim's license and said, "Good, you're 16. This is perfectly legal."

In Pennsylvania, the age of consent is 16. If the minor is under age 18, however, an adult can be charged with the misdemeanor charge which Zanicky faced: corruption of a minor.

The victim said he drove her to the Wilkes-Barre Lodge and she didn't want to go into the room and told him no about six times, but he told her his wife was sick and he just needed to relax. When they went to the room, she said he began touching her in a "creepy way" and kissed her.

According to the police criminal complaint, Zanicky told her "how good it felt because he couldn't ever kiss his wife in months because she had cancer." She said she got up and ran to the door.

The other victim said when he took her to the hotel, they had sex and he tried to contact her afterwards but she refused to answer his phone call.

"This is a serious matter," Lupas said Tuesday during the sentencing. "Hopefully, they can move forward with their lives and put this matter behind them."

Zanicky left the courtroom quietly with his attorney, Todd Henry. If Zanicky travels now, it will have to be approved by the probation department, Roberts said.

He also must undergo a mental health evaluation and a drug evaluation. Zanicky still holds his law license, but Roberts said his plea "will obviously have ramifications on that."

"He will lose his license," she said.

(Mike Frisch)

June 9, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, June 7, 2014

Calls To Reform Wisconsin Attorney Discipline

In the post below on the Kratz case, we noted that Chief Justice Abrahamson and Justice Prosser had expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

The court issued three other decisions (two involving the same  attorney)  that echo the point.

One case involves an attorney who was convicted of homicide by vehicle arising out of a December 28, 2002 incident. The attorney (age 29 at the time) drove a pickup truck leaving a family event. He was intoxicated and lost control of the truck. His brother died in the single-car accident.

He failed to provide the required written notice of the conviction to disciplinary authorities, although it appears that there was phone call notice to the Office of Lawyer Regulation (OLR).

He went to jail, served his time, retained his law license throughout the process and has gone on to a career as a respected attorney.

Enter the Milwaukee Journal Sentinel, which (laudibly) looked into the Wisconsin disciplinary system.

At least 135 attorneys with criminal convictions are practicing law today in Wisconsin - including some who kept their licenses while serving time and others who got them back before they were off probation, a Journal Sentinel investigation has found.

The roster includes lawyers with felony or misdemeanor convictions for fraud, theft, battery and repeat drunken driving, as well as offenses involving political corruption, drugs and sex. A child-sex offender got probation for his crime but never lost his law license. A politician convicted in a check-kiting scheme was reprimanded but also kept his license.

Another 70 lawyers were charged with crimes but succeeded in having the charges reduced or avoided conviction by completing a deferred prosecution plan. All were given the green light to practice law.

Also from the same story

"The system is run by lawyers and is for lawyers," said Michael Frisch, a national expert in legal discipline who teaches law at Georgetown University. "It's called self-regulation, and it's a pretty good system for lawyers."

After the newspaper's inquiries, the OLR opened a case against the attorney and filed charges in November 2011.

The referee rejected the charge that the conviction reflected adversely on his fitness to practice but found he had failed to comply with the written notice requirement. The referee proposed a private or public reprimand.

OLR appealed and sought a 60-day suspension.

The per curiam court found that the notice violation was "too technical" and agreed that the felony homicide did not violate Rule 8.4(b). No discipline was imposed.

Chief Justice Abrahamson dissented.

She would find both violations but, more notably, calls for reform of the system

...the very prosecution of this case 10 years after the incident seems to have troubled the referee and is troubling the court, as is the wisdom of OLR's appeal.  Delays in initiating and completing discipline cases are also evident in Osicka and Kratz.  Other issues raised include OLR's discretion in charging, dismissing charges, and diversion; whether and what consideration is given in lawyer discipline to OLR's scarce resources; the extent to which the OLR should consider mercy, forgiveness, and the wishes of the victims; whether respondent lawyers should be able to appear before the Preliminary Review Committee; and whether the Preliminary Review Committee should be disbanded inasmuch as apparently over 90% of the OLR's recommendations are accepted. 

The Kratz case raised the issue of the role of partisan politics and media publicity in discipline proceedings, as Justice Prosser's dissent points out.  Members of the Court have also raised the question of the wisdom of changing the rules to allow plea bargaining.  These are only some of the significant and troubling issues illustrated in these cases and raised in rule petitions and the hearings on recent rule petitions. 

My view:

Regardless of the level of sanction, a felony DUI that causes a death violates Rule 8.4(b). I think the per curiam court improperly considered the attorney's post-conviction record in determining whether the circumstances of the offense itself violated the rule. The court may regret the day it held a felony conviction was not a disciplinary offense.

The third case involved an attorney who practiced while suspended. He had a lengthy record of discipline. He was prosecuted by OLR in two successive matters. The per curiam court ordered concurrent  60-day suspensions in the two matters.

Justice Prosser dissented

This fifth prosecution is based on events that occurred in the summer and fall of 2011.  OLR knew about and monitored these events.  But when OLR filed its fourth complaint against Attorney Osicka on January 11, 2012, it did not include the events from 2011 in its fourth complaint.  OLR has not explained its reasons.  However, filing a fifth complaint instead of incorporating the 2011 events into the fourth complaint, enabled OLR to ask for another 60-day suspension, which it justified as "progressive discipline."  It also required the appointment of another referee and leads now to the assessment against Attorney Osicka of more than $1,000 in additional costs.

Attorney Osicka gave up resistance to this complaint in July 2013 by signing a stipulation.  The referee filed his report in late August 2013.  OLR filed a statement of costs on September 12, 2013, but it never moved to lift Attorney Osicka's "temporary" suspension.  In sum, OLR sought a 60-day suspension, even though Attorney Osicka had been suspended for a CLE violation since June 6, 2011, and had closed his practice.  He has been "temporarily" suspended for one of the grounds in this complaint since February 23, 2012.  He has now been suspended on this count for more than two years...

Looking at this case, it is obvious that only criminals are entitled to "sentence credit."

The court's opinion in this fifth prosecution, like its opinion in the fourth prosecution, is one-sided.  The court portrays itself as fair and reasonable by making Attorney Osicka's 60-day suspension here concurrent with his 60-day suspension in the fourth case.  If the court were seriously interested in being equitable, however, it would make the effective date of this suspension retroactive to February 13, 2013, and eliminate the costs in this case.

Justice Prosser also dissented in the other matter involving the same attorney

Attorney Tim Osicka (Osicka) is not an angel.  He has been disciplined on several occasions.  Nonetheless, after looking at his recent prosecutions, one has to wonder whether Osicka's conduct warrants the zealous attention it has consistently received from the Office of Lawyer Regulation (OLR), or whether Osicka has simply become an easy target because he can no longer afford to defend himself.  Osicka understands from experience that, unless he prevails on every allegation of misconduct against him, he will be required to pay all or substantially all costs of the OLR prosecution.

This policy has troubled me for years.  The supreme court must be vigilant in protecting the public from attorneys who do not comply with the ethical obligations of the legal profession.  But not all violations of the code of professional responsibility are equal in importance.  Some violations are mala in se, others are merely mala prohibitum.  Given its limited resources, OLR should give priority to the former and balance to the latter.  In my view, it has not met that test in this case...

Why is OLR continuing to file charges against an attorney who has ceased practicing law?  Why is it piling up legal costs that it expects Osicka to pay?

These prosecutions raise questions about how OLR uses its limited resources to protect the public interest——questions about its priorities.

Because the answers to questions of this sort are seldom addressed, I feel compelled to respectfully dissent.

All in all, an eventful day for Wisconsin bar discipline.

These cases ( and the Kratz case ) underscore the vital importance of investigative journalism in shedding light on the operation of bar discipline processes.

The media in Washington, D.C. has entirely failed to provide that much needed scrutiny. (Mike Frisch)

June 7, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Friday, June 6, 2014

Texting Former Prosecutor Suspended, Disciplinary Process Called Into Question

A four-month suspension has been imposed by the Wisconsin Supreme Court of a prosecutor for inappropriate text messages to a crime victim and comments to others

On October 21, 2009, Attorney Kratz sent S.V.G. 19 messages, including asking her: "Are you the kind of girl that likes secret contact with an older married elected DA . . . the riskier the better?  Or do you want to stop right know [sic] before any issues?"

On October 22, 2009, Attorney Kratz sent S.V.G. eight more messages, telling her that she was "beautiful," "pretty," that "I'm the atty.  I have the $350,000 house.  I have the 6 figure career. You may be the tall, young, hot nymph, but I am the prize!  Start convincing," and that "I would not expect you to be the other woman.  I would want you to be so hot and treat me so well that you'd be THE woman.  R U that good?"

According to S.V.G., Attorney Kratz's personal overtures were unwelcome and offensive, and she was concerned that if she failed to respond to Attorney Kratz, he might take action with respect to the case against S.R.K. that could potentially adversely affect S.V.G.

And

In October of 2009, Attorney Kratz prosecuted a termination of parental rights case in which S.S. was a witness.  Prior to testifying, S.S. commented to Attorney Kratz that she was nervous about testifying.  In response to S.S.'s concerns, Attorney Kratz stated to S.S. that he "won't cum in your mouth."  Later that day Attorney Kratz remarked to S.S. that he wanted the trial to be over because he was leaving on a trip to Las Vegas, where he could have "big boobed women serve me drinks."

One count of the OLR's complaint involves Attorney Kratz's verbal statement to R.H., also a social worker with the Calumet County Human Services Department.  During a court proceeding, Attorney Kratz commented in court to R.H. that a reporter had "big beautiful breasts."

Costs were imposed because

In every stage of these proceedings, Attorney Kratz has employed a tooth-and-nail litigation approach.  He denied all misconduct in his answer to the OLR's complaint and raised various constitutional, jurisdictional, and procedural defenses.  He accused the OLR of operating under a conflict of interest and of unethically leaking information.  He moved to dismiss the OLR's complaint on nine separate grounds; the referee later rejected the motion as "replete with bare assertions of fact" which were "not properly before the referee and may not be considered."  He engaged in vigorous discovery practice, including propounding over 125 interrogatories, filing discovery motions, and attempting to compel the production of documents from third parties.  He raised arguments that ranged from the incredible (e.g., disputing his text messages to S.V.G. contained sexual overtones); to the hyper-technical (claiming the OLR complaint was barred by the civil doctrines of issue and claim preclusion because an OLR investigator initially declined to forward S.V.G.'s grievance for formal investigation); to the inconsistent (denying any recollection of making inappropriate comments to S.S. but claiming credit for having recognized their inappropriateness and apologized); to the puzzling (arguing that he could not have told R.H. that a reporter had "big beautiful breasts" because the reporter in question was beautiful, but not large breasted).

Justice Prosser concurred and dissented, expressing concern about the politicization of the case and the OLR prosecution

The Kratz case underscores the need for a thorough review of OLR practices and procedures.

 First, OLR closed the investigation against Attorney Kratz without the knowledge of the OLR director, Keith Sellen.  How did that happen?

Second, after reopening the investigation, OLR took 13 months to file a complaint against Attorney Kratz.  What is the justification for this lengthy delay?

Third, after a long investigation, OLR filed three sensational counts against Attorney Kratz that it later dismissed for lack of proof.  Why did OLR's Preliminary Review Committee permit these counts to be filed?  Is the Preliminary Review Committee serving its intended purpose of screening out improvident charges when it approves 98 percent of the OLR staff's recommendations?

Fourth, OLR expects Attorney Kratz to pay all costs related to the prosecution of its improvident charges and its harsh desired level of discipline.  Should a respondent attorney be expected to pay OLR's costs for charges that are not proven and a level of discipline sought but not imposed?

Fifth, OLR appears to be unwilling or unable to drop charges it has filed unless it acknowledges that the charges cannot be proved.  It could likely have settled the Kratz matter much sooner if it had been able to bargain for something less than unconditional surrender.  Should OLR have the authority to plea bargain with respondents?  If so, under what conditions?

No doubt other questions could be raised about OLR's handling of the Kratz case.  But apart from this single case, there are many reasons for this court to launch a thorough——strictly objective——review of the agency.  If that review is undertaken, something useful may yet come out of this unfortunate tragedy.

Chief Justice Abrahamson concurred in Justice Prosser's suggestion of the need to study and reform the disciplinary process in Wisconsin.

I welcome Justice Prosser's support for an impartial, objective, thorough review of OLR practices and procedures, support he gave at the open rules petition conference in October 2013.  For a history of a proposal for such a review, listen to the open rules petition conference of October 25, 2013, in connection with proposals for change in OLR's practices.   

The question of instituting such a review will come before the court again.  I hope it will get four votes.

The 2010 OLR letter dismissing the complaint is linked here.

An article in the Milwaukee Wisconsin Journal Sentinel that followed the dismissal expressed concern about the situation. (Mike Frisch)

June 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

CWRU Must Issue Medical Degree

Case Western Reserve University (my alma mater) has been ordered to award a medical degree to a student who had completed his graduation requirements but was deemed "unprofessional" by the school's Committee on Students.

The order came from the United States District Court for the Northern District of Ohio, which dismissed the University's contentions regarding an alleged lack of professionalism.

The university relied on the student's failure to report a DUI arrest as well as incidents recited below. Notably, the school handbook did not require students to report arrests.

In April 2014, the university told the student he was graduating with honors; four days later, they told him of their concerns about his conduct. Within days, the school ordered him to resign or be withdrawn from the medical school.

A Michigan resident, he sued the university in federal court.

The court

While Case should receive great discretion in judging academic standards, the determination of “professionalism” goes well beyond academic or patient related matters. The University's definition of "professionalism" expresses a moral judgment, rather than an evaluation against a set of  specialized criteria. Case describes "professionalism" in moral judgment terms: "ethical, honest, responsible and reliable behavior”; “respectful dialogue”; “personal limitations and biases”; and “professional and interpersonal behavior, sensitivity, sense of responsibility, and ethics, and the ability to conduct oneself suitably.”

Although courts should give almost complete deference to university judgments regarding  academic issues, the same deference does not follow university character judgments only distantly related to medical education.

Ultimately, Case denied Al-Dabagh a diploma because it believed he should have reported an out-of-state arrest and prosecution for driving while impaired that had not yet concluded and despite University Handbook provisions that did not require an arrest be reported. It also believed he earlier dissembled regarding being late for class and earlier dissembled by giving summaries on patients when he might, or might not, have examined the patient before giving the summary.

Medical schools have no special expertise regarding judging character for honesty.

The other conduct

 Case relies upon four examples. First, in his first year, Al-Dabagh was five to ten minutes late for a class and Al-Dabagh may have asked his instructor not to mark him late. Second, Al-Dabagh went drunk to a school dance, harassed two women to dance with him, and may have grabbed another woman’s behind and argued with that woman’s date. Later that night and while drunk, Al-Dabagh then tried to stiff a cab driver by rolling out of a moving cab to avoid paying his bill. Third, an unidentified student said Al-Dabagh presented on a patient he had not personally examined. Fourth, a patient’s family asked that Al-Dabagh not treat their relative when Al-Dabagh was doing an internal medicine internship, likely for personality reasons.

The school dance is called the Hippo Ball.

As to the student

For Al-Dabagh, the stakes are high. Al-Dabagh completed (and paid for) five years of medical school. He has successfully published more than a dozen articles or book chapters on dermatology, including an article published in one of the leading dermatology journals. And the physician who supervised his dermatology research described Al-Dabagh as “quite the team player. . . willing to lend a helping hand even without being asked to do so. He is well read, punctual and prepared for his clinics. His caring demeanor is apparent when he interacts with patients. He exhibited a can do, help others spirit that has been a huge benefit to research projects, helping other students and faculty on collaborative review articles and original research.” If denied injunctive relief, Al-Dabagh’s medical career will be lost or significantly diminished.

The court found that the University had acted arbitrarily and capriciously. (Mike Frisch)

June 6, 2014 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

"So Go Ahead And Disbar Me..."

An attorney who is under investigation by the SEC has been suspended for failure to cooperate by the New York Appellate Division for the First Judicial Department.

The [Departmental Disciplinary] Committee commenced a sua sponte investigation into respondent's conduct after receiving a copy of an SEC complaint against respondent and a Cease and Desist order. The SEC complaint was based on charges surrounding respondent's role as a transaction manager within an investment banking entity that mislead investors in a collateralized debt deal during the housing market crisis (2007-2008). Respondent settled the matter with the SEC and consented to the Cease and Desist Order wherein she agreed to a one-year suspension without admitting or denying the SEC's allegations. Upon receiving a copy of the complaint along with the Cease and Desist order, the Committee made a series of attempts to contact respondent.

The court recites the extensive efforts to secure a response that ultimately led to

...the Committee received a handwritten letter from respondent dated February 19, 2014, which said: "I will not be filing an answer to the complaint or otherwise participate[]; in this investigation . . . So go ahead and disbar me for failure to cooperate'." Upon receipt of respondent's letter, the Committee wrote her to offer the chance to document her claimed health issues with medical records within 10 days. Respondent did not reply.

The SEC web page provides details about the underlying complaint. (Mike Frisch)

June 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: Don't Show Up For Your Disciplinary Hearing In Shorts, T-Shirt And Running Shoes

An attorney who previously served as general counsel to the Department of Corrections was suspended for three years by the West Virginia Supreme Court of Appeals.

The charges arose from the attorney's romantic relationships with two incarcerated women. He admitted that he had a relationship with one (J.L.) prior to her incarceration and that he intended to wed the other (K.A.), who he described as "a very attractive woman."

The attorney was found culpable of four violations that were not alleged in the original charges.

The court squarely rejected his claim that his due process rights were violated as a result. The attorney had denied that the women were his clients and "repeatedly gave misleading statements " in the disciplinary proceeding.

The court noted that the attorney had appeared for the disciplinary hearing in shorts, a t-shirt and running shoes. He stayed for two witnesses and then voluntarily absented himself from the proceeding. 

Those really were running shoes. (Mike Frisch)

June 6, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thursday, June 5, 2014

Judge Disbarred For Relationship With Prosecutor In Death Case

The Florida Supreme Court has disbarred former Broward County Circuit Court Judge Ana Gardiner for misconduct involving her relationship with the prosecutor in a death penalty case in which she presided

The relevant facts in this case are essentially undisputed. While serving as the presiding judge in a capital first-degree murder case, Gardiner commenced a significant emotional relationship with the lead prosecutor in the case. During a five-month period, Gardiner and Scheinberg exchanged 949 cell phone calls and 471 text messages, including 44 phone and text communications on the day before,the day of, and the day after Gardiner imposed the death sentence. Gardiner intentionally chose not to disclose this relationship to the defense. She also did not disclose the true nature of the relationship to the JQC during its investigation in November 2008.
 
The conviction was vacated on motion of the prosecutor's office as a result. The defendant eventually received a life sentence.
 The Prosecutor received a two-year suspension. The court here rejected rejected the referee's proposed one-year suspension for the judge.
 Earlier coverage from the Sun Sentinel is linked here. (Mike Frisch)

June 5, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tennesee Attorney Disciplinary System Withstands Constitutional Challenge

From the web page of the Tennessee Supreme Court

The Tennessee Supreme Court unanimously affirmed the professional discipline of a public censure upon Clarksville-based attorney Fletcher Whaley Long and rejected his constitutional challenges to the Court’s disciplinary enforcement rule.

A hearing panel had determined that Mr. Long violated four provisions of the Tennessee Rules of Professional Conduct that arose over his failure to provide an accounting of his fees, deposit a retainer fee in his trust account, refund unearned fees, and adhere to disciplinary rules. The Montgomery County Chancery Court affirmed the hearing panel’s decision and the public censure for Mr. Long.

On appeal, Mr. Long challenged the constitutionality of Tennessee Supreme Court Rule 9, governing disciplinary enforcement of attorneys. Mr. Long contended in part that the Rule violated due process, because it combines investigative, enforcement, and adjudicative authority in the same agency, the Board of Professional Responsibility.

The Tennessee Supreme Court rejected Mr. Long’s constitutional challenges, including his due-process argument. Justice Sharon G. Lee explained in the opinion that the Board’s Office of Chief Disciplinary Counsel investigates allegations and institutes disciplinary proceedings if necessary. However, hearing panels composed of independent attorneys appointed by the Board then adjudicate the proceedings.

“Because the investigatory/enforcement responsibilities and the adjudicative responsibilities are functionally separate within the Board, Rule 9 does not violate due process principles,” wrote Justice Lee.

Read the opinion in Long v. Board of Professional Responsibility, authored by Justice Lee.

(Mike Frisch)

June 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Merry Outlier

The Wisconsin Supreme Court imposed no discipline in a case where the attorney was exonerated of making a false statement to a tribunal but found to have failed to cooperate with the Office of Legal Regulation (OLR):

The weakness of the OLR's case makes it an outlier.  The OLR typically pursues claims of failure to cooperate in cases where there is little dispute that the lawyer failed to cooperate.  Typically, the failure to cooperate charge accompanies a determination that the lawyer engaged in some underlying misconduct.  Here, however, Attorney Merry is exonerated of any underlying misconduct and the information he allegedly withheld from the OLR——the name of the specific person who told him an apparently correct piece of information——appears to be of dubious relevance.  While the referee correctly concluded that a violation of SCRs 22.03(6) and 20:8.4(h) occurred, we deem it a de minimis one, insufficient to warrant imposing the recommended discipline with its attendant costs of $13,727.71.  We therefore dismiss the complaint.

Chief Justice Abrahamson concurred and dissented

I agree with the referee and the per curiam opinion that Count 1 of the complaint should be dismissed. 

The referee concluded that the OLR proved a violation of Count 2, failing to cooperate with the OLR investigation.  In contrast, the per curiam opinion dismisses Count 2.  I agree with the referee.  I part company with the per curiam opinion on Count 2. 

 Attorney Merry is essentially asking this court to believe him although the referee who saw and heard Attorney Merry did not.  Credibility is a finding of fact.  The referee said he didn't find Attorney Merry credible.  The court must accept the referee's findings of fact unless they are clearly erroneous.  See per curiam op., 17. 

 Nothing in the record or the referee's report warrants disregarding the referee's carefully analyzed and carefully articulated credibility determination. 

 Consequently, the per curiam opinion must and does accept the referee's finding that Attorney Merry is not credible.  To avoid this factual finding, the per curiam opinion declares the violation to be "de minimis" and "hyper-technical."  It dismisses the complaint. 

 A "de minimis" or "hyper-technical" violation is, in my opinion, still a violation (whatever the meaning of these terms that appear to set gradations of violations or shades of credibility). 

 I am persuaded that a public reprimand, recommended by the referee, is appropriate in the present case (even though Attorney Merry has been disciplined on five prior occasions).  The extent, nature, and circumstances of the violation are, as I see it, relevant in determining the discipline to be imposed.  The referee has provided a thoughtful analysis and recommendation.  I would follow it. 

Justice Bradley joined the Chief Justice's opinion. (Mike Frisch)

 

June 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

D.C. Board Finds Obvious Miscarriage of Justice In Disbarment From Alabama

The District of Columbia Board on Professional Responsibility (BPR) has recommended that an attorney who was disbarred in Alabama be suspended for 90 days with fitness as reciprocal discipline.

The case is a very hard one given a host of factors. It is complicated by the precedents relating to an attorney's failure to participate in reciprocal discipline proceedings.

The attorney was admitted in D.C. in 1986 and had no prior discipline in either Alabama or D.C.

The disbarment involved her conduct during a single state court criminal trial.

The Alabama order (which I have been unable to find on line) quotes from the transcript extensively. The attorney may well have crossed the often difficult to discern line from zealousness to argumentative, but no more so than I have frequently seen in hotly-contested criminal and civil trials.

The trial court found the attorney in contempt and declared a mistrial.

After the trial, the attorney made a comment to a television station "that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial."

The prosecutor filed the bar complaint.

After the Alabama disbarment, the attorney sued a host of defendants including the Alabama Supreme Court.

The suit was dismissed on immunity grounds.

The Alabama State Bar Disciplinary Board found that the attorney's accusation against the judge violated Rule 8.2.  D.C.did not adopt that rule.

Further, the Alabama Board found that the attorney had a "dishonest and selfish motive" in the misconduct.  To me, that finding is nonsense.

This order of the Alabama Supreme Court provides some procedural details.

The reciprocal matter is complicated by two facts: the attorney defaulted and has been suspended for non-payment of D.C. bar dues since 1987.

When an attorney defaults in a reciprocal matter, the court has held (in  case I argued) that the Board's review should be a cursory one "to prevent an obvious miscarriage of justice."

Here, Respondent did not object to the imposition of identical reciprocal discipline-indeed, he took no part in the proceedings.

  Given this posture, we think the role of the Board should be a limited one.   The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline-a situation that we anticipate would rarely, if ever, present itself.

- See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1317884.html#sthash.4yfPzsP8.dpuf

Here, Respondent did not object to the imposition of identical reciprocal discipline-indeed, he took no part in the proceedings.

  Given this posture, we think the role of the Board should be a limited one.   The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline-a situation that we anticipate would rarely, if ever, present itself.

- See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1317884.html#sthash.4yfPzsP8.dpuf

Here, Respondent did not object to the imposition of identical reciprocal discipline-indeed, he took no part in the proceedings.

  Given this posture, we think the role of the Board should be a limited one.   The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline-a situation that we anticipate would rarely, if ever, present itself.

- See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1317884.html#sthash.4yfPzsP8.dpuf

The D.C. Court of Appeals imposes summary reciprocal discipline unless someone objects. Here, the court took the unusual step of seeking the Board's views absent any objection.

The Board made the miscarriage of justice finding. Two Board members dissented. The dissent makes some excellent points: the attorney has not paid D.C. bar dues for over 25 years "evincing no interest in remaining a member of this bar" and had not advised D.C.of the Alabama sanction.

The Board is clearly correct (did I write that?) in concluding that contumacious conduct in a single trial would not result in severe discipline in an original matter. I also agree that disbarment as reciprocal discipline is so disproportionate to the misconduct as to shock one's conscience.

While the default is troubling, disbarment in this case is more so.

The Board recommendation may be found at this link by entering the name Sherryl Goffer. The   Alabama order was under the name Sherryl Caffey.

Also, as a blogger who surfs state court and bar web pages for disciplinary orders, I would rank Alabama as the very worst jurisdiction  in terms of online transparency. Lack of transparency (which is not limited to Alabama) makes me wary of any disciplinary regime. If anyone knows how to find Alabama disciplinary orders on line, please educate me.

District of Columbia Bar Counsel supports disbarment.

As an assistant bar counsel, I argued many times in opposition to a downward departure from identical discipline recommendation by the BPR. My position was premised in the idea that the Board often inappropriately either minimized the misconduct found or second-guessed the disciplining tribunal's sanction.

Here, the Alabama proceedings just give me pause that I rarely, if ever, have felt in a reciprocal matter.

I predict that the Court of Appeals will not impose such a harsh sanction. Stay tuned. (Mike Frisch)

June 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 4, 2014

At The Pig And Whistle

The West Virginia Supreme Court of Appeals agreed with a hearing panel that a now-former assistant prosecutor violated ethical rules in his interactions with a respondent in an abuse and neglect matter he was prosecuting.

In June of 2011, during the pendency of an abuse and neglect proceeding that had been brought against Ms. C, Mr. Amos was patronizing a local bar one evening when he saw Ms. C. and invited her to join his table of friends. After having drinks together, Mr.Amos took Ms. C. to another bar that same evening, one that featured nude female dancing. During the course of the evening, they discussed her abuse and neglect proceeding and, at the conclusion of the evening, Mr. Amos drove Ms. C. home where she allowed him to view her children’s bedrooms upon his request. Over the course of the next couple of weeks, they exchanged text messages related to the abuse and neglect proceeding, but they had no further “in person” contact.

The court rejected a proposed reprimand and imposed a 75-day suspension.

Details here from the West Virginia Record, which notes that the encounter began at aPig & Whistle.

According to the statement [of bar charges] , Ms. C confided in her social worker, Christy Wright, that Amos “kissed her and promised that she would regain custody of her children in exchange for sexual favors.” Ms. C. told Wayne County Prosecutor Thomas Plymale that while they were together in the Pig & Whistle, Amos “rubbed her thighs and made the statement ‘If you scratch my back, I’ll scratch yours.’”

Prior to leaving the Pig & Whistle for a bar that featured female nude dancers, Ms. C. said he “kissed her on the cheek twice.” After arriving at the topless bar, Ms. C. claimed Amos again began rubbing her thighs and made not-so-subtle hints about having sex.

According to the statement, Amos requested to have sex with Ms. C. after he took her home, but she declined.

After speaking with Ms. C., Marsteller, Wright, Eric Dotson, the interim manager of the Wayne County Department of Health and Human Resources, and Judge Darrell Pratt, Plymale, the statement says, on June 28 placed Amos on paid suspension pending further investigation. The next day, he asked Amos to tender his resignation and report the incident to ODC.

The statement alleges Amos committed five violations of the Rules of Professional Conduct including those dealing with conflict of interest, and misconduct.

The court here noted that evidence of the alleged sexual overtures was not presented at the disciplinary hearing. The court nonetheless considered the attorney's abuse of his public office as an aggravating factor. (Mike Frisch)

June 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 3, 2014

Disqualification Waived By Late-Blooming Motion

The Washington State Court of Appeals - Second Division - has refused to disqualify an attorney in civil litigation.

The attorney had been consulted by a (now former) deputy prosecutor concerning employment issues arising from his proposed run for the top job. She then represented two employees of the same office in connection with sexual harassment claims against the deputy prosecutor.

The court held that the delay of 18 months in seeking disqualification had resulted in the attorney's extensive involvement in the matter. Thus, the former client had waived the right to raise the disqualification issue.

An earlier decision of the court set forth the alleged facts in the litigation

Brown is a former deputy prosecuting attorney for Klickitat County. During his employment with the county, he had supervisory authority over administrative assistants Robin Eubanks and Erin Gray. In 2010, Eubanks and Gray sued Brown, Klickitat County, and the Klickitat County Prosecuting Attorney's Office, alleging that Brown sexually harassed them while they worked in the prosecutor's office. Noting that they were suing Brown individually, they alleged that he regularly sat in their shared office with his pants unzipped and his legs spread open on his desk; that he positioned himself in the office doorway so that they would need to rub against him when they left; that he licked his lips constantly while talking to them; that he stared at them while they worked and followed them around the office; that he gave unwanted gifts to Eubanks; and that he stared at Gray's breasts during conversations.

(Mike Frisch)

June 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Best Of The Best

A North Carolina attorney has been reprimanded for self-laudatory advertising.

The reprimand notes that the attorney's web page called her "Jacksonville's best auto injury attorney," an unverifiable claim, and referred to specialization in areas of practice, which also violated North Carolina ethical rules.

The attorney promised but delayed making the necessary changes to her web page. (Mike Frisch)

June 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)