Legal Profession Blog

A Strong Public Policy

The New York Appellate Division for the Second Judicial Department has suspended an attorney 

The respondent was retained by Ms. B on or about February 7, 2012, to represent her in a domestic relations matter. In or about April 2012, the respondent began a consensual sexual relationship with Ms. B. At the time the sexual relationship began, the respondent was representing Ms. B in the domestic relations matter. The sexual relationship continued for several months while the respondent continued to represent Ms. B in the domestic relations matter. In or about June 2014, Ms. B informed the respondent that he was being replaced as counsel. In or about April 2015, Ms. B commenced a legal malpractice action against the respondent. The malpractice action settled in or about 2016. As part of the settlement, the respondent executed an affirmation (hereinafter Settlement Affirmation) in which he admitted to entering into a consensual sexual relationship with Ms. B.

There were also findings of billing and recordkeeping lapses in the representation.

Sanction

In determining an appropriate measure of discipline, the respondent’s counsel requests the Court to consider in mitigation, the fact that the sexual relationship was consensual and initiated by Ms. B; the respondent at the time was suffering from depression and had separated from his wife; the conduct was aberrational; the respondent is genuinely remorseful; the respondent had obtained an extremely generous settlement in the domestic relations matter for Ms. B; he cooperated with the Grievance Committee’s investigation, and accepted full responsibility for his actions. Additionally, except for a recent admonition, the respondent had an unblemished disciplinary history in his 30 years of practice. Notwithstanding the mitigation advanced, the respondent knowingly violated rule 1.8(j)(1)(iii) of the Rules of Professional Conduct (22NYCRR1200.0)in contravention of this State’s strong public policy against sexual relations between an attorney and his or her domestic relations client.

Under the totality of the circumstances, we find that the respondent’s conduct warrants his suspension from the practice of law for a period of 18 months.

(Mike Frisch)

Witness Protection

A Louisiana Hearing Committee recommends a public reprimand for conduct toward an opposing party's expert witness in custody matters

On or about October 27, 2016, Respondent approached the witness outside the courtroom in Orleans Civil District Court and unsolicited told her, "I'm coming for you" and "you're not needed here." He also said, "you're not going to get on the stand" and "I'm going to make you sit here all day."

The hearing was re-fixed to November 3, 2016. On that morning before court, the Respondent approached the witness once again stating, "I'm not sure why you're here ... you're not going to testify again today." When the witness advised Respondent that she had been subpoenaed to testify and intended to comply with the subpoena, the Respondent answered by saying, "Well, you can't testify to the child (B.R.'s) anxiety, and I am going to get you." As they entered the courthouse, Respondent once again advised her, "I don't know why you are coming up, because we don't need you to come up here (to testify)." The case was once again reset to January 5, 2017.

On that date, the Respondent again approached the witness outside the courtroom where she was sitting and said, "I told you I'm gonna get you, stop messing with me."

Credibility

The committee extensively and carefully heard, considered, discussed, and decided the credibility of Dr. Tropez-Arceneaux and Respondent. The committee finds Dr. Tropez-Arceneaux's testimony to be very credible, both with respect to its content and demeanor. She was a third-party, nonlawyer, expert witness in the underlying proceeding with no motivation or benefit to lie about the alleged conduct of Respondent. Conversely, the committee finds Respondent's testimony not credible, with respect to either its content or demeanor.

(Mike Frisch)

The Fandango Statute Of Limitations

The California State Bar Court Review Department overturned the dismissal with prejudice of bar charges on statute of limitations grounds

We disagree with the hearing judge’s ultimate dismissal with prejudice. The ANDC [Amended Notice of Disciplinary Charges] and documents judicially noticed satisfactorily plead that the single charge of moral turpitude by misappropriation occurred within five years of the filing of the original NDC, as tolled by the continuing fiduciary duty Saxon owed his client. We emphasize that the rule of limitations is tolled during the period of time that the attorney acts in a fiduciary relationship, even if it is other than an attorney-client relationship. Accordingly, we remand this case to the Hearing Department for further proceedings consistent with this opinion and order.

The allegations

[Respondent] Saxon is a movie producer who sought investments to fund a movie called “Fandango.” One investor was Jon Yarborough, a resident of Tennessee. On or about October 6, 2009, Saxon and Yarborough entered into a Financing Agreement, whereby Yarborough and Saxon would invest $1.5 million and $3.5 million, respectively (the Combined Financing). The Financing Agreement also stated that all funds would be placed in a certain account defined as the “Picture Account,” or another account approved by Yarborough and Saxon. The funds were to be segregated and used only for production costs, and the Financing Agreement provided that “[a]ny funds advanced to the Picture Account shall be held in trust.” Under the Financing Agreement, Saxon was required to maintain the funds in the Picture Account until receipt of 100 percent of the Combined Financing. He could not withdraw money from the account until it was fully funded with the Combined Financing.

Yarborough wired $1.5 million to the Picture Account on October 21, 2009. Saxon never contributed his $3.5 million share. Instead, it is alleged that the day that Yarborough’s funds were wired to the Picture Account, Saxon transferred the entire $1.5 million to a different account, not approved by the parties.

Yarborough sued and secured a Tennessee judgment and sought to enforce it in California. Saxon declared bankruptcy.

The bankruptcy court determined that Saxon defalcated the $1.5 million when he fraudulently transferred the funds from the Picture Account without having first deposited his own $3.5 million in that account.

On timing 

we find that Saxon was acting as a fiduciary by holding funds in escrow, having been given precise instructions by the Financing Agreement. He remained in the capacity of a fiduciary with an obligation to hold the escrowed funds “in trust” until the Fandango production was completed and the purpose of the escrow fulfilled. As such, contrary to Saxon’s argument, the extension of the period of limitations was not endless—it ended when its purpose ended, and its purpose was the production. The ANDC states that the film was released in 2014, which would indicate that Saxon’s escrow responsibilities would be terminated at that time.

The five year statute of limitations did not run

When Saxon no longer represented Yarborough within the meaning of rule 5.21(C)(1), the five year limit was no longer tolled, and began to run. But since we calculate the limitations period from the date of the filing of the original NDC, which was December 19, 2018, we find it was timely filed within five years from the 2014 completion of the escrow arrangement alleged in the ANDC.

The Los Angeles Times had a lengthy story about the Respondent in 2011. (Mike Frisch)

Hit and Run

A non-practicing attorney has been charged with ethics violations arising from an incident described in this report from Cleveland 19 News

Dashcam and bodycam video from Beachwood show the moment attorney and developer Marc Strauss rammed a police cruiser with his SUV, then took off.

Officers caught up to the hit-and-run driver, and slapped the cuffs on him.

Strauss blew by 19 News cameras without comment as he entered court on Monday.

Prosecutors told Judge Anne Keller that they didn’t want the case swept under the rug because of Strauss’s status as a lawyer.

“He is an attorney, and in this case, you know attorneys should be treated if not held to a higher standard...This is an officer of the court.” Prosecutor Nathalie Supler told Keller.

“He should not be punished because he is a lawyer, We’re not asking for any special consideration because he’s an attorney.” countered defense attorney Jay Slachet.

The crash footage tells a compelling story. Aside from the crash, there is the aftermath.

Strauss wasn’t done after crashing his car, fleeing and crashing his car again. He got out and ran down an embankment. He was captured a short time later.

“Put your hands behind your back. Palms together. Palms together. Palms together.” an officer yells after finally catching up with Strauss.

“I’m concerned that he’s a danger to himself.” Sgt. Gary Anderson told the Judge.

Luckily he wasn’t seriously injured. He gave troubling details about Strauss, including a previous OVI arrest that was pleaded down to a lesser charge. And the fact that an interlock system installed after Strauss arrests was not moved to a new vehicle he purchased for his company.

Strauss apologized and got probation and a fine.

Strauss was fined $1,250, plus court costs. Terms of his probation include a two-year license suspension with work privileges, regular AA meetings and an interlock system on his car.

If he violates that, the 87-day suspended prison term would have to be served.

The allegations were brought by the Cleveland Metropolitan Association. (Mike Frisch)

Better Uber

A 22 month suspension has been imposed by a tri-county panel of the Michigan Attorney Discipline Board for a third driving under the influence conviction made worse by the fact 

that he pleaded guilty on September 13, 2018, to violating his probation in that same matter; and that he pleaded guilty to criminal contempt of court for advising the court that he had obtained a ride to court when he in fact had driven to court when he had no valid driver’s license...

(Mike Frisch)

Former Prosecutor Consents To Disbarment

The Tennessee Supreme Court has accepted an attorney's consent to disbarment.

WJHL News 11 reported on criminal charges in May 2020

A local assistant district attorney has been charged with bribery.

William McManus with the First Judicial District Attorney General’s Office was arrested in a sting operation Thursday following an investigation by the district attorney’s office and federal agents.

The First Judicial District includes Washington, Unicoi, Carter, and Johnson counties.

“Information was received a few weeks ago concerning the possibility of Mr. McManus’ involvement with illegal activity concerning a prostitute,” said District Attorney Ken Baldwin in a news release. “Based on this information, I immediately contacted my investigators and initiated an investigation, which resulted in the arrest today of Mr. McManus and the termination of his employment at the time of his arrest.”

Baldwin says he has requested a pro-tem prosecutor for the case since McManus worked for the district attorney’s office and it was the district attorney’s office that initiated the investigation.

“It is not appropriate to be the prosecutor in this case, based on the fact, that I initiated the investigation and the defendant was a prosecutor at the time of the arrest,” Baldwin stated. “By removing the District Attorney’s Office from this matter, it avoids any ethical issues that may arise, as well as, the elimination of what someone may perceive as favoritism.”

The investigation is ongoing.

As did WVLT here

Officials said a Tennessee assistant district attorney was arrested after being accused of discussing reducing criminal charges of defendants in exchange for sexual favors.

William McManus appeared in Washington County General Sessions Court after being charged with bribery of a public servant.

Investigators said they saw McManus arrive at the home of a female defendant who was facing charges.

According to reports, while McManus was at the home, investigators from multiple agencies were able to monitor and record a conversation between McManus and the defendant, who agreed to cooperate with investigators as an informant.

Investigators said McManus made numerous sexual advances toward the informant.

Court documents said McManus then made plans to meet back at the home later that day, and agents monitored his movements on the way to the home.

When McManus arrived back at the home district attorney investigators and FBI agents confronted McManus and read him his Miranda warning.

Johnson City FBI said McManus admitted that he had been involved in a sexual relationship with the informant.

McManus told investigators he had led the woman and other individuals to believe he could assist them in reducing their charges if they would give him sexual favors.

McManus was arrested and his bond is set at $10,000.

News Break reported that he was terminated shortly after the arrest. (Mike Frisch)

Cryptocurrency Ethics

A recent opinion of the District of Columbia Bar's Legal Ethics Committee

Ethics Opinion 378

Acceptance of Cryptocurrency as Payment for Legal Fees

Introduction

It is not unethical for a lawyer to accept cryptocurrency in lieu of more traditional forms of payment, so long as the fee is reasonable. A lawyer who accepts cryptocurrency as an advance fee on services yet to be rendered, however, must ensure that the fee arrangement is reasonable, objectively fair to the client, and has been agreed to only after the client has been informed in writing of its implications and given the opportunity to seek independent counsel. Additionally, a lawyer who takes possession of a client's cryptocurrency, either as an advance fee or in settlement of a client's claims, must also take competent and reasonable security precautions to safeguard that property.

(Mike Frisch)

Text Messages Draw Bar Charges

A number of text messages sent by an attorney are the subject of allegations brought by the Illinois Administrator.

In one matter, after the representation had terminated in a family law matter

At the time Respondent represented Newton, Newton was in a relationship with Katherine Ashworth ("Ashworth"). On at least one occasion, Ashworth accompanied Newton to Respondent’s office. On March 18, 2019, the court in case number 2018D2 ordered that parenting time between Newton and his minor child was to be held outside of the presence of Ashworth due to allegations that, while in Ashworth’s care, the minor child suffered injuries including chigger bites while playing in the yard. On or after March 18, 2019, Newton terminated his relationship with Ashworth.

Then, it is alleged

On September 26, 2019, Respondent and Ashworth exchanged the following text messages using Facebook Messenger:

Respondent: "Does your husband ever intend to pay anything towards his legal fees at Brainard?"

Ashworth: "I’m not married sorry, think you have the wrong person."

Respondent: "No relation to Dane Newton? Sorry to bother you."

[Ashw]orth: "Nope."

Respondent: "Baloney. Thanks for nothing."

"Lol [laughing out loud] shows what kind of people you both are."

On September 26, 2019, Ashworth and Respondent continued to exchange text messages using Facebook Messenger, including the following:

Ashworth: "I have no idea what you are talking about."

Respondent: "Of course you don’t. Ask [minor child’s name omitted] and the bedbugs. Harold knows."

Ashworth: "Some lawyer you are telling other people’s business."

Respondent: "Umm. Ok then. You were a witness at his trial and his girlfriend."

"Hope you don’t lose this kid like the last. Maybe you both should pay your bills. F**king deadbeats."

Allegedly:

At the time Respondent sent the text messages described...above, he knew that Ashworth had suffered a prior miscarriage. Respondent’s statements that Ashworth was a "f**king deadbeat" and that he hoped "you don’t lose this kid like the last" had no other purpose than to harass and embarrass Ashworth.

In a separate matter involving his eviction from his law office and files left behind, he allegedly sent the following to the landlord's spouse

Mrs. Smallhorn: "I would like to be done with this situation as soon as possible. Let me know when you would like to get your files"

"Also your business cards and chair are still here"

Respondent: "You and me both. Not sure who this is I am talking to."

Mrs. Smallhorn: "Again this is Laura Smallhorn. Let’s make a plan to remove your files."

Respondent: "After yesterday it will be difficult. You people are frankly trash."

Mrs. Smallhorn: "Name calling isn’t going to get your things out of our office any quicker. I’m going to end this conversation today. In a few days when you are ready to discuss moving your files please let me know."

Respondent: "Yeah. You’re the one who was swearing all over the place. Fat bitch."

There is one additional text exchange and charges of lack of diligence in a third unrelated count. (mike Frisch)

D.C. Considers Rule Changes

From the web page of the District of Columbia Bar

Bar Invites Comment on Proposed Amendments to Certain D.C. Rules of Professional Conduct

June 30, 2020

The D.C. Bar Rules of Professional Conduct Review Committee is seeking public comment on two separate proposals to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on August 31, 2020. 

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules. 

Government Lawyers/Identity of Client 

The Rules Review Committee proposes the elimination of Rule 1.6(k), a rule that creates a default assumption that the client of the government lawyer is the agency that employs the lawyer, as well as the comments to Rule 1.6 that reference Rule 1.6(k). In place of Rule 1.6(k), the Committee recommends the adoption of a comment to Rule 1.13 (Organization as Client), which provides a more nuanced analysis of the identity of the client of the government lawyer and is consistent with the substantive law. 

Additionally, the Committee proposes a change to comment [10] to Rule 1.11 (Successive Government and Private or Other Employment) on lawyers moving between government agencies within the same the government. The current version is based on the notion that the client of the government lawyer is the employing agency. The proposed comment would instead subject lawyers moving between positions within the same government to Rule 1.9 (Conflict of Interest: Former Client).  

Disciplinary Choice of Law 

The Rules Review Committee proposes amending Rule 8.5(a) to clarify that lawyers licensed in the District, but providing legal services in other jurisdictions, may be subject to the disciplinary authority and ethics rules of those other jurisdictions. Additionally, the Committee proposes the addition of a new subparagraph (3) to Rule 8.5(b) to provide a “safe harbor” provision for a lawyer who acts under the reasonable belief that his or her conduct is governed by the rules of another jurisdiction. Corresponding revisions to the comments to Rule 8.5 are also proposed.  

During its review of Rule 8.5, the Committee considered and rejected other proposals to modify Rule 8.5, as outlined in its report. In particular, the Committee did not recommend adopting the “predominant effect test” of ABA Model Rule 8.5(b)(2). However, the Committee agreed to circulate for comment a Committee member’s “Alternate Proposal to Adopt Model Rule 8.5(b)(2).”

Submit written comments by email to Rules of Professional Conduct Review Committee, c/o Hope C. Todd, at ethics@dcbar.org no later than August 31, 2020.

Sir William Blackstone "Spinning In His Grave"

The Missouri Supreme Court has affirmed a domestic assault and armed criminal action conviction, rejecting the contention (unpreserved at trial) that a juror should have been disqualified

All parties agree that Juror No. 16 is related to Robert Anthony Farkas, who served as an assistant prosecuting attorney in Pettis County where Brandolese was convicted. Farkas signed the complaint charging Brandolese. Docket entries indicate Farkas appeared on the State’s behalf in Brandolese’s case on March 22, April 12, and May 17, 2016. On June 1, 2016, a grand jury indicted Brandolese.

The relationship is brother and sister.

Farkas did not participate in the trial

Defense counsel did not use a peremptory strike to remove Juror No. 16, and she served on the jury. Brandolese’s claim of error on this issue was not included in his motion for new trial and at no time during the proceedings before this appeal did Brandolese allege Juror No. 16 was statutorily disqualified from serving on the jury pursuant to section 494.070.1.

The court

This Court, however, need not decide whether the circuit court’s failure to sustain Brandolese’s challenge to strike Juror No. 16 for cause violated section 494.470.1 because Brandolese has not demonstrated the alleged error led to manifest injustice warranting plain error review.

A concurring opinion would find the statutory violation but nonetheless affirm.

Draper, C.J., dissented; Breckenridge and Stith, JJ., concurred in the Chief Justice's dissent

The principal opinion’s holding, which condones kin of the assistant prosecuting attorney sitting in judgment on a case in which the assistant prosecuting attorney actively participated in, surely has legal scholar Sir William Blackstone spinning in his grave. Not only is this holding unsupported by centuries-old precedent, Missouri caselaw, or a proper reading of section 494.470.1, RSMo Supp. 2013, under this Court’s rules of statutory construction, but it places burdens upon a defendant that are not required by the statute and reaches a patently absurd result.  Accordingly, I dissent.

(Mike Frisch)

Missouri Holds Public Defenders Have Official Immunity

Public Defenders are entitled to official immunity and a judgment for legal malpractice was reversed by the Missouri Supreme Court.

The opinion is linked here. 

The case involved state charges which the defendant (plaintiff here) believed were not subject to jurisdiction, as the alleged burglary was of a post office.

The state brought the charges after federal authorities declined to proceed. 

The sued attorneys did not press the jurisdictional issue and were found liable for malpractice.

Headnote

As public defenders, Perry and Flottman are entitled to official immunity because they are public employee whose official statutory duties concern the performance of discretionary acts. The legislature created a public defender system to provide legal services to indigent defendants entitled under the federal and state constitutions to the assistance of counsel in criminal prosecutions. State statutes entitle public defenders to all benefits of the state employees’ retirement system, and this Court’s rules of professional conduct characterize public defenders as public employees and governmental attorneys. One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and he made no allegation they acted with malice toward him during their representation. They also had no clear and unequivocal ministerial duty to assert the jurisdictional challenge; choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.

(Mike Frisch)

Mitigation Not Proven

An attorney's felony child pornography conviction has led to an indefinite suspension of at least five years by the Minnesota Supreme Court

Strunk testified at the disciplinary hearing that he voluntarily suspended his practice, completed a psychosexual evaluation, and enrolled in out-patient therapy. A clinical psychologist testified to Strunk’s participation and progress in out-patient treatment at Alpha Human Services. Although she testified that Strunk’s “official diagnosis” was “Unspecified Paraphilic Disorder,” she offered no testimony describing its diagnostic criteria or qualifying Strunk’s unspecified paraphilia.

The Administrator challenged the consideration of mitigating evidence

After the Director has proven misconduct, the burden shifts to the attorney to prove a mitigating psychological disorder. Farley, 771 N.W.2d at 861. The attorney must prove, by clear and convincing evidence, that: (1) the attorney has a severe psychological disorder; (2) the psychological disorder directly caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological disorder that caused the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. Weyhrich, 339 N.W.2d at 279; see Farley, 771 N.W.2d at 862 (discussing severity and direct causation). We only consider psychological disorders as mitigating factors for intentional misconduct if the lawyer has proven all of the Weyhrich factors. In re Mayne, 783 N.W.2d 153, 161 (Minn. 2010). Here, the first two Weyhrich elements are in dispute.

As to severity

None of the evidence presented meets the severity test. As the referee acknowledged, “[t]he record and the testimony does not directly address” whether “Unspecified Paraphilic Disorder” is a severe psychological disorder. Although the evidence necessary to establish the severity of a diagnosis may differ in each case, we conclude that a reference to a diagnosis of “Unspecified Paraphilic Disorder” is not enough, by itself, to meet the exacting Weyhrich standard.

Sanction

The damage to the legal profession incurred when its members commit serious crimes cannot be easily undone. Here, the harm that Strunk caused to the public and the legal profession is significant. Strunk possessed nearly 100 pornographic images of child victims of abuse and sexual exploitation, including infants. The possession and distribution of pornography harms the victims long after the original photograph was taken. By distributing pornographic images to others, Strunk perpetuated the harm caused to his absolutely vulnerable child victims through republication, and facilitated the criminal desires of others. Moreover, Strunk knew that his conduct was wrong, and he took affirmative steps to evade detection. Strunk’s criminal conduct was intentional, ongoing, and done with the express belief that he would not be caught. The harm that Strunk caused to the public and the profession was very serious.

No credit for self-suspension because of the requirements for an actual suspension

"Self-suspension” carries no similar assurances of transparency or accountability. Because the “primary purpose of disciplinary action is ‘to guard the administration of justice and to protect the courts, the legal profession, and the public,’ ” we reject Strunk’s request that we relax our standards for suspension to give him credit.

(Mike Frisch)

"Incalculable Harm"

The Minnesota Supreme Court has suspended an attorney for at least three years

The sole issue before us is the appropriate discipline to impose on respondent Ignatius Chukwuemeka Udeani for his wide-ranging misconduct that caused substantial harm to multiple clients. The Director of the Office of Lawyers Professional Responsibility filed a petition and a supplementary petition for disciplinary action against Udeani.
Following a hearing, a referee found that Udeani committed numerous and varied acts of misconduct. Udeani’s misconduct involved: engaging in a pattern of incompetent representation, neglect, failure to communicate with clients, and failure to return unearned fees; failing to properly supervise a non-lawyer assistant and take reasonable steps to prevent the known misconduct of this assistant that resulted in the theft of client funds; failing to safeguard client funds and maintain all trust-account related records; representing a client with a conflict of interest; and failing to cooperate in multiple disciplinary investigations. The referee also found multiple aggravating factors and no mitigating factors. We conclude that the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for 3 years.

MCKEIG, Justice (dissenting).

Because disbarment is the appropriate discipline for respondent Ignatius Chukwuemeka Udeani based on the incalculable harm he has inflicted upon his clients, I respectfully dissent.

The overwhelming majority of the 24 clients and client family members harmed by Udeani’s misconduct are immigrants. Immigrants face substantial obstacles in seeking adequate legal representation, including communication barriers, financial burdens, and limited opportunities for self-protection...

Immigration proceedings come with strict deadlines and filing requirements, and the consequences for missteps are severe. Faced with the most important legal proceedings of their lives, immigration clients think that they are being responsible by hiring an attorney like Udeani. Udeani’s clients made significant sacrifices to save the necessary funds to retain him. They worked multiple jobs, opened their homes to renters, borrowed from family members, and even went without medication and treatment. They placed this money, and their trust, in Udeani’s care. Udeani then wholly abused that trust, performing  nominal or no work on most of these cases.

(Mike Frisch)

"The Teflon Robe"

A disturbing survey of the consequences of judicial misconduct from Reuters by MICHAEL BERENS and JOHN SHIFFMAN in Montgomery, Alabama

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Among the cases from the past year alone:

In Utah, a judge texted a video of a man’s scrotum to court clerks. He was reprimanded but remains on the bench.

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

In Texas, a judge burst in on jurors deliberating the case of a woman charged with sex trafficking and declared that God told him the defendant was innocent. The offending judge received a warning and returned to the bench. The defendant was convicted after a new judge took over the case.

“There are certain things where there should be a level of zero tolerance,” the jury foreman, Mark House, told Reuters. The judge should have been fined, House said, and kicked off the bench. “There is no justice, because he is still doing his job.”

Judicial misconduct specialists say such behavior has the potential to erode trust in America’s courts and, absent tough consequences, could give judges license to behave with impunity.

“When you see cases like that, the public starts to wonder about the integrity and honesty of the system,” said Steve Scheckman, a lawyer who directed Louisiana’s oversight agency and served as deputy director of New York’s. “It looks like a good ol’ boys club.”

(Mike Frisch)

Third Party Presence Waives Privilege

The Tennessee Court of Appeals affirmed a finding that the presence of a third party in communications with a client's divorce attorney waived the attorney-client privilege.

The client had been advised that the situation would waive privilege but nonetheless proceeded. 

[The client] filed a complaint for divorce against Timothy J. Pagliara (“Husband”). At that time, Wife was represented by an attorney, Marlene Moses. While the divorce action was pending, Wife consulted with her attorney, Ms. Moses, in the presence of Wife’s friend, Adela Ferrell, concerning, in part, whether Wife should report to law enforcement certain actions by Husband. Ms. Moses correctly had informed Wife that their communications would not be protected by attorney-client privilege with Ms. Ferrell present, but Wife insisted Ms. Ferrell remain in the room. Husband’s counter complaint alleged that upon Wife’s request for legal advice as to whether she should report Husband’s actions to law enforcement, Ms. Moses responded to Wife that reporting his conduct was the only way for Wife to gain an advantage in the divorce proceeding.

Ms. Moses then referred Wife to her son-in-law, Ben Russ, an attorney practicing criminal law. Ms. Ferrell drove Wife to her meeting with Mr. Russ and was present during this meeting. Mr. Russ also informed Wife that their conversations would not be privileged with Ms. Ferrell present in the meeting, but Wife insisted that Ms. Ferrell be present. Ms. Ferrell, therefore, was present for this meeting with Mr. Russ wherein they discussed reporting Husband’s actions to law enforcement.

Wife subsequently reported Husband’s actions to the Franklin Police Department.

The husband sued for intentional and negligent infliction of emotional distress and sought discovery of these communications.

Because Wife was in the best place to have the knowledge necessary to prove the existence of attorney-client privilege, the burden of proof was with Wife to show that the communications between her and her lawyer were protected by attorney-client privilege. See Culbertson, 393 S.W.3d at 684; State ex rel. Flowers., 209 S.W.3d at 616. Wife did not present evidence demonstrating that the attorney-client privilege applied to any specific one or more of the meetings with her attorneys and agreed with the Trial Court’s finding that she could not identify which meetings Ms. Ferrell was present for. Our acceptance of Wife’s position would mean that because neither Wife nor Ms. Ferrell could identify which meetings Ms. Ferrell was present, the attorney-client privilege would apply whether Ms. Ferrell was present or not. That is not the law in Tennessee. Wife has not met her burden of proof to establish that the attorney-client privilege protected these communications. As such, we affirm the Trial Court’s ruling that the attorney-client privilege does not protect these communications between Wife and Ms. Moses and Wife and Mr. Russ because Wife has not met her burden of proof to establish that the privilege applies to any specific communication at issue.

(Mike Frisch)

Unsweet Sixteen

The Maryland Court of Appeals has disbarred an attorney for, among other things, misconduct in her own bankruptcy. 

The instant attorney discipline case fortifies the import of this age-old adage often attributed to President Lincoln. Regrettably, the underlying conduct involves an attorney’s overzealous self-representation in a voluntary bankruptcy proceeding in the United States Bankruptcy Court for the District of Maryland (“Bankruptcy Court”). Over the course of the nearly three-year bankruptcy proceeding, among other things, the attorney filed countless frivolous pleadings, motions, and appeals, intentionally hindered the court appointed trustee’s ability to administer the case, and knowingly made false statements of fact in filings and appeals before the Bankruptcy Court and United States District Court for the District of Maryland (“U.S. District Court”).

Moreover, this attorney represented several clients in Maryland’s circuit courts, the Court of Special Appeals, and the Bankruptcy Court. In these instances, among other things, the attorney misappropriated client funds, made knowing misrepresentations to and intentionally concealed information from clients, and failed to prosecute clients’ motions and appeals.

This attorney’s conduct violated sixteen separate provisions of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”). For the reasons that follow, we hold that this attorney’s conduct merits disbarment.

The court

In this case, we have concluded that Ms. Smith-Scott engaged in intentional dishonest conduct and that she misappropriated client funds entrusted to her. While this conduct is troubling in its own right, the magnitude of Ms. Smith-Scott’s misconduct is exacerbated by the fact that she violated sixteen different rules of professional conduct,
often numerous times and across the representation of multiple clients. Ms. Smith-Scott’s conduct in her personal bankruptcy case further compounds the problematic nature of this case. Ms. Smith-Scott willfully disregarded lawful orders of the Bankruptcy Court and U.S. District Court and was found in civil contempt by those courts.

One order of the Bankruptcy Court fittingly describes much of the vexatious, three year bankruptcy proceeding: allegations replete with “unsupported, irrational, [and] highly
tenuous speculation.” Or, another by the U.S. District Court, describing one of Ms. Smith Scott’s motions, devoid of factual predicate, as “rely[ing] upon the sheer audacity of her [own] allegations.” Surely, this misuse of the judicial system and misconduct of this sort is that which “casts our noble profession in a most unfavorable light.” Attorney Grievance Comm’n v. Collins, ___ Md. ___, ___ (2020). It follows, then, that a reprimand or suspension would not be sufficient to protect the public or serve as a deterrent to other attorneys.

Judge Getty authored the 87-page opinion. (Mike Frisch)

Gimme, Shelter

A summary from the web page of the Massachusetts Board of Bar Overseers

From 2015 to November 2018, the respondent was a fiduciary, as board member and/or officer, of a non-profit animal shelter, with signatory authority over its bank account. He intentionally misused $119,000 from the non-profit for his own purposes. He reimbursed the non-profit by intentionally misusing $119,000 held as a trustee of a supplemental needs trust. He misused at least an additional $166,000 from the supplemental needs trust for his own use. The respondent has “not repaid to the trust more than a small percentage of the funds … misused.” His misconduct violated Mass. R. Prof. C. 1.15 (b)(4) (lawyer shall hold trust property separate from his own; trust property shall be appropriately safeguarded); 8.4 (c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4 (h) (conduct adversely reflecting on fitness to practice).

The respondent submitted his affidavit of resignation in April 2020. On May 11, 2020, the Board of Bar Overseers voted to recommend that the affidavit be accepted, and that the respondent be disbarred. The Court (Budd, J.) so ordered on June 23, 2020.

(Mike Frisch)

Estate Misappropriations Alleged

Ohio Disciplinary Counsel has filed ethics charges in a matter for which the attorney has been interim suspended for related criminal allegations. 

The Dayton Daily News reported on the criminal charges

 An attorney is accused of stealing millions from an estate that benefited St. Jude’s Children’s Research Hospital and a nonprofit for kids and spending it on child support and cosmetic surgery.

 

Brian Matthew Wiggins, 36, is facing identity fraud, aggravated theft of $1.5 million or more, money laundering, grand theft, tampering with records and possession of cocaine charges, according to Greene County court records.

>> Dayton attorney accused of theft, evidence tampering in Greene County

He was charged on 55 counts, said David Hayes of the Greene County Prosecutor’s Office.

He is facing over 70 years in prison, if convicted on all counts.

“The bulk of the charges in the indictment allege fraudulent activity related to transfer of estate and/or trust funds from the estate of a man named Ronald Lentz,” Hayes said during a press conference Wednesday.

Lentz died in August 2018 Wiggins was the attorney of the estate as well as the trustee of the trust, which were valued at more than $3 million, Hayes said.

St. Jude’s and Smile Train, a nonprofit for children with cleft lips and palates, were the two main beneficiaries of the estate.

Wiggins spent the money on child support payments, cosmetic surgery for a family member, houses, a boat, a car, gambling in Las Vegas and in Ohio and jewelry, Hayes said.

He is scheduled to be arraigned at 1 p.m. Friday.

A visiting judge from Franklin County has been assigned to the case.

The indictment stemmed from a Beavercreek police investigation.

Anyone with information on any other potential victims of Wiggins are urged to call detective David Holley 937-427-5520.

Wiggins previously was indicted in November on grand theft and tampering with records charges, according to court documents.

The previous case was in connection to a $90,000 check in an estate issue in Greene County. He is scheduled to go to trial April 20.

The ABA Journal had details including the cosmetic surgery in its reporting of the interim suspension

Wiggins was accused of spending stolen money on his wife’s breast implants, child support, a house, a boat, a Mercedes, jewelry, ATM withdrawals at casinos, and two women who accompanied him to Las Vegas. At least one of the two women was an adult dancer.

A review indicates that Wiggins has a severe addiction to gambling, alcohol, cocaine or another illegal drug, the disciplinary counsel’s memorandum says.

(Mike Frisch)

Tantamount To Disbarment

The Georgia Supreme Court has accepted a voluntary license surrender "which is tantamount to disbarment"

stating that on February 4, 2020, he entered a guilty plea in Chatham County Superior Court to one count of theft by conversion. He states further that the theft charge arose from his conduct in the administration of an estate, in the course of which he sold real property on the estate’s behalf, deposited the sales proceeds, totaling $509,618.68, into his trust account, and then, rather than disbursing the funds to the estate, converted the funds to his own use.

The order of interim suspension is linked here.

Savannah Now reported

Suspended Savannah attorney Don Smart on Thursday was indicted for theft by conversion of more than $25,000 from clients in an estate matter.

Smart obtained funds while administering a trust and estate and “did knowingly convert said funds and property to (his) own use in violation of the agreement and legal obligation,” the Chatham County grand jury said in returning the single-count indictment.

The alleged conduct occurred between April 15, 2013, and Aug. 24, 2018, the indictment said.

It included a notation that the defendant’s “actions were unknown to the state until or about the 8th day of Oct. 2016 and (were) thus excluded from the statute of limitations until such date.”

The indictment, obtained by Assistant District Attorney Scott Robichaux, was a special presentment, meaning prosecutors will have to obtain a bench warrant for Smart’s arrest in the case.

Chatham County District Attorney Meg Heap declined to discuss specifics of the case in line with office policy against commenting on pending cases.

The Georgia Supreme Court placed Smart on interim suspension from practicing law on Dec. 17 for “fail(ing) to adequately respond to the State Bar’s (of Georgia)’s Notice of Investigation” in the same case.

Maximum sanction for the violations in the case is disbarment, the Supreme Court’s order said.

State Bar of Georgia General Counsel Paula Frederick said Thursday her office asked the Supreme Court for the action against Smart based on his failure to provide the requested response, adding the bar’s investigation is ongoing.

A telephone call to Smart’s Savannah law office for comment was not returned on Thursday.

Smart, 67 and a lawyer since 1975, served as a judge advocate in the U.S. Marine Corps and was commanding officer of the Savannah Marine Corps reserve unit when it was re-activated in 1983.

Smart served in the U.S. Marine Corp on active duty from 1975 to 1979 and continued in the Marine Corps Reserve for an additional 20 years, according to his website.

Smart earned his law degree from Emory University and an MBA from Duke University.

In addition to his law practice, Smart has run unsuccessfully for several elected offices, including the U.S. House of Representatives in 2002 and again for a Georgia House seat in 2006.

(Mike Frisch)

From Diversion To Disbarment

The Maryland Court of Appeals disbarred an attorney for multiple violations that began with a matter in which the complaint response was part of the misconduct

From the outset of our interaction, [former client's mother] Ms. Lyles impressed me as dishonest and untrustworthy. When she first retained me, she indicated that she could pay my fees, in part, by “selling” me some of the purses her son had stolen during his theft spree. When I expressed my surprise and disapproval at such a proposal, Ms. Lyles tried to suggest it was “a joke.” I have no doubt she has acted as her son’s accomplice in his theft scheme….

Peggy Lyles is a malicious and disingenuous person. She apparently acts as a broker for her son’s stolen property, which makes her just as guilty of theft as her son.

The attorney entered into a diversion agreement with conditions

Respondent and Bar Counsel entered into a Conditional Diversion Agreement (“CDA”) under Maryland Rule 19-716. The Attorney Grievance Commission approved the CDA on November 15, 2017, and stayed the underlying disciplinary matter. In the CDA, Respondent conceded that she violated MLRPC Rule 8.1(b) when she failed to timely and completely respond to Bar Counsel, and that she violated MLRPC Rule 8.4(d) when she made disparaging comments about Ms. Lyles.

This matter resumed when

the Attorney Grievance Commission found Respondent to be in material default of the CDA, revoked the CDA, and lifted the stay of the disciplinary proceeding against Respondent relating to Ms. Lyles’s Complaint.

There were other complaints including a matter that involved interactions with her client's minor victim

In or about November 2016, Eric Solomon retained Respondent to represent him in a case pending in the District Court, in which he was charged with crimes relating to allegations that he sexually assaulted K.J., his 16-year-old minor cousin.

During the pendency of the case in the District Court, Respondent invited and met with K.J. at her office. K.J. was 17 at the time and accompanied by her parents, but Respondent insisted on meeting with K.J. alone. During the meeting, K.J. told Respondent that she did not want her family to know about her sexual history and drug and alcohol use. Respondent advised K.J. of the types of cross-examination questions that might be asked if the case went to trial, and told K.J. that her personal information could be admitted into evidence through her testimony, including the fact that K.J. had asked her sister and cousin for a ride to CVS to purchase a Plan B pill. Additionally, Respondent told K.J. that she had difficulty believing that K.J. had been raped, that her statements did not evidence criminal assault but rather inappropriate and embarrassing behavior, and that K.J. was blaming someone else because that is what young women do when they regret their decisions about sex. Respondent also discussed topics with K.J. that were unrelated to the alleged incident, including gender discrimination and cultural issues. Respondent encouraged K.J. to take advantage of her American residency, educate herself, and work on shedding all the shame and discrimination that, Respondent believed, defined K.J.’s experience.

The hearing judge found

Respondent’s true purpose for meeting with K.J. was not to investigate her client’s case, but rather to improperly dissuade K.J. from participating in the criminal prosecution of her client, Mr. Solomon. In speaking with K.J., Respondent intentionally emphasized the potential embarrassment she might suffer if the case proceeded to trial and took advantage of a vulnerable minor’s insecurities. Respondent intended for her comments to discourage K.J. from cooperating, which, by no coincidence, would have benefitted her client. Furthermore, Respondent intentionally obfuscated her role as counsel for K.J.’s alleged abuser by initiating a personal conversation with K.J. involving subjects unrelated to the criminal case, such as gender discrimination and cultural issues, and then exchanging personal text messages with her after the meeting. In doing so, Respondent gained K.J.’s trust and misled her to believe that she was an advocate for her best interest. Respondent’s actions were intended to benefit her client, the person accused of assaulting K.J.

The attorney referred K.J. to an attorney with whom she had a prior professional relationship

Based on the communications between Respondent and [attorney] Ms. Ademiluyi and Respondent’s meeting with K.J., the hearing judge found that “Respondent was attempting to use Ms. Ademiluyi to further aid Respondent’s efforts to improperly dissuade K.J. from cooperating with the State in their prosecution of Mr. Solomon. The fact that Mr. Solomon’s father was willing to pay Ms. Ademiluyi’s fee is further evidence that Ms. Ademiluyi was being used to help Mr. Solomon.”

On the first day of trial, October 10, 2017, Respondent and her co-counsel requested a continuance because Mr. Solomon was in the hospital following a suicide attempt on the prior evening. During the hearing, the State argued that Mr. Solomon and his family were involved in a campaign to influence K.J. against cooperating in the case.

The hearing judge found that the attorney made false statements to the court in response.

The court sustained the findings of misconduct and concludes

Disbarment is the appropriate sanction for Respondent’s numerous and severe violations of the MLRPC and MARPC. Respondent exhibited dishonesty on multiple occasions. She brought the legal profession into serious disrepute through those acts of dishonesty, and through her attempts to dissuade K.J., an alleged victim of sexual abuse, from cooperating in the prosecution of her alleged abuser, Respondent’s client. We find it particularly troubling that Respondent engaged in misconduct relating to the
Ademiluyi/Solomon matter while the disciplinary proceeding in the Lyles/Simmons matter was in progress, and after having previously been suspended from the practice of law for 30 days in 2014. Based on the evidence presented at the hearing, which demonstrated a pattern of serious misconduct, we conclude that the public will only be sufficiently protected through Respondent’s disbarment.

(MIke Frisch)