Legal Profession Blog

Badge Of Dishonor

The Indiana Supreme Court has imposed a 60-day prospective suspension of an attorney with automatic reinstatement

During a traffic stop for speeding and suspected OWI, Respondent displayed a gold badge. At the jail, Respondent attempted unsuccessfully to prevent jail staff from confiscating his badge. Once confiscated, the badge was identified as a Vanderburgh County Prosecutor’s Office (VCPO) badge. Respondent previously worked at VCPO but was not employed by VCPO at the time of the stop. Respondent’s blood alcohol content was measured at just under 0.08. Respondent eventually pled guilty to impersonation of a public servant (a level 6 felony) and reckless driving (a class C misdemeanor).

Respondent has been under an order of interim suspension since October 12, 2022, as a result of his conviction.

Indiana Lawyer reported

According to the Indiana Supreme Court Disciplinary Commission, McGiffen was charged in Gibson Superior Court with theft, a Class A misdemeanor; operating a vehicle while intoxicated, a Class C misdemeanor; reckless driving, a Class C misdemeanor; speeding, a Class C infraction; unsafe lane movement without a signal, a Class C infraction; and impersonation of a public servant, a Level 6 felony.

McGiffen pleaded guilty to the reckless driving and impersonation charges in exchange for the other charges being dropped.

His sentence of 270 days in the Gibson County Jail was suspended to time served. He was also ordered to serve 270 days of probation plus pay fines, fees and court costs totaling more than $700.

Under his plea agreement, if McGiffen successfully completes his probation, his felony conviction will be reduced to a Class A misdemeanor.

CBS affiliate WANE 15 reported that McGiffen was pulled over in the early morning hours of Jan. 15, after Indiana State Police clocked him traveling 93 mph in a 60 mph zone. McGiffen was reported to have shown an officer a gold badge when he failed field sobriety tests.

Subsequent tests at the Gibson County Jail revealed McGiffen had a BAC of 0.07%.

The case, In the Matter of: Justin B. McGiffen, 22S-DI-303, is his first disciplinary action, according to the Roll of Attorneys.

(Mike Frisch)

Shuffling Off

The Wyoming Supreme Court has disbarred an attorney who was found culpable on disciplinary charges in two matters.

In her email objections to Bar Counsel's brief, she had asserted that the disciplinary system had a history of rubber stamping their submissions.

The hearing panel noted that the comment "demonstrates an unfortunate disregard and disrespect for the disciplinary process overseen by the Wyoming Supreme Court." 

Sheridan Media reported on the action

Former Buffalo lawyer Tonia R. Hanson has been disbarred by the Wyoming Supreme Court.

In a release from the State Bar dated December 7, the Wyoming Supreme Court issued an order of disbarment of Hanson effective immediately, stemming from two complaints received by the State Bar’s Office of Bar Counsel.

The Bar Counsel’s investigation of the complaints revealed a pattern of violations of ethical rules regarding lawyer trust accounts as well as significant breaches of Respondent’s fiduciary duties regarding elderly, vulnerable clients and other ethical violations, including misrepresentations to the tribunal and failure to comply with court orders.

According to the release, in one case Hanson converted funds belonging to a guardianship/conservatorship to her own benefit, breaching her fiduciary duty to the guardianship/conservatorship.

In a second case Hanson served as the lawyer for the estate of an elderly female client from whom Respondent had received hundreds of thousands of dollars, Hanson committed a theft of funds from the estate in violation of a court order for distribution of the estate.

In so doing, Hanson defrauded the beneficiary of the estate, Wyoming Community Foundation, of substantial funds which should have been paid to the foundation.

In the order of disbarment, the Court directed Hanson to pay $40,000 in restitution to the Wyoming Community Foundation and to pay $4,128.99 in costs and administrative fees to the Wyoming State Bar.

(Mike Frisch)

An Arm Of The Court

The United States Court of Appeals for the Ninth Circuit affirmed the sovereign immunity of the California State Bar in litigation brought under the Americans with Disabilities Act.

Headnote

The en banc court (1) affirmed in part the district court’s dismissal of attorney Benjamin Kohn’s action against the State Bar of California and the California Committee of Bar Examiners under Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and California law; and (2) remanded to the original three-judge panel for consideration of the remaining issues.

In the State Bar’s role in the admission of attorneys, it acts under the authority and at the direction of the California Supreme Court. Kohn sought monetary damages and other relief based on the State Bar’s refusal to provide him with certain test-taking accommodations for the bar exam. The district court dismissed the action on the basis of Eleventh Amendment immunity.

The en banc court reaffirmed that the California State Bar enjoys Eleventh Amendment immunity from suit in federal court. The en banc court held that Eleventh Amendment immunity extends not only to suits in which a state itself is a named party, but also to suits against an “arm of the state.” The Ninth Circuit’s version of the test for determining whether an entity is an arm of the state applied the so-called Mitchell factors. The en banc court concluded that the Mitchell factors test should be reshaped in light of developments in Supreme Court doctrine and the Ninth Circuit’s experience applying the Mitchell factors. Accordingly, the en banc court adopted the D.C. Circuit’s three-factor test, which considers: (1) the state’s intent as to the status of the entity, including the functions performed by the entity; (2) the state’s control over the entity; and (3) the entity’s overall effects on the state treasury.

Applying this updated three-factor test, the en banc court held that the California State Bar is an arm of the state and entitled to sovereign immunity. The en banc court concluded that the first factor, California’s intent as to the State Bar, strongly favored the conclusion that it is an arm of the state, as did the second factor, the state’s control over the State Bar. The en banc court concluded that the third factor, the State Bar’s effects on the state treasury, presented a closer call but was not dispositive.

Concurring in part, Judge Mendoza agreed with the majority that the Mitchell factors were out of step with the Supreme Court’s jurisprudence and that the California State Bar is an arm of the state for sovereign immunity purposes. He wrote separately to caution against adopting the D.C. Circuit’s approach to weighing the sovereign immunity factors, and he disagreed with the majority’s wholesale embrace of the D.C. Circuit’s entity-based approach to sovereign immunity.

Concurring in part and dissenting in part, Judge Bumatay, joined by Judge Sung, wrote that he agreed with the majority’s abandonment of the Mitchell factors in favor of the D.C. Circuit’s more streamlined approach, looking at intent, control, and overall effects on a state’s treasury to determine whether an entity is an arm of the state. Judge Bumatay, however, disagreed with the majority’s application of this new approach, and he would hold that each of its factors cuts against finding sovereign immunity for the California State Bar.

Conclusion

we update our arm of the state jurisprudence to better reflect the Supreme Court’s latest guidance and affirm our precedent that the California State Bar is entitled to immunity from suit in federal court. We remand to the original three-judge panel for consideration of the remaining issues consistent with this opinion.

Circuit Judge Mendoza, concurring in part

Unlike the majority, I hesitate to embrace the D.C. Circuit’s conclusion that “once an entity is determined to be an arm of the State under the three-factor test, that conclusion applies unless and until there are relevant changes in the state law governing the entity.” P.R. Ports Auth., 531 F.3d at 873. In my view, we need not reach this issue today, given that it was neither briefed nor argued. And while this categorical approach to sovereign immunity may make our job easier as judges, it lacks consistent support in our precedent or practice and would lead to anomalous results.

Dissent of Circuit Judge Bumatay, while agreeing on the articulated test

But I part ways with the majority’s application of this new approach to the facts before us. In my view, each of its factors cuts against finding sovereign immunity for the State Bar of California. First, California has made evident its intent to treat the State Bar more like an independent statecreated entity, such as a municipality, rather than an “arm of the State.” Second, California has relinquished nearly all direct and immediate control over the Bar. And finally, California is not on the hook for the Bar’s funding or its debts. With these considerations in mind, we should have recognized that the State Bar is not entitled to the sovereign immunity reserved only for the State and its instrumentalities.

(Mike Frisch 

Supervisor Inadequate Guidance Reduces Sanction For Prosecutor Disclosure Violation

In a case involving prosectors who failed to adhere to their Brady obligations, a majority of the District of Columbia Court of Appeals imposed a fully-stayed six-month suspension.

Associate Judge Alikhan authored the opinion joined by Senior Judge Glickman; Associate Judge Deahl penned an impassioned (and, to me, persuasive) dissent.

From the majority

In its Report and Recommendation, the Board on Professional Responsibility found that respondents had violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct. Rule 3.8(e), in relevant part, prohibits prosecutors from “[i]ntentionally fail[ing] to disclose to the defense . . . any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense.” Rule 8.4(c) proscribes “conduct involving dishonesty, fraud, deceit, or misrepresentation.” And Rule 8.4(d) forbids conduct that “seriously interferes with the administration of justice.” The Board recommended that respondents be suspended from the practice of law for six months.

We agree with the Board that respondents violated each of these rules, but we disagree as to the appropriate sanction. In recognition of the inadequate and ill-advised guidance provided to respondents by their supervisors; the nature of respondents’ Rule 8.4(c) violation; respondents’ lack of bad faith and otherwise unblemished records; and our obligation to treat similar cases alike, we instead impose a six-month suspension, stayed as to all in favor of one year of probation.

The disclosure involved witness credibility in a D.C. jail brawl prosecution

Respondents recognized that the Collins Report called Childs’s credibility into question and sought guidance from their supervisors about how best to proceed. Jeffrey Ragsdale, Chief of the Felony Major Crimes Section at the U.S. Attorney’s Office, decided to refer the issue to the Lewis Committee, a committee of senior prosecutors that determines whether the government can sponsor the testimony of law enforcement officers with whom there are credibility concerns. Ragsdale emailed John Roth, the head of the committee, a copy of the Collins Report and a summary of the concerns regarding Childs. At this point, the Collins Report was the only information the U.S. Attorney’s Office had about the incident; neither respondents nor anyone else had reviewed the underlying evidence on which it was based.

Although the Vaughn trial was only five weeks away when Ragsdale first emailed Roth, the Lewis Committee proved less than forthcoming with its guidance. Respondents and Ragsdale followed up, eventually prompting a response from Roth less than two weeks before trial. Roth said that the government could sponsor Childs and instructed respondents to “disclose the report and litigate its admissibility.” He also expressed his “personal opinion” that Childs’s report was “simply unclear” and that he was not sure “that the DOC conclusion that he lied is supported by the record,” but he left it to respondents to “hash that out.” Roth formed this personal opinion even though the only “record” before him was the Collins Report, which had concluded in no uncertain terms that Childs had filed two false reports.

While respondents could have followed Roth’s instructions by disclosing the Collins Report to the defense directly and then litigating whether it was admissible at trial, that is not the route they took. Instead, Ragsdale recommended that respondents file the report with the court ex parte and under seal and summarize its contents in a motion in limine arguing that the defense should not be permitted to cross-examine Childs about the report or the incident with Heath. This approach was not uncommon in the U.S. Attorney’s Office at the time. The purported purpose of proceeding in this manner—submitting evidence only to the court and summarizing it in a motion for the defense—was to disclose to the defense information to which the defense was entitled, while keeping from the defense information that presented a security risk or was otherwise sensitive. According to the respondents, the Collins Report contained “sensitive employment information” and thus needed to be kept from the defense.

Rather than disclose, the prosecutor submitted a portion of the report to the court ex parte and successfullly litigated to keep it from the defense.

Intent to violate rule

Respondents’ appeals to public policy and those of their amici are likewise unavailing. They first contend that it is simply unfair to discipline prosecutors who have not acted in bad faith. But standards of reasonableness—standards that do not require bad faith—pervade the Rules of Professional Conduct.

Merits that led to reversal of underlying conviction

We can think of few things more powerfully impeaching of Childs—whose task was to tell the jury that certain D.C. Jail inmates had committed assault—than that he had previously falsely accused an inmate of assault. So too that he had violated DOC’s use-of-force policies, filed a false incident report after the fact, and been disciplined for his use of force. This last piece of information is important because DOC demoted Childs after he was reprimanded for his unauthorized use of force. While the record is murky about the exact reason for this demotion, that Childs was previously reprimanded for his use of force at least allows the inference that he was demoted for some additional infraction—namely, his untruthful reporting.

Submission to court did not negate violation

The motion in limine casts groundless aspersions on the Collins Report’s conclusions, which surely counts against the argument that the motion was a straightforward request for Brady guidance. It is important to remember that at the time respondents wrote this motion, they had not viewed any of the underlying evidence on which the Collins Report was based, so they had no basis to doubt whether Collins’s conclusions were reasonable or not. But that unfortunately proved no barrier to their disputing those conclusions.

The court also sustained findings of reckless dishonesty and conduct that seriously interfered with the administration of justice.

Sanction

Because we believe that the Board’s recommendation in this case similarly does not fairly account for all of the relevant considerations, we conclude that a stay of respondents’ suspensions—subject to probationary requirements—is appropriate.

For the duration of the one-year probationary period, respondents must refrain from committing any crimes or violating any further Rules of Professional Conduct. In the event that either respondent fails to comply, that respondent’s six-month suspension will take effect from the date of noncompliance. 

Note: The probationary requirements apply to all D.C. lawyers already. Weak tea.

Dissent of Associate Judge Deahl

the respondents (1) affirmatively misrepresented the Collins Report’s contents to the defense in their motion in limine, omitting its most important finding (that Officer Childs, in coordination with other officers, falsely implicated another inmate in an assault); (2) purported to turn over the entire report to the trial judge for ex parte review, but in reality submitted an incomplete report missing the same exculpatory evidence that they failed to summarize in their motion in limine (the relevant passages cut off by a claimed “faxing error”); and (3) assured the trial judge, when he noted that he seemed to be missing key pages, that he had the Collins Report in its entirety. I agree with my colleagues that Dobbie and Taylor thereby violated Rules 3.8(e), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct.

I do not agree with my colleagues that a six month suspension from the practice of law is too harsh a sanction for their misconduct. The nine members of the District’s Board on Professional Responsibility unanimously recommended a six month suspension after carefully considering Dobbie and Taylor’s misconduct and weighing its seriousness.

Advice of superiors

The majority notes just “one overriding mitigating circumstance” driving its departure from the Board’s recommendation: respondents’ supervisors “did them no favors.” Supra at 64, 66. I disagree. Those supervisors did respondents the favor of telling them to disclose the Collins Report’s contents to the defense. If respondents had abided that direction they would not be before us today. Lost in the majority’s discussion of the supervisors’ failings is the simple fact that nobody advised Dobbie and Taylor to commit any of the misconduct underlying their disciplinary infractions. Nobody advised them to conceal the exculpatory evidence. Nobody told them to misrepresent the Collins Report’s contents in their motion in limine or to provide the trial judge with only a partial report that omitted the same critical portions they neglected to summarize in their motion. And nobody told them to falsely assure the judge that he had the entire report when he correctly flagged that portions were missing. Had any of that advice been offered, no fit prosecutor would have followed it. So I do not share my colleagues’ view that it is really the supervisors who are largely to blame here, and the limited blame that can fairly be attributed to them does not mitigate respondents’ culpability in any event.

Dobbie and Taylor should face real consequences for their actions—Morton certainly did when he spent more than four years imprisoned for offenses that the government would not even retry him for once respondents’ Brady violations came to light. The majority instead, after paying repeated lip service to the severity of respondents’ misconduct, doles out a probationary sanction directing them to “refrain from committing any crimes or violating any further Rules of Professional Conduct” for a year. That slap on the wrist does not adequately reflect the seriousness of respondents’ misconduct here, nor does it adequately protect future criminal defendants from meeting a fate similar to Morton’s.

Finally, I am troubled by what the majority’s opinion reveals about this court’s values when policing the District’s bar. As a court, we almost invariably disbar attorneys who have engaged in even the slightest reckless or intentional misappropriation of client funds. In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). Even negligent misappropriation will result in “the usual sanction” of a six month suspension from the practice of law. In re Greenwald, 926 A.2d 169, 171 (D.C. 2007). That is too harsh a result, the majority concludes, when prosecutors intentionally suppress evidence in violation of the Constitution and thereby secure felony convictions resulting in years of unjust imprisonment. I disagree and dissent.

Harm

Dobbie and Taylor, through their actions, sent two men to prison for years on the basis of unreliable testimony, and prevented them from being able to effectively challenge that testimony at trial. Perhaps they did so unintentionally, but we take a ruthless approach to even unintentional accounting errors. And here we are not talking about money that can be restored. We are talking about “the accuracy of the mechanism by which our society deprives individuals of their freedom and their lives.” We are talking about four and a half years of people’s lives, which stood to be even longer had respondents’ misconduct not fortuitously come to light despite their efforts to keep it concealed.

The case was argued on May 24, 2022. (Mike Frisch)

T-Shirts And A Bare Majority

A recent opinion of the Florida Judicial Ethics Advisory Committee

Subject

A judicial candidate may wear a shirt, hat, or other apparel that shows the uniform resource locator (URL) to the website maintained by the candidate’s committee which contains options to donate and to endorse the campaign, so long as the candidate does not personally solicit attorneys and others by directing them to the campaign website for the purpose of making donations and showing support.

Issue

Whether a judicial candidate may wear a shirt, hat, or other apparel that shows the uniform resource locator (URL) to the website maintained by the candidate’s committee which contains options to donate and to endorse the campaign.

ANSWER:  Yes.

Facts

An attorney, who is a candidate for judicial office, has inquired .

Discussion

Although it is the stated policy of the Judicial Ethics Advisory Committee not to vet campaign literature, see Fla. JEAC Op. 94-35, we conclude that this Judge’s question is capable of recurring and that the answer to the question will be of interest to other candidates now and in future contests.  Accordingly, we offer the following guidance.

Canon 7C(1) of the Florida Code of Judicial Conduct forbids judicial candidates from personally soliciting funds or support.  Instead, such tasks can only be performed by whatever “committees of responsible persons” the candidate appoints for that purpose.  Therefore, in Fla. JEAC Op. 2008-11, the Committee opined that a judge could not use the judge’s personal website to facilitate the giving of financial or other support to the judge’s re-election effort. We opined that such a website must be maintained by the committee of responsible persons. 

In Fla. JEAC Op. 2004-07, the Committee opined that a circuit judge who was a candidate for office could not personally distribute to attorneys campaign material, which solicited financial or in-kind contributions, and especially not if the materials contain an envelope for mailing a financial contribution to the campaign.

The Florida Supreme Court recently disciplined a lawyer who stipulated that while campaigning for judicial office, she solicited donations by handing out postcards and giving speeches that directed voters to her website that contained a “Donate Now” button, in addition to posting invitations on her personal social media pages to her campaign fundraisers and asking voters to support her by donating to her campaign. See Stipulation as to Probable Cause, The Florida Bar v. Kaysia Monica Earley, 368 So.3d 409 (Fla. 2023).

The common thread running through our prior opinions, and the stipulation accepted in Florida Bar v. Early, is personal solicitation by a judicial candidate. The question presented by the instant inquiry is, therefore, whether merely displaying the campaign’s website amounts to personal solicitation by a judicial candidate. 

A bare majority of the Committee concludes that the sort of passive advertisement described by the inquiring judicial candidate does not run afoul of Canon 7C(1). These members do not read Canon 7 as prohibiting a judicial candidate from making any reference whatsoever to the campaign’s website merely because it contains a link for donation. Context is the key to finding the line between passive advertisement and personal solicitation. As our prior opinions have explained, a candidate must not personally solicit attorneys and others by directing them to the campaign website for the purpose of making donations and showing support.

A significant minority of the Committee disagrees. They conclude that a judicial candidate wearing apparel displaying the URL of a campaign website, which contains an option to donate or endorse the campaign, amounts to personally soliciting campaign funds or personally soliciting attorneys for publicly stated support contrary to Canon 7C(1).

(Mike Frisch)

 

Again

The Idaho Supreme Court has imposed an interim suspension of an attorney based on a recent affidavit and three declarations that the court has sealed.

The Court being fully advised and after review of this matter, it clearly appears that from the specific facts reflected in the Petition, Affidavit and Declarations that Respondent R. Aaron Morriss poses a substantial threat of irreparable harm to the public. 

We had previously reported on this post from the web page of the Idaho State Bar

On  February 25, 2015, the Idaho Supreme Court entered a Disciplinary Order suspending  Nampa attorney R. Aaron Morriss from the practice of law for a period of five  years, with all but two years of such suspension withheld, effective January  30, 2015. 

The  Idaho Supreme Court found that Mr. Morriss violated I.R.P.C. 1.7(a)(2)  [Conflict of interest based on personal interests of the lawyer]; 1.8(j)  [Sexual relations with a client]; and 8.4(d) [Conduct prejudicial to the administration  of justice].  The Idaho Supreme Court’s  Disciplinary Order followed a stipulated resolution of an Idaho State Bar  disciplinary proceeding in which Mr. Morriss admitted that he violated those  Rules.

The  formal charge case related to Mr. Morriss’s relationships with two female  clients.  With respect to the first  client, Mr. Morris texted the client explicit pictures of himself and engaged  in sexual relations with the client during his representation of her in a  custody case.  With respect to the second  client, Mr. Morriss texted the client explicit pictures of himself, took  explicit pictures of the client, and engaged in sexual relations with the  client during his representation of her in a parental termination case.

The Disciplinary Order provided  that upon reinstatement, if any, after the two-year period of imposed  suspension, Mr. Morriss will serve a two-year period of probation with terms  and conditions that include counseling and the immediate imposition of the  withheld period of suspension if he violates the terms of his probation or admits  or is found to have violated any Idaho Rules of Professional Conduct for which  a public sanction is imposed for conduct that occurred during the probationary period.

He was reinstated in 2017. Mike Frisch)

Ordinary Prudence, The Downward Spiral And The Two Minute Warning

The Tennessee Court of Appeals affirmed the denial of a recusal motion

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, filed by the appellants seeking to recuse the trial judge, Judge Joe Townsend (the "trial judge") in the underlying post-divorce contempt action. Having reviewed the petition for recusal appeal filed by the appellants and the answer thereto, and finding that the appellants have failed to demonstrate that a person of ordinary prudence in Judge Townsend's position, possessing the same knowledge as Judge Townsend, would find a reasonable basis to question Judge Townsend's impartiality, we affirm the trial judge's denial of the recusal petition.

The judge had removed counsel from representation of a longtime client who was subject to a conservatorship proceeding.

The dissent of Judge Armstrong lays out the case for bias recusal.

Impact of trial court's disqualification ruling

I respectfully dissent from the majority's holding that recusal of the trial judge is not warranted in this case. The majority discusses each of Appellants' allegations concerning the trial court's bias. However, the majority fails to consider the cumulative effects of the trial court's actions, and wholly fails to consider the fact that the ultimate result of these actions is usurpation of the autonomous decisions Ms. Malone made for her own care when she was competent to do so. Although the trial court negated Ms. Malone's well-established attorney-client relationship with Mr. Autry, Ms. Bleavins [together with Mr. Autry, "Attorneys"], and the Williams McDaniel firm, my dissent does not focus on Judge Townsend's rulings. Rather, in the context of recusal, I focus my dissent on the disparate treatment the trial judge showed to the Attorneys and the Williams McDaniel firm in reaching those decisions.

An ex parte telephone call from the judge to an associate attorney in the Williams McDaniel firm

The sole purpose of Judge Townsend's call was to inform Ms. Palmer that the Evans Petree firm was superior to the Williams McDaniel firm. Furthermore, I cannot overlook the timing of the call on the same day as the trial judge caused unnecessary summonses to issue for Attorneys—and all of this after Attorneys sought extraordinary appeal to this Court.

Bias showing

Despite the fact that this Court's June 14, 2023 order staying all of the trial court's proceedings (except adjudication of the May 2 motion to alter or amend) remained in effect, Judge Townsend proceeded with the November 6 "status conference." The transcript of those proceedings clearly evidences Judge Townsend's disdain for Mr. Autry and his continued pattern of bias toward the Williams McDaniel firm...

After reciting the ensuing transcript

Then, Judge Townsend proceeded to set the evidentiary hearing to begin immediately, to wit:

It's 2:45. The Court will set the evidentiary hearing on this matter for 2:47 today. The Court will take a standing recess. After the standing recess, the Court will begin the evidentiary hearing in this case to deal with the motions to alter or amend on an evidentiary basis.

Then, without taking any evidence, Judge Townsend, after setting the evidentiary hearing with two-minutes' notice to the litigants, flagrantly overstepped this Court's orders and proceeded sua sponte to disqualify the entire Williams McDaniel firm in what I can only describe as a spiral of bias and unadulterated disdain for Attorneys and their firm.

The transcript of the downward spiral follows

As Judge Townsend made clear, "[t]here is a decorum in the court." Here, however, there has been none shown by the court itself. The trial court has shown disdain for and bias against Attorneys and their firm at every turn. Considered objectively and knowing all the facts and circumstances here, a person of ordinary prudence would find a reasonable basis for questioning the judge's impartiality in this case. Nonetheless, despite ample proof to the contrary, the majority has opined that Judge Townsend has no bias toward Attorneys or their firm, and that he may preside over the conservatorship and post-divorce matters. This is plain error. Judge Townsend is clearly biased against the Williams McDaniel firm, and with his denial of recusal now affirmed, he will be unchecked and emboldened in his dogged pursuit of removal of Attorneys frorn these cases and the usurpation of Ms. Malone's estate planning and wishes. I dissent.

(Mike Frisch)

Suing Steve Harvey

An Ad Hoc District of Columbia Hearing Committee has recommended  a partially-stayed suspension and probation for an attorney who represented a client in a lawsuit against Steve Harvey and the Steve Harvey Show.

The committee did not follow Disciplinary Counsel's recommendation for a showing of fitness.

The Atlanta Journal-Constitution reported on the suit

A single mom and fitness model claims she felt sexually harassed as a guest on Steve Harvey's talk show.

The woman, Dominique Collier, was invited to a taping of an episode of "Steve Harvey" in 2016 after responding to a casting call for "single professional women who like to show off their looks" and claims she left there feeling sexually harassed, TMZ reported.

She says that Harvey, 61, and the show's producers made her change out of her tasteful outfit and into a halter top and form-fitting skirt before asking the audience to vote on her looks.

The audience's responses included the names: "whore," "slut," "ratchet" and "daddy issues," according to the suit obtained by TMZ.

After the taping in front of a live audience, Collier fired off a cease and desist letter asking the poll to be removed before the show aired on television.

Producers did oblige, but she claims the damage was already done.

Collier said in the suit that she felt humiliated and demeaned and was crying backstage when Harvey walked up to her and handed her the clothes she had arrived in — including her bra and undergarments, according to the gossip site.

She is suing the show's production company Endemol Shine and NBC for at least $2 million.

A spokesperson for "Steve Harvey" and NBC did not immediately respond to a Daily News request for comment.

The suit was filed in California; Respondent sought pro hac vice admission and asserted she did not reside in California

After learning that Respondent had a California address, Counsel for Harvey then investigated Respondent and “discovered that [Respondent] held herself out as a Los Angeles or Hollywood attorney on her website and on social media . . . .” DX 11 at 3 (Stipulated Facts in Amended Petition). Respondent’s website also included a “Michael Smith” as an attorney in her firm. Tr. 156 (Respondent); DX 11 at 3. No such Michael Smith existed, however. See DX 11 at 5. Counsel for Harvey filed an opposition to Respondent’s pro hac vice application on the basis that she was ineligible because “she had helopposition which included Respondent’s declaration, which falsely claimed the facts for Michael Smith were from a Word Press template, when in fact, the information in the profile had been copied from Michael Kernan’s background. Id. at 4-5. The California Court denied the pro hac vice application because of concerns about Respondent’s credibility and honesty. Id. at 6.

Harvey did eventually settle with Ms. Collier. DX 11 at 6. [Local counsel] Ms. Bryner advised Respondent that Ms. Collier would be paying her fees as opposed to Ms. Bryner forwarding her a portion of the settlement funds. Tr. 139 (Respondent).

The client filed a bar complaint that led to a negotiated disposition but issues led to new charges.

Specifcally, in litigation between them, Respondent pled that the bar complaint had been dismissed as "unsubstantiated"

The essence of Respondent’s defense is that because she perceives that none of the specific allegations in Ms. Collier’s Bar complaint were included in the original Specifications of Charges, they were “unsubstantiated.” She argues that her pro hac vice application was denied due to the admitted misinformation in her website and the Court’s concern about her credibility related to the website –issues not raised in any of the allegations in Ms. Collier’s Bar complaint. She claims that saying a matter is “dismissed” means “that someone is no longer moving forward with it.” Tr. 84 (Respondent). She further argues that the failure to include Ms. Collier’s specific allegations in the Amended Petition for Negotiated Discipline must mean that they were dismissed. During the hearing, Respondent acknowledged that she had never received a dismissal letter from the Office of Disciplinary Counsel regarding Ms. Collier’s complaint, and that the Amended Petition for Negotiated Disposition she had agreed to did not state that Ms. Collier’s complaint was dismissed. Tr. 78-79 (Respondent).

Finding

Respondent’s conduct in stating that Ms. Collier “filed a Bar complaint that was later dismissed because it was unsubstantiated,” was a knowing false statement to the Superior Court and thus violated Rule 3.3(a)(1).

Proposed sanction

In this case, Disciplinary Counsel has asked the Hearing Committee to recommend the sanction of a one-year suspension with a fitness requirement. Respondent has requested that the Hearing Committee recommend public censure or informal admonition. For the reasons described below, we recommend the sanction of a six-month suspension, with 90 days stayed in favor of one year of unsupervised probation. We recommend that Respondent not be required to report her probation status to clients, but we include a condition that Respondent not commit any ethical rule violations during the entire period of probation.

(Mike Frisch)

Robocall Conviction Draws Interim Suspension

The District of Columbia Court of Appeals has suspended a convicted attorney on an interim basis pending final action

 In re John M. Burkman, Jr. Bar No. 463259. December 5, 2023. Burkman was suspended on an interim basis based on his guilty plea to a serious crime in the Court of Common Pleas in Cuyahoga County, Ohio.

NPR reported on the crime

 Two far-right operatives who told tens of thousands of people not to vote by mail in a robocall scheme will now have to spend 500 hours registering people to vote thanks to a legal sentence from an Ohio judge.

Jacob Wohl and Jack Burkman robocalled roughly 85,000 voters across Michigan, New York, Pennsylvania, Illinois and Ohio in the summer of 2020, falsely telling them that voting by mail would risk "giving your private information to the man."

Prosecutors say the pair were targeting neighborhoods known to have a high percentage of Black voters.

The robocaller, who claimed to be with a non-existent group called "the 1599 project," falsely said that voters' information would go into a database accessible to police, debt collectors and the Centers for Disease Control and Prevention, which would use the information to impose vaccine mandates. The caller cited no evidence to support these claims.

Wohl and Burkman, who initially said in an interview with CNN that they weren't responsible for the calls, pleaded guilty to telecommunications fraud in Ohio in October.

On Tuesday, Ohio's Cuyahoga County Common Pleas court sentenced them to two years of probation, six months of monitoring with a GPS ankle bracelet, $2,500 each in fines and 500 hours of registering voters in Washington, D.C.

"These two individuals attempted to disrupt the foundation of our democracy," said Cuyahoga County Prosecutor Michael O'Malley, a Democrat.

Wohl expressed his "absolute regret and shame over all this," according to local media outlets who were present during the sentencing hearing.

Attorneys for Wohl and Burkman did not respond to NPR's requests for comment.

The robocall stunt was only one of several high-profile acts the two activists used to spread disinformation ahead of the presidential election.

Together, they tried and failed to frame Robert Mueller, Pete Buttigieg and Anthony Fauci of sexual assault allegations. They staged a phony FBI raid on Burkman's own house, successfully fooling The Washington Post into doing a story. They allegedly stole the phone of a White House liaison that Wohl was dating to tweet out false allegations from her account, then said she'd accused Wohl of kidnapping.

(Mike Frisch)

Lots

The New York Appellate Division for the Second Judicial Department dismissed a legal malpractice claim

The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against, among others, Harras Bloom & Archer, LLP, and Paul Bloom (hereinafter together the defendants). The plaintiff alleged, among other things, that it retained the defendants to assist with its purchase of certain real property, which the plaintiff intended to subdivide into four lots, and that due to the defendants’ deficient representation, the plaintiff was only able to subdivide the property into three lots. The plaintiff also alleged that due to the defendants’ deficient representation, the owners of adjacent propertyrefused to honor an easement to use a dock and beach area on their property for two of the three subdivided lots on the property acquired by the plaintiff. The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted against them. In an order entered September 29, 2021, the Supreme Court, among other things, denied that branch of the defendants’ motion. The defendants appeal.

Held

 To the extent the amended complaint alleged that due to the defendants’ deficient representation, the plaintiff could not make use of an easement on the adjacent property for two of the three subdivided lots, the plaintiff’s allegations were conclusory and speculative (see 126 Main St., LLC v Kriegsman, 218 AD3d 524). Moreover, while the amended complaint alleged that a typo in an assignment of easement prepared by the defendants proximately caused the plaintiff to be subjected to a separate lawsuit regarding the easement, the defendants’ evidentiary submissions demonstrated that the typo was not a basis for the separate action.

(Mike Frisch)

Miranda-Esque

The Minnesota Supreme Court has suspended an attorney for 60 days

The Director of the Office of Lawyers Professional Responsibility petitioned for disciplinary action against respondent-attorney David L. Ludescher, alleging professional misconduct in two client matters. We appointed a referee, who, after conducting an evidentiary hearing, found that the Director had proved by clear and convincing evidence that Ludescher committed misconduct including (1) incompetent representation, (2) bringing frivolous claims, (3) making knowingly false statements, (4) acting to embarrass or burden a third person, (4) failing to reasonably protect a client’s interest upon termination, (5) engaging in conduct prejudicial to the administration of justice, (6) charging or collecting an unreasonable fee, and (7) failing to withdraw representation upon termination. The referee also found five aggravating factors and no mitigating factors. The referee recommended that Ludescher be suspended from the practice of law for 30 days.

Ludescher contends that the referee misinterpreted relevant law and the Rules of Professional Conduct and failed to adequately consider the record when making certain findings and conclusions. The Director defends the referee’s reasoning and findings but argues that the referee’s disciplinary recommendation is insufficient given the seriousness of Ludescher’s misconduct. We agree with the referee’s legal conclusions and conclude that the referee’s findings were not clearly erroneous. Consequently, the referee’s rule-violation conclusions are supported. We also conclude that the appropriate discipline is a 60-day suspension from the practice of law followed by a 2-year term of supervised probation.

The court sustained misconduct findings in a custody matter

Ludescher’s argument that “an order is an order” fails upon considering what the juvenile court’s orders made clear: (1) J.K. did not have any lasting custodial rights to the child; (2) the juvenile court did not intend to confer any permanent custody on J.K.; (3) the mother remained the only custodial parent; (4) the purpose of the CHIPS proceeding was to reunify the mother and the child; and (5) the agency had authority to start trial home visits with the mother. All of these points clearly undermine Ludescher’s arguments that the juvenile court’s order conferred custody of the child on J.K. These points also undermine Ludescher’s argument that “an order is an order” because he clearly disregarded these portions of the orders in making his repeated custody arguments. Ludesher’s argument, then, seems to be that “an order is an order” only as to the portions that are favorable to his client—but all unfavorable portions of the order are not enforceable.

In sum, Ludescher’s actions with respect to the order are not protected by Robinette; the Rooker-Feldman doctrine does not apply; the record shows that the juvenile court did not intend to confer custody of the child on J.K.; and Ludescher knew that conferring custody on J.K. was not a lawful CHIPS disposition. Consequently, the referee did not make an error of law in concluding that the portions of the juvenile court’s orders purporting to give J.K. custody of the child were unenforceable.

Conduct toward an assistant county attorney

After receiving the May 1, 2018, letter from Nelson, Ludescher repeatedly called and e-mailed Nelson, attempting to bully and threaten her into returning the child to J.K. Nelson testified that Ludescher repeatedly yelled at her throughout the case, threatened to trespass the agency from J.K.’s property, and once “was so upset and agitated that [Ludescher] put his hands on the male guardian ad litem.” Ludescher e-mailed the Rice County Attorney and the county sheriff a letter in which he claimed that Nelson may have engaged in criminal intentional deprivation of parental rights by helping the mother take the child from J.K. In the letter, Ludescher alleged that J.K. had court-ordered temporary legal and physical custody, and sole custody of the child. Ludescher failed to mention that custody would revert back to the mother if the CHIPS proceedings were dismissed because J.K. had no custodial rights, or that the court had authorized a trial home visit with the mother. As a result of Ludescher’s e-mail, Nelson was questioned by the sheriff and a criminal investigation was commenced by the Le Sueur County Sheriff to avoid any conflicts of interest.

On May 4, 2018, Ludescher moved the juvenile court for ex parte relief, seeking to have custody of the child returned to J.K. On May 7, 2018, the court denied the motion, recognizing that the prior orders purporting to grant temporary legal custody of the child to J.K. were unenforceable given the CHIPS statutes, and scheduled a hearing for May 10, 2018. At the hearing, Ludescher again accused Nelson of a crime and read her a Miranda-esque warning on the record. Ludescher also argued that J.K. had custody based on the temporary custody granted in prior CHIPS orders. On June 25, 2018, upon a motion from Nelson, the juvenile court sanctioned Ludescher and ordered him to cease and desist his custody arguments.

The court sustained misconduct findings in a second matter.

Sanction

Ludescher’s actions resulted in harm to his clients and others involved in the cases. Ludescher’s actions caused Nelson emotional distress given the criminal investigation opened against her and the embarrassment caused to her when Ludescher read her a Miranda-esque warning on the record at a proceeding where others were present. Braden also testified that Ludescher’s actions had a negative impact on him. Ludescher’s actions harmed G.N. by accumulating legal and other fees that were unnecessary. In general, Ludescher’s violations of the rules of professional conduct are inherently detrimental to respect for the legal profession and the judicial system as a whole. See In re Jaeger, 834 N.W.2d 705, 710–11 (Minn. 2013). Ludescher’s false statements to the juvenile court in the J.K. matter undermined public confidence in the legal system. See In re Sea, 932 N.W.2d 28, 36 (Minn. 2019). And the referee determined that Ludescher made frivolous claims in both matters, which are a waste of the court’s resources. See In re Albrecht, 779 N.W.2d 530, 542 (Minn. 2010) (stating that an attorney’s neglect caused “the needless expenditure of judicial resources and the resources of opposing counsel, which harmed the legal profession”)

Thus

A review and comparison of these cases to Ludescher’s circumstances shows the existence of more aggravating factors in Ludescher’s case, and sometimes more voluminous misconduct. Consequently, we concur with the referee that a suspension is appropriate based on the facts and circumstances of this case. But based on the significant aggravating factors present here, and in light of the nature and extent of Ludescher’s misconduct, we conclude that the appropriate discipline is a 60-day suspension from the practice of law followed by a 2-year term of unsupervised probation.

Oral argument is linked here. (Mike Frisch)

Relapse To Resignation

The Oklahoma Supreme Court has accepted an attorney's resignation

Elsey is aware the OBA opened a grievance against him in the following matter:

DC: Grievance by General Counsel: On September 21, 2023, I was charged with Count I: Felony Driving a Motor Vehicle While Under the Influence of Alcohol and Count II: No Valid Driver's License in Craig County, Case No. CF-2023-112. This is my sixth alcohol-related offense since my admission to the Oklahoma Bar Association. State ex rel. Okla. Bar Ass'n v. Elsey, 2019 OK 81, 455 P.3d 903.

Sadly, the court had recently found he had completed a deferred suspension for multiple alcohol-related driving offenses and declined to impose further supervision

Considering the totality of Elsey's conduct since his last alcohol-related offense and the goals of discipline, we do not believe that the Trial Panel's recommendation to extend Elsey's conditional suspension is appropriate. This Court has now monitored Elsey's behavior for over five years. We do not take lightly Elsey's criminal history of driving a motor vehicle while intoxicated, which spans over two decades. We also admonish Elsey for his inadequate attempts in obtaining a timely alcohol test as requested by the OBA. But we recognize his efforts (especially during the COVID-19 pandemic) to bring his problems under control and reach his goal of sobriety. We have held that an attorney's continued sobriety is the key to his rehabilitation. State ex rel. Okla. Bar Ass'n v. Rogers, 2006 OK 54, ¶ 21, 142 P.3d 428, 436. The Court cannot monitor Elsey indefinitely, and at some point, it becomes the attorney's responsibility to maintain his sobriety and choose to be part of AA and LHL, obtain a sponsor, and abide by the ORPC. Id. If he does not do so and performs any future acts of misconduct, Elsey will face even harsher discipline from this Court.

(Mike Frisch)

Bone Of Contention

On tap next week before the Ohio Supreme Court is a case summarized by Dan Trevas

On a Friday night, a Butler County man, joined by his wife and friends, went to a casual restaurant he frequented. He ordered his usual “boneless chicken wings.” He swallowed a sliver of a nearly 2-inch chicken bone. It tore his esophagus, which led to internal infections that damaged his heart and lungs.

He sued the restaurant and the producers of the boneless wings and lost. The trial court ruled that meat eaters should be on the lookout for bones in meat dishes.

Michael Berkheimer isn’t the first to fail to recover damages for harm caused by an unsuspected substance in a  food order. Others whose food lawsuits have failed in Ohio courts include consumers who bit into:

• • A bone in a boneless chicken breast sandwich.
  • A bone in a chicken gordita.
  • A pig bone in a sausage, egg, and cheese bagel.
  • Shells in fried claims, pistachio ice cream, and a pecan cookie.
  • A cherry pit in a cherry pie.

The Supreme Court of Ohio established the legal rules for deciding a food injury case in 1960. The lawsuit dealt with a large piece of shell in a fried oyster. Berkheimer argues that much has changed over the last 60 years in marketing substance-free foods with labels such as boneless, gluten-free, and lactose-free. The law has evolved to protect consumers from unsuspected objects in their food, he notes. However, lower courts in Ohio still rely on an outdated test that shields food producers from liability, he alleges.

During oral arguments next week, the Supreme Court will consider Berkheimer’s assertion that if Ohio courts were truly applying a “reasonable expectation test” in a manner similar to many courts around the country, consumers hurt by unsuspected natural objects in their food would have a better chance of prevailing.

Wing Eater Feels ‘Something Go Down Wrong Pipe’
In April 2016, Berkheimer ordered boneless wings with parmesan garlic sauce at Wings on Brookwood. The restaurant prepares its wings by cutting up “pre-butterflied boneless skinless chicken breasts” supplied by Gordon Food Service. Berkheimer had a habit of eating his wings with a fork and knife and cutting the wings into three pieces. After eating the third piece, he said he felt “something go down the wrong pipe.” He went to the bathroom and unsuccessfully tried to clear his throat.

Later that night, he started to run a fever, and the next day, he went to the emergency room. A doctor removed the chicken bone, which had lodged in and torn Berkheimer’s esophagus. The tear led to an infection, which required two surgeries and resulted in ongoing damage to his heart and lungs.

In 2017, Berkheimer filed a lawsuit in Butler County Common Pleas Court against REKM, the owners of Wings on Brookwood. He also sued the chicken suppliers Gordon Food Service and Wayne Farms. A lengthy legal battle ensued, resulting in the trial court granting summary judgment to the sellers. The trial judge wrote that while one would hope not to find a bone in a boneless wing, bones are a natural part of a chicken, and a consumer needs to be on guard against the possibility of encountering one.

Berkheimer appealed to the Twelfth District Court of Appeals, which affirmed the decision.

Berkheimer appealed to the Supreme Court, which agreed to hear the case.

Court Not Using New and Improved Food Injury Test, Diner Maintains
Courts in the United States have used two tests to determine fault in food injury cases, Berkheimer explains. The first, developed by the California Supreme Court in 1936, is known as the “foreign-natural test.” Under that test, sellers can be liable for injuries when foreign objects, such as metal, are found in food products. But there is no liability for food products containing substances natural to that type of food when it is in its original state, such as a chicken bone in a chicken breast.

Later, other courts adopted what is known as the “reasonable expectation test.” Ohio adopted the test in its 1960 Allen v. Grafton decision. Under this test, a court considers the surrounding circumstances, including how the food was prepared and what representations the seller made in its marketing. Then, the court asks whether a consumer reasonably should have expected and guarded against a specific injury from the substance at issue.

Berkheimer argues the Allen decision discussed the older foreign-natural test. Since then, many Ohio lower courts have actually repackaged the foreign-natural test, only to make it sound like they were using the reasonable expectation test. He maintains that approach is what the Twelfth District and the trial court did in his case by ruling Berkheimer should be on guard for a bone in a chicken dish even if it is marketed, priced, and sold as if the bones had been removed. Under a true reasonable expectation test, a jury should be given all the surrounding facts of the situation to determine whether a consumer should reasonably be expected to guard against such a threat, Berkheimer asserts.

Right Test Accurately Applied, Sellers Say
The restaurant, chicken meat producer, and supplier counter that Ohio courts faithfully apply the reasonable expectation test and conclude that consumers should expect and guard against possible natural substances found in their food, like a chicken bone in chicken meat.

The wing sellers argue that courts aren’t confused about how to apply the reasonable expectation test, but rather, Berkheimer just wants a different outcome for his case. The food companies explain that in the Allen decision, the Supreme Court referenced the foreign-natural test and noted that while a court shouldn’t always excuse a seller from causing an injury, a substance that is normally found in food in its natural state should be considered an “important factor.”

In all the cases, from boneless chicken sandwiches to cherry pie, the courts have considered the naturally occurring substances to be an important factor in assessing what a consumer should reasonably expect, the sellers assert. In those cases, courts have found it was reasonable for a pie eater to guard against an accidental pit, meat eaters to guard against bones, and so on. Berkheimer’s case is no different, the sellers conclude.

Watch Oral Arguments Online
Along with Berkheimer v. Wings on Brookwood, the Court will hear three other cases on Tuesday, Dec. 12 at the Thomas J. Moyer Ohio Judicial Center in Columbus. In its last oral argument session scheduled for 2023, the Court will hear four more cases on Wednesday, Dec. 13. Oral arguments begin each day at 9 a.m. The arguments will be streamed live online at supremecourt.ohio.gov and on the Ohio Channel, where they are archived.

(Mike Frisch)

Appearence Of Impropriety

The Chief Justice of the Ohio Supreme Court granted a motion to disqualify a judge in a divorce matter

The affidavit of disqualification is granted to avoid the appearance of impropriety. The decision is not based on a finding of actual bias. Jardine alleges that the underlying divorce case was not randomly reassigned to Judge Celebrezze after a prior judge had recused, that Judge Celebrezze kept the case for herself, and that the motive for keeping the case was bias in favor of the receiver and the defendant and prejudice against Jardine. In response, Judge Celebrezze adamantly denies any bias or prejudice. The judge explains that as the administrative judge of the division, after two or more other judges have recused from a contentious or complex case, Judge Celebrezze often reassigns that case to herself to keep the case moving. However, as the administrative judge of the division, Judge Celebrezze’s authority to reassign the case after the prior judge’s recusal was limited. Rule 36.019(A) of the Rules of Superintendence for the Courts of Ohio and Local Rule 2(B)(2) of the Cuyahoga County Court of Common Pleas, Domestic Relations Division require the random reassignment of a case when a judge has recused. Therefore, to avoid the appearance of impropriety, Judge Celebrezze is disqualified.

Because the affidavit of disqualification is granted to avoid the appearance of impropriety, it is unnecessary to address any remaining allegations.This matter is returned to the Cuyahoga County Court of Common Pleas, Domestic Relations Division, for random reassignment to another judge of that division.

The movant had filed the divorce

In March 2021, the defendant filed motions for the appointment of a receiver to oversee funeral homes and related entities that the parties jointly owned. Jardine opposed the motions. On July 14, Judge Jones granted the defendant’s motions and appointed a receiver. Among other things, Judge Jones ordered the receiver to marshal assets for five of the parties’ business entities.

The originally assigned judge recused herself.

Judge Celebreeze handled a number of subsequent issues relating to actions taken by the receiver and drew the disqualification affidavit

Jardine argues that Judge Celebrezze should be disqualified from his divorce case based on two allegations: (1) Judge Celebrezze is unable “to fairly and impartially consider the facts of [Jardine’s] case” and (2) the judge has demonstrated her bias in favor of the defendant and the receiver while exhibiting prejudice toward the affiant.

Alleged bias

In support of the allegation of bias and prejudice, Jardine asserts (1) that as the administrative judge, Judge Celebrezze failed to randomly reassign the underlying case after Judge Jones recused, in order to favor the receiver, and (2) that Judge Celebrezze’s personal and political relationship with the receiver, the judge’s relationships with members of the law firm representing the defendant, and the receiver’s relationship with members of the firm representing the defendant are evidence of bias in favor of the receiver and the defendant and evidence of prejudice against Jardine.

In response, Judge Celebrezze admits that she often assigns contentious and complex cases to her own docket when another judge recuses so “as not to overly burden [her] fellow judges of the Domestic Relations Division and to save the resources needed for the appointment of a visiting judge.” The judge also admits that the receiver is a longtime family friend, and the judge acknowledges that one of the receiver’s employees is the deputy treasurer of the judge’s campaign committee—which is a matter of public record. The judge further acknowledges that she has socialized with attorney Richard Rabb, who represents the defendant, but she denies any improper discussion of cases pending before her. And the judge admits to having a friendship with Robert Glickman, who works at the firm that represents the defendant, but the judge denies that Glickman has ever represented her or acted on her behalf.

The judge moved to seal portions of the affidavits including the judicial complaint and

Second, Judge Celebrezze argues that the original affidavit of disqualification contains the judge’s home address and that this information should be sealed from public access because to the judge’s knowledge, that information is not publicly available. The judge provides no statutory provision or caselaw to support that conclusion.

The judge also argues that exhibits F and K attached to the judge’s response, which are video exhibits, should remain under seal because the videos depict private information about her, such as the judge’s leaving her home and traveling to another residence. The videos were allegedly created by a private investigator whom Jardine had retained to follow the judge.

Granted and denied in part

The motion to seal exhibits F and K is denied. Judge Celebrezze has not cited any statute or caselaw that supports the sealing of videos depicting a public figure in a public place. While there may be situations when weighing the constitutional requirement of open courts against a judge’s privacy rights might permit the sealing of information in an affidavit-of-disqualification proceeding, Judge Celebrezze has failed to demonstrate that exhibits F and K should be sealed from public access.

Result

the clerk of this court is ordered to (1) redact the references to a disciplinary grievance on pages 3 and 9 of Judge Celebrezze’s June 22, 2023 response to the affidavits of disqualification and on pages 2 and 4 of her July 3, 2023 brief in support of her motion to seal, (2) redact the defendant’s private medical information on the third page of exhibit P attached to Judge Celebrezze’s June 22, 2023 response to the affidavits of disqualification, and (3) unseal all other filings in this affidavit-of-disqualification case.

Merits

Improper judicial assignment may create the appearance of impropriety and “may be grounds for disqualification.”

...Jardine’s affidavit of disqualification is granted to avoid the appearance of impropriety. This decision is not based on a finding of actual bias. However, as the administrative judge of the division, Judge Celebrezze’s authority to reassign the case after Judge Jones’s recusal was limited. Rule 36.019(A) of the Rules of Superintendence for the Courts of Ohio and Local Rule 2(B)(2) of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, require the random reassignment of a case when a judge has recused. Therefore, to avoid the appearance of impropriety, Judge Celebrezze is disqualified.

(Mike Frisch)

Signs

The Alberta Law Society Hearing Committee  Signs found misconduct on two of three charges in a dispute between landlords and his daughter and her common law partner

Allegations in citation 1

The following is a summary of the particulars alleged in support of citation 1:

a) Smith removed a realtor’s sign from the front lawn of the property and tossed it on the boulevard between the sidewalk and the street;

b) Smith damaged the realtor’s sign while removing it by breaking the bottom of the sign’s post and losing the sign peg; and

c) Smith’s actions in removing and damaging the realtor’s law sign brought the legal profession into disrepute, contrary to section 2.1-1 of the LSA Code of Conduct (Code).

Findings

The Committee rejects Mr. Smith’s assertion that his conduct in removing the sign was in his private life and outside of his professional practice. From the moment Mr. Smith first confronted WS on the property lawn on October 7, 2020, the Committee finds that Mr. Smith was acting as the tenants’ lawyer, and he continued to act as the tenants’ lawyer when he removed the sign on October 9, 2020.

The Committee accepts Mr. Smith’s evidence and submission that, he believed he had a legal right to remove the sign, that he used reasonable efforts to minimize damage and that he did not intend to damage the sign. 

The Committee finds that Mr. Smith’s conduct in removing and damaging the sign, while somewhat questionable, was not found to be dishonourable and does not rise to the level of being of conduct deserving of sanction or conduct that would bring into question Mr. Smith’s professional integrity. 

The Committee therefore finds Mr. Smith not guilty of conduct deserving of sanction on citation 1

Allegations in citation 2

The following is a summary of the particulars alleged by the LSA in support of citation 2:

a) Smith’s communications with WS, the Complainant on October 7, 2020 were uncivil and discourteous;

b)After the landlords’ counsel, CS, was retained to represent the landlords on the property dispute, Mr. Smith’s communications with CS were uncivil and discourteous.

Evidence at the landlord's property inspection

Mr. Smith told them “Don’t preach to me sir. I’ve been practicing 40 years at the and I know the law, and you guys are out of luck, so get lost.” [Exhibit 6]; and

When WS and the realtor were leaving the property, Mr. Smith said words to the effect “I hope you have deep pockets”

Citation 3 involved his conduct during the investigation

 LSA counsel noted that the LSA Conduct counsel had to ask and remind Mr. Smith at least four times of his obligations under the Code and the Act to provide information and that his actions, even if they purported to be as a private citizen, were subject to review. 

Further, he was not cooperative and candid in the correspondence with LSA Conduct counsel. The back-and forth correspondence exchanged between LSA counsel demonstrates that Mr. Smith never did acknowledge that he removed the sign. It was only in his last correspondence to LSA conduct counsel when he finally replied to the allegation that he damaged the sign when he wrote “I did not damage any realtor’s sign.”.

LSA counsel submits that Mr. Smith was evasive with the LSA investigator as he refused to acknowledge that it was him on the videos. LSA counsel said Mr. Smith was playing “cat and mouse.” Counsel cited the case of Law Society of Ontario v. Diamond, 2021 ONCA 255 which was a case where the member was required to provide information pursuant to Rule 7.1.1 of the Rules of Professional Conduct (Ontario Rules), effectively the same rule as Rule 85 in Alberta, which requires a member to reply promptly and completely to any communication from the Law Society.

Findings and next step

guilt on citations 2 and 3 are proven on a balance of probabilities and as such, the conduct is deserving of sanction.

 Accordingly, a sanction hearing will be set to deal with remaining matters, including sanction, costs, notices, and any other outstanding issues.

(Mike Frisch)

Hard Drive Damage

A recent public censure is summarized on the web page of the Colorado Presiding Disciplinary Judge

In 2012, the Office of the Alternate Defense Counsel (“OADC”) appointed Mrachek to represent an incarcerated client in the client’s resentencing matter. From 2012 until 2019, Mrachek investigated her client’s case by conducting multiple interviews, obtaining expert reports, communicating regularly with the client, and coordinating work on a mitigation video. Though Mrachek’s OADC timekeeping records show that she drafted a motion for a resentencing order in 2019, she never filed the motion with the presiding court.

In July 2020, Mrachek learned that she lost her client’s file after her computer and external hard drive were damaged. When OADC notified Mrachek in late 2020 that it reassigned the case to substitute counsel, she still had not told her client that his file was lost. In fact, Mrachek never communicated with her client at all after the first week of July 2020, including about assisting him to apply for an early release program available to individuals at high risk for contracting COVID-19.

(Mike Frisch)

No Basis To Disqualify

A motion to disqualify a municipal judge lacked merit and was properly denied, according to an opinion of the Ohio Supreme Court

Schmaltz argues that Judge Schooley should be disqualified from presiding over the underlying civil case because the judge has violated the Code of Judicial Conduct, his constitutional rights to due process and equal protection, and his right to a fair hearing and trial. As proof of the allegations, Schmaltz points to three issues that arose in the trial court. First, Schmaltz asserts that when he attempted to file his answer and counterclaim, clerk’s-office staff insisted that he make “some clerical changes and split up the answer and counterclaim.” After making the requested changes, Schmaltz alleges, the staff still refused to allow him to file his counterclaim.

Second, Schmaltz asserts that this is not the first time an employee of the Madison County Municipal Court has prevented him from exercising his legal rights. Schmaltz claims that in Schmaltz v. DK Hardware Supply, Madison M.C. No. 2300063, the magistrate refused to allow him to clarify his claim before dismissing his case. Schmaltz contends that after he moved to set aside the magistrate’s order, Judge Schooley denied the motion without providing any legal
reasoning.

Lastly, Schmaltz maintains that Judge Schooley’s denial of his motions for continuance in the underlying case, despite the fact that the judge “must know that court cases take time,” contributed to a violation of his fundamental rights under the United States Constitution.

The court

Because there is no evidence to support a finding that Judge Schooley is disqualified for reasons other than interest, relationship, or bias or prejudice, the affidavit of disqualification lacks merit.

(Mike Frisch)

Deplorable

The South Carolina Supreme Court disbarred an attorney for "deplorable misconduct"

On October 8, 2021, Respondent Cory Howerton Fleming was placed on interim suspension following reports of his misconduct in connection with Richard Alexander Murdaugh in various legal matters related to the death of Gloria Satterfield. In re Fleming, 434 S.C. 382, 864 S.E.2d 546 (2021). Respondent subsequently pled guilty to numerous state and federal criminal charges and was sentenced to an aggregate term of thirteen years and ten months in prison. Based on the following facts taken from the public record, we disbar Respondent for his deplorable misconduct and shocking abuse of the legal system in South Carolina.

Facts

The facts presented during the August 23, 2023 plea colloquy in Hampton County demonstrate that Respondent and Murdaugh worked independently and in conjunction to steal from clients over the course of at least a decade using various dishonest schemes. One scheme involved fabricating fraudulent litigation expenses that were never actually incurred. Respondent repeatedly stole settlement funds disguised as reimbursements for sham litigation expenses and disbursed other fraudulent litigation expenses directly to Murdaugh. Another scheme involved a pattern of retaining in trust an amount of settlement funds sufficient to cover any pending medical liens, then negotiating with medical providers to accept a lesser amount in satisfaction of those liens. However, rather than disbursing the remaining funds to the client after satisfying the reduced medical liens, Respondent converted certain excess funds for his personal use and fraudulently disbursed the remainder to Murdaugh.

A third scheme involved creation of a bank account intended to imitate Forge Consulting, LLC, a Georgia-based consulting company that specializes in brokering structured settlement annuities for lawsuit proceeds, among other things. Murdaugh created a bank account using the name "Forge" to make it appear as though client funds deposited into that account were being transferred into legitimate structured settlements. Respondent repeatedly claimed he did not know the imitation Forge bank account was an illegitimate vehicle through which Murdaugh stole millions from unsuspecting clients. However, the State's evidence proves otherwise. Specifically, the State's hearing exhibits plainly demonstrate Respondent knew the legitimate Forge Consulting entity merely assists in arranging structured settlements; it does not accept disbursements of settlement funds. Accordingly, "Forge" would never be a proper payee in disbursing escrow funds intended for a structured settlement on behalf of a client. The evidence also demonstrates Respondent knew that, for tax reasons, proceeds pursuant to a structured settlement agreement are not disbursed to a client or lawyer prior to being turned over to the settlement fund; rather, the funds must be disbursed directly from the settling insurance company to the settlement fund. Despite this knowledge, Respondent repeatedly directed that insurers forward settlement proceeds directly to his law firm. Respondent then directed that various disbursements of client funds be made out to the intentionally ambiguous payee of "Forge" and forwarded those funds to Murdaugh personally or to a post office box in Hampton, South Carolina, with no identifying cover letter, client identifiers, or
other information specifying the proper allocation of the funds into structured annuities. Respondent's actions in diverting client funds to the imitation Forge account enabled Murdaugh to steal millions from unsuspecting clients.

Proof

Based on Respondent's guilty pleas in state and federal court, there is no factual dispute about whether Respondent engaged in dishonest conduct, and it is conclusively established that Respondent engaged in conduct that violates the Rules of Professional Conduct. This satisfies ODC's burden of proving that same misconduct in connection with the pending disciplinary proceedings.

...we dispense with further investigation by ODC and further proceedings before the Commission. Respondent is hereby disbarred from the practice of law in South Carolina. To the extent additional acts of misconduct by Respondent are subsequently discovered, this Court may issue a supplemental order detailing any such additional acts of misconduct and imposing additional sanctions where appropriate.

(Mike Frisch)

Focus On Florida

Oral argument is scheduled on December 6 before the Florida Supreme Court in a bar discipline matter.

Tampa Bay Times reported

A judge tasked with investigating a campaign finance scandal involving former state representative and Miami Beach commissioner Michael Grieco is recommending a 90-day suspension of Grieco’s law license, according to a report released Tuesday.

The report, issued by Miami-Dade Circuit Court Judge George Sarduy as part of a Florida Bar case, calls on the Florida Supreme Court to find Grieco guilty of violating the state’s rules for lawyers related to conduct involving dishonesty or a “criminal act that reflects adversely” on the attorney.

The state Supreme Court will now make the ultimate decision on whether and how Grieco should be disciplined. In addition to the recommended suspension, Sarduy’s report calls for Grieco to pay the Florida Bar’s unspecified costs in the proceedings.

Grieco, a prominent South Florida criminal defense attorney who is rumored to be considering a run for Miami Beach mayor later this year, was not immediately available for comment Tuesday evening. His attorney in the Florida Bar case, Ben Kuehne, said in a statement that Grieco “respects the recommendation of the Referee.”

“It will be the Florida Supreme Court’s responsibility to determine the outcome for these long ago allegations,” Kuehne said. “Since that time, Michael Grieco has continued to fight for his clients and represent the best interests of the community.”

Kuehne added that “Miami Beach voters have known of this topic and have elected and re-elected [Grieco] to the Florida Legislature.”

Grieco, 47, resigned as a Miami Beach commissioner in 2017 amid the campaign finance scandal. He was elected as a Democratic state representative in 2018 and ran unopposed two years later. He filed to run for state Senate against incumbent Ileana Garcia in 2021 but dropped out of the race last summer.

A spokesperson for the Florida Bar, Jennifer Krell Davis, declined to comment on the case. The Bar filed its formal complaint against Grieco in July 2017.

The case relates to Grieco’s conduct during a failed bid for Miami Beach mayor in 2017. That year, Grieco pleaded no contest to a misdemeanor charge that a political committee he was secretly running accepted $25,000 of foreign money funneled through a straw donor.

In 2021, the Miami-Dade Commission on Ethics and Public Trust found Grieco had falsely portrayed his involvement with the committee, People for Better Leaders, first when he told the Miami Herald he had nothing to do with the committee and again when he told the Herald: “It is absolutely untrue . . . You can look right into my soul.”

Sarduy, the referee in the Florida Bar case, concluded that Grieco had made statements “intended to mislead the press and public regarding his true involvement” with the PAC.

The 64-page referee’s report is dated Sept. 30, 2022, and was posted on the public online case docket Tuesday.

It notes that Grieco initially said through his attorney that he was acting as the PAC’s lawyer but later testified under oath in the referee’s investigation that he was not doing so.

“Accordingly, it is clear that Respondent’s narrative and testimony on this topic change depending on the audience to whom it is presented, and the goal Respondent wishes to accomplish,” Sarduy wrote.

Grieco, Sarduy added, “made misrepresentations in these proceedings, under oath before me, regarding his involvement” with the committee.

Kuehne said Grieco “presented a full and accurate presentation of the facts to the referee.”

Grieco’s troubles began during the 2017 mayoral run. On the campaign trail, he presented himself as a straight shooter who would fight special interests at City Hall. But a Herald investigation found he was quietly operating a PAC raising money from some of those special interests, including developers, lobbyists and city vendors. Donors to the committee said Grieco himself had asked them to contribute.

When questioned by the Herald, Grieco denied in the strongest possible terms that he was involved.

“I do not have a [political committee],” Grieco said. “I didn’t set up one. I haven’t solicited for one.”

That statement and other similar denials were found to be untrue, first by the Miami-Dade ethics commission and now by the referee.

In issuing his recommendation for discipline, Sarduy noted that Grieco had previously received a public reprimand by the Florida Supreme Court in 2008, related to his conduct as an assistant state attorney. The Bar charged that Grieco had interfered in the assault case of a friend by leading detectives to believe he was involved with the case and later asking that his friend receive special treatment.

Also on tap that morning

This case considers [States Attorney Monique] Worrell’s petition challenging her August suspension from office by Governor DeSantis. Worrell argues that the Governor’s executive order did not contain sufficient proof that she neglected her duty and exhibited incompetence in office to satisfy the constitutional requirements for suspension.

(Mike Frisch)

An Odd And Unprofessional Manner

The North Dakota Supreme Court has placed an attorney on disability inactive status

The hearing panel concluded Overboe’s conduct demonstrates the presence of a mental condition that adversely affects her ability to practice law.

In November of 2022, Overboe interacted with the Clerk of the North Dakota Supreme Court in the form of electronic communications from Overboe to the Clerk’s personal cell phone. The Clerk had not previously provided Overboe her personal phone number, nor did they have a personal relationship prior to or since these interactions. The Clerk felt the communications were unprofessional and inappropriate, and when Overboe was confronted, Overboe admitted she was intoxicated when she sent the communications.

Overboe had a second interaction with the Clerk similar to the first, ten days later. Overboe again admitted to being intoxicated and expressed problems with her mental clarity. A short time later, Overboe interacted with the Clerk in an odd and unprofessional manner.

The hearing panel concluded Overboe’s communications and attitude demonstrated a likely substance abuse disorder, coupled with an underlying mental illness, rendered Overboe unable to competently serve her clients and presented a danger to the public and profession.

Shortly after Overboe’s interactions with the Clerk, Overboe submitted filings in her personal divorce that she had “been seeing and hearing things that could be considered delusional. I have been told that I am delusional. I have been diagnosed with PTSD according to my therapist…My mental illness has made it difficult for me to do basic math.” Additionally, Overboe advanced rumors and allegations of inappropriate relationships between members of the North Dakota State Bar and inappropriate relationships between her husband and his attorneys.

(Mike Frisch)