Legal Profession Blog

Alleged Pillow Talk Via Email

An attorney who allegedly provided his spouse with unfettered access to his law firm email account has been charged with violations of the duty of confidentiality by Ohio Disciplinary Counsel.

The spouse is not an attorney and was not employed by the law firm. She is a "content metadata specialist for a large corporation."

The conduct was discovered by the firm shortly after the attorney moved to another firm when one of the attorney's former clients sought the case file. An associate with access to his computer files found "derogatory" comments about firm employees.

The firm's office manager then found the alleged spousal sharing.

He allegedly gave his user name, password and firm domain information to his spouse one week after starting there. He was at the firm for nearly four years.

The remarkable allegations are that he shared client confidential financial information with his spouse, that she had regular access to "client names, case types and descriptions of their legal issues," and that she reviewed and sometimes edited his work emails.

Further, she allegedly had access to confidential firm salary and performance information from which she created a chart comparing his salary and bonuses with four other firm lawyers. (Mike Frisch)

Another Ohio Sex With Client Charge

Another day, another Ohio attorney charged with having an unethical sexual relationship with a domestic relations client. 

Disciplinary Counsel alleges that the matter was assigned to the attorney by his law firm.

The lawyer and client allegedly "flirted" with each other which resulted in text messages that are recited in the complaint

Client: I've been daydreaming of you all day long...you and me naked moaning and sweating...got anything to add to that vision?

Lawyer: Well now I'm thinking of you naked and I've forgotten my name...well that and my mouth and tongue running over every inch of your body.

Client: You have no idea how much I want you right now...not to mention how I want you...and where I want you.

Lawyer: The vivid images keep flashing in my mind. All those things sound amazing.

Client: the second I see you walk through the door...your clothes...my clothes...on the floor...no excuses. Have a good night.

The complaint alleges that they had sexual relations several times at her home and at a motel.

The attorney withdrew from the representation but the client stayed with the firm. She disclosed the relationship to a firm paralegal. 

The attorney allegedly falsely told the client that he was separated from his spouse and that she lived in another state.

When the client learned otherwise, she notified the spouse of the relationship via Facebook.

The complaint further alleges that the attorney falsely denied the sexual relationship to the firm and Disciplinary Counsel. (Mike Frisch) 

Nicka Time

An attorney described as the "consigliere," "fixer," and "adviser" to an "elaborate, multi-state marijuana trafficking organization" has been disbarred by the New Jersey Supreme Court.

The facts of the attorney's conviction are set forth in the report and recommendation of the Disciplinary Review Board.

The criminal sentencing was described in a press release from the United States Attorneys Office for the District of Maryland.

According to the evidence presented at his 15-day trial, Farrell was admitted to practice law in Pennsylvania and New Jersey, and maintained a law office in Philadelphia, Pennsylvania. Matthew Nicka, Gretchen Peterson, David D’Amico, and others were part of an extensive drug trafficking operation discovered by the DEA when a search warrant was executed at a residence in the 3500 block of Hickory Avenue in Baltimore on March 18, 2009. The residence was a center of operation for the group. Agents seized more than 80 pounds of marijuana, 30 cell phones, and tally sheets showing over $14 million in marijuana sales, among other items.

Trial testimony showed that beginning in 2009 and continuing through at least April 2013, Farrell conspired with Nicka, D’Amico, Peterson and others to conduct financial transactions using the proceeds of the Nicka Organization in order to conceal the source and control of the drug proceeds. Testimony showed that Farrell received drug proceeds in the form of cash. Farrell then deposited some of the cash into his commercial bank accounts, recording the deposits as payments in the names of individuals who had not provided the cash to Farrell. Using the drug proceeds, Farrell wrote checks and disbursed cash to pay for the legal representation of grand jury witnesses and individuals under investigation in connection with the activities of the Nicka Organization, which included payments to two Baltimore area attorneys. Trial evidence also established that Farrell used drug proceeds to purchase money orders, which he directed to be sent to the inmate account of an incarcerated individual who was part of the Nicka organization.

According to trial evidence, in February 2011, Farrell met with a member of the Nicka organization to discuss filing a claim with the DEA to seek the return of certain property DEA had seized upon arrest. Farrell advised that individual not to disclose to the DEA that drug co-conspirator Anthony Marcantoni, had given him an expensive luxury watch for a “good year”. On February 28, 2011, Farrell caused four affidavits in support of the forfeiture of the property to be filed with the DEA that contained the forged signature of this individual and the forged signature of the notary public.

According to trial evidence, on July 11, 2012, Farrell met with another member of the Nicka organization who Farrell knew was represented by other counsel. During the recorded meeting, Farrell advised the member of the Nicka organization to meet with federal law enforcement officers and federal prosecutors, but to only tell them what they already knew, rather than sharing all the information about the drug and money laundering conspiracy. According to trial evidence, Farrell had previously laundered $10,000 in cash by obtaining a check from this person so that Farrell’s books would falsely reflect he had received $10,000. Farrell acknowledged in the recorded meeting, that he had given $10,000 in cash to this person in exchange for the check. In the recording, Farrell said he would get $25,000 to assist with that person’s legal expenses because “the sources of the cash” would feel “a whole lot better subsidizing” the person’s attorney if that attorney was “comfortable” with Farrell.

District Judge Roger W. Titus previously sentenced: David D’Amico, age 52, of Baltimore, to 10 years in prison; Matthew Nicka, age 46, of Baltimore, to 188 months in prison; and Gretchen Peterson, age 37, of Kennett Square, Pennsylvania, to seven years in prison. D’Amico, Nicka and Peterson pleaded guilty on January13, 2016, to conspiracy to distribute at least 1,000 kilograms of marijuana and conspiracy to commit money laundering. D’Amico, Nicka and Peterson were fugitives from the time the indictment was returned in December 2010, until Nicka and Peterson were arrested in Canada in early August 2013, and D’Amico was extradited from Colombia, South America. Judge Titus also entered forfeiture orders requiring Nicka to pay a money judgment of $15 million; and D’Amico to pay a money judgment of $1 million, which represents the proceeds of the offense. In addition, the investigation resulted in the conviction of twelve other defendants.

(Mike Frisch)

Serious Crime Draws Interim Suspension

An interim suspension of an attorney convicted of a tax offense has been ordered by the New York Appellate Division for the First Judicial Department

With respect to an immediate suspension, Judiciary Law § 90(4)(f) provides that upon receipt of a record indicating that an attorney has been convicted of a "serious crime," this Court will suspend the attorney until a final order is issued, and under 22 NYCRR 1240.12(c)(2)(ii), [*3]once a "serious crime" determination has been made, "the Court may suspend the respondent pending final disposition unless such a suspension would be inconsistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice..."

We have consistently held that it is appropriate to suspend an attorney, pursuant to Judiciary Law § 90(4)(f), who has been convicted of a felony, during the pendency of a "serious crime" proceeding and until a final order is issued (see Matter of Lindenbaum, 165 AD3d at 55-56; Matter of Freedman, 109 AD3d 151, 153 [1st Dept 2013]. Specifically, we have suspended attorneys convicted of tax evasion under 26 USC § 7201 and are serving a term of probation or imprisonment (see Matter of Shapiro, 81 AD3d at 27; Matter of Ruble, 66 AD3d at 49).

(Mike Frisch)

Practice While Suspended Draws Ohio Disbarment

Dan Trevas has a summary of a bar discipline decision of the Ohio Supreme Court

The Ohio Supreme Court today disbarred a Columbus attorney for practicing law while under suspension and lying to the Supreme Court, his clients, and disciplinary officials about his activities.

The Supreme Court disbarred Jason A. Sarver, stating that the Court “can only assume that Sarver’s ‘pants are charred’ from the number of falsehoods” he told throughout his prior and present disciplinary proceedings. Writing for the Court majority, Justice Patrick F. Fischer stated that Sarver manipulated vulnerable clients and “has a pattern of breaching his clients’ trust to pursue his own objectives” rather than acting in his clients’ interests.

Chief Justice Maureen O’Connor and Justices Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the majority opinion. Justice Sharon L. Kennedy concurred in judgment only.

Attorney Pursues Wrongful Death Case
Sarver was hired by Juanita Mustin to pursue a wrongful-death claim in 2018 while his disciplinary proceedings were pending before the Supreme Court but before he was suspended from the practice of law. Martin’s daughter, Jessica, was killed by a vehicle traveling in the wrong direction on a highway in Cleveland.

Mustin signed a contingent-fee agreement in which she agreed to pay Sarver 33 percent of any settlement obtained without filing a lawsuit . Sarver then agreed to help her pursue a claim with the Ohio Victims of Crime Compensation Program (OVCCP).  

Sarver reached a $50,000 settlement agreement with Allstate Insurance Company, which represented the wrong-way driver. Sarver informed Mustin of the offer and told her that all proceeds of the settlement, less his attorney fees and costs, would be held in trust for Jessica’s minor son. He advised Mustin that he would need to complete some paperwork for the probate court before any of the proceeds could be distributed.

Lawyer Falsifies Documents
In September 2018, Sarver accepted the settlement. He prepared and obtained Mustin’s signature on various probate documents and took the documents to the Cuyahoga County Probate Court in October 2018, but filed only one document: the application for authority to administer the estate. During his most recent disciplinary investigation, Sarver acknowledged he did not file the other necessary paperwork at that time so he could begin to distribute proceeds from the settlement earlier than the court process would allow.

On Nov. 26, 2018, Sarver posted a $10,000 bond required for an estate administrator on Mustin’s behalf, and the probate court appointed Mustin as the fiduciary of Jessica’s estate and issued her letters of authority.

Two days later, the Court suspended Sarver from the practice of law for two years, with 18 months conditionally stayed, for engaging in a sexual relationship with a different client, who was indigent, lying about that relationship to the judge who was presiding over the client’s criminal case, and engaging in illegal activity by advising the client to turn off her phone’s GPS while there was an outstanding warrant for her arrest. (See – Court-Appointed Counsel Representing Indigent Defendant Suspended for Sex with Client.)

Two days after his suspension, Sarver wrote a letter to the OVCCP on his law-office letterhead, which identified him as an attorney, and indicated he would be working on Mustin’s claim. That same day, he signed Mustin’s name to a settlement release, falsely notarized her signature, and sent the document to Allstate. During this time, he did not notify Mustin of his suspension.

Sarver received the settlement check, signed Mustin’s name to it, and deposited it into his client trust account. He began to distribute the settlement proceeds without the probate court’s approval. He immediately began paying personal financial obligations directly from his client trust account with what he had calculated to be his earned fee.

Lawyer Lies about Compliance with Suspension Order
In December 2018, Sarver filed an affidavit of compliance with the Supreme Court, stating he had complied with the Court’s suspension order and had notified his clients and the courts in which he had pending cases of his suspension. During the disciplinary proceedings, he acknowledged he did not notify Mustin, the probate court, Allstate, or the OVCCP of his suspension.

Mustin learned of Sarver’s suspension in February 2019, when an OVCCP representative called her to discuss her case and informed her that he no longer could work with Sarver because Sarver’s law license had been suspended. 

Mustin stated that not only had Sarver failed to tell her about the suspension, she never gave him permission to sign her name on any documents or the settlement check.

The Office of the Disciplinary Counsel filed a complaint in June 2019 with the Board of Professional Conduct, charging Sarver with several violations of the rules governing the conduct of Ohio attorneys. The disciplinary counsel maintained that Sarver filed a false affidavit of compliance with the Supreme Court, failed to notify relevant parties of his suspension, practiced law while under suspension, and committed other violations while practicing law under suspension.

Supreme Court Considered Sanction
Sarver and the disciplinary counsel recommended to the board that Sarver receive an indefinite suspension. The board recommended Sarver be permanently disbarred. Sarver objected to the recommended sanction of disbarment. The disciplinary counsel stood by its recommendation of indefinite suspension, but told the Court that permanent disbarment is not unwarranted because Sarver’s misconduct in Mustin’s case occurred while he was suspended from practicing law.

Justice Fischer wrote that the “recency and severity of Sarver’s disciplinary history cannot be overlooked.” 

The majority opinion stated that Sarver, in his first disciplinary matter, labeled Sarver 1 by the Court, “committed some of the most egregious and disturbing violations of attorney misconduct, short of a violent felony offense — violating and abusing the attorney-client relationship and deceiving members of the judiciary.”

The Court believed that Sarver was trying to “wait out” the six months of actual time not practicing under the suspension by securing and using the Mustin settlement funds during his suspension. His plan was to then resume his representation after his suspension was over, “clearly thinking that no one would be the wiser,” the Court said.

The opinion noted the two-year suspension with 18 months stayed imposed in Sarver 1 was intended to protect the public and give Sarver the opportunity to be reinstated to the practice of law with the shortest suspension that could be imposed under the circumstances. Despite this sanction, Sarver immediately proceeded to violate the professional conduct rules by engaging in “a pattern of deceit and misrepresentation involving a grieving and vulnerable mother,” the opinion stated. 

“Integrity is a necessary characteristic for an attorney practicing law in Ohio, and Sarver does not possess this qualification,” the opinion stated.

The Court concluded that disbarment was necessary to protect the public from future harm.

(Mike Frisch)

Ohio Charges Sex With Two Clients

The Ohio Disciplinary Counsel has filed a complaint alleging that an attorney had sexual relations with two clients in matters assigned to him by his law firm.

One matter involved a divorce and custody of three minor children who lived with their father in Lakewood Ohio. The client lived in California and worked in a rehabilitation center. 

They allegedly exchanged "inappropriate and sexually suggestive messages to each other."

When she came to Ohio for a hearing, they allegedly had sex in her hotel room.

He allegedly promised her that they would be together with her children. She quit her job and planned to move to Ohio.

He then allegedly told her that he was "playing" with her and asked her to let him finish the representation.

She complained to the firm, which removed him from the case and fired him shortly thereafter.

The second client was a defendant in a domestic violence case. 

After a court hearing, they allegedly had dinner and a movie .

They flirted, which led to "intimate physical contact in respondent's car."  They allegedly had sex in his apartment.

She filed a grievance after they broke up. (Mike Frisch) 

Forty Four And Out The Door

An attorney who was suspended on October 2019 for 27 counts of ethics violations in four client matters was given a four-year suspension by the Wisconsin Supreme Court after he had defaulted on 44 counts of professional misconduct

Respondent's counsel had withdrawn, stating that his client's whereabouts were unknown and he may have committed suicide.

There is no indication that this is true.

The referee

The referee then turned to the OLR's motion to strike Attorney White's answer and its motion for default judgment and granted both. The referee said he had "never seen anything quite like" the OLR's complaint against Attorney White and, "the attitude and statements that are cited in the complaint are not only stunning, but they show a degree of disrespect for clients and for the system that I've never encountered . . .." The referee found that Attorney White's conduct was egregious and that his abruptly leaving the area, without regard to his clients and without advising the OLR, was an extraordinary situation. The referee said, "to leave everyone in a lurch, as Attorney White has done, is unfathomable. Anyone would have to say how could any professional conduct himself in this way."

The court

As to the sanction, after careful review of the matter, we conclude that a two-year suspension is an inadequate sanction for Attorney White's misconduct. As noted, in the previous disciplinary action, Attorney White apparently commenced his solo law practice shortly after graduating from law school and almost immediately got himself into trouble due to his apparent disdain for doing the necessary research or work to perform as a capable advocate for his clients.

(Mike Frisch)

"The Devil Is In The Details"

The Maryland Court of Appeals has ordered an indefinite suspension with no right to reapply for one year

In the practice of law it is often the case, as the saying goes, that the devil is in the details. A lawyer’s failure to attend to mundane aspects of representation can be detrimental to the client and violate the rules of professional conduct. Misleading statements made to deflect attention from a lawyer’s failure to “sweat the details” can exacerbate that violation.

Respondent John T. Riely is a Maryland attorney who, for most of the past 35 years, has primarily practiced  immigration law from an office in Montgomery County. By the account of the many current and former clients and his colleagues in the immigration bar, Mr. Riely has worked tirelessly on behalf of those in need of representation before immigration authorities. Relatively late in his career Mr. Riely came to the attention of Bar Counsel as a result of two client matters to which he paid insufficient attention, and which at least temporarily put those clients at risk of removal from the United States. In the case of one client, he made misleading statements to minimize his responsibility for the deficiency.

In 2016, a Guatemalan couple seeking asylum in the United States was referred to Mr. Riely for assistance. Although the couple did not immediately pay the modest deposit required by the representation agreement and Mr. Riely initially believed that he had not been retained, he later learned that they had made the required payment some weeks after their meeting. Nonetheless, he neglected to appear at their proceedings or to communicate to them that he would not be doing so, which resulted in a missed deadline, with serious potential consequences for the couple. 

The second matter involved a Venezuelan client whom Mr. Riely had previously helped – to her great satisfaction – escape an abusive employment relationship while maintaining legal status in the United States under an employment-based visa. Some years later, in 2017, she and her new employer sought Mr. Riely’s assistance in obtaining an extension of that visa. As a result of confusion caused when Mr. Riely mis-addressed an invoice to the client, Mr. Riely did not act on the timetable for obtaining the extension that he himself had specified. He later made misleading statements to the client and an immigration enforcement agent as to whether he had made a required filing on the client’s behalf by that deadline; in a later misrepresentation to Bar Counsel, he suggested that the client, rather than himself, was the cause of that deficiency. Although he helped rectify the situation by confessing to immigration authorities that he had provided the client with ineffective assistance, he had placed her in jeopardy of removal from the country.

The misconduct was apparently not motivated by a desire to profit at the expense of these clients. And, as a result of the efforts of successor counsel, in the end it does not appear that the clients, in either matter, are worse off for Mr. Riely’s misconduct. But, in  both instances, the clients were seriously inconvenienced and their ability to remain in this country was put at significant risk without an appropriate adjudication of their cases under the immigration law – a risk for which Mr. Riely was largely responsible.

A dissent would impose disbarment.

Footnote 24 devotes extensive discussion to an issue raised at oral argument.

Two Assistant Bar Counsel had the file and had offered the attorney a non-suspensory sanction at an early stage of the investigation.

The hearing judge had been critical of the withdrawal of the offer.

The court declined to delete that comment despite Bar Counsel's urging

It is, of course, necessary for attorneys such as prosecutors and Assistant Bar Counsel to initiate discussions of a potential disposition of a case without unnecessarily constraining the public interest or misleading the opposing side. Such discussions require clarity in what is being proposed – that a proposed disposition is based on an attorney’s own view of what he or she knows of the case at the time of the discussion and, if the proposal awaits approval by “higher-ups,” a clear indication of that qualification. Such clarity is particularly important on the part of those who exercise public authority.

We trust that the experience of having confronted the issue in this case will result in improved communication in the future, both internally and externally, as to Bar Counsel’s .position on a pre-hearing resolution of a disciplinary proceeding.

Two observations: First, the court resolves a matter that was heard in August, 2019 - a system that gets from the hearing to final resolution in 14 months is an efficient disciplinary process. Second, the court cites my old friend Melvin Hirshman in footnote 16. Mel was longtime Maryland Bar Counsel and was universally loved and admired by his colleagues in bar discipline.  (Mike Frisch)

Accessory After The Fact

The Oklahoma Supreme Court has imposed a two-year and a day suspension for conduct that led to a federal conviction for accessory after the fact. 

Respondent's federal criminal conviction in Kansas arose from his conduct in 2014, after he hired a web developer, David Dorsett, to build a website for his newly formed law firm. Respondent opened this new law office following a contentious dissolution of his old firm and partnership with his brother. The winding up of that business led to competing lawsuits between the brothers, including an action for receivership to retain control over clients, and a court order from a Kansas judge directing them to disable the old website, www.pistotniklaw.com, and create their own independent sites. Hr'g Tr., 120-21.

Shortly after the attorney hired Dorsett

 Six days later, on September 25, 2014, Dorsett sent extortionate threats and initiated a flood of emails to the servers of Ripoff Report, Leagle, and the Arizona law firm that represented Ripoff Report, in effort to frustrate the recipients and cause them to remove all information pertaining to Respondent. Resp's Ex., 4, 2. These emails impaired the servers of Ripoff Report, Leagle, and the Arizona law firm, rendering their communications and data inaccessible. Along with the emails, Dorsett sent the following threat separately to all three victims, each reflecting the particular site's name:

Remove this page and we stop [link of subject article removed] . . . [I]f you don't remove it we will begin targeting your advertisers and explain that this will stop happening to them once they pull their ads from leagle.com or leagle.com kills this page . . . [link removed] You have 4 hours before we start hitting your advertisers. Id.

Later this day, as the communications were still inundating the businesses, two attorneys from the firm representing Ripoff Report contacted Respondent at his law office. The attorneys advised Respondent they were recording the phone call. This recording is included in the record before this Court. Complainant's Ex., 7. The lawyers told Respondent that based on the threats regarding negative content about him, Respondent was their only link for determining who was responsible. Respondent denied having any knowledge or involvement and falsely stated that he had never asked or hired anyone to help him with reputation management. The lawyers asked Respondent repeatedly if he knew any information that could help them in anyway, emphasizing that their servers were on the brink of crashing unless they identified the attacker. The lawyers informed Respondent they were turning the matter over to the FBI. Respondent then began shifting the blame to his brother, stating how he was involved in contentious litigation with him so he would most likely be the culprit. Respondent said he would "call around" to see if he could find out anything but reemphasized falsely that he had "not hired anybody," so whoever was responsible was "doing it on their own."

The court

 Even if Respondent initially hired Dorsett innocently and without knowing he would act illegally, conclusive evidence of Respondent's guilty plea and conviction establishes he acquiesced in the scheme after the fact. After the attorneys for RipoffReport.com informed Respondent of the cyberattacks, he repeatedly and knowingly lied to these victims, denying he had ever hired or spoken to anyone about assisting him with reputation management. In reality, just days before this, Respondent had not only hired Dorsett, but had sent him the precise link of the negative review on Ripoff Report, asking him "how we get rid of it."

Respondent continued denying any knowledge of the scheme even after the lawyers proffered that Respondent could have been a completely innocent bystander. Despite this opportunity, Respondent doubled down and pointed the finger at his brother. Confirming the truth immediately after the phone call, Respondent chose not to inform the lawyers of Dorsett's identity and allowed the attacks to continue damaging the servers. Most telling of all, Respondent then paid Dorsett after that verbal communication and after Dorsett sent two emails describing his methods and touting the success of the extortion. Hr'g Tr., 176; PRT Report, 3. The record shows clearly and convincingly that Respondent misrepresented and withheld facts with an underlying bad intent and for the purpose of deceiving.

This behavior of dishonesty is precisely what Respondent pled guilty to in federal court. Yet, in the mitigation hearing before the PRT, Respondent equivocated regarding his culpability and involvement in the scheme. The PRT described that it was "suspect of the truthfulness of Respondent during his testimony" at the mitigation hearing and concluded he "was not forthright with his version of the facts." PRT Report, 3. The PRT found notable that Respondent testified that Dorsett acted outside the parameters of what he ever intended him to do, yet admitted that he paid Dorsett after fully appreciating the criminal nature of his conduct. Id.

(Mike Frisch)

Gifts

The Wisconsin Supreme Court has publicly reprimanded an attorney for misconduct in a criminal matter

The referee agreed that by issuing checks from her trust account to potential State witnesses in L.W.'s criminal case, Attorney Bowe engaged in conduct that created a significant risk that her representation of L.W. would be materially  limited by her personal interest. The referee commented that at a July 14, 2020 hearing, Attorney Bowe explained the reason for writing the checks. Attorney Bowe said L.W. had settled a large personal injury case and had a large amount of money at his disposal. She said at the time the criminal charges were filed, there were various actions seeking to freeze or seize those funds. She said at the time L.W. retained her in the criminal case none of those actions had been
successful, but L.W. feared that he would soon not have access to that money and while he still had it he wanted to make gifts to a number of people, using her to disburse the funds. The referee commented, "one need not dwell on the possible hypothetical problems that this could have created; the details of this case are living proof that this was a bad idea." The referee said to Attorney Bowe's credit, she realized she could not defend against the district attorney's motion to remove her from the case and she immediately stepped aside. The referee noted that Attorney Bowe's counsel commented that Attorney Bowe, "perceived as a necessity the appeasing of a difficult client, as [L.W.] most certainly was."

The court noted the attorney's "poor decisions" in imposing a reprimand. (Mike Frisch)

On Camera

Dan Trevas reports on a decision of the Ohio Supreme Court

Video from an exterior Jefferson County Courthouse security camera that captured the shooting of a judge is not a “security record” and must be released to the Associated Press, the Ohio Supreme Court ruled today.

The Supreme Court rejected claims by the Jefferson County Prosecutor’s Office that that courthouse video showing the August 2017 shooting of Jefferson County Common Pleas Court Judge Joseph J. Bruzzese Jr. as he was about to enter the courthouse was exempt from the state’s public records law and could be withheld.

Writing for the Court majority opinion, Justice Michael P. Donnelly stated the Ohio Public Records Act allows for the exemption from release of a record “directly used for protecting or maintaining the security of a public office,” but the county prosecutor never provided any evidence about how the county was using the video footage of the shooting for that purpose. Justice Donnelly wrote the county cannot reject the release of a record based on a “requester’s potential use or misuse of the record.”

Chief Justice Maureen O’Connor and Justices Judith L. French, R. Patrick DeWine, and Melody J. Stewart joined Justice Donnelly’s opinion.

In a concurring opinion, Justice Sharon L. Kennedy wrote there is “no doubt that the security cameras and the livestream of video from them are used to safeguard the courthouse,” but nothing suggests old security-camera footage in general is used to protect or maintain courthouse security. A record must be “directly used” to protect the public office to be exempt from disclosure, and the county offered no proof of that use, she concluded. Justice Patrick F. Fischer joined Justice Kennedy’s opinion.

Judge Bruzzese was shot and seriously wounded by Nate Richmond near the courthouse entrance. Judge Bruzzese and a probation officer were both armed and returned fire.  Richmond was killed. Judge Bruzzese survived the gunshot wounds after undergoing surgery and a lengthy hospital stay.

The Jefferson County Courthouse was equipped with a security-camera system that recorded the shooting. One camera was positioned outside a door that was restricted for use only by courthouse personnel.

On the day of the incident, Associated Press reporter Andrew Welsh-Huggins emailed the prosecuting attorney’s office a public records request to obtain a copy of the courthouse video showing the shooting. The next day, Jefferson County Prosecutor Jane Hanlin denied the request, citing several exemptions to the Ohio Public Records Act, which is R.C. 149.43. Welsh-Huggins and attorneys for the Associated Press submitted subsequent requests for the video, which were denied.

In 2018, Welsh-Huggins filed a public-records access complaint in the Ohio Court of Claims. Under the court’s procedures, a special master reviewed the matter and determined the prosecutor failed to meet her burden of proof that the video was exempt as a security record under R.C. 149.433(A)(1). The special master recommended the video be released, and the Court of Claims adopted the report in February 2019.

Hanlin appealed the decision to the Seventh District Court of Appeals, which reversed the Court of Claims and held the video was a security record that did not have to be disclosed. Welsh-Huggins appealed that decision to the Supreme Court, which agreed to hear the case.

The Court reversed the Seventh District’s decision and directed the prosecutor to follow the Court of Claims decision ordering the release of the video as long as the prosecutor redacts any image of a peace officer who was authorized to work undercover or in plain clothes at the time.

Court Analyzes Public Records Law
Hanlin maintained the video met the definition of “security record” in R.C. 149.433(A)(1), which exempts “any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.” The Court of Claims determined that Hanlin had not shown, either by the content of the video or by the affidavits she submitted to special master explaining the reasoning for denying the records request that the video met the definition.

Justice Donnelly noted the Seventh District in reversing the Court of Claims did not clarify whether its decision was based on the content of the video or the prosecutor’s sworn statements about the content. The Seventh District declared the video “shows the blind spots and places an attacker could take cover and go undetected. The video also shows the emergency response means, methods and procedures.”

The Supreme Court’s opinion held the Seventh District’s decision appeared to be based on the prosecutor’s description of the capabilities of the video security camera system, including the ability to zoom, rotate, and isolate certain areas. But the appeals court does not explain how the video of the shooting incident itself establishes that it contains information directly used for protecting the public office, the Court stated.

The majority opinion stated that when a public office seeks to invoke an exemption to the public records law, it must provide evidence establishing the record meets the definition of the exemption. Hanlin argued that in her affidavits submitted to the Court of Claims, she explained that the county was using the video for securing the courthouse, its officers, and its employees.

She maintained that divulging the video would provide information that would “educate future would-be attackers to courthouse security plans and potential weaknesses.” The prosecutor acknowledged during the Court of Claims proceedings that, to her knowledge, there had been no use of the video for civil litigation, law-enforcement training, or any other official purpose.

“Regardless of whatever limitations or vulnerabilities the prosecutor believes might be revealed by public viewing of the video, R.C. 149.433(A)(1) dictates that a record’s security-record status is determined by the public office’s actual use of the record for the stated purposes, not by a public-records requester’s potential use or misuse of the record,” the opinion stated.

The Court noted the video captured an incident and emergency response that occurred outside on a public street. The incident could have been observed or recorded by any bystander, which undermines the prosecutor’s concern that the video might disclose something that an eyewitness would not have seen.

The Court stated it does not “question the sincerity of the prosecutor’s concerns” that the security measures and surveillance techniques are of critical importance and that disclosing information could diminish the effectiveness of those measures and techniques. However, the General Assembly crafted “very narrow, specific exemptions” to the public records law, and the video does not meet the exception, the Court concluded.

Contents of Record Not Enough to Withhold, Concurrence Stated
In her concurrence, Justice Kennedy wrote that it might seem “counterintuitive” to question whether security-camera footage is a security record. She noted that under R.C. 149.433, it is not enough that the record contains information relevant to the security of a public office, or even that the release of the record “could result in a serious threat to life and limb.” The information in the record must be directly used to protect the office, the concurrence stated.

“In this case, the prosecuting attorney presented no evidence to show how the information in the security footage of the shooting is used to protect or secure any public office from attack, interference, or sabotage,” the concurrence stated.

The opinion noted that Hanlin’s “affidavits are fatally defective” because they were sworn “to the best of her information, knowledge, and belief,” but that did not demonstrate that she had actually had personal knowledge of how the video was used to protect and secure the courthouse.

2019-1481. Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, Slip Opinion No. 2020-Ohio-5371.

 View oral argument video of this case.

(Mike Frisch)

No Rights Superior To Victim

The New Jersey Appellate Division has held that attached funds should not be released to finance the defense of subject of the attachment 

In this interlocutory appeal, we consider whether or to what extent defense counsel in a civil action is entitled to be paid from funds that were the subject of a prejudgment attachment. Concluding that the statutes and rules governing attachments and equitable principles do not support the payment of fees from the attached funds, we reverse the orders under review.

In putting this issue in perspective, we note that there is no dispute that, over the course of five months from July to December 2017, defendant S. Bradley Mell engaged in sexual relations with plaintiff B.B., who was then fifteen-years old. That illicit and unlawful relationship was eventually discovered and led to Mell's arrest in May 2018; a year later, Mell pleaded guilty to state and federal crimes arising from his victimization of B.B., and he is presently serving a seven-year federal prison term in Pennsylvania.

B.B. commenced this civil action for damages in October 2019 and quickly sought a prejudgment writ of attachment of Mell's assets.

The trial court's order was reversed

And, so, we decline the invitation to find for Mell a legal or equitable right to the payment of his counsel fees – incurred in a civil action brought by his victim – from funds that have been attached for his victim's benefit. In reversing, we conclude that B.B. has a higher priority to the attached funds than Mell or [attorney] Lomurro, that nothing in the statutes or rules governing attachment actions creates an exception from attachment for a defendant's counsel fees, and that neither Mell nor Lomurro has demonstrated an equitable right to the attached funds greater than B.B.'s right to the security provided by the attachment.

 My Central Jersey reported on the case.  (Mike Frisch)

Cherry Bombed

The West Virginia Supreme Court of Appeals has annulled the license of an attorney admitted by diploma privilege in 1975

The events relevant to the instant proceeding occurred in 2013. At some point in 2013, Mr. Hatfield visited the Cherry Bomb Gentlemen’s Club with a friend. While at the club, the friend introduced Mr. Hatfield to B.W. Mr. Hatfield claims that he then proceeded to pay B.W. for a lap dance. Subsequent to this interaction,  on August 29, 2013,  B.W. filed a complaint before the LDB alleging that during that same month she had asked Mr. Hatfield to represent her in a divorce action in Mercer County, West Virginia. B.W. further asserted that Mr. Hatfield “asked whether [B.W.] had $1,500 for  his services and [she] told him [she] did not.” B.W. alleged that based on her inability to pay, Mr. Hatfield indicated he would only represent her if she engaged in explicit sexual acts with him in lieu of the $1,500. “He then persisted in trying to get sexual favors in exchange for representation.” B.W. asserted that she “told him that [she] was not interested in him and that [she] had recorded his requests for sexual favors[,]” and he responded to her that “he did not care because he was ‘untouchable.’” In addition to the written complaint, B.W. attached six separate audio recordings to her complaint, which she claimed contained telephone conversations with Mr. Hatfield wherein he requested sex from B.W. in exchange for his representation of her in her divorce proceeding. 

The recorded conversations are quoted at length.

The court noted that

the disciplinary proceedings against Mr. Hatfield were delayed due to a traumatic brain injury he suffered in 2013.

The attorney denied the existence of an attorney-client relationship.

The court's legal conclusions

we agree with the HPS that the adjudicatory record as a whole demonstrates that Mr. Hatfield engaged in conduct of using inappropriate, sexually harassing behavior during telephone contact with B.W., a prospective client in a  domestic matter, while soliciting professional employment in violation of Rule 7.3(b)(2); that he  made sexual advances in an attempt to create a sexual relationship with a client or prospective client in exchange for his professional services in violation of Rules 8.4(a) and (d); and that he committed the criminal act of solicitation of another to commit an act of prostitution in violation of Rule 8.4(b).

Sanction 

After considering all of the relevant factors in this matter, we reject Mr. Hatfield’s suggestion that a reprimand is appropriate under the facts of this case. Rather, we conclude that the recommendation of the HPS for an annulment of Mr. Hatfield’s license to practice law is appropriate given the seriousness of his conduct. The combination of the serious misconduct in which Mr. Hatfield engaged and his total lack of remorse and appreciation for the wrongfulness of his repugnant conduct warrants his disbarment. Mr. Hatfield’s cavalier attitude regarding this serious misconduct is demonstrated throughout the record in this case. While Mr. Hatfield admitted that he sought to exchange legal representation for sex, he nevertheless claimed to be the victim in the incident.

(Mike Frisch)

Flashdance

The Louisiana Supreme Court has ordered the removal of a justice of the peace who was the subject of complaints after assuming office in 2018

In his sworn statement to the OSC, Respondent explained that he did not attend the justice of the peace training in 2018, after he assumed office, because he did not receive any information about it and did not know he needed to attend. Because of that, he stated he did not know “what to do or how to do it.” In addition to Ms. Zaunbrecher’s eviction matter, Respondent described a property dispute where he had been contacted by a man claiming that two other persons bought and sold property owned by him. Respondent explained that he tried to get the implicated parties “just to figure it out” and that he “didn’t know what to do, honestly.” When asked what happened in the case, he said “nothing.” Respondent also recalled meeting with Charles Armitage about a potential legal matter. Mr. Armitage told Respondent he had been trying to reach him, but Respondent recalled that Mr.Armitage only left him one voicemail.

Respondent explained he had difficulty finding time to communicate with the potential litigants because of his non-judicial work schedule. From the time he assumed office until approximately two months prior to his sworn statement, Respondent traveled for work as a welder, working 60 to 70 hours a week and traveling from one week to 50 days at a time. He acknowledged receipt of the OSC’s inquiry letters in the three underlying file numbers. He failed to respond, he explained, because he was away from home for work and was uncertain what to do.

The court rejected ignorance as an excuse

Respondent’s behavior was not simply negligent or the product of his inexperience. Instead, his failure to perform virtually any of his duties negatively impacted and harmed the litigants who tried to appear before him. Furthermore, his repeated promises to take action instead of simply admitting that he never intended to return the fee only add to the damage done to the victims.

By failing to refund the filing fee associated with the attempted eviction, Respondent appears to have, at the very least, misappropriated the fee. Because he did not appear before the Hearing Officer or the Commission, it is impossible to know whether the fee was converted for Respondent’s personal use.

(Mike Frisch)

Collectible Judgment Not An Element Of Legal Malpractice Claim

The Louisiana Supreme Court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible 

We granted this writ application to determine whether “collectibility” is a relevant consideration in a legal malpractice action. Specifically, we must decide whether plaintiff’s damages in this legal malpractice action are limited to the amount she could have actually collected on a judgment against the tortfeasor in the underlying lawsuit. For the following reasons, we answer these questions in the negative, holding proof of collectibility of an underlying judgment is not an element necessary for a plaintiff to establish a claim for legal malpractice, nor can collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.

The underlying case involved an automobile accident claim that had been dismissed as untimely filed.

The trial court granted summary judgment to the defendants on non-collectibility grounds.

The court of appeals reversed and was affirmed here

Moreover, applying the collectibility rule assumes that the underlying tortfeasor will remain insolvent or unable to pay for the life of the judgment. But impecunity is a snapshot in time. Under Louisiana law, a money judgment is valid for ten years and may be revived for successive ten-year periods if appropriate steps are taken. La. C.C. art. 3501.5 It would be inherently unfair to deprive the malpractice plaintiff of recovery against the negligent attorney if the underlying judgment would be collectible at a later point in time, within the statutory prescriptive period for satisfaction of a judgment.

A money judgment rendered against a tortfeasor has intrinsic value, regardless of collectibility of that judgment. We hold collectibility is not relevant to the correct measure of a legal malpractice plaintiff’s damages. This is consistent with the policy set forth by this court in Rodriguez v. Traylor, 468 So. 2d 1186, 1188 (La. 1985) that the financial condition of the defendant is not a proper consideration in the determination of compensatory damages. We will not allow a malpractice defendant to assert a defense based on the wealth or poverty of the underlying tortfeasor when a defendant in any other type of tort action could not assert a similarly based defense.

Justice Crain dissented

Thirty states have determined collectibility is relevant in a legal malpractice action. No state has reached a contrary conclusion, until now. In reaching this conclusion, the majority correctly observes there is no codal, statutory, or jurisprudential authority that requires it. Close scrutiny of the distinct causes of action and damages unique to such claims confirms that in this instance, our civilian traditions align with those of our common law neighbors.

A hypothetical

...assume an insolvent, uninsured driver rear-ends a world-class professional athlete rendering him a paraplegic, resulting in damages of $50 million. The plaintiff hires a lawyer to sue the insolvent, uninsured driver. Then, the lawyer misses the prescription date. The plaintiff sues the lawyer for legal malpractice. The lawyer has $50 million legal malpractice insurance coverage. What did the plaintiff lose, or what harm did the lawyer cause the plaintiff, when the lawyer failed to preserve the claim against the insolvent, uninsured driver? The lawyer did not cause the paraplegia, nor did he cause the loss of $50 million, as that money was clearly uncollectible. Instead, the plaintiff lost the right to obtain a judgment against the insolvent, uninsured driver in the amount of $50 million. The determinative question, then, by a trial court is: “What is the value of the ‘lost judgment’?” That value depends largely, if not totally, on the collectibility of the “lost judgment.” This quantum determination should be left to the trial court after considering the relevant collectibility evidence, which should not be barred by the bright-line rule adopted by the majority.

(Mike Frisch)

California Will Study Bar Discipline Reforms

From the web page of the California Bar Journal

At its meeting on November 19, the Board of Trustees set in motion a new commission to conduct an in-depth examination of the State Bar’s attorney discipline process system, a core function of the State Bar, and recommend how to further improve its effectiveness and fairness. The Board approved the charter and composition for the Ad Hoc Commission on the Discipline System.

(Mike Frisch)

Threats To Law Firm Draw Proposed Disbarment

The California State Bar Court Review Department recommends disbarment of a former Dentons associate 

In 2017, Michael Bernard Potere demanded over $200,000 from a law firm where he worked by threatening the release of confidential firm information, including financial documents, client billing rates, and associate reviews and salary offers. He was prosecuted by the United States Attorney’s Office (USAO) for the Central District of California. Potere ultimately pleaded guilty to a federal misdemeanor violation of unauthorized access to a computer to obtain information. The hearing judge found the facts and circumstances surrounding his conviction involved moral turpitude and a “complete disregard for honesty.” The judge recommended disbarment.

Potere appeals, arguing the proceedings in the Hearing Department were constitutionally defective because he had to establish by expert testimony any mental disabilities responsible for his misconduct. He also asserts he should have been provided with a mental examination, and his mitigating evidence should receive more weight and his aggravating evidence less weight than found by the hearing judge. Potere contends disbarment is not necessary and, instead, a period of actual suspension is appropriate. The Office of Chief Trial Counsel of the State Bar (OCTC) did  appeal but requests in its response that we affirm the disbarment recommendation. 

The review department rejected the respondent's contentions.

In March 2015, Potere began working as an associate attorney at Dentons, a large international law firm, in its Los Angeles office. Later in 2015, Potere was assigned to work on one of the firm’s cases with Joel Siegel, a senior partner and managing director of Dentons. In order to prepare discovery responses for the case, Dentons provided Potere with access to Siegel’s work email account. Potere’s assignment on that case concluded in June 2016, which should have ended Potere’s access to Siegel’s account. However, neither Dentons nor Siegel took action to remove or restrict Potere’s access to it.

In March 2017, Potere told Michael Duvall, a partner at Dentons, that he was leaving the firm to pursue a graduate degree in political science. Potere asked to continue working at Dentons until his graduate program began in the fall of 2017. As Potere’s “practice advisor,” Duvall was responsible for discussing Potere’s performance reviews with him. Based on Potere’s struggles at Dentons in 2016, and Duvall repeatedly speaking to him about his substandard work performance, including a poor performance review in January 2017, Dentons refused Potere’s request to work until the fall. Instead, the firm informed him that his last day of work would be June 1, 2017.

The unauthorized access followed and led to federal charges

In response to Potere’s claim that he was simply using an aggressive negotiation  strategy, the judge found Potere was actually trying to “extort the law firm into paying him a substantial sum of money for which he had absolutely no entitlement to.” He found Potere’s explanation for his conduct “arrogant and pure fantasy, nothing more than his continued refusal to accept and recognize full responsibility for his serious criminal conduct.” The judge found Potere’s expression of regret less than sincere but did recognize Potere accepted responsibility by pleading guilty to the first superseding information.

Sanction

We agree with the hearing judge’s finding that Potere’s misconduct “involved a carefully considered, illicit plan to extort money from his employer, demonstrating [his] dishonesty.” He demonstrated disloyalty to Dentons when he improperly accessed confidential firm documents, then threatened lawsuits and the public release of the documents unless he was paid over $200,000 plus other items. He also lied about his use of an email program that would automatically release the documents to escalate the threat. After negotiating payment from Dentons, he certified that he had returned all of the documents when he still maintained access to them. His dishonesty and violation of fiduciary duties goes directly to his fitness to practice. Honesty is absolutely fundamental in the practice of law. Without it, “the profession is worse than valueless in the place it holds in the administration of justice.”

(Mike Frisch)

Suspension Proposed For Assault On Neighbor

An Illinois Hearing Board has recommended a one-year suspension and until further court order

Respondent pled guilty to the aggravated battery of his neighbor, Avon Howard-White, a person 60 years of age or older. He made false statements regarding his conduct to the investigating detective. He was sentenced to two years of probation, which included completing a drug/alcohol evaluation and treatment recommendation.

In aggravation, the Panel considered that Respondent has been disciplined previously. He was suspended for sixty (60) days in 2017 for neglecting a criminal appeal and leaving derogatory, threatening, and racially offensive voicemail messages for third parties. In re Michael Jerome Moore, M.R. 028896, 2015PR0076 (September 22, 2017). We also consider in aggravation Respondent's lack of cooperation and participation in this proceeding. While Respondent participated in the first pre-hearing conference and filed pleadings in this matter, his behavior overall was uncooperative. He was unwilling to file an answer that conformed to the requirements of Commission Rule 233, he did not appear for his scheduled deposition, nor did he appear for his disciplinary hearing.

(Mike Frisch)

Return From Vacation

A Hearing Panel of the British Columbia Law Society has found misconduct on these facts

After returning from vacation in late March 2016, the Respondent learned she was missing millions of dollars from her trust accounts.  The Respondent’s bookkeeper and a former employee stole about $7.5 million from the Respondent’s trust accounts.

After the theft, the Respondent focused on ensuring that various upcoming real estate and financial transactions would complete on time, despite the missing trust funds.  The Respondent immediately deposited some replacement funds.  However, the primary way the Respondent addressed her trust account shortfall was by moving various trust funds around between different clients and different trust accounts to complete the affected transactions.  In other words, since she did not have sufficient trust funds in her trust accounts to meet upcoming financial transactions, the Respondent moved various trust funds around, taking trust funds from some clients to fulfill another client’s financial commitments.  Because the Respondent did not advise her clients about the theft, the use and movement of the trust funds in this manner put those clients’ trust funds at risk without their knowledge or consent.

The Respondent says that she did not commit professional misconduct.  Her mistake was placing trust in her employee who took advantage of her trust to commit a sophisticated scam.  She says that, although she breached trust accounting rules by using trust funds from some clients to pay other clients, her actions minimized the overall impact of the missing trust funds on the upcoming client transactions.  In other words, if she had not moved the trust funds around, more clients would have been adversely affected by the employee theft.  The Respondent argues that, since she moved trust funds around to minimize the impact on her clients, her actions mitigate against a finding of professional misconduct.

The panel dismissed one of the several citations of misconduct. (Mike Frisch)

 

Video Testimony (Pre-COVID) Rejected By Iowa Supreme Court

The Iowa Supreme Court has reprimanded an attorney and affirmed the right to confront witnesses in-person

This attorney disciplinary case with interstate dimensions involves an Iowa-licensed attorney who practiced immigration law in Texas. The attorney received payments totaling $4000 from a client on a flat-fee representation. He put those payments directly in his operating account. After the attorney had worked on the case for a while, the client changed her mind and decided not to go forward with the representation. The attorney refused to refund any of the payments or to provide an accounting. The client filed a complaint with the Iowa Supreme Court Attorney Disciplinary Board. The Board charged various violations of the Texas Attorney Disciplinary Rules of Professional Conduct. The matter went to a hearing before a division of the Iowa Supreme Court Grievance Commission. At the hearing, which occurred prior to the COVID-19   pandemic, the client was allowed to testify by video over the attorney’s objection. The commission found a number of violations and recommended a suspension.

On our review, we find that the attorney violated the Texas rules when he failed to deposit client payments in his trust account, took those payments as income before they were earned, and failed to provide accountings to his client. We are not persuaded, however, that the attorney violated Texas’s prohibition on “unconscionable” fees when he collected $4000 for the work performed, which included many hours spent trying to get information from his client. We also believe the Board failed to show a sufficient basis for the admission of video testimony. As a sanction, we impose a public reprimand

The right of confrontation under Iowa rules

Perhaps most importantly, rule 36.17(5) provides that the respondent attorney has the right “to be confronted by witnesses.” Id. r. 36.17(5). This language echoes the phrasing of the Confrontation Clause of the Sixth Amendment and article I, section 10 of the Iowa Constitution. As a matter of English and as a matter of Latin, the word “confrontation” refers to a face-to-face meeting.

The court considered the case de novo without the client's testimony. 

In a footnote , the court makes clear that the right is rule-based rather than Constitutional. 

Justice Appel agreed with the majority on the confrontation issue but dissented on sanction in favor of suspension.

Nonetheless, to me, this file has a stronger aroma than that which emanates from the majority opinion. The low social status of immigration clients does not allow lawyers to charge fees mostly for driving around town when the fee contract certainly is an integrated contract stating that attorney representation and fee entitlements arise on February 23, 2016. And even if travel time could properly be charged at an hourly rate after February 23, the client was entitled to know this through contemporaneous statements from the lawyer...

At the end of the day, Villatoro paid $4000, spending a lot of money on windshield time, but with little to show for it. She had no idea that most of her payments were chewed up in travel time. Whether sharp or sloppy, such practices should not be permitted in the practice of law.

I would suspend Akpan’s license for thirty days based on the above considerations.

(Mike Frisch)