Thursday, January 26, 2023

Off The Books

The unusual circumstances of the sale of an automobile led to findings by a Maine Grievance Panel that an attorney had violated a previously-imposed probation and authorizing the filing of an information seeking suspension 

On July 29, 2016, Respondent purchased an automobile from Complainant at her family’s home in Southwest Harbor, Maine. He paid the agreed upon sale price in cash. Complainant provided to Respondent at that time all documentation legally required to effect the sale, including a bill of sale, an odometer disclosure form, and the original title to the automobile signed by her.

Respondent declined to provide his name to Complainant at the time of this transaction. He told her that he would complete his information on the title being transferred to him at a later time, and that his name was not required for the other documentation including the bill of sale. Despite reservations about this, Complainant completed the transaction without knowing Respondent’s name.

The Panel rejected as incredible his present claim that he had provided his name

Respondent drove away in the automobile purchased from Complainant that same day, after attaching dealer plates he brought with him.

Two years later

By letter dated September 11, 2018, over two years after purchasing the vehicle, Respondent wrote to Complainant requesting her assistance to obtain a replacement title for the automobile he purchased from her. He said in this letter that either she never provided the original title to him, or he lost it.

During the more than two years since he had purchased the automobile, at the time he sent Complainant this letter, despite owning the car and using it for his own personal purposes, Respondent had never registered it.

In fact, at the hearing Respondent acknowledged that during the approximately four years he owned and used this automobile, he never registered it, never insured it, and never paid sales tax or excise tax on it. Instead, he continued to use the automobile for personal purposes with the dealer plates attached until he sold it during the spring or summer of 2020.

The dealer plates used by Respondent belonged to Winthrop Auto. Respondent claims he was entitled to use these plates based on his “association” with Winthrop Auto. When asked about the nature of this association, however, Respondent admitted that he did not have any “real relationship” or “formal understanding” with this auto dealership. He has never been an owner, officer, or employee of Winthrop Auto.

Complainant expressed concerns about the situation and retained counsel, to no avail.

The panel expressed concerns about Respondent's statements to counsel

It is a reasonable inference that Respondent included this information in an effort to corroborate his characterization of Dr. Tuttle (repeated in his written submissions) as “assertive” and uncooperative. Even setting aside the inappropriate gender-based nature of this attack on the Complainant (presented as two senior male lawyers allegedly commiserating about an irrational female client), see M.R. Prof. Conduct 8.4(g), it is difficult to ignore the irony of Respondent characterizing Complainant as “assertive,” “difficult,” “hostile,” and as having a “personality disorder” in light of his own behavior, the aggressiveness of which he seems completely oblivious, as evidenced by not only the litigation he initiated against Dr. Tuttle as described in paragraph 24 below, but by his testimony during the December 27, 2022 hearing as well. In any event, Attorney Burke, although he does not have any notes or a specific memory of what he did discuss with Respondent, convincingly denied making any such statement about Dr. Tuttle. The Panel finds Respondent’s description of what Attorney Burke supposedly said about Dr. Tuttle, of which Respondent claims to have a firm recollection (but also no notes or other corroboration), is not believable, but rather an inappropriate effort to diminish Dr. Tuttle’s character and credibility.

Respondent sued complainant

During the fall of 2019, pursuant to a court order entered in the action filed against her by Respondent, Complainant at her own expense, including the need to take time away from her medical practice, went to the New Hampshire DMV (which Complainant represented would require a two hour drive) and obtained a copy of the 2016 registration of the vehicle in her name, which she provided to Respondent. With this copy of the former registration in Dr. Tuttle’s name, Respondent was able to obtain a new title for the automobile, which he acknowledged receiving by late December 2019.

And did not attend the trial

Respondent testified that his failure to appear was due to a vaguely described and uncorroborated error with his office calendar. The Panel finds his explanation is not credible, and instead finds it is more likely than not that he deliberately failed to appear for trial, having already obtained the relief he requested other than his costs which he was unlikely to recover, as a final act of vindictiveness against Complainant, who again had to close her medical practice and travel several hours to Maine to attend a hearing on a claim that Respondent no longer had any intention of pursuing, but refused to dismiss voluntarily.

Findings

this Panel has concluded that Respondent violated the Maine Rules of Professional Conduct, including specifically Rule 3.3(a)(1), Rule 8.1(a), and Rules 8.4(a), (c), and (d).

Result

This Panel finds Respondent’s history of discipline and sanctions, and in particular his violation of his current Probation, to be aggravating factors. In the circumstances, this Panel finds a risk that the unethical conduct by Respondent is likely to be repeated. The Panel finds no mitigating circumstances, given the deliberate and dishonest nature of Respondent’s misconduct.

Accordingly, pursuant to M. Bar Rule 13(e)(10)(E), this Panel finds probable cause for suspension of Respondent, and directs Bar counsel to file an Information pursuant to M. Bar Rule 13(g).

Pursuant to M. Bar Rules 13(a) and (b), this Panel further directs Bar Counsel to undertake an investigation of Respondent’s use of the dealer plates from Winthrop Auto, with respect to the automobile purchased from Dr. Tuttle and otherwise, to determine whether such conduct constitutes further violations of the Maine Rules of Professional Conduct and other applicable law.

(Mike Frisch)

January 26, 2023 in Bar Discipline & Process | Permalink | Comments (0)

The Caller ID Showed Santos (No, Not George)

A public reprimand has been imposed on an attorney by the Massachusetts Board of Bar Overseers for violation of Rule 4.2.

The appended Hearing Report (citations omitted throughout) tells the story.

The attorney had been appointed to a criminal matter at the outset of the COVID shutdown. Both his client and co-defendant Robinson were in custody.

On April 9, 2020, the respondent received a telephone call that appeared, based on the caller ID, to be coming from Paul Santos, a name the respondent did not recognize. After the respondent answered, the caller identified himself as Charles Robinson, co-defendant of Juan Lopez. 

Robinson stated that he wanted to come to Massachusetts and file a statement with the Court, indicating that Lopez had never had possession of the firearm, which was Robinson’s, that Lopez was innocent of the charges and should not be in jail, and that Robinson was solely responsible for the gun. 

Robinson spoke non-stop in a torrent of words; there was not a break in his speech where the respondent could interrupt.

The respondent advised Robinson that the courts in Massachusetts were closed due to Covid-19, and that in any event they would not accept a statement directly from the respondent or directly from Robinson because, as the respondent proceeded to confirm, Robinson was still represented by Panas and had not spoken to Panas about making a statement. The respondent told Robinson that Panas would probably advise against signing the type of statement Robinson envisioned. 

The call lasted at most two or three minutes. 

We credit that the respondent had done nothing to solicit Robinson’s statement, and that he believed that what Robinson told him constituted potentially exculpatory evidence as to his client Lopez. 

Robinson called again and left a message; Respondent did not return the call but he did speak to Robinson's girlfriend about an affidavit based on his discussions with her

The respondent proceeded to draft an affidavit for Robinson’s signature under the pains and penalties of perjury, stating in pertinent part: Robinson was the registered owner of the black Ruger 380 handgun recovered by the police on Friday, March 20, 2020; Robinson’s handgun was never in the possession, custody or control of Lopez, either before the motor vehicle accident or after the accident; and Robinson had possession of the handgun at all times until he discarded it immediately prior to his arrest.

He faxed the draft affidavit to the girlfriend without advising Robinson's attorney.

On April 28, 2020, the respondent e-mailed ADA Del Rio Gazzo and asked her to call him. Ans. ¶ 27; Ex. 6. When they spoke later that day, the respondent told her that he had obtained an affidavit from Robinson in which Robinson accepted responsibility for the firearm. The respondent asked her to review the affidavit and consider reducing Lopez’s bail. As an experienced criminal attorney, Parlow know that the Robinson affidavit was likely to persuade Del Rio Gazzo to agree to a significant bail reduction, a motivating factor in obtaining such an affidavit.

The prosecutor agreed to a bail reduction but (unlike Respondent) contacted Robinson's attorney

Panas had not previously known about the affidavit. He was “surprised” and “a little upset.” Id. In a conversation later that day, he asked Del Rio Gazzo where and how she had gotten the affidavit, and whether she had spoken to the respondent. 

Lopez was released as a result.

The statements in the affidavit were suppressed and Respondent withdrew from the case

In his March 3, 2021 Statement under Oath to bar counsel, the respondent stated that he had exhibited a “lapse in judgment” in sending Robinson the fax, and that if he could do it over again, he would not have sent the affidavit to Robinson but, instead, would have sent it to Panas with an explanation.

Respondent acknowledged the misconduct; COVID-related stress was no justification

We credit that the respondent cared deeply for his clients and wanted them released from jail if at all possible. However, we find that none of this is enough to mitigate the respondent’s misconduct. While we credit that there was much confusion and uncertainty in March and April of 2020, the respondent has not proved that it was pandemic-related stress that caused his misconduct. The absence of causation is fatal.

And

We find that there was harm as the result of the respondent’s conduct. The integrity of the legal system and the administration of justice suffered; additional legal proceedings were necessary, among them the motion and hearing regarding contact with witnesses; the motion to suppress Robinson’s affidavit; the respondent’s motion to withdraw, and the appointment of new counsel for Lopez.

Further

We agree with bar counsel that the respondent did not display true remorse. While we recognize that he admitted the rule violation promptly and repeatedly, the regrets he described to us did not concern Robinson, but instead focused on the impact of the misconduct on the respondent himself and his own career—the embarrassment and blow to his reputation as the result of public disciplinary proceedings; the disclosures he has had to make to his malpractice carrier, CPCS and the Bar Advocate Program; and the “huge amount of time that this has taken out of my personal life and my professional life.”. Lack of remorse is a factor in aggravation.

He also had not been "entirely candid" about the situation.

Sanction

Although we have not found a case precisely on point, we conclude that the respondent’s misconduct is more in line with the public reprimand cases we have summarized above.

(Mike Frisch)

January 26, 2023 in Bar Discipline & Process | Permalink | Comments (0)

No Mitigating Factors

An attorney has been disbarred by the Minnesota Supreme Court

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Ignatius Chukwuemeka Udeani. The petition alleged that Udeani breached his ethical duties to five clients, three of whom were vulnerable immigrants, including by misappropriating client funds and providing incompetent representation, and then did not cooperate with the Director’s investigations into those activities. After a hearing, the referee concluded that Udeani committed the alleged misconduct and that multiple aggravating factors were present, including Udeani’s extensive experience as a lawyer, long discipline history, lack of remorse, and the vulnerable nature of his clients who were harmed. The referee found no mitigating factors. The referee recommended that Udeani be disbarred. We agree. Based on Udeani’s misconduct, we disbar Udeani from the practice of law.

Udeani was admitted to practice law in Minnesota in 2000. He has an extensive disciplinary history: he was put on private probation in 2007; admonished in 2012 and 2013; suspended for 30 days in 2017 and, when reinstated, placed on supervised probation for a period of 2 years; indefinitely suspended for a minimum of 3 years in 2020; and admonished four more times in 2020. This prior discipline was for multiple instances of misconduct concerning Udeani’s fee arrangements with clients, trust accounts, and failure to competently and diligently represent clients.

(Mike Frisch)

January 26, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Claims Against McDonald's Former Officer Survive

The Delaware Chancery Court denied a motion to dismiss claims against a former senior officer of McDonald's

Defendant David Fairhurst served as Executive Vice President and Global Chief People Officer of McDonald’s Corporation (“McDonald’s” or the “Company”) from 2015 until his termination with cause in 2019. In that position, Fairhurst was the executive officer with day-to-day responsibility for ensuring that one of the largest employers in the world provided its employees with a safe and respectful workplace.

In this action, stockholders of the Company have sued Fairhurst derivatively on the Company’s behalf. They allege that during Fairhurst’s tenure as the head of human resources, he breached his fiduciary duties by allowing a corporate culture to develop that condoned sexual harassment and misconduct. They assert that Fairhurst’s fiduciary duties included a duty of oversight, which required that he make a good faith effort to establish an information system that would generate the information necessary to manage the Company’s human resources function. They maintain that Fairhurst had a duty to use the resulting information to do his job and to report on his areas of responsibility to the CEO and the board. Those duties, they say, demanded that he address or report upward about any red flags regarding sexual harassment and misconduct at the Company. The plaintiffs do not allege that Fairhurst failed to make a good faith effort to establish information systems. They argue instead that Fairhurst breached his duty of oversight by consciously ignoring red flags.

Fairhurst has moved to dismiss the oversight claim under Rule 12(b)(6) for failing to state a claim on which relief can be granted. Fairhurst contends that Delaware law does not impose on officers any obligations comparable to the duty of oversight articulated by Chancellor Allen in In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996).

This decision clarifies that corporate officers owe a duty of oversight. The same policies that motivated Chancellor Allen to recognize the duty of oversight for directors apply equally, if not to a greater degree, to officers. The Delaware Supreme Court has held that under Delaware law, corporate officers owe the same fiduciary duties as corporate directors, which logically includes a duty of oversight. Academic authorities and federal decisions have concluded that officers have a duty of oversight.

The fact that corporate directors owe a duty of oversight does not foreclose officers from owing a similar duty. Just as a junior manager with supervisory duties can report to a senior manager with supervisory duties, so too can an officer with a duty of oversight report to a board of directors with a duty of oversight. And just as a senior manager with supervisory duties can hold a junior manager accountable for failing to fulfill the junior manager’s supervisory duties, so too can a board with a duty of oversight hold an officer accountable for failing to fulfill the officer-level duty.

Although the duty of oversight applies equally to officers, its context-driven application will differ. Some officers, like the CEO, have a company-wide remit. Other officers have particular areas of responsibility, and the officer’s duty to make a good faith effort to establish an information system only applies within that area. An officer’s duty to address and report upward about red flags also generally applies within the officer’s area, although a particularly egregious red flag might require an officer to say something even if it fell outside the officer’s domain. As with the director’s duty of oversight, establishing a breach of the officer’s duty of oversight requires pleading and later proving disloyal conduct that takes the form of bad faith.

Fairhurst thus owed a duty of oversight. He had an obligation to make a good faith effort to put in place reasonable information systems so that he obtained the information necessary to do his job and report to the CEO and the board, and he could not consciously ignore red flags indicating that the corporation was going to suffer harm.

Fairhurst next argues that even if he owed a duty of oversight, the plaintiffs have failed to allege sufficient facts to state a claim against him. The plaintiffs have identified red flags indicating that sexual harassment occurred at the Company. They also have alleged facts supporting a reasonable inference that Fairhurst knew about the red flags. The analysis comes down to whether Fairhurst acted in bad faith by consciously ignoring the red flags.

Holding

The plaintiffs have pled a claim against Fairhurst for breach of the duty of oversight. The plaintiffs also have pled a claim against Fairhurst for breach of the duty of loyalty based on the specific acts of sexual harassment in which he engaged. Fairhurst’s motion to dismiss under Rule 12(b)(6) is denied.

(Mike Frisch)

January 26, 2023 in Current Affairs | Permalink | Comments (0)

Wednesday, January 25, 2023

Former Washington Bar President Suspended In Idaho

A former President of the Washington State Bar has been suspended for five years with two years withheld by the Idaho Supreme Court for misconduct in connection with expenses charged to two law firms and to the Washington State Bar Association.

The Journal of Business reported on the charges

The Idaho State Bar has charged former Washington State Bar Association President Robin L. Haynes with professional misconduct in relation to five counts of theft brought by Spokane County prosecutors last year. 

Last February, in the face of those criminal charges, Haynes agreed to forego practicing law in the state of Washington for five years and entered a felony diversion program.

Following its own investigation, the Idaho State Bar calls for Haynes to be suspended, yet didn’t disclose a length of time. It also calls for Haynes to pay the costs and expenses incurred in investigating and prosecuting her case, and “for other such relief as if deemed necessary and proper.”

Joseph N. Pirtle, an attorney with the Idaho State Bar, says that the organization allows for reciprocal discipline for conduct in another state where an attorney has been charged. 

Summons were addressed to Haynes at her Post Falls, Idaho law practice GIANTlegal PLLC on May 4. Pirtle says Haynes’ lawyer informally accepted the complaint on her behalf. 

Haynes has 21 days to respond to the summons, at which point proceedings will go on like a typical criminal case.

In June 2012, Haynes was elected to the Board of Governors for the Washington State Bar Association. She then served as the youngest WSBA president from October 2016 to about June 2017. 

The charges stem from allegations levied during Haynes’ tenure as an associate attorney with the Spokane-based law firm McNeice Wheeler PLLC, from December 2015 through January 2017, and her time with Spokane-based Witherspoon Kelley PLLC, from October 2013 to December 2015. 

In response to these acts, the ISB states that the conduct by Haynes “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” 

The ABA Journal also reported on the matter. (Mike Frisch)

January 25, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Idaho Explains Rejection Of Proposed Anti-Discrimination Rule

The Idaho Supreme Court has issued a statement explaining its decision to reject an anti-discrimination ethics rule that had been proposed by vote of State Bar members

In November 2021, the Idaho State Bar Commissioners (“ISB” or “the Bar”) submitted proposed Resolution 21-01 for consideration by the Bar’s members. The resolution “recommend[ed] Idaho Rule of Professional Conduct 8.4 be amended to include anti-discrimination and anti-harassment provisions.” This resolution was voted on by eligible members of the Bar and passed by a margin of 680 to 329. After the resolution was passed, the Bar recommended to the Idaho Supreme Court that this Court adopt the resolution and amend the Idaho Rules of Professional Conduct. We decline to do so.

We acknowledge that a full explanation of our rejection of the resolution is an unusual response. However, we think it appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future. We commend the Bar’s continued attempts to address unlawful discrimination and harassment in the legal
profession. However, we feel obliged to reject the proposed resolution for the reasons discussed below.

Analysis

We conclude that the language of the resolution goes beyond the regulation of employment practices and is instead a content-based regulation of speech protected by the First Amendment. As a result, it is subject to a strict scrutiny analysis. While the framework of the resolution is based on Title VII principles of unlawful discrimination and harassment, and while the resolution does regulate some conduct, the resolution also singles out certain topics for professional discipline while leaving other topics not subject to discipline. An argument similar to the P&E Section’s ent was rejected by the Court in R.A.V.

Void for vagueness

Resolution 21-01 is also unconstitutionally vague. The Resolution leaves a reasonably prudent attorney with doubt about exactly what type of conduct or speech constitutes misconduct. Comment 4 in Resolution 21-01 attempts to narrow attorney conduct subject to the proposed rule. It specifically exempts “bar association, business, and social activities,” but only those that are “outside the context” of what the Resolution does include. This comment is confusing because it leaves the reader wondering what is included in the “context of representing a client or operating or managing a law practice or acting in the course and scope of employment in a law practice.” Would a law firm’s holiday party fall “outside the context of . . . the course and scope of employment in a law practice[?]” What about a business dinner that included some of the firm’s partners but not all of them? What about attendance at the Idaho State Bar Annual Meeting or Bar section meetings when required by one’s law firm? These hypotheticals merely offer a small example of the gray area created by the Resolution regarding what type of attorney conduct and speech would rise to the level of professional misconduct.

Finally, and importantly, the Resolution could have a chilling effect on attorney speech. While there is evidence that the Resolution’s drafters sought to curb discrimination and harassment identified in the survey conducted by the Bar, such an intent cannot be used to justify the possible chilling of free speech. The Resolution covers a substantial amount of protected speech. By the same token, under a vagueness analysis, protected speech could be chilled due to both the Resolution’s expansive scope and its undefined terms. As a result, the Resolution is unconstitutionally vague. 

(Mike Frisch)

January 25, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Client Identity Gamble

A recent decision of the New Jersey Appellate Division is summarized below

Defendants – an attorney and law firm – have a client that produced a report, which asserts plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client's behest, the defendant attorneys forwarded the report to the New Jersey Division of Gaming Enforcement. When the media learned of the report, plaintiffs sued the defendant attorneys, as well as their anonymous client and other fictitious persons, alleging defamation and other torts. Plaintiffs successfully obtained an order compelling the defendant attorneys to provide their client's identity. The court granted the defendant attorneys' motion for leave to appeal.

Although RPC 1.6 generally imposes on attorneys the ethical obligation to refrain from disclosing a client's identity without the client's consent, the court held that this interest in preserving confidentiality cannot be used to thwart justice and, in appropriate circumstances, a client's right to anonymity may be overcome in favor of an injured party's right to seek redress in our courts. To resolve the conflict between these interests, there must be a deeper examination of the claim's merits than occurred here. The court, therefore, vacated the disclosure order and remanded for the judge's inquiry into the veracity of the report that lies at the heart of plaintiffs' civil action, leaving to the judge's discretion the methodology to be employed.

From the opinion

Because the precise nature of the information sought is not readily apparent, we decline the invitation to decide whether or how the informant's privilege or the work-product doctrine may apply to the discovery requests in question. Instead, we focus on the battle here that pits an attorney's obligation to avoid revealing a client's identity against a litigant's right to the discovery of information necessary for its pursuit of a civil cause of action. In achieving an appropriate balance between these important societal interests – and the ultimate judicial interest in the pursuit of the truth of the parties' assertions – we conclude that the revelation of the client's identity, if at all discoverable, must await a better understanding of the weight of plaintiffs' causes of action, which seem to greatly, if not exclusively, turn on the Report's veracity.

The court declined to adopt the "absolutist" positions of either side

In short, we are satisfied that somewhere between the parties' polar opposite positions lies a middle ground where the client's desire for anonymity does not entirely eviscerate another's valid cause of action or, stated the other way, where a civil claim may not be of sufficient weight to overcome the strict policy interests underlying RPC 1.6's general rule of nondisclosure. Although Advisory Opinion No. 544 dealt with quite a different circumstance than presented here, the Court's decision makes clear that there may be instances when some degree of disclosure may be warranted.

Remand required

we leave to the trial judge's discretion the best way to proceed. What is required need not be elaborate. The judge may or may not decide that an evidentiary hearing would be helpful. It may be that some abbreviated discovery – perhaps allowing plaintiffs to depose the defendant attorneys and explore what it is they did and what they considered in finding the Report credible – may go a long way in providing the judge with greater clarity about the Report's veracity, which seems to be the key to the success or failure of plaintiffs' suit. Or, it may be – considering the DGE and its Pennsylvania counterpart have had the Report for over a year – that their investigations have yielded, or may soon yield, sufficient enlightenment about the Report's veracity. Perhaps, some other approach – standing alone or in combination with those we have suggested – may provide an expeditious path toward fulfilling our mandate. The judge should also consider whether or to what extent information should be received and reviewed in camera as the means for best protecting the client's anonymity until a ruling on disclosure may be made.

(Mike Frisch)

January 25, 2023 in Privilege | Permalink | Comments (0)

Interim Suspension Follows Arrest

An interim suspension has been ordered by the Arkansas Supreme Court Committee on Professional Conduct of the son of a former Governor of the state

Lisa Ballard, Executive Director of the Supreme Court Office of Professional Conduct, has presented to the Committee her verified Petition for Interim Suspension, pursuant to Section 16.4(3) of the Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law (2011) (the "Procedures"), alleging Respondent William Asa Hutchinson, III, Arkansas Bar No' 2001115, presently poses a substantial threat of serious harm to the public and to his clients if he
continues to practice law.

The Arkansas Supreme Court Committee on Professional Conduct (the "Committee"), pursuant to the mandate of Section 16 of the Procedures, finds the allegations of the petition are "serious misconduct", and involve alleged violations of the Arkansas Rules of Professional Conduct.

The Committee further finds that an interim suspension of Respondent's privilege to practice law under the authority of his Arkansas law license shall be imposed pursuant to Section 17.E(3XcXiii), of the Procedures (201 1)

KNWA reported on the attorney's recent arrest 

According to the affidavit, on Jan. 13, William was pulled over for speeding, reportedly driving 71 mph in a 45 mph zone.

The affidavit says the sheriff’s deputy who stopped William noticed him slurring his words when he would speak and could smell a strong odor of alcohol.

According to the affidavit, the deputy suspected William of driving under the influence of alcohol based on his actions and odor and asked him to exit the vehicle and perform several standard field sobriety tests on the corner of Been Street and SW 18th Street, which he failed.

The affidavit says William was arrested for driving while intoxicated, and the deputy searched William’s car where he found a clear plastic baggie with a white powdery substance.

According to the affidavit, the deputy performed a field test on the substance. The test showed a positive result for cocaine.

The affidavit says the deputy also found a Glock 43 9mm handgun in the center console of the car.

(Mike Frisch)

January 25, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 24, 2023

Media Remarks Draw Reprimand

The Manitoba Law Society has reprimanded an attorney for media comments about a high profile case

Mr. Prober made derogatory and unfounded comments to the media about the complainants in the Peter Nygard case. He said their statements about their interactions with his client were "completely false", that they were being paid for "false evidence" and had 'jumped' on "the money train, the gravy train". These comments perpetuated long discredited rape myths about complainants in sexual assault cases. They were hurtful and indeed harmed the complainants in question as was stated in two statements read to the Panel (Exhibits 2 and 3)

The attorney admitted the misconduct and showed mitigation

      Mr. Prober has successfully completed the Society's course Trauma Informed Lawyering since July 2020.

Mr. Prober provided some appropriate, apologetic, thoughtful, and insightful comments. Specifically, he said that his comments were "harsh, harmful and hurtful".

 Mr. Prober has been a member in good standing for over 52 years. This is a key, mitigating consideration in our conclusion that Mr. Prober will not reoffend and that there is no risk to the public in his continuing to practise

Sanction

In this case the professional misconduct brings the legal system into disrepute. This affects the public's confidence in and perception of the profession. The member had an obligation to be civil and courteous in his public statements defending his client. In recklessly attacking the credibility of a number of complainants without adequate supporting facts he breached that obligation.

For the foregoing reasons, the Panel has unanimously determined that a reprimand, as jointly recommended, is appropriate.

CTV News reported on charges against Peter Nygard

Once known as canada’s Hugh Hefner, Nygard founded his namesake fashion company in Winnipeg in 1967. He was known for his lavish parties at his Bahamas estate and hosting the rich and famous.

In recent years, he became the subject of sexual assault allegations, including recruiting girls for sex, some as young as 14 years old.

Nygard was first taken into custody in Winnipeg in December 2020. In October 2021, he agreed to be extradited to the United States where he faces charges of sex trafficking and racketeering.

In Toronto, the allegations of sexual assault and forcible confinement involve eight victims.

The attorney was called to the Bar in 1970 and has no prior discipline. (Mike Frisch)

January 24, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 23, 2023

"Sure He Can"

An attorney's conduct drew a two-year suspension with possible limited reinstatement after a year from the Delaware Supreme Court

The violations arose from a private investigator’s post-trial contact with a juror without court permission and Beauregard’s statements to the Superior Court about the juror contact.

The story

In March 2019, Beauregard accepted a case from the OCC to represent Ahmir Bailey. The State charged Bailey with first degree murder. On October 8, 2019, after a two-week trial, a Superior Court jury found Bailey guilty of first-degree murder. On October 14, 2019, Beauregard filed a motion for a new trial. He based the motion on possible juror bias stemming from a connection between a juror (“the Juror”) and Bailey’s co-defendant Eugene Riley. A secretary and a paralegal had discovered the possible connection by searching Facebook.

On October 18, 2019, Beauregard retained O’Rourke Investigative Associates (“ORIA”), a private investigative agency owned by Michael O’Rourke, to search for online evidence of a connection between the Juror and Riley.

The problem was in an email exchange that involved, among other things, the investigator's question whether the juror could be interviewed

At 4:52 p.m. Beauregard responded “Sure he can” in an email he sent only to O’Rourke, not Truitt.  According to Beauregard, he mistakenly and carelessly believed that he was re-confirming his instructions for ORIA to proceed with the interviews of the twenty-two non-juror witnesses, not that he was authorizing ORIA to contact the Juror.18 At 4:58 p.m., O’Rourke responded “Thx” to Beauregard’s email.

The investigator had direct contact with the juror; Respondent filed a new trial motion

On March 16, 2020, the Superior Court denied the motion for new trial.  The court concluded that the Juror and Riley having a mutual Facebook friend who was Riley’s cousin and who was also related to the Juror was insufficient for a new trial or an evidentiary hearing.  The court also found a violation of Rule 3.5 by Beauregard based on ORIA’s improper contact with the Juror without the court’s permission.

The Office of Disciplinary Counsel brought charges

The Board was not persuaded by the ODC’s argument that Rule 3.5(c) was a strict liability rule, and therefore concluded that the ODC had to show by clear and convincing evidence that Beauregard knowingly assisted or induced Stack to contact the Juror. The Board found that the ODC had not satisfied this burden because Beauregard, an experienced criminal defense attorney, was well-aware of the prohibition against juror contact without court permission, and negligently sent the “Sure he can” email “using his iPhone at the end of a busy day involving court appearances in different matters in both the morning and afternoon.” The Board accepted Beauregard’s explanation that he meant to send the email as reconfirmation that ORIA could conduct non-juror interviews, not to authorize ORIA to contact a juror.

Failure to supervise

The Board concluded that Beauregard had violated Rule 5.3(a) by negligently failing to make reasonable efforts to ensure that ORIA did not contact jurors and by negligently sending the “Sure he can” email to O’Rourke. The Board acknowledged ORIA’s expertise and initial statement that there would be no juror contact, but emphasized that Beauregard had never previously worked with ORIA and that the nature of the investigation placed the responsibility on Beauregard to reinforce the requirements of Rule 3.5(c) with ORIA.49 As to Rule 5.3(c)(1), the Board found that ODC had not shown by clear and convincing evidence that Beauregard knowingly ordered ORIA to contact the Juror or knowingly or impliedly ratified that contact.

The Board also found that Beauregard violated Rule 5.3(c)(2) by failing to take remedial action after learning on November 5th that Stack had contacted the Juror. Although Beauregard ended the investigation and chose not to act on the Juror’s willingness to speak to him, he did not inform the Superior Court or the prosecutor of the contact until the prosecutor asked him directly at the December 13th hearing.  Nor did he inform O’Rourke of what happened so O’Rourke could ensure that juror contact would not be repeated in ORIA’s work for OCC contract attorneys.

Alleged false statements

The Board found that Beauregard’s representation that O’Rourke acted on his own in contacting the Juror was a negligent misrepresentation in violation of Rule 8.4(c).  Further, the Board decided that Beauregard’s representations that ORIA was still investigating, that he did not direct ORIA on whom to speak to, and that he did not direct ORIA to contact anyone were knowing misrepresentations in violation of Rule 8.4(c).

The court

After our independent review of the record, there is substantial evidence to support the Board’s findings that Beauregard violated DLRPC 3.5(c), 5.3(a), and 5.3(c)(2). As the Board found, and Beauregard does not contest, Beauregard failed to take reasonable steps to ensure that the non-lawyers assisting him acted consistent with his ethical duties; was negligent when he sent the “Sure he can” email; and failed to take any remedial action to mitigate ORIA’s improper juror contact until it was exposed at the December 13th hearing.

Sanction

The Court approves the Board’s findings and adopts the recommended two-year suspension with the opportunity for limited reinstatement after one year to represent OCC clients.

The attorney had just completed a six-month suspension for other misconduct.(Mike Frisch)

January 23, 2023 in Bar Discipline & Process | Permalink | Comments (0)

N-Word At Home No Basis For Discipline Per Louisiana Hearing Committee

A Louisiana Hearing Committee has found no ethical violation in a (now former) judge's use of the "n" word in her home.

The report - filed today - involves an incident that took place after an attempted burglary incident of vehicles outside the judge's home.

While at home and reviewing a video surveillance tape on her home security system, she was joined by her son and his friends and was overheard saying

We have a n*****, it's a n*****, like a roach.

The recorded video was posted on the interest and "widely circulated."

The judge resigned several days later.

According to the committee

There is no ground for discipline under the Louisiana Rules of Professional Conduct for profanities or uncivil language used by a lawyer in their own home.

The committee noted that the self-imposed sanction of resignation to be "more onerous than any discipline sought by the ODC such that any requested discipline is superfluous."

The Acadiana Advocate reported on the resignation.

More than 100 people filed complaints with the Louisiana Judiciary Commission after seeing the video. Even Saturday Night Live mentioned the judge after news of the slurs traveled worldwide.

(Mike Frisch)

January 23, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

Breaking Up Is Hard To Do (Ethically)

The breakup of a longtime professional partnership led to disciplinary proceedings that drew a reprimand of one partner and an admonition for the other by the New Jersey Supreme Court.

The attorneys had practiced law together since 1979 and had a real estate partnership that began in 1978.

As recounted by the Disciplinary Review Board

Here, as in Ali, the Superior Court directed McHugh and Macri to engage in certain actions – chief among them, maintain the status quo regarding Firm’s funds. Knowing that the court had issued orders to that effect, McHugh and Macri decided to ignore the court and instead, engaged in their own self-help. Thus, the baseline discipline for McHugh’s and Macri’s violations of RPC 3.4(c) and RPC 8.4(d), standing alone, is a reprimand.

However, McHugh not only violated the court’s November 30, 2018 order, he also violated the court’s August 31, 2018 order by writing a $31,800 ABA check payable to Fidelity and depositing the funds in his personal account in order to match Macri’s T&E expenses. Furthermore, he partially misrepresented to the court the status of his credit card charges by failing to verify the dates all the charges were made. Not learning from his mistake, McHugh made the same misrepresentation to the OAE. Considering McHugh’s additional, deceitful misconduct, we view a censure as the baseline discipline for the totality of his violations. However, we are obligated to weigh the impact of aggravating and mitigating factors.

Thus, with respect to aggravation, as stated in the stipulations, after Judge Brennan reported the parties’ misconduct to the District Ethics Committee, the actions of McHugh and Macri diverged. Macri initially acknowledged his poor decision making and expressed to the OAE that he would have done things differently. During oral argument before us, however, Macri attempted to disavow that prior contrite approach. Specifically, he asserted that he committed no misconduct because his actions were in response to McHugh’s misconduct. Therefore, we find the juxtaposition between the contrition Macri expressed in his stipulation, and his later repudiation of misconduct during oral argument, to be an aggravating factor.

In respect to McHugh, not only did he express that he would repeat his misconduct if given the chance, but he admitted he violated RPC 8.4(c) when he partially misrepresented to the OAE the nature of the charges on his American Express credit card bill – as he did to the Superior Court during the underlying litigation. Moreover, despite his stipulation that he violated the Rules of Professional Conduct, McHugh, too, argued that he committed no misconduct, which we find to be an additional aggravating factor.

In mitigation, both respondents’ misconduct arose during the dissolution of their decades-long law and realty partnerships and is therefore unlikely to recur. Furthermore, no client funds were impacted and no clients were harmed.

In additional mitigation, both McHugh and Macri have been practicing law for forty-eight years with no prior ethics infractions. However, the duration of that practice cuts both ways. Like Judge Brennan, we would have expected that two attorneys who have practiced without incident for decades would not have been tempted to blatantly subvert the language and intention of the Superior Court’s orders in the manner that each did. Nevertheless, we give great weight to the nearly fifty years McHugh and Macri practiced law without incident.

Moreover, it seems unlikely that heightened discipline of these two attorneys is necessary to advance the protective or reputational purposes of the disciplinary system.

 (Mike Frisch)

January 23, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Consent Withdrawn; Attorney Reinstated

The Maryland Supreme Court has ordered the reinstatement of an attorney suspended on consent

Stephen L. Snyder, the respondent, has filed his motion for appropriate relief seeking reinstatement to the practice of law after he was suspended from practice by joint motion in October 2020. At that time, Mr. Snyder consented to his suspension from the practice of law. In his motion for appropriate relief, he has now withdrawn that consent. Bar Counsel has taken no position on Mr. Snyder’s request for reinstatement, and the Petition for Disciplinary or Remedial Action remains pending. Based on the information provided by the parties, Mr. Snyder has not been found guilty or convicted of a serious crime, such as would be required to impose an immediate temporary suspension under Rule 19-738, nor has discipline been imposed against Mr. Snyder in any other jurisdiction, nor has a hearing judge made findings of fact and conclusions of law concerning the allegations of the petition for this Court to review. This Court therefore currently lacks a basis to continue Mr. Snyder’s suspension.

The Maryland Daily Record had reported on the paucity of publicly-available information concerning criminal charges

Snyder’s criminal case is consequential on many levels: The 2020 indictment leveled serious charges against one of Baltimore’s best-known medical malpractice attorneys and involves claims that Snyder threatened to embarrass the University of Maryland Medical System if it didn’t offer him a $25 million consulting deal.

Federal prosecutors claim the consulting deal was a sham and that Snyder did not intend to do any work for the money; instead, he was attempting to extort UMMS with claims that its flagship hospital’s transplant program had made dangerous mistakes.

UMMS officials reached out to federal authorities after Snyder made the ask in 2018 and ultimately recorded a meeting at which Snyder explained the deal and said he would be “conflicted out” of future lawsuits against UMMS if the system paid him.

“I don’t care if I don’t do anything (for the money),” Snyder said, according to the indictment.

(Mike Frisch)

January 23, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Applicant Establishes Character And Fitness After Felony Conviction

The Ohio Supreme Court has entered an opinion allowing a 2022 University of Cincinnati Law graduate to sit for the bar examination

In October 2022, a three-member panel of the board conducted a hearing, during which it heard testimony from Davis. Thereafter, the panel issued a report finding that Davis had established his present character, fitness, and moral qualifications by clear and convincing evidence and recommending that he be permitted to sit for the February 2023 Ohio bar exam, provided he complies with all applicable procedures and requirements. In December 2022, the board unanimously adopted the panel’s report and recommendation.

The issue

In April 2008, the United States District Court for the Eastern District of Kentucky accepted Davis’s guilty plea to two charges—possession with the intent to distribute crack cocaine and possession of a firearm in furtherance of a drug-trafficking crime—and dismissed the remaining charges. In July 2008, that court sentenced Davis to 52 months in prison followed by four years of supervised release and ordered him to forfeit $8,742, a 9-millimeter Ruger pistol, and a quantity of ammunition.

During his character-and-fitness hearing, Davis testified that he was released from federal prison in October 2011 after serving roughly 50 months of his 52-month sentence. Following his release, he obtained employment at a factory in Lexington, Kentucky. He utilized the factory’s tuition-reimbursement program to obtain a bachelor’s degree in psychology. According to Davis, he maintained a 3.5 GPA during his undergraduate studies and earned a 4.0 GPA in the fall of 2018—all while working 12-hour overnight shifts five to six days a week.

 Davis testified that as he approached graduation, he contemplated his future and found himself looking back on his work in the prison library, where he had helped inmates with their appeals and tutored those who were studying for the GED. He stated that he had met people who could not read, write, or comprehend even the simplest concepts of the law and had realized that he was able to help them. Davis recalled an encounter with an inmate in his mid-80s who could not understand why his request for release to a halfway house had been denied. After talking with the inmate, Davis determined that the inmate could not read, and Davis was the first person who took the time to explain to the elderly inmate the reason for the denial in terms that he could understand. Davis testified that after he reflected on the personal satisfaction he had felt from helping his fellow inmates, he decided to pursue a career in law and dedicate his life to helping others.

Davis was admitted to the University of Cincinnati College of Law, where he was awarded a scholarship and was preadmitted as a fellow for the Ohio Innocence Project. In his law-school application, Davis disclosed his felony convictions and several other brushes he had had with the law. He also described himself as a first-generation high school graduate. He explained that he had been educated in an urban school system that prepared students for surviving everyday challenges rather than preparing them for college success. Although he first enrolled in a community college in the fall of 1995, he stated that he had struggled academically due in part to his poor study habits and concern about supporting himself and his family.

In his law-school application, Davis also disclosed that his mother had been diagnosed with cancer during his first year of college (i.e., 1995 or 1996) and that he had taken a second job to help his family make ends meet. He stated that after his mother’s death the next year, he dropped out of school to take care of his younger brother and support his own child. The board found that “[i]t was during this protracted absence from school, familial financial obligations, and personal crisis, that Davis found himself drawn to the allure of the drug culture,” which eventually led to his November 2007 arrest.

Davis disclosed his felony convictions and other run-ins with the law in the bar-admissions process. The admissions committee’s attorney investigators thoroughly considered Davis’s convictions and found him to be both candid and remorseful for his past conduct. The panel members and the board also found that Davis was forthright in his testimony during his character-and-fitness hearing. They were particularly impressed with his testimony that his incarceration had introduced him to the concept of “service,” by showing him how rewarding and inspiring it can be to help others.

The court

In support of its determination that Davis is a suitable candidate to sit for the Ohio bar exam, the board cited several character-reference letters in Davis’s National Conference of Bar Examiners report. One of those references, a pastor of, mentor to, and friend of Davis who had known him for more than 30 years stated, “I believe Mr. Davis to be a man of exceptional character: intelligent, focused and with a heart to serve humanity. He will be a tremendous asset to the profession and will serve with honor.” Another reference, who had known Davis  for approximately 25 years, stated that he admires Davis’s “commitment to justice, fairness, compassion, and attention to detail” and that he has admired “[Davis’s] resilience in the face of life changes, observed his ability to focus on what is important, and marveled at his tenacity.” Moreover, the Cincinnati Bar Association renewed its support for Davis’s application at the conclusion of his hearing testimony.

Upon consideration of the record and the applicable rules, we agree that Davis has carried his burden of proving that he currently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law.

(Mike Frisch)

January 23, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 20, 2023

Locked and Loaded For First Civil Jury Trial

A censure has been imposed by the New Jersey Supreme Court for conduct described in the report and recommendation of the Disciplinary Review Board

This matter represents the second instance, in less than one year, in which an attorney unlawfully has brought a loaded firearm to a courthouse. Considering the need to deter such reckless misconduct to protect the safety of judges, judiciary employees, and members of the public, a majority of the Board determines to recommend that the Court consider issuing prospective guidance to the New Jersey bar that, henceforth, a term of suspension will be the presumptive sanction imposed on attorneys who unlawfully bring loaded firearms to a courthouse.

The undisputed facts showed the following

On the evening of June 16, 2019, respondent was at home cleaning his .38 caliber revolver while preparing for his first civil jury trial, which was scheduled for the next day. Because respondent’s parents, with whom he resided, disapprove of firearms, respondent hid the cleaned handgun in his trial bag before he moved the bag to another room.

On the morning of June 17, 2019, respondent took his trial bag to the Middlesex County Superior Courthouse, where he was scheduled to appear for trial. He failed to remove the handgun from his trial bag before entering the courthouse, despite having had exclusive control of the bag since the night before. Upon entering the courthouse, respondent placed his trial bag through a scanner, which revealed his handgun. Although respondent agreed to allow a  sheriff’s officer to search his bag, he first attempted to search the bag himself to demonstrate that it contained no weapons. However, the officer instructed respondent to step away from the bag and then removed the fully-loaded handgun. Because respondent did not have a permit to carry a handgun, he was arrested and charged with second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b)(1).

The criminal charges

On July 13, 2021, respondent notified us, via letter, of his guilty plea to unlawful possession of a handgun and his admission to [Pre-Trial Intervention] . On July 15, 2021, the OBC forwarded respondent’s letter to the OAE.

After reviewing New Jersey precedent on guns in the courthouse

Here, we recommend that the Court announce that, in future cases, harsher discipline will result for attorneys who commit firearms offenses under circumstances such as these. This matter represents the second instance, within the span of one year, in which we have addressed an attorney’s unlawful possession of a loaded handgun in a courthouse. Our recommendation is based on the obvious need to deter such reckless misconduct to protect the safety of judges, judiciary employees, and members of the public, who expect to participate in the judicial process without fear of harm. Our recommendation is also based on the recent, tragic event that led to the November 20, 2020 enactment of “Daniel’s Law[,]” P.L. 2020, c.125., which legislation, as publicly noted by Chief Justice Stuart Rabner, had “regrettably [. . .] been necessary.”

Three members voted in favor of a three-month suspension. (Mike Frisch)

January 20, 2023 in Bar Discipline & Process | Permalink | Comments (0)

A Veterinarian-Lawyer Pursues The White Whale Of Justice

The Iowa Supreme Court ordered a minimum of a six-month suspension with conditions for a pattern of frivolous litigation

In 2013, we publicly reprimanded Iowa lawyer Curt N. Daniels for frivolous filings in protracted litigation against a personal adversary. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Daniels, 838 N.W.2d 672, 673–74 (Iowa 2013). Nevertheless, Daniels, acting as his own attorney against the same adversary, continued to pursue his personal vendetta with numerous additional frivolous court filings resulting in $15,472 in court-ordered sanctions, injunctions against new filings, and more disciplinary charges against him. A panel of the Iowa Supreme Court Grievance Commission conducted an evidentiary hearing and in thorough written findings determined that Daniels had repeatedly violated Iowa Rules of Professional Conduct 32:3.1 (prohibiting frivolous pleadings) and 32:8.4(d) (prohibiting conduct prejudicial to the administration of justice). The commission and the Iowa Supreme Court Attorney Disciplinary Board both recommend a six-month suspension along with other sanctions

On our de novo review, we find Daniels repeatedly violated both disciplinary rules. We suspend his license to practice for a minimum of six months and condition his reinstatement on payment of the $15,472 in court-ordered sanctions and compliance with the existing district court injunctions against further filing.

Dramatis personae

Daniels, now age 84, obtained his veterinarian’s license in 1965 and his law license in 1973. Daniels farmed and practiced veterinary medicine for decades and did not begin practicing law for clients until 2002, when he first accepted court-appointed criminal defense work. His civil litigation experience primarily involves representing himself and Indian Creek Corporation (ICC), a corporation he wholly owned. The protracted litigation underlying this disciplinary proceeding has its genesis in 1998, when ICC lost title to real estate in Jasper County for failing to pay property taxes. See WSH Properties, L.L.C. v. Daniels, 761 N.W.2d 45, 47 (Iowa 2008). Daniels’s nemesis, John Holtz, and his corporation, WSH Properties, purchased the property at a sheriff’s sale. Id. After the sale, Daniels removed equipment Holtz claims was part of the tax sale, “including pens, gates, crates, waterers, and feeders.” Id. WSH brought a replevin action against ICC and Daniels. Id. WSH prevailed at trial, but the district court found the jury’s award was excessive and ordered a new trial or remittitur. Id. at 47–48. Daniels appealed, and the court of appeals held a new trial was required. Id. at 48. On further review, we affirmed the judgment in favor of WSH conditioned on the filing of the remittitur. Id. at 53

Daniels did not relent...

The court recounts at length the ensuing "tortured history" of proceedings leading to the present charges

At the commission’s two-day evidentiary hearing, Daniels continued to argue the merits of his positions in the underlying litigation. Daniels equated the disciplinary proceeding with his ongoing litigation against Holtz. Indeed, Daniels testified about his longstanding “quest for justice, which continues today in this grievance complaint.”

During the commission hearing, a member of the panel asked whether Daniels would commit to desist from further filings against Holtz given the multiple court orders for him to do just that. Daniels refused, and he instead indicated he would “struggle for some distant island way off in the distance called Justice.” He argued that the courts are enabling Holtz to defraud him while we use the Board’s attorneys as our “attack dogs.” Daniels was undeterred by our prior public reprimand for pursuing “claims not supported by the law or by a good-faith argument for changing or extending the law.” Daniels, 838 N.W.2d at 679 (quoting Iowa R. of Prof’l Conduct 32:3.1).

On sanction, the court noted

we have already disciplined Daniels for essentially the same misconduct. Prior discipline is “an aggravating factor because an attorney did not learn from his or her prior misconduct.”

But

The Board and commission also recommend that Daniels be required to retain an attorney to represent him in any further litigation against Holtz or his entities. We decline to impose that requirement. But we require Daniels to obey the existing injunctions against additional filings against those parties.

(Mike Frisch)

January 20, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Mississippi Rejects Implied Attorney-Client Relationship As Basis To Disqualify

The Mississippi Supreme Court overturned an order disqualifying counsel in litigation

This case presents an issue of first impression: whether an attorney’s representation of a general partnership creates an implied attorney-client relationship between the attorney and the individual members of the general partnership, and, if so, whether the Mississippi Rule of Professional Conduct prohibiting communication by a lawyer with an individual represented by other legal counsel was violated. James L. Pettis, III, attorney for the plaintiff, appeals an order of the chancery court disqualifying him for a violation of Mississippi Rule of Professional Conduct 4.2, which prohibits a lawyer from communicating with a person they know to be represented about the subject of the representation. After a careful review of the law, this Court reverses the chancery court’s order, renders a judgment in favor of Pettis, and remands for further proceedings.

Facts

Newell Simrall, IV (“Newell”), John Karsten Simrall (“Karsten”) and Catherine Rea Leist n/k/a Catherine Rea Ray (“Rea”) are siblings and shareholders in the closely held Mississippi corporation B.N. Simrall & Son, Inc. (“the Corporation”). On April 1, 2010, Karsten and Rea, along with Dorman Dewayne Leist, entered into an amended partnership agreement for the general partnership Simrall & Simrall (“the Partnership”). In December of 2012, Newell, represented by J. Lawson Hester (“Hester”), filed a lawsuit (“the underlying litigation”) in the chancery court of Warren County, naming as defendants Karsten, the Corporation, the Partnership, and several other entities connected to Karsten. Penny Lawson (“Lawson”) represented all named defendants in the underlying litigation.

James L. Pettis, III (“Pettis”), was the law partner of Hester and had represented Newell in various matters over the years. In 2011, prior to the commencement of the underlying litigation, Pettis represented Newell in the negotiation of a stock purchase and  land-transfer agreement (“the Agreement”) with Karsten. The alleged breach of the Agreement formed part of the basis for the underlying litigation. Although Pettis was involved in the negotiation of the Agreement, he was not retained to represent, nor did he enter an appearance on behalf of Newell in the underlying litigation.

Rea withdrew from the partnership while the litigation was pending

Sometime in 2019, two years after Rea had disassociated from the Partnership, Rea became aware that Karsten was attempting to sell land belonging to the Corporation. At Newell’s request, Rea and Newell met with Pettis on April 8, 2019, in his office to discuss the attempted sale. On April 11, 2019, Rea spoke with Lawson via telephone and informed her that she had met with Pettis. Pettis met Rea a second time when he attended the meeting of the shareholders and board of directors of the Corporation at Rea’s home on April 15, 2019. At both meetings with Rea, Pettis asked whether she was represented by Lawson or any other attorney in the underlying litigation. Rea responded on both occasions that she was not represented by anyone, nor did she wish to seek representation in connection with the underlying litigation. Both Rea and Pettis submitted affidavits stating they only discussed how to prevent the sale of the Corporation’s land by Karsten and that Rea was not represented by counsel in connection with the underlying litigation.

The trial court had disqualified Pettis

We hold that the chancery court erred by finding an attorney-client relationship existed between Lawson and Rea. Additionally, presuming such a relationship did exist, there was no evidence of knowledge or discussion of illicit subject matter which would provide the grounds for Pettis’s disqualification.

No implied attorney-client relationship on these facts

The representation of a general partnership by an attorney does not automatically give rise to an attorney-client relationship between the attorney and any of the individual partners.

And

Even if an attorney-client relationship had arisen between Rea and Lawson, the chancery court erred by disqualifying Pettis because there was no evidence concerning the knowledge and subject matter requirements of Rule 4.2 of the Mississippi Rules of Professional Conduct. Rule 4.2 states that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Miss. R. Pro. Conduct 4.2 (emphasis added). The comment to Rule 4.2 specifically states that the rule does not bar communications with a party “concerning matters outside the representation.” Miss. R. Pro. Conduct 4.2 cmt. The only finding the chancery court made was that “[Rea] is no longer a partner of the partnership but was a partner when Plaintiff’s Complaint was filed in 2012[,] . . . that Penny Lawson represented the general partnership and its individual members,” and that Pettis “violated the Rules of Mississippi Professional Conduct by conducting meetings with [Rea], a represented person.”

Conclusion

Although not explicitly argued by the parties, as Hester’s law partner, Pettis’s disqualification does not fall under Rule 1.10 of the Mississippi Rules of Professional Conduct as an imputed disqualification of a law firm due to a conflict of interest because the chancellor only made a finding that Pettis violated Mississippi Rule of Professional Conduct 4.2, not that a conflict of interest existed. Hester’s disqualification was within the jurisdiction and authority of the chancery court because he was engaged in practices and proceedings before the court as Newell’s attorney in the underlying litigation. Because Rea was not a party to the underlying litigation and because Pettis did not represent Newell in the litigation, no conflict of interest existed. Therefore, this Court finds the disqualification of Pettis under the theory of an imputed disqualification as a member of Hester’s law firm to be untenable.

(Mike Frisch)

January 20, 2023 in Clients | Permalink | Comments (0)

Thursday, January 19, 2023

A Tale Of Two Chancellors

The Tennessee Court of Appeals ordered recusal of a judicial officer in a matter where the client (doing business as Doghouse Computers) is represented by the opponent he defeated (and unseated) in a recent election

This is an accelerated interlocutory appeal as of right pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee from the chancery court’s denial of a motion to recuse. A new chancellor, during the course of a judicial election and shortly after the election was held, made extremely critical comments regarding the personal and  chancellor, who has returned to practice, is now representing a party before the new chancellor. The former chancellor moved for the new chancellor’s recusal in cases in which the former chancellor is appearing as counsel as well as recusal from cases involving the law firm which the former chancellor joined after losing the judicial election. The new chancellor denied the motion. On appeal, we conclude that, even in the absence of actual bias, based upon concern about the appearance of bias toward the former chancellor, recusal is warranted. This concern does not extend to the law firm the former chancellor has joined. Accordingly, we reverse the denial of recusal insofar as it concerns the former chancellor but affirm the denial of recusal insofar as it concerns the law firm.

The story

Then-attorney now-Chancellor Ben Dean ran against Mr. McMillan and defeated him in the August 2022 election. Mr. McMillan asserts that, during the course of the election, Chancellor Dean made extremely derogatory remarks about his character through public Facebook postings and that these remarks warrant recusal under Tennessee Supreme Court Rule 10B.

As an illustration, Mr. McMillan notes that during the campaign, when drawing a sharp distinction between the candidates over the question of character, the “Committee to Elect Ben Dean Chancery Judge” posted the following:

. . . My opponent keeps saying the mantra “Experience Matters,” yet he has little to nothing to say or show about anything positive he has accomplished professionally or personally in 18 years as Chancellor.

Let me tell you my mantra: “Character Matters!” More importantly, how you treat people matters. All the experience in the world means nothing if you can’t be nice and kind to people or if you are a morally bankrupt soul….

Similarly, after Mr. Dean won the election, Mr. McMillan’s stepson posted on Facebook that the politicization of the race was “a loss for the moral integrity” of the court. The “Committee to Elect Ben Dean Chancery Judge” responded:

Surely you are not suggesting his loss will result in the loss of the moral integrity of the judiciary in these two counties. I haven’t broadcasted or laid bare his many past moral failings and deep character flaws, and ran a fairly positive campaign with an actual platform of change versus attacking him and telling all the sordid details of his own personal failings. The voters have spoken and character matters!

The former Chancellor sought recusal of his successor 

In ruling on the motion to recuse in this case, Chancellor Dean declared he held “no ill will, personal bias or prejudice against Attorney McMillan.” We do not doubt either the sincerity or accuracy of Chancellor Dean’s declaration. In other words, in considering this appeal, we do not conclude that Chancellor Dean is actually biased against Mr. McMillan and do not doubt that he would be impartial in any matter in which Mr. McMillan served as counsel. The standard, however, directs courts to consider appearances and whether a reasonable, disinterested person would believe that there is a reasonable basis for questioning the judge’s impartiality.

But that appearance does not extend to the law firm

We come to the opposite conclusion, however, regarding the recusal of Chancellor Dean in cases involving Mr. McMillan’s law firm. The motion for recusal itself contains no specific allegations of bias with regard to Mr. McMillan’s law firm; it merely proceeds on a theory of taint by association. On appeal, Mr. McMillan cites to the trial court’s order as evidence of a “metastasizing cancer of bias” against the firm, asserting the trial court considered extraneous material and made a “veiled threat.” However, the record contains no objective evidence from which bias or appearance of bias against the law firm could be reasonably inferred. Having reviewed the materials appended to the motion to recuse, we conclude there is simply nothing in the record to support an inference of bias against the law firm. Compare Bean, 280 S.W.3d at 801, 806 (the judge called the attorney’s partner “the worst excuse for a lawyer that there has ever been” and requested an investigation of members of the law firm for alleged criminal conduct). Accordingly, we affirm Chancellor Dean’s denial of the motion to recuse with respect to Mr. McMillan’s law firm.

(Mike Frisch)

January 19, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

Land Of Lincoln

From summaries of recent dispositions by the Illinois Supreme Court

Mr. Araujo, who was licensed in 1993, was disbarred for sexually harassing three women: a Chicago police officer, a court reporter and an Assistant State's Attorney, while he was acting as a Cook County Circuit Court Judge. The Illinois Courts Commission initiated a disciplinary matter against then-Judge Araujo based on this same misconduct and entered an oral ruling finding that he had committed the misconduct. Mr. Araujo, however, retired from the bench one month before the Courts Commission entered its written findings on the ruling, thereby preventing the Courts Commission from pursuing discipline against him.

Ms. Lowery, who was licensed in 2000, was suspended for 30 days and required to successfully complete the ARDC Professionalism Seminar within one year. She knowingly or recklessly made a false statement impugning the integrity of a judge and made false statements to the ARDC during her sworn statement. The suspension is effective on February 7, 2023.

Mr. Luchtenburg, who was licensed in 1983, was suspended for 30 days. He engaged in a conflict of interest by representing a client in a dissolution of marriage case while also pursuing a romantic relationship with her. He also made false or misleading statements in connection with the Administrator's investigation of his conduct. The suspension is effective on February 7, 2023.

Mr. Peterson, who was licensed in 2013, was suspended for six months. He agreed to the purported settlement of an underinsured motorist claim against his client, an insurance company, for $75,000 without the company's authorization, and repeatedly made false statements to his opposing counsel about the status of the purported settlement. The suspension is effective on February 7, 2023.

Ms. Lane, who was licensed in 2006, was suspended for nine months, with the suspension stayed after six months by a six-month term of probation with conditions. While she was engaged in litigation in a federal court, Ms. Lane sent three e-mails containing false or reckless statements about a magistrate judge's integrity to the judge, courtroom personnel and another attorney involved in the case. The suspension is effective on February 7, 2023

(Mike Frisch)

January 19, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment Not Necessary

A significant published decision of the California State Bar Court

This case illustrates two different issues important to the development of lawyer disciplinary law. First, it reemphasizes the improper use of Business and Professions Code section 6068, subdivision (a) (duty of attorney to support constitutions and laws of United States and California), when an applicable rule of professional conduct is charged. Second, and most salient, this matter reflects the important role of mitigation and aggravation evidence in assessing appropriate discipline. Indeed, the facts developed in this matter represent an effective presentation of mitigation in support of a downward departure from the discipline set forth in the Standards for Attorney Sanctions for Professional Misconduct. Where, as here, a respondent exhibits overwhelming and convincing mitigation, discipline for even very serious misconduct may be mitigated.

Respondent George Martin Derieg committed misconduct in a single client matter, including misappropriating client funds and making misrepresentations to a probate court regarding those funds. A hearing judge recommended a 15-month actual suspension. The Office of Chief Trial Counsel of the State Bar (OCTC) appeals, arguing Derieg should be disbarred, or at least subject to a two-year actual suspension continuing until Derieg proves rehabilitation, fitness to practice, and learning and ability in the general law. Derieg does not appeal and asserts the hearing judge’s recommendation is “more than adequate.”

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s recommendation of a 15-month actual suspension. Derieg’s mitigation weighs heavily in reducing the discipline of his serious misconduct, which was aggravated by a finding of multiple acts of wrongdoing. A 15-month actual suspension is sufficient to fulfill the purposes of discipline in this case. Derieg does not challenge culpability on review, practiced for 11 years before committing the misconduct, promptly repaid the funds, completed a seminar on probate practice, hired an experienced paralegal, and has expressed remorse. He established sufficiently compelling mitigating circumstances, demonstrating that actual suspension, not disbarment, is appropriate here. In addition, as detailed post, disbarment is not necessary here to protect the public, the courts, and the legal profession.

(Mike Frisch)

January 19, 2023 in Bar Discipline & Process | Permalink | Comments (0)