Wednesday, February 8, 2023

The Process Was The Punishment

The Louisiana Supreme Court imposed a fully-stayed year and a day suspension and two years probation for fee misconduct in multiple matters where the investigation commenced and the situation was remedied in 2013

After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. The committee specifically determined that the central issue in this matter is whether the fee agreement was an hourly-fee or a flat-fee arrangement. Based upon the fee agreement’s language, which the committee determined was unambiguous, the committee found the fee agreement was an hourly-fee arrangement. The committee then found, in a nutshell, that respondent (1) constructed and repeatedly used an hourly fee agreement; (2) caused at least 52 clients to execute such fee agreements; (3) misrepresented to his clients the nature of the fee agreement and, thus, deceived each of his clients as to the nature of their agreement and the use of their fees; (4) collected substantial advanced fees; (5) failed to deposit the advanced fees into his trust account; (6) repeatedly treated the numerous fee agreements as fixed-fee arrangements; (7) converted said advanced fees by paying contract attorneys immediately upon receipt of client funds, prior to the earning of such fees; (8) deposited remaining advanced fees into his law firm operating account; (9) failed to keep complete records of client funds remitted to him; and (10) failed to return a total of $3,524.50 in unearned fees to his clients William Tholborn, Pearline Foley, Ryan Fletcher, and Keandra Augustine. Based upon the above facts, the committee determined respondent violated Rules 1.5(f)(3), 1.15(a), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.

There was substantial delay that caused Justice Crain to dissent in favor of a public reprimand

I agree that respondent violated the Rules of Professional Conduct and that discipline is appropriate. However, I find any violations fully mitigated. The investigation of a professional is the exercise of an awesome power with the potential for career altering effects. That power must be exercised judiciously, efficiently and timely.

The ODC began investigating this matter in 2013, having received information suggesting that respondent was operating with an improper fee structure, a serious matter. Respondent answered the ODC’s inquiry and in November 2013 provided them with a sworn statement. In December 2013, he revised his fee agreement and notified his clients.

Yet, an audit was not performed by the ODC until February 2017. At that time the ODC believed respondent could not account for $40,896.13, representing unearned fees and unused costs that were not in his trust account. They were wrong, and respondent provided documentation for all but $3,524.50. After responding to the four-year delayed audit, respondent heard nothing from the ODC until he was formally charged with these violations in March 2021.

Respondent does not admit that the $3,524.50 are not earned fees, but after many years, and unlike the remaining $37,371.63 he was accused of not earning, he cannot produce documentation proving that fact. I find the remaining amount that cannot be accounted for fully mitigated by the inexcusable investigation delay of roughly a decade.

A delayed investigation can be abusive. I believe the nearly ten years that this process has burdened this attorney is itself a form of punishment. Attorneys are bound by ethical rules which must be honored and complied with every day and in every detail of their professional lives. Those rules and the oath which enables them are the foundation of our profession and the public’s confidence in it. The firm, but fair, enforcement of those rules is a critical responsibility of all lawyers. Thus, the reporting obligations for lawyers who observe or are aware of potential violations. But when the discipline enforcement power is abused, the entire ethical mosaic begins to erode. We must be vigilant in protecting against that.

Chief Justice Weimer would impose a period of actual suspension. (Mike Frisch)

February 8, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 7, 2023

In Words And Tone Of Voice

The New York Commission on Judicial Conduct has accepted the resignation of a County Court Judge who was discourteous to unrepresented persons seeking protection orders and other relief.

From the stipulation

Respondent was disrespectful, disparaging, sarcastic and otherwise discourteous toward them, in both words and tone of voice...

The events in question occurred in October 2019, May 2019, July 2018, and June 2018. The charges contained quotations from audio recordings and transcriptions in which, among other things:

Respondent asked a petitioner, "What kind of a kook are you?": belittled her concern about missing school in order to be in court; said "everything that you told me was bullshit"; and told the petitioner to "get your ass out of bed and get here at 9:00 in the morning" or her petition would be dismissed and she could  "ask the director [of your school] to protect you."

Respondent said to another petitioner: "So listen, why should I give you an order of protection ... if you keep going back yo this guy? ... You went looking for him. You got into the car, okay, and you obviously want to be with him because you keep going back to him."

Respondent said to a third petitioner; "So, three weeks before you found out that he had another honey 0n the side, were you afraid of him? ... Oh, you were'! Well, then why were you with him for then.

The five recipients of these comments were four women and one man. (Mike Frisch)

February 7, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

Misconduct As Client Draws Bar Charges

The North Carolina State Bar has filed a complaint alleging that an attorney (acting as a client, not as counsel) had back-dated documents to defeat charges of self-dealing in civil litigation.

Sanctions had been imposed in the underlying litigation by the General Court of Justice

 the Court concludes that Plaintiffs have satisfied their burden with respect to the Laramie Emails that were created by Russell on 28 December 2020 and backdated to 10 July 2019. [forensic expert] Walton opined to a reasonable degree of certainty that Russell both created and backdated the emails. It is undisputed that she forwarded the false emails to her counsel to produce with discovery responses, and that counsel, relying on her representation that the emails were authentic, produced them in discovery. The Court concludes that Russell’s egregious and intolerable litigation misconduct and violation of the certification required by Rule  26(g) warrants sanctions against her.

Default was too harsh

That said, Russell’s fabrication of the Laramie Emails unnecessarily complicated and extended this litigation resulting in significant expense to the other parties. The Court concludes that these costs would not have been incurred but for Russell’s actions. Therefore, the Court, in its discretion, awards to Plaintiffs, the Association, the New Entities, and Jurgens the costs associated with Plaintiffs’ Motion, the parties’ related briefs and supplementary materials, the expense of the Plaintiffs’ expert to perform services and testify, and the hearing on this Motion. These costs are to be paid personally by Russell.

In levying this sanction, the Court specifically finds that, in falsifying the Laramie Emails, Russell acted to further her own personal interests and failed to act in good faith or with reasonable grounds to believe that her actions were in the best interests of the Association or the New Entities.

And

Finally, the Court is constrained to observe that, in this case, Russell is a litigant. Had she appeared as a practicing attorney, this Court would be compelled to sanction her further for the base violation of professional responsibility that has occurred. It understates the severity of the offense to say that this type of conduct is inconsistent with the integrity necessary to be a licensed member of this State’s Bar. Therefore, even though this Court shares jurisdiction with the State Bar in matters involving attorney discipline, see N.C.G.S. § 84-36, the Court declines to exercise that jurisdiction here, opting instead to refer this matter of general impropriety to the State Bar to consider Russell’s transgressions in a manner consistent with the North Carolina Rules of Professional Responsibility and its prior decisions.

(Mike Frisch)

February 7, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Wildwood, New Jersey

The Pennsylvania Supreme Court has accepted a disbarment by consent but amended its earlier order to make the sanction retroactive.

The Daily Times reported on the January 2023 order

A former Philadelphia Assistant District Attorney who was previously convicted on drug charges in Delaware County and New Jersey was formally disbarred by the Pennsylvania Supreme Court Friday.

Jacqueline Gruhler, 43, of the 800 block of Rose Avenue in Morton, voluntarily submitted her resignation and acknowledged that the material facts leading to both convictions were true, according to a resignation statement filed with the Supreme Court Disciplinary Board.

Gruhler was charged in Delaware County with contraband and conspiring with her husband, Mutatie Hakeem Johnson, in March 2020. She pleaded guilty to both counts in February 2021 and was sentenced to six to 23 months at the county jail with two years of probation.

According to an affidavit of probable cause in that case, Gruhler was representing Johnson for possession of a firearm without a license and possession of a controlled substance with intent to distribute.

Delaware County Criminal Investigation Division Detective Thomas Scarpato was alerted to an inmate possessing a controlled substance Mar. 13, 2020, according to the affidavit of probable cause for Gruhler’s arrest.

Prison guards had noticed suspicious activity between Gruhler and Johnson during a meeting and later found Johnson in possession of five bundles of synthetic cannabinoids called “K2,” the affidavit says.

Johnson tried to protect his wife and say he had the K2 on him for nine days following his transfer from a New Jersey prison, but Scarpato reviewed prison calls in which the two were planning to hide the contraband among legal documents during a visit. Johnson allegedly directed his wife to cough when she was being patted down because staff would be wary of catching coronavirus.

Once in the visiting room, Gruhler could be seen reaching to her crotch area and then placing an accordion folder between herself and Johnson on a table with a distinct bulge in it, according to the affidavit. Johnson handled some folders then took them with him back toward the cell block, where he was confronted and searched. One of the K2 packages tested positive for the presence of methamphetamine, the affidavit says.

Johnson later pleaded guilty to possession of contraband and was sentenced to two to five years in prison, concurrent to an eight to 20 year sentence he received in the original drug and firearm case.

Gruhler, who spent nine years as an ADA in Philadelphia, had also pleaded guilty in New Jersey’s Cape May County in December 2019 to distributing methamphetamine. A February 2021 disbarment order from the New Jersey Supreme Court Disciplinary Review Board indicated she was arrested in June 2019 for possession of a handgun and possession with intent to distribute heroin and methamphetamine, among other counts.

That order indicated that Gruhler was with her husband June 24 and 25, and that she was helping Johnson sell methamphetamine in and around a Wildwood, New Jersey motel room.

The pair had checked out of the motel at 11:30 p.m. June 24, but returned about 1:50 a.m., according to the order. The manager called police, who found the room empty with two notes for housekeeping as well as a backpack containing a handgun, heroin and marijuana, the order says. They were arrested after returning to the motel later that morning, and police found cocaine, methamphetamine, marijuana, nerve pain medication and plastic straws in Gruhler’s purse.

Gruhler said in the letter that she was submitting her resignation to the Pennsylvania Supreme Court because she could not successfully defend herself against pending professional misconduct charges and that she understands she may not apply for reinstatement for at least five years.

(Mike Frisch)

February 7, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Former DA An Immediate Threat

Th Oklahoma Supreme Court has ordered a temporary emergency suspension of an attorney

Complainant submits Respondent, who was employed at the time as the First Assistant District Attorney for Payne and Logan counties, Oklahoma, came under investigation by the OSBI in July of 2022 based on a cyber tip submitted by Google to the National Center for Missing and Exploited Children after detecting child pornography on a Google drive account identified as belonging to Respondent.

Complainant submits the OSBI began an investigation into the matter and found Respondent's personal information on his Google Drive, including images of Respondent himself in various states of dress, engaging in sexual activities; Respondent's 2019 and 2020 tax returns; as well as 153 videos and photographic images depicting child sex abuse and exploitation.

Complainant submits Respondent was promptly terminated from his position as the First Assistant District Attorney in Payne and Logan counties, Oklahoma, and was arrested and placed in custody. Respondent was charged in State of Oklahoma v. Kevin Etherington, CF-2022-483 with the following two felonies: Count I: Aggravated Possession of Child Pornography by possessing on November 28, 2022 over 100 videos/images of child pornography in violation of 21 O.S. 1040.12a and Count II: Possession of Child Pornography by possessing and uploading onto his Goggle drive on or between July 23 and July 24, 2022, videos of child pornography in violation of 21 O.S. 1021.2.

Complainant submits Respondent sought to have his $500,000.00 bond reduced via a motion filed by his defense attorneys on December 6, 2022, based on his lack of prior criminal history "except [for] a misdemeanor Driving Under the Influence [charge] approximately 15 years ago and a property crime which was dismissed (this arose after his divorce was finalized and he was retrieving his personal property from his former spouse"). Said motion specifically argued Respondent is an attorney and former assistant district attorney in Payne and Logan counties and that "Upon being granted a reasonable bail he may resume private practice or assist private law practitioners." Respondent's motion for a bond reduction and/or modification was denied on January 11, 2023, after the State of Oklahoma announced the possible filing of additional criminal charges against Respondent pending the OSBI's investigation. Respondent's preliminary hearing in his criminal case is set for May 4, 2023.

Complainant submits that Respondent's incarceration - at the very least until his preliminary hearing in May of 2023, or until he is able to post bond - is simply incompatible with having a license to practice law. The public is at risk, as well as the reputation of the legal system, by Respondent maintaining his license to practice law while he is incarcerated.

Complainant likewise submits that even if Respondent is able to post bond and is released from jail, he remains unfit to practice law given the specific terms and conditions of his bond and pretrial release which include the following:

a. He shall not have unsupervised contact with any minor child. . . .

d. He is not allowed within 1,000 feet of any school, park, or mall. . . .

f. He shall not have access to or be in possession of any computer or device with access to the internet or the capability to access the internet.

The Court ordered Respondent to show cause, no later than January 12, 2023, why an emergency interim suspension should not be entered. The Court sent a file-stamped copy of the order and the verified complaint to Respondent's official roster address as well as to the Respondent's additional record address. Respondent failed to respond to the show cause order and failed to file an objection.

Upon consideration of the verified complaint, the amended verified complaint, and application for emergency interim suspension, the Court finds that Respondent has committed conduct in violation of the Oklahoma Rules of Professional Conduct that poses an immediate threat of substantial and irreparable public harm.

(Mike Frisch)

February 7, 2023 in Bar Discipline & Process | Permalink | Comments (0)

A Dispute Over Sanction

A preview of an oral argument today before the Ohio Supreme Court

Disciplinary Counsel v. Griff M. Nowicki, Case No. 2022-1253
Montgomery County

A Montgomery County attorney is facing discipline for a romantic relationship he began with an employee at his law firm while representing the employee in a lawsuit.

Griff Nowicki and the Office of Disciplinary Counsel, which investigated the complaint, agreed to a one-year suspension, fully stayed. The Board of Professional Conduct, however, recommends a one-year suspension with six months stayed in its report to the Supreme Court of Ohio.

Nowicki objects to the board’s recommended sanction. Because of his objection, the Supreme Court will hold an oral argument in the case.

Attorney Assists Employee and Her Husband With Lawsuit
Sondra Clark was hired as an assistant at Nowicki’s law firm in 2018. In August of that year, Nowicki agreed to represent Clark, her husband, and her son in lawsuit. The attorney’s representation was pro bono. He filed an answer in the civil case and stated that he did no other work in the matter.

In December 2018, Clark’s husband left the home where he and Clark lived, and no longer saw their children. The following April, Nowicki and Clark began a sexual relationship. Clark’s husband learned they were dating. Charges were later filed against Clark’s husband for telephone harassment and violating a protection order that Clark obtained against him.

Because Nowicki and Clark were victims in the harassment cases, Nowicki withdrew in August 2019 from representing Clark’s husband in the civil case. He continued to represent Clark and her son in the matter. Clark filed for divorce, with Nowicki as her lawyer. The civil case was dismissed later in August.

Clark’s husband pled guilty to three misdemeanors, and their divorce was finalized in October 2019. Clark and Nowicki married in 2020.

Professional Conduct Board Increases Recommended Suspension
The board panel that reviewed the misconduct allegations found that Nowicki violated rules against engaging in sexual activity with a client and against representing a client when there are certain conflicts of interest.

Looking at prior disciplinary decisions, the panel concluded that Nowicki should receive a one-year suspension with six months stayed and that he complete three hours of extra continuing education on professional conduct. The board adopted the findings and recommended sanction.

Attorney Argues Facts Support Stay of Suspension
Nowicki doesn’t take issue with the determination that his actions were professional misconduct. He sees differences, though, between his case and the cases cited by the board to support an actual six-month suspension. He maintains that he wasn’t paid to represent the Clarks in the civil suit, his romantic relationship with Clark began four months after she separated from her husband in December 2018, and he had no dishonest motive in starting the relationship. He also submitted certificates to the Court showing he has already completed the additional coursework.

Disciplinary Counsel Opposes Harsher Sanction
The disciplinary counsel maintains that the jointly recommended one-year stayed suspension protects the public and is supported by prior disciplinary decisions. Nowicki’s misconduct was serious, but there was no actual harm to Clark or her husband as clients, the disciplinary counsel states. The office points out that the civil case was dismissed, which benefited Clark and her husband, and Nowicki didn’t neglect their cases. Also, Clark’s husband had left Clark before the attorney and she began a romantic relationship, the office notes.

The disciplinary counsel argues that when an attorney commits misconduct by starting a sexual relationship with a client, that action isn’t inherently dishonest or selfish. Context matters, the disciplinary counsel maintains. Even if the Court determines that Nowicki’s motives were selfish, that shouldn’t push the discipline in this case to an actual suspension, given the facts, the disciplinary counsel concludes.

 Kathleen Maloney

February 7, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Monday, February 6, 2023

The Love That Spoke Its Name

The North Carolina Disciplinary Hearing Commission ordered a 12-month suspension of an attorney admitted in 1977 for misconduct involving a client in a custody and support matter

While at the restaurant, Defendant flirted with H.S. and kissed her:

Defendant subsequently engaged in frequent communications with H.S. that were flirtatious, romantic, or sexual in nature.

Defendant proposed that he and H.S. could go on romantic trips together and mused about whether they could love each other.

Defendant sent H.S. graphic messages, explicit propositions, one or more semi-nude photos of himself, and at least one photograph of his genitals.

Defendant recognized that his desire for a sexual and romantic relationship with H.S. created a potential conflict of interest, telling H.S. that "if she felt any type of conflict existed, she should have independent legal advice at no cost to her."
Kelso did not obtain H.S.'s informed consent, confirmed in writing, to the potential conflict of interest created by his personal interest in pursuing a sexual and romantic relationship with her.

During the representation, Defendant gave H.S. $500 to buy household items, permitted H.S. to use his credit card, and wrote her a check for $8,000.00.

When a grievance was filed, Respondent violated confidentiality by sending a copy to opposing counsel

Defendant's disclosure of this confidential information was potentially adverse to H.S.'s interests, although opposing counsel did not use the information to submit motions or other pleadings to the court in the domestic case.

There was also misconduct in an unrelated personal injury matter. (Mike Frisch)

February 6, 2023 in Bar Discipline & Process | Permalink | Comments (0)

The Sting

A probate matter in which the judge had entered orders that extinguished two attorneys liens drew a timely recusal motion and orders vacated by the Tennessee Court of Appeals

All these facts are but a prelude to the controversy giving rise to this appeal. On August 4, 2022, attorney Joseph Townsend defeated Judge Webster for reelection. The new judge had some history with the Watson Brown firm. While still an attorney in 2018, Judge Townsend was hired as an expert witness in opposition to a fee application by the Watson Burns firm. He was highly critical of the fee request, calling it “clearly excessive” and criticizing their billing records as “unintelligible.”

Apparently, attorney Townsend’s criticisms still stung, for at a status conference on the issues of freezing access to the trusts and enforcement of the firms’ liens on September 26, 2022, Mr. Watson made an oral motion asking for Judge Townsend’s recusal. Judge Townsend stated, “Yeah, I don’t think I have a conflict, but we’ll look at the issues in this case and have a full disclosure, et cetera, et cetera, obviously before we proceed too far.” The next day Judge Townsend held the previously scheduled status conference regarding the mediation. Judge Townsend entered the four settlement orders, thereby extinguishing the firms’ liens on the 1984 and 1991 Trusts. No one raised the issue of recusal. The firms filed motions to alter and amend the ruling, which the court orally denied on November 2, 2022, maintaining that the firms were not parties before the court.

As to recusal

Judge Townsend did not follow the Supreme Court’s rules. He entered an order on December 7, 2022, without stating good cause for not obeying the dictates of Rule 10B, § 1.02, and he failed to address the motion to recuse as required in Rule 10B, § 1.03. Consequently, we must vacate the December 7, 2022 order and any orders in the interpleader action that Judge Townsend has filed since. Furthermore, Judge Townsend is instructed to file a response to the motion to recuse in the interpleader action promptly. If he denies the motion, the response must state in writing the grounds upon which he denied the motion. If he denies the motion, the firms may seek further appellate relief as they deem necessary and appropriate.

(Mike Frisch)

February 6, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

Disbarment Proposed For Giuliani

District of Columbia Disciplinary Counsel has filed its 46-page Proposed Findings of Fact and Conclusions of Law in In re Giuliani.

Disciplinary Counsel agues that he has established violations of Pennsylvania Rules of Professional Conduct 3.1 and 8.4(d).

The recommendation is disbarment

The Hearing Committee should recommend that the Court of Appeals disbar Mr. Giuliani because the integrity of the legal profession demands it. The Court must send a message that lawyers who misuse their law licenses to undermine our constitutional form of government cannot continue to practice law. One hopes that no other lawyer will ever engage in comparable conduct. Alas, as divided as our country is and as distrustful as many of us are of the basic institutions of our democracy - a distrust that Mr. Giuliani fostered and continues to foster - that may be a forlorn hope. But at the very least, the bar needs to know clearly that the consequences of such a betrayal of one's oath to support the Constitution is the loss of the privilege to practice law.

Notably, the pleading cites as comparable precedent an espionage conviction rather than a "garden-variety" frivolous litigation case such as the infamous pants judge.

Link to document here. (Mike Frisch)

February 6, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, February 5, 2023

A Mere Expectancy

In a divorce action involving a plaintiff with little or no income and a defendant who was a partner in an international law firm with a net yearly pay of approximately $4 million, the Connecticut Appellate Court affirmed the conclusion that defendant's potential retirement benefits were too speculative to be considered

The plaintiff

At the time of the marital dissolution, the plaintiff was fifty-seven years old and in fair health. He has a bachelor’s degree from Trinity College, a master’s degree in business administration (MBA) from the Wharton School, University of Pennsylvania, and a master’s degree in public administration from the John F. Kennedy School of Government at Harvard University. Notwithstanding these academic credentials and a history of substantial employment, earning, in some years, several hundred thousand dollars, the plaintiff has not worked for an employer since 2001 and had no earned income at the time of the dissolution...

The court found that the reasons given by the plaintiff for his lack of employment since then were without merit.

The defendant

the defendant also was fifty-seven years old. Educated in Canada, she holds MBA and Juris Doctor degrees from the University of Western Ontario. At the time of the marital dissolution, she was a partner in a large international law firm. Her annual gross income is approximately eight million dollars, and her annual net income is approximately 50 percent of her gross income.

At issue

With that legal backdrop in mind, we next turn to the facts at hand. As noted previously, the defendant is a partner in a large international law firm. During trial, the defendant offered the expert testimony of Mark Harrison, a certified public accountant and attorney who previously had testified in marital dissolution actions as a forensic accountant and valuation expert. Pursuant to his engagement, Harrison examined the law firm’s partnership agreement that came into evidence. The agreement provides, in relevant part, that a partner who has reached the age of fifty and completed at least ten years of service, may retire and receive a stream of payments, subject to certain limitations and caveats. As an initial matter, Harrison noted, the provisions for retirement payments set forth in the partnership agreement are not funded and are not carried on the firm’s books as a liability. Rather, retirement payments are disbursed from the firm’s future earnings. Harrison found it significant that the provision for retirement payments is subject to termination or reduction at any time by a vote of the firm’s partners. Harrison pointed out, as well, a provision in the partnership agreement reciting that the payments to a retiree could be adjusted by the firm’s compensation committee and the concurrence of a certain number of partners on their determination that the payments are no longer fair to the remaining partners or the firm, or are otherwise inappropriate or inequitable to the former partner. Retirement payments also could be adjusted, deferred, or simply not paid, if the payments to retired partners exceed a certain percentage of the firm’s income. In that event, the partnership agreement provides, payments to retirees may be deferred and not paid for up to five years and, if the payments cannot be made during the period of deferral, the obligation of the firm to make payments could be extinguished forever. Distinguishing the partnership retirement provisions from a qualified pension plan, Harrison characterized the defendant’s potential to receive retirement payments from the firm as ‘‘the epitome of a mere expectancy."

The court

On the basis of the facts adduced at trial regarding the defendant’s potential receipt of retirement income, we do not disagree with the court’s conclusion that this potential source of income is too speculative and, therefore, represents a mere expectancy that cannot be categorized as property for purposes of equitable distribution pursuant to § 46b-81.

The court also affirmed the alimony award to plaintiff. (Mike Frisch)

February 5, 2023 | Permalink | Comments (1)

Saturday, February 4, 2023

With Malice Not Alleged

The United States District Court dismissed without prejudice defamation claims brought by the Trump campaign against The Washington Post for two published articles

Here, the Trump Campaign fails to allege that the Sargent Article was published with actual malice. For starters, the Complaint is replete with conclusory allegations. See, e.g., Compl. ¶ 6. (“The Post was well aware at the time of publishing . . . that [the statement in the Sargent Article was] not true.”); id. ¶ 20 (“The Post clearly had a malicious motive, but more importantly acted with reckless disregard for the truth.”); id. (claiming that the Post “knowingly disregarded” “[t]he Mueller Report” and “[e]xtensive public information”). As the Trump Campaign knows, these “[t]hreadbare recitals of the elements of a cause of action” cannot survive a Rule 12(b)(6) motion to dismiss. 

And

The Trump Campaign’s defamation claim concerning the Waldman Article fares no better because the statement at issue there is non-actionable opinion.

The court allows plaintiff to give it another shot

The Post seeks dismissal with prejudice. See Mot. at 37. Although the Court grants the Post’s motion to dismiss, it will dismiss the Complaint without prejudice to afford the Trump Campaign another opportunity to adequately plead factual allegations on the element of actual malice. See Cottle, 404 F. Supp. 3d at 87. The Court will give the Trump Campaign 30 days to file a motion seeking leave to amend that attaches a proposed amended complaint. If no proposed amended complaint is received within that 30 day period, the dismissal will convert to with prejudice.

The case was a bit of a lucky charm

The case was randomly assigned to then-Judge Ketanji Brown Jackson, who held oral argument on the Post’s fully briefed motion to dismiss. Min. Entry (Dec. 10, 2020); Tr. of Mot. Hr’g, ECF No. 18. Upon then-Judge Jackson’s confirmation to the D.C. Circuit, the case was reassigned to Judge Florence Pan. See Docket Entry (Oct. 1, 2021). Upon Judge Pan’s confirmation to the D.C. Circuit, it was randomly reassigned to this Court.

Judge Contreras authored the decision.

In an unrelated decision last Friday, the Delaware Superior Court denied Newsmax Media, Inc.'s motion for judgment on the pleadings in a defamation suit brought by Smartmatic USA. (Mike Frisch)

February 4, 2023 in Current Affairs | Permalink | Comments (0)

Friday, February 3, 2023

I Read The Sun-News Today Oh Boy

The New Mexico Supreme Court has publicly censured a judge for failure to recuse herself after a newspaper article had called her conduct into question.

The judge had appointed a parenting coordinator in a child custody case.

Three years later, the father retained new counsel who filed two motions. One sought recusal; the other sought removal of the monitor and revocation of his quasi-judicial immunity.

 One week after Father’s counsel filed these motions and before a hearing was held, the Las Cruces Sun-News published an article reporting many of the allegations contained in the two motions—that Dr. Smith was not a qualified parenting coordinator and that Judge Rosner recommended and issued an order appointing Dr. Smith despite his purported lack of qualifications. The article criticized the Third Judicial District’s parenting program, along with Judge Rosner and her involvement in that program and her subsequent order appointing Dr. Smith.

The judge read the article and felt "personally attacked" but did not recuse herself

Following the hearing on the two motions, Judge Rosner issued an Order Denying Respondent’s (Father’s) Motion to Recuse for Cause, and Order Denying Respondent’s (Father’s) Motion to Remove Parenting Coordinator and Revoke Parenting Coordinator’s Quasi-Judicial Immunity. In paragraph 17 of the order, Judge Rosner stated:

Rather than bring to [the c]ourt her claims of alleged misconduct by Harold Smith and this [c]ourt, [Father’s counsel] took her motions to the Las Cruces Sun News, without input from anyone other than herself. At the hearing, on her two motions . . . her client, [Father], testified under oath, that he had never had any contact nor had he made any statement to any reporter of the Las Cruces Sun News. The article, which appeared on the front page of the Las Cruces Sun News on July 21, 2020, sought to damage Harold Smith and this [c]ourt by implying an inappropriate relationship between Harold Smith and the undersigned judge, and bias by this [c]ourt and Harold Smith against [Father]. Noteworthy, is the failure of [Father’s counsel] to attack Dr. Caplan’s report which is the most damaging report against her client . . . . At the request of [Father’s counsel], Dr. Caplan’s report has been sealed.

Three days later, the judge granted a renewed recusal motion.

The judge admitted violations of judicial canons

Based on these admitted violations, Judge Rosner agreed to (1) enroll in and successfully complete, at her own expense, Ethics and Judging: Reaching Higher Ground, a National Judicial College Course and (2) receive a public censure to be published in the State Bar of New Mexico Bar Bulletin.

The court

While we commend Judge Rosner for recusing when she realized she could not be impartial, her use of the order denying Father’s motions, a tool used to carry out her official judicial duties under Article VI, Section 1 of the New Mexico Constitution, to respond to criticism was inappropriate. It was also inappropriate to reference the conclusion of the sealed doctor’s report, not only because it was sealed, but also because it had no bearing on the disposition of Father’s motions. While judges may respond to public or personal criticism, they may not do so in carrying out their official judicial duties. Rule 21-300 NMRA (“A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”). Having misused the order denying Father’s motions to respond to public criticism, we conclude that Judge Rosner violated Rule 21-204(A)-(B) and Rule 21-201(A), (E).

We recognize the challenges faced by district court judges, often presiding over emotionally charged cases involving litigants and lawyers who might challenge their authority, insult their integrity, impugn their good names, and even attempt to bait them into losing control. In those instances, district court judges, no matter how egregious the behavior by counsel or clients, must remain above the fray in order to carry out their official duties. Judges are equipped with tools to address inappropriate behavior on the part of the parties and counsel, in the form of sanctions and contempt powers, which should be used as needed. Judges must always remain cognizant that an essential function of their role in the judiciary is to be a neutral arbiter even in the throes of highly adversarial proceedings. By adhering to these responsibilities, the judge may effectively avoid any appearances of impropriety, as well as actual instances of impropriety.

While Judge Rosner’s admitted conduct violates several of the Rules of Judicial Conduct, this Court looks at various factors when deciding to impose judicial discipline including “the nature of the misconduct and patterns of behavior[,] . . . the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.” Schwartz2011-NMSC-019, ¶ 25 (internal quotation marks and citation omitted).

Censure was deemed appropriate. (Mike Frisch)

February 3, 2023 in Judicial Ethics and the Courts | Permalink | Comments (1)

Sodom And Steam

An Illinois Hearing Board proposes a six-month suspension for client-related and other misconduct

Respondent failed to respond to a motion for summary judgment, did not communicate with his clients about the motion, and did not inform them that a judgment was entered against them. In another matter, Respondent received and held 13 garnishment checks owed to a client but did not deposit them in a client trust account. He did not timely respond to his client’s inquiries about the checks, provide an accounting, or promptly deliver the garnishment funds owed to the client. While representing a client in a domestic relations matter, Respondent made gratuitous comments of a sexual nature to opposing counsel and a paralegal.

The Hearing Panel found that Respondent failed to act with reasonable diligence and promptness; failed to promptly inform the client of a decision or circumstance that required the client’s informed consent; failed to reasonably consult with the client about the means by which the client’s objectives were to be accomplished; failed to keep the client reasonably informed about the status of the matter; failed to promptly comply with reasonable requests for information; failed to hold property of clients or third persons separate from the lawyer’s own property; failed to promptly notify the client of his receipt of funds in which the client had an interest, deliver funds the client was entitled to receive, and provide a requested accounting; and, in representing a client, used means that had no substantial purpose other than to embarrass, delay, or burden a third person. The Hearing Panel recommended that Respondent be suspended for six months and until he makes restitution or provides proof of a settlement with his former clients and his consistent compliance with such settlement.

Gratuitous comments

In 2021, Respondent and attorney Kristen Fischer represented opposing parties in a domestic relations matter. Fischer’s law office and the office of Rincker Law, where Respondent was employed, were on the same floor of an office building in Champaign. Fischer shared office space with another attorney, Sami Anderson. Stephanie Schnepper worked as a paralegal for both Fischer and Anderson. (Tr. 23, 24).

Schnepper testified that, in August 2021, Respondent entered the Fischer/Anderson office space. Schnepper greeted him and asked, “How are you today?” Respondent replied that “he was great, he had just been naked in his office.” After he said this, Respondent went into Anderson’s office. (Tr. 26). Anderson heard Schnepper’s exchange with Respondent and heard him say “he had been naked on his couch in his office.” (Tr. 59). Both Schnepper and Anderson denied that they misheard Respondent. (Tr. 62). Respondent denied saying he had been naked on his couch in his office and testified that he did not have a couch in his office. (Tr. 78).

According to Anderson, the manner in which Respondent speaks “can come off as crude,” so she did not have a reaction to his comment. (Tr. 59). Anderson acknowledged that she and Respondent had used profanities in conversation in the past and that Respondent did not have a couch in his office. (Tr. 64).

The other statements at issue were made on October 4, 2021. That morning, Fischer and Respondent met in the Rincker Law office to attempt to reach a settlement in a domestic relations matter in which they represented opposing parties. (Tr. 38-40). During this meeting, while discussing that the matter had been difficult and frustrating, Respondent said he thought the solution with respect to his client was to “butt f**k her with sand put on it.” (Tr. 41). Later that day in Fischer’s office, Respondent repeated this statement to Fischer and Schnepper, saying his client “needed to be butt f***ed and for some added torture some sand put on it.” (Tr. 27, 42).

Schnepper testified she was disgusted and taken aback by Respondent’s statement. She felt his language was violent. (Tr. 28). In Fischer’s view, Respondent’s statements negatively impacted the integrity of the settlement process by putting everyone in a difficult position. She felt it was disrespectful for Respondent to speak about his client that way. (Tr. 44).

According to Respondent, his actual words were that “[the client] should be involuntarily sodomized, and just for her I would throw in some sand.” (Ans. at par. 51). Fischer denied that Respondent used the word “sodomized.” (Tr. 49). Respondent testified that his client was the most difficult client he ever had, and he made the statements about her to “blow off steam.” (Tr. 80).

Also on October 4, 2021, while in Fischer’s office discussing the domestic relations matter, Respondent brought up a proposal that Fischer had previously rejected. When Fischer told Respondent she did not want to revisit that issue, Respondent replied, “Would you just let me finish, I promise I won’t get any in your hair.” Fischer, Schnepper, and Anderson heard Respondent make that statement. (Tr. 28-29, 45-46, 60). According to Respondent, he said, “I will get out of your hair.” (Tr. 78-79). Fischer, Schnepper, and Anderson denied that Respondent said, “I will get out of your hair.” (Tr. 33-34, 52, 64).

Schnepper was mortified by Respondent’s remark and went to speak to Respondent’s employer, Cari Rincker, but Rincker was not in her office. (Tr. 29). Schnepper was so upset by Respondent’s disrespect toward Fischer that she cried. (Tr.30).

Fischer was stunned by Respondent’s remark but did not react because she wanted to focus on her client. (Tr. 46). She testified that Respondent’s behavior caused a strain on the working relationship between her office and the Rincker Law office. (Tr. 47). Respondent’s employment at Rincker Law was terminated as a result of his statements to Fischer and Schnepper. (Tr. 76-77).

Proposed sanction

Having carefully considered the proven misconduct, relevant circumstances, applicable case law, and purposes of the disciplinary process, we recommend that Respondent be suspended for six months and until he has made restitution to the Prestons or provides proof that he has entered into and is consistently complying with a settlement agreement with them. This recommendation accounts for Respondent’s neglect of the Preston and Unique Homes matters as well as his vulgar remarks to Fischer and Schnepper. We determine that this sanction is necessary to make the Prestons whole, protect the public and the profession, and impress upon Respondent and other attorneys the importance of protecting client interests and conducting oneself in a respectful and ethical manner.

(Mike Frisch)

February 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Resignation Accepted

The Oklahoma Supreme Court has accepted an attorney's resignation in the face of pending allegations

The complaint was based upon the Respondent's representation of Dawn Fambrough. The Respondent was hired to represent Fambrough in a class action lawsuit. Upon settlement of the lawsuit, Respondent was accused of not paying the correct amount to the client. He was also accused of not properly safeguarding funds, providing false and misleading documents regarding his case, dishonesty in his representation of his client, making misrepresentations to the Oklahoma Bar Association, and failure to communicate properly with his client. The Respondent was licensed to practice law in both Oklahoma and Texas. A complaint had also been filed in Texas concerning the same client and issues. A hearing in SCBD 6960 was stayed pending the Texas disciplinary proceedings. The Respondent was ultimately suspended from the practice of law in Texas for ten years, beginning on June 24, 2021 (Commission for Lawyer Discipline v. Kenneth Shane Walker, Case No. 201803859, District 6 Grievance Committee of the State Bar of Texas). The Respondent appealed the suspension on August 20, 2021. On October 4, 2021, the Respondent's name was stricken from the roll of attorneys in Oklahoma due to failure to pay bar dues. His Texas appeal was later dismissed on August 24, 2022. The Respondent did not notify the Complainant about his Texas suspension as required by Rule 7.7, RGDP. Thereafter, on September 23, 2022, the Complainant filed a Notice of Disciplinary Action in Another Jurisdiction, case number SCBD 7327, pursuant to Rule 7.7, RGDP. The two disciplinary matters, SCBD 6960 and SCBD 7327, were consolidated into SCBD 6960 on October 26, 2022, by order of this Court. On November 17, 2022, this Court ordered the Professional Responsibility Tribunal to hold a combined hearing and to issue a single report. Prior to any hearing, the Respondent executed an affidavit regarding resignation pending disciplinary proceedings on January 10, 2023. The Complainant filed the affidavit along with its Application for Order Approving Resignation Pending Disciplinary Proceedings on January 17, 2023, pursuant to Rule 8.2, RGDP.

He may apply for reinstatement after five years. (Mike Frisch)

February 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Choosing Sides

A remarkable oral argument yesterday before the Maryland Supreme Court involves a matter in which Bar Counsel opened an investigation of a judicial candidate who was challenging incumbent judges 59 minutes after receiving information from the campaign manager of those judges.

While the principal allegations involve statements made by the Respondent in her effort to unseat sitting judges, Bar Counsel also filed, pursued and prevailed before the Circuit Court on charges relating to her 1999 application for admission to the New York Bar. 

There is sharp questioning - particularly but not exclusively from Justice Watts - suggesting concern that Bar Counsel may have engaged in a conflict of interest by inserting herself in an ongoing judicial election for the benefit of the incumbent candidates.

The viewer is free to judge whether there were satisfactory answers to these questions.

Respondent's counsel also suggested that inaccurate/untrue statements made by or on behalf of the incumbents went uninvestigated and unpunished.

In a 2005 law review article, Professor James Moliterno warned about the use of bar sanctions as a political tool of the powerful and entrenched establishment to punish those who take on such interests. 

The court dismissed similar charges in a 2015 decision

This case arose out of a hotly-contested primary election campaign for a position on the Circuit Court for St. Mary's County. An experienced prosecutor in the County sought to unseat a newly-appointed judge who, during the course of his career, had represented defendants in criminal cases in the County. As in many election campaigns, each candidate touted, with some exaggeration, his own experience and credentials. And each candidate disparaged, in various ways and without absolute accuracy, those of his opponent. The question before us is whether there is clear and convincing evidence that a statement in the challenger's campaign flyer was made with knowledge that it was false or with reckless disregard of its truth or falsity and therefore violated the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”).

The Attorney Grievance Commission (“Commission”) charged Respondent Joseph M. Stanalonis with violating MLRPC 8.2(a) (false statement as to qualification or integrity of a judge, public legal officer, or candidate for such office), MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice) by virtue of three statements about his opponent in a campaign flyer circulated on his behalf. Pursuant to Maryland Rule 16–752(a), this Court designated Judge Melanie M. Shaw Geter of the Circuit Court for Prince George's County1 to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law.

Following a hearing at which Mr. Stanalonis was present and represented by counsel, the hearing judge issued findings of fact and recommended conclusions of law. The hearing judge concluded that two of the statements did not violate the MLRPC, but that the third statement violated all of the cited rules, although Mr. Stanalonis had a “demonstrable basis” for making that statement. Mr. Stanalonis excepted to the conclusion that he had violated the MLRPC. We sustain that exception, and, as a result, shall dismiss the charges.

Our earlier coverage of this case is linked here.

It will be interesting to see what the court does with this important case.

UPDATE: Maryland Bar Counsel announced her resignation on February 6, 2023. (Mike Frisch)

February 3, 2023 in Bar Discipline & Process | Permalink | Comments (2)

Thursday, February 2, 2023

Macon Place

The Missouri Supreme Court ordered a suspension without reinstatement for at least two years for a former  judge's misconduct in an unsuccessful reelection campaign in Macon County

A reprimand was imposed on these charges in November 2015

The misconduct stemmed from four counts: (1) engaging in a text message exchange with a candidate for circuit clerk that threatened Prewitt’s involvement in the circuit clerk’s campaign if she did not remove his opponent’s signs from her yard; (2) maintaining a Facebook account identifying Prewitt as an associate circuit judge through which he made 11 postings encouraging others to attend certain charitable events or make donations to certain charities; (3) criticizing other judges in a Facebook post by stating “unlike many other judges, I am very open about decisions I make in cases because I am proud of the work I do”; and (4) questioning a prosecutor during an arraignment about the strength of a case, advising that he did not want to unnecessarily prevent the defendant from playing football and that the prosecutor should dispose of the case.

The present charges

The current information OCDC filed against Prewitt contains two counts that remain before this Court. Both counts relate to Prewitt’s campaign for associate circuit judge against Burks in the course of the 2018 election. One count encompasses threats made to Burks. The other involves Prewitt’s speech at a campaign event. Prior events and interactions between Prewitt and Burks set the context for this Court’s findings.

Prewitt and Burks previously opposed each other in the 2014 election for associate circuit judge. Prewitt, the incumbent, ran as a Republican. Burks ran as a Democrat. Directly before the election, Burks sent out a mailer disputing several of Prewitt’s campaign claims. The top of the mailer stated: “PREWITT…WORKING TO MISLEAD VOTERS.” Prewitt defeated Burks in the election.

Burks intended to run in 2018; the opponents had an encounter

The details of the encounter are in dispute. According to Burks, Prewitt inquired whether she intended to run against him in the election. Burks responded she was still undecided. Prewitt purportedly stated, if she were to run against him that he would file an ethics complaint premised on the mailer sent before the 2014 election and that he knew about Burks’ husband’s conduct. Prewitt denies making any statement beyond asking Burks about her intention to run.

While it was not publicly known, Burks' husband had strayed

At some point prior to the 2018 election, at a prayer event on the grounds of the local courthouse, Prewitt informed Pastor Bray that, if Burks were to run for the associate circuit judge position, it would cause a rift within the church. Pastor Bray was a friend of Burks’ husband. Prewitt provided Pastor Bray with details of Burks’ husband’s infidelity, noting the husband had broken up marriages in town. Pastor Bray relayed information about Prewitt’s comments to Burks’ husband. Prewitt, in his testimony before the disciplinary panel, confirmed it was possible he discussed the affairs with Pastor Bray in passing. When Burks learned of the conversation, she was upset Prewitt was interfering with her family’s church-related life.

There was evidence of Prewitt's discussions with others but nonetheless

Burks entered the 2018 election as an Independent candidate. She won the election and took office in January 2019. Prewitt did not follow through on publishing advertisements detailing the affairs of Burks’ husband or publicly stating Burks was supporting a predator. Prewitt could not unequivocally say he did not ever bring up the topic of Burks’ husband’s infidelity himself. He testified, “It was very surprising to a vast number of people given that she would be putting herself in the public eye.” He admitted one of the reasons he did not disseminate campaign information discussing the affairs was due to the complaint pending with the Judicial Commission.

Threats against Burks

Prewitt’s briefing acknowledges he “sought to dissuade [Burks] running for the office he held.” In accord with the panel, this Court finds Prewitt was doing more than warning his political opponent about topics that could emerge during the course of the campaign. Rather, Prewitt was attempting to coerce Burks into not running against him. First, he threatened that Burks’ filing would result in him filing an ethics complaint against her based on the previous campaign. Second, he threatened to give speeches and send out fliers in which he would call her husband a “predator.” Intertwined in this threat was Prewitt’s intention of making a point that Burks’ children, who were unaware of the affair, would be certain to learn of it.

A judge’s threat to file an ethics complaint against a lawyer, if and only if that lawyer decides to oppose him in an election, is impermissible.

In the discipline hearing

In his testimony before the panel, Prewitt refused to characterize as threats the prospect of sending out a flier labeling Burks’ husband as a “predator” and making known the information concerning the affairs. Prewitt believed Burks’ husband’s affairs to be relevant to Burks’ campaign because, if elected, Burks would oversee divorce cases and exercise her discretion in those cases. Even if this background information were relevant, a position merely assumed here, no legitimate purpose, other than to convince Burks to back out of the contest, can be discerned from Prewitt’s threat to ensure Burks’ children found out about the affairs. Prewitt responded he was “backed … into a corner” when Burks questioned whether he stated he would make sure her kids found out about their father’s extramarital relationships. Prewitt also did not deny characterizing the upcoming campaign as a “bloodbath.”

Prewitt's knowledge of an affair was a client confidence and not generally known

The extent of knowledge of the affair between Burks’ husband and BM is of relevance here. BM testified at Prewitt’s disciplinary hearing. Prewitt represented BM in her divorce, which was filed in 2009. BM testified she told a handful of friends about the affair but that “[n]ot everyone” in town or in Macon County knew about it. Several of OCDC’s witnesses answered questions about the extent of knowledge of the affairs. Pastor Bray was aware Burks’ husband had an affair before Prewitt approached him with the information. He learned of the information from his duties as a pastor, but he acknowledged he had also heard about it through the community. Olinger, the former police chief, did not hear the affairs discussed in 2018 by anyone other than Prewitt. He did not know about the affairs. In his experience as police chief, the affairs were not generally known in the community, although he admitted it would have been easily possible that others would have known about an affair even though he did not. Holman learned of the affairs sometime between 2013 to 2015. AL, one of the women with whom Burks’ husband had an affair, was the wife of a friend of Holman. Holman learned of the affair “just in passing around town” and confirmed it with his friend. He testified the affairs were not widely known in the Macon County community at first but “it got a little louder as the divorce [of BM] . . . started to take hold.” Meisner was aware Burks’ husband had one affair—the affair with AL. At some point before the 2014 election, Burks told Meisner her husband had been unfaithful. Meisner did not learn of the second affair—the affair with BM—until counsel for Prewitt took his deposition in this matter. According to Meisner, no one in the community was discussing the affairs.

Not "generally known"

While allowing that salacious details may travel quickly in a small town, as was often referenced in testimony, this Court does not find the information that BM engaged in an affair with Burks’ husband was generally known. It may be that rumors of an affair were generally known, and it could be the case that the affair with AL was generally known, but this Court finds from the record that the affair with BM was not generally known. The information was not widely recognized by members of the public in the relevant geographical area.

The court rejected the claim that the information was not confidential

Even if Prewitt discovered additional details of BM’s affair afterwards, in the course of their social engagements, use of these details would still have “relat[ed] to the representation” of BM and would have violated Rule 4-1.9(c).

Sanction

When mitigating and aggravating factors are weighed, the presumptive discipline of a suspension is not ameliorated. The abundance of factors in aggravation, in combination with the seriousness of the Rules violated and that the wrongdoer was a judge at the time of the transgressions, further moves this Court to impose a suspension...

For the foregoing reasons, this Court orders Prewitt be suspended indefinitely with no leave to apply for reinstatement for two years.

(Mike Frisch)

February 2, 2023 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Use Of Inadvertently Disclosed Discovery Does Not Mandate Disqualification

The Washington State Court of Appeals Division Three affirmed a conclusion that use of inadvertently disclosed electronic discovery did not require disqualification of counsel

Electronically stored information is ubiquitous in contemporary law practice. When an attorney responds to a discovery request by sending electronically stored information to opposing counsel, care must be taken to avoid inadvertent disclosure of embedded information that might be subject to a claim of privilege. Nevertheless, if an inadvertent disclosure happens, the receiving attorney must take corrective action, including notifying the sender. Sanctions must be imposed if an attorney fails to take corrective action, with the most severe sanction being disqualification.

Counsel for Lloyd & Williams, LLC, and its members, Dewight Hall Jr. and Tod W. Wilmoth (collectively L&W), inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel that had been partially redacted but not scrubbed of embedded text. Instead of notifying counsel for L&W and sequestering the documents, opposing counsel cited portions of the embedded text in support of a summary judgment motion. This prompted L&W to move for opposing counsel’s disqualification.

The failure of opposing counsel to take corrective action violated rules of civil procedure and professional conduct. Nevertheless, the trial court ruled disqualification was not an appropriate sanction because counsel’s rule violations were not intentional. Having accepted discretionary review of this matter, we find no abuse of discretion in the trial court’s choice of sanction. Accordingly, we affirm.

The story

Patty Hur is embroiled in a contract dispute with L&W. Responding to a discovery request, L&W’s lawyer, George Ahrend, sent more than 1,000 pages of e-mails to Ms. Hur’s lawyer, Heidi Urness. The discovery was sent electronically and was accompanied by a notice stating privileged information had been redacted. Mr. Ahrend later explained he redacted the purportedly privileged e-mails by blacking out the substantive content, leaving the header information (i.e., date, sender, recipient, and subject) visible in lieu of
a privilege log.

More than one year after receipt of the discovery responses, Ms. Hur moved for partial summary judgment. Attached to Ms. Hur’s declaration in support of the motion were two exhibits taken from Mr. Ahrend’s discovery materials. The exhibits are screenshots, and each image has a left-hand column and a right-hand column. The left-hand columns display the results of keyword searches. The search results are sentence fragments containing the search terms “Maggie” and “rent,”  accompanied by a denotation of how many “matches” had been found in the searched documents. Clerk’s Papers (CP) at 71-74. Alongside each set of search results, in the images’ right-hand columns, appears a visual of e-mail headers followed by completely blacked out text.

Mr. Ahrend reviewed Ms. Hur’s summary judgment submissions and recognized the e-mail fragments as content he had intended to redact. Upon further investigation, Mr. Ahrend discovered his attempt at redaction had been only partially successful. Although portions of the discovery had been blacked out, the metadata3 associated with the redacted portions had not been removed from the documents produced. As a result, the content of the blacked-out text was discoverable upon performing a word search of the document.

L&W moved to disqualify Ms. Urness from the case, alleging her receipt and retention of privileged materials violated ethical and discovery court rules. Ms. Urness denied any wrongdoing. She provided various explanations for her conduct, including assertions that she did not understand metadata and that she had received at least some of the information from a third party. Ms. Urness also argued the e-mails were not privileged and that they revealed L&W had engaged in its own ethical violations by withholding information and making misstatements to the court.  Ms. Urness was adamant she had not tried to uncover privileged information, but had simply performed a word search of the discovery materials.

The court considered both civil and ethics rules

Taken together, these rules require a recipient of inadvertently disclosed information subject to a claim of privilege to notify the sender and either return, sequester, or destroy the materials. Under CR 26(b)(6), the attorney can share the materials with the court in camera if privilege is disputed. But until the issue of privilege is resolved, the attorney should not disclose the materials to others, including the public by way of a nonconfidential court filing.

L&W contends Ms. Urness violated the foregoing rules by reading its privileged e-mails. This is incorrect. The rules do not prohibit a lawyer from reading inadvertently disclosed information that is subject to a claim of privilege. The only proscription is of the failure to take corrective action.

L&W also claims Ms. Urness somehow purposefully “looked behind the redactions” to view privileged materials. Pet’rs’ Opening Br. at 20. Had this occurred, it would have been a significant ethical breach. See Wash. State Bar Ass’n (WSBA) Rules of Prof’l Conduct Comm., Advisory Op. 2216 (2012). But the record does not support L&W’s claim. When Mr. Ahrend’s office produced the discovery responses, his staff advised Ms. Urness that information subject to a claim of privilege had been redacted. Proper redaction means taking reasonable steps to prevent disclosure of confidential metadata.

The court found that the use violated the rules but that disqualification was not required in light of the relevant factors

Our court has identified four factors trial courts must consider in determining whether disqualification is an appropriate remedy for an attorney’s access to privileged information: (1) prejudice, (2) counsel’s fault, (3) counsel’s knowledge of the claim of privilege, and (4) the possibility of lesser sanctions.

The trial court properly exercised its discretion

We affirm the trial court’s order denying L&W’s motion for disqualification. This disposition is without prejudice to any future case developments. For example, Ms. Urness represented to this court during oral argument that the only redacted materials she accessed were the two e-mail excerpts referenced in Ms. Hur’s motion for summary judgment. Wash. Court of Appeals oral argument, supra, at 24 min., 45 sec. to 25 min., 10 sec. We expect that, as a licensed attorney, Ms. Urness’s representation to this court was truthful. In the unlikely event this was not the case, a new motion for sanctions may be appropriate.

(Mike Frisch)

February 2, 2023 | Permalink | Comments (0)

A Changed Man

A petitioner who had been permanently disbarred in New Jersey has been conditionally reinstated by the New York Appellate Division for the Third Judicial Department.

By March 2013 order, respondent was permanently disbarred in New Jersey by the Supreme Court of New Jersey due to his involvement in a fraudulent real estate transaction, his repeated misrepresentations to his former business partners and his attempt to conceal his misconduct by creating and submitting fictitious documents to disciplinary authorities.

Reciprocal disbarment was imposed in New York.

Here

Following the hearing, the three-member subcommittee filed a report in July 2022 which unanimously recommended that respondent's motion for reinstatement be denied.

The court

our analysis does not conclude with a consideration of the facts giving rise to respondent's disciplinary sanction, and we instead must also consider respondent's conduct and circumstances over the intervening decade since his disbarment...

During his personal statement before us at argument, respondent accepted full and total responsibility for the conduct which gave rise to his disbarment and reflected on his "hundreds of hours" of subsequent introspection and contrition concerning his actions. Notably, respondent's disbarment coincided with a host of additional challenges which beset respondent and his family, including the loss of his home to Hurricane Sandy and his adult child's debilitating illness. The confluence of these multiple challenges ultimately led respondent to embrace sobriety, eliminate unhealthy relationships and influences from his life and to seek therapeutic intervention. In sum, respondent claims that the challenges of the last decade have left him a changed man, and the papers submitted in support of his application evidence that he has since reconciled with formerly estranged family members, reembraced an athletic discipline which has afforded him focus, friendships and mentoring opportunities, and has generally conducted himself in a lawful manner. Character references submitted on respondent's behalf also demonstrate his philanthropic endeavors and his trustworthy reputation within his community, even amongst those who are aware of his past professional misconduct.

Subject to conditions

While we have concluded that respondent has established the requisite character and fitness for the practice of law and that his reinstatement would be in the public's interest, in light of the concerns expressed by the Character and Fitness subcommittee, and mindful of the nature of the misconduct which gave rise to respondent's disbarment, we deem it appropriate to condition respondent's reinstatement upon certain probationary requirements.

Among the conditions are participation in the Bar's counseling program and mentoring relationship with an attorney. (Mike Frisch)

February 2, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Insurance Claim And Recusal

The Florida Judicial Ethics Advisory Committee has issued an opinion

Civil judge who presides over insurance-related cases and who filed an insurance claim following Hurricane Michael should 1) disclose to all insurance-related litigants in their division of the judge’s filing of a hurricane-related insurance claim; and 2) recuse themselves from any cases involving the same insurance company with whom the judge’s claim is pending.  If the judge’s claim settles, there should be disclosure of the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company. If the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the representation ends.

Issue

Issue 1: Under what circumstances must judges disclose and/or recuse themselves from hurricane-related cases when they have filed an insurance claim with an insurance company that also has cases coming before them?

ANSWER: Pursuant to Canon 3E and its commentary, the inquiring judge(s) should 1) disclose that they have a filed a pending hurricane-related insurance claim to all parties or their attorneys with  hurricane-related insurance claims in their division; and 2) recuse themselves from any cases involving the insurance company with whom the judge has filed their claim.

Issue 2: What if the case settles?

ANSWER: If the case settles, the inquiring judge must disclose the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company.

Issue 3: What if the insurance case proceeds to litigation?

ANSWER: If the case proceeds to litigation, and the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the litigation ends.

(Mike Frisch)

February 2, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, February 1, 2023

Only Disbarment

The Louisiana Supreme Court has disbarred an attorney who made false representations to secure access to over $200,000 held by a court pending resolution of a dispute with his former law partner and practiced law after an interim suspension

The record establishes by clear and convincing evidence that respondent made multiple misrepresentations in connection with the filing of an ex parte motion to withdraw more than $200,000 in disputed funds from the registry of the court. Specifically, respondent represented to the trial court that his former law partner had no opposition to the withdrawal of the funds, when respondent knew this was not the case. Furthermore, respondent did not serve a copy of the motion on his former law partner or his counsel of record, contrary to his representations to that effect in the certificate of service. Respondent then filed two additional pleadings – an opposition filed in the trial court and a writ application filed in the court of appeal – in which he made additional misrepresentations of fact. Finally, respondent repeatedly engaged in the unauthorized practice of law after he was placed on interim suspension. Under these circumstances, respondent violated the Rules of Professional Conduct as charged in the formal charges.

Sanction

Respondent acted intentionally, and violated duties owed to his clients, the legal system, and the profession, causing both actual and potential harm. The applicable baseline sanction is disbarment. The aggravating and mitigating factors found by the board are supported by the record.

Respondent’s misconduct was undoubtedly egregious. However, we see no compelling reason to deviate from the baseline sanction in this matter. Accordingly, we will impose disbarment, retroactive to September 28, 2018, the date of respondent’s interim suspension. 

Justice  Crichton would make it permanent

As the majority’s opinion reflects, respondent prepared an ex parte motion to withdraw disputed funds amounting to over $200,000 deposited in the court registry and represented to the court that the motion was unopposed when, in fact, respondent had no personal knowledge that the motion was unopposed. Moreover, respondent included with his motion a certificate of service certifying he had served the motion on all counsel of record. This certification was also patently false. Based upon respondent’s false representations to the court, the court released the deposited funds to respondent, who immediately deposited the check and spent the money. Upon receiving a later-filed opposition to the motion to withdraw, respondent again represented to the court that his original motion to withdraw was unopposed.

Respondent also verified under oath that, following the trial court’s refusal to continue a hearing on his opponent’s Motion for New Trial regarding restoration of the funds to the court registry, he had emailed and mailed a copy of his writ application to the court of appeal to all counsel of record. Again, this representation was false. Opposing counsel only received a copy of the application in the mail after the appellate court had granted supervisory relief and ordered the trial court to select a new hearing date. When ultimately confronted about these repeated falsities, respondent consistently attempted to shift blame to others, primarily his non-lawyer support staff. As the Disciplinary Board noted, respondent’s intentional corruption of the judicial process in this regard most certainly qualifies under our amended rule as well as the guidelines for permanent disbarment.

Further, despite respondent’s 2018 suspension as a result of this serious misconduct, In re: Evans, 18-1433 (La. 9/28/18), 253 So. 3d 133, respondent continued to communicate with opposing counsel in several pending matters, engaged in settlement negotiations, and received, disbursed, and otherwise handled client funds by way of his trust account (upon which he was the only signatory) during his suspension. Although respondent claimed his unauthorized practice of law was based upon “an honest misunderstanding of the terms of his suspension,” I find his behavior falls within the guidelines for permanent disbarment (unauthorized practice of law) and demonstrates that there is no reasonable expectation for a rehabilitation of respondent’s character in the future.

Respondent’s continued lack of remorse for his egregious behavior, his multiple intentional misrepresentations to the trial court and the court of appeal, and his flagrant disregard for this Court’s authority by continuing to practice law after being prohibited from doing so demonstrate a clear lack of ethical and moral fitness to practice law. Accordingly, I find the only appropriate sanction under these circumstances is permanent disbarment from the practice of law. I therefore dissent.

(Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)