Legal Profession Blog

Charging Bull

The New York Appellate Division for the Second Judicial Department imposed a five-year suspension of an attorney on findings of misconduct in various matters including misappropriation and

Charge four alleges that the respondent engaged in a conflict of interest, in violation of rule 1.7 of the Rules of Professional Conduct, as follows: The respondent is a co-owner of Charging Bull Realty Corp. (hereinafter Charging Bull). In or about 2019, the owner of a condominium hired Charging Bull to act as the broker in the sale of said property. The respondent thereafter also agreed to represent the owner in the sale of her condominium.

All misconduct findings were sustained

In finding the respondent’s testimony was not credible, the Special Referee noted that the respondent “offered conflicting explanations, irrelevant facts and deliberate evasive replies.” The respondent testified “in a manner seeking to obfuscate, mislead and deliberately seek to change the subject.” The Special Referee noted that the respondent’s defenses were “deliberately naive” and unsupported even by the evidence presented by the respondent. We find no basis in the record to disturb the Special Referee’s credibility determination, which is entitled to great weight (see Matter of Maggipinto, 125 AD3d 31; Matter of Rodeman, 65 AD3d 350).

In determining an appropriate measure of discipline to impose, we have considered, in mitigation, evidence that the respondent’s conduct occurred during a period when he experienced health issues for which he sought medical treatment and the absence of a disciplinary history. Notwithstanding the mitigation advanced, the respondent has engaged in serious misconduct including, inter alia, the misappropriation of funds entrusted to him as a fiduciary; entering into an improper fee sharing agreement with a nonlawyer; engaging in a conflict of interest by representing the seller of a condominium while also having a financial interest in the brokerage company representing the seller; neglecting a client’s legal matter, resulting in the dismissal of the client’s action; and failing to cooperate with the Grievance Committee’s investigation of multiple complaints. We have also considered, in aggravation, that the respondent has neither accepted responsibility for his conduct nor expressed genuine remorse; and delayed returning the down payment to Toumbekis—returning it only after Toumbekis filed a complaint with the Grievance Committee.

(Mike Frisch)

D.C. Disciplinary Counsel Seeks Senior Appellate Attorney

Job opening posted:

SENIOR ASSISTANT DISCIPLINARY COUNSEL - APPELLATE

The Office of Disciplinary Counsel (ODC) investigates complaints and allegations of ethical misconduct against attorneys licensed in the District of Columbia, and initiates appropriate resolutions, ranging from dismissals, diversions, and informal admonitions to the preparation of formal charges.  

The Senior Assistant Disciplinary Counsel – Appellate (SADC-A) is ODC’s chief appellate attorney and represents the ODC in appellate matters before the District of Columbia Court of Appeals (DCCA) and its Board on Professional Responsibility (BPR).  The SADC-A manages complex appellate matters, drafts briefs, motions, and other pleadings, and presents oral argument before the DCCA and the BPR.  The SADC-A supervises the appellate division staff.

           I.  ESSENTIAL DUTIES AND RESPONSIBILITIES

1.    Reviews and analyzes hearing records, including transcripts and exhibits, and hearing committee and BPR reports and recommendations, and manages complex legal matters and issues of precedential importance.

2.    Drafts and edits briefs, memoranda, motions, and other pleadings for filing with the BPR and the DCCA.

3.    Prepares and presents oral argument before the BPR and the DCCA.

4.    Works collaboratively with litigation attorneys by reviewing draft post-hearing briefs and other pleadings to ensure consistency in the handling of legal issues and compliance with DCCA and BPR requirements and rules for briefs, motions, and oral arguments.

5.    Provides strategic advice and guidance on legal, policy, and administrative matters.

6.   Manages appellate division staff.

      II.  OTHER DUTIES AND RESPONSIBLITIES

1.    Prepares for and participates in moot courts.

2.    Actively participates in staff meeting discussions regarding case dispositions, including charging decisions.

3.    Keeps abreast of developments in the areas of legal ethics and attorney professional responsibility.

4.    Supervises internal CLE classes.

5.    Performs other related duties as assigned.

            III.  MINIMUM QUALIFICATIONS

1.    J.D. from an ABA accredited law school.

2.    Active member in good standing of the District of Columbia Bar.

3.    Minimum of seven (7) years of legal experience, appellate experience a plus.

4.    Experience successfully managing and reviewing the work product of attorneys.

5.    Excellent legal research skills using Westlaw, PACER, and other methods.    

6.    Strong oral advocacy, analytical, and problem-solving skills.  The ability to explain, advocate and express facts and ideas in a convincing manner.

7.    Exceptional writing skills.

8.    Ability to make timely and effective decisions.

9.    Effective time-management and organizational skills.

10.    Must be detail-oriented, able to multitask and prioritize competing deadlines, work in a fast-paced environment, and work with minimal supervision.

11.    Proficient in Microsoft Office applications, including Word and Outlook.

12.    Must work well in a team environment and interact professionally with staff, hearing committees, the BPR, the courts, opposing counsel, and the public.

13.    Familiarity with the D.C. Rules of Professional Conduct a plus

14.    Ability to maintain the confidentiality of highly sensitive information.

IV.  ADDITIONAL INFORMATION

This is an exempt position.  The annual salary range for the SADC-A position is $170,000 - $190,000.  Pay is determined by a variety of factors, including, but not limited to, education and/or work experience relevant to the position.  Excellent benefits package.

This is not an attempt to list all essential functions of this position.  It is recognized that job duties may change over time based on the ODC’s needs.  

The ODC is proud to be an Equal Employment Opportunity employer.  We celebrate diversity and do not discriminate based on race, religion, color, national origin, sex, sexual orientation, gender identity, age, veteran status, disability status, or any other applicable characteristics protected by law.

Flexible and hybrid work schedules consistent with the needs of the ODC are available.  

Interested individuals must submit a cover letter with salary requirements, a resume, and two writing samples.  Documents in PDF format are preferred but not required.  Applications that do not include the required documents will not be considered.

Lapses Draw Reprimand

Incompetent representation in a criminal matter drew a public reprimand from the Massachusetts Board of Bar Overseers

The respondent was retained by a client who had been indicted for several felonies. Another individual was charged as a co-defendant. The respondent failed to provide competent and diligent representation to the client in his preparation for trial. Specifically, he failed to review much of the discovery provided by the prosecution; failed to investigate crucial photographic evidence taken from his client’s phone that was presented by the prosecutor during opening statements; failed to listen to all video and audio recordings supporting the prosecution’s case; failed to obtain transcripts of the recordings, many of which were in a foreign language; and failed to identify or subpoena any witnesses including expert witnesses. At trial, the respondent pursued a defense that was not available based on the facts of the case; failed to cross-examine all but two of the prosecution’s witnesses, elicited testimony damaging to his client from the two witnesses he did cross-examine; and heavily relied on codefendant’s counsel even though the two defendants had differing strategies and theories of the case. Both the client and co-defendant were found guilty.

A new trial was granted

 The former client’s new trial was scheduled to begin in 2022. However, the case was dismissed by prosecutors on the eve of trial based on previously undisclosed exculpatory evidence that had not been timely released to the defendants.

(Mike Frisch)

TIPped Off

The Indiana Supreme Court has imposed a 90-day suspension without automatic reinstatement

In 2019, pursuant to a conditional agreement for discipline, we suspended Respondent from the practice of law in Indiana for 30 days with automatic reinstatement for misconduct involving Respondent’s Indiana-based law firm and its patent work with inventors. Matter of Gray, 126 N.E.3d 805 (Ind. 2019). At the time, Respondent was also consensually excluded from practice before the United States Patent and Trademark Office (USPTO) without an admission of misconduct. Respondent wound down his Indiana law firm and relocated to Florida, where he created another company, The Inventor’s Platform (TIP), under the alias Nickolas Farbacks.

TIP’s operations closely paralleled Respondent’s previous Indiana business arrangements and shared many of the same infirmities. Acting under his alias, Respondent contracted with and directed paralegals, attorneys, and others to provide services—including legal services—to TIP clients. TIP’s contracts with its customers generally forbade them from contacting the contract attorneys, and TIP paid those attorneys only a fraction of the attorney fees collected from the customers. Clients’ provisional patent applications were often drafted by nonlawyer TIP personnel without appropriate attorney supervision.

Additionally, while Respondent was excluded from practicing before the USPTO, he supervised contract attorneys’ patent work, answered any questions they had about the patent work, and discouraged them from communicating with the clients. Finally, during the course of the Commission’s investigation into Respondent’s Florida conduct, Respondent made several misrepresentations, inaccurately depicting himself as a passive instead of an active participant in TIP.

Sanction

Respondent urges us to impose a 30- to 60-day suspension with automatic reinstatement for any misconduct found. But given Respondent’s prior discipline for similar misconduct and the dishonesty involved in this case, we agree with the Commission that a suspension without automatic reinstatement is warranted.

(Mike Frisch)

Breaking News

An order was posted today by District of Columbia Hearing Committee No. 12 in the Jeffrey Clark matter postponing the hearing until sometime in January 2023.

A Pre-Hearing conference will be held October 6 at 9:30 with public access by zoom.

In other news, the allegations that two attorneys had violated rules regarding post-employment restrictions (which we covered here) had been scheduled for a hearing over several days this month. 

According to the web page of the Board on Professional Responsibility, the hearing has been cancelled with no information whether new hearing dates are scheduled.

Why do today what one can put off until tomorrow?  (Mike Frisch)

Employee Theft And Appropriate Remedial Action Draws Reprimand

The Georgia Supreme Court has reprimanded an attorney for trust account violations caused by a faithless employee

the special master found that the Bar had shown, by clear and convincing evidence, only that Pass had taken money in advance from her client to be used for fees and expenses connected to an investigation she was to perform for the client; that she deposited the unearned expenses into her IOLTA account, but then failed to review, audit, or otherwise reconcile that account; that unbeknownst to Pass, her office manager—a longtime friend and nonlawyer employee—was accessing Pass’s IOLTA account and obtaining funds via forged checks; and that, as a result, there were multiple times where Pass’s IOLTA account carried a balance that was less than the almost $4,000 she should have been holding in trust on her client’s behalf. The special master found that Pass was unaware of her employee’s illegal actions until several months after that employee abruptly left Pass’s employment, absconding with a firm computer and other office equipment and materials; that after discovering the thefts, Pass was able, over time, to restore enough of 'the stolen funds to replace the money she was required to return to her client; and that those funds now have been returned to the client. The special master specifically noted that there was no allegation that Pass was involved in, or even contemporaneously knew of, her employee’s withdrawal of the client’s funds from Pass’s IOLTA account.

(Mike Frisch)

Going By The Book (Of Discipline)

The South Carolina Advisory Committee on Standards of Judicial Conduct  blesses a Supreme Court Justice's limited participation in a church matter

The inquiring judge is a Supreme Court Justice who also is a member of a local church. The Justice is the chairperson of the church council, which is essentially an administrative board. The church’s Book of Discipline sets forth the duties of the church council and its chair. The Book of Discipline is also the authority for the governance of each local church, as well as national governance.

The church now faces a potential split over issues pertaining to the ordination of clergy who are practicing homosexuals and pertaining to clergy presiding over same-sex marriages inside or outside the walls of the church. The Book of Discipline currently prohibits these practices. If a local church disagrees with the foregoing prohibitions in the Book of Discipline, and if the local church wants to “disaffiliate” from the national church organization, there is a very involved process the local church must follow. There is a great degree of confusion among local churches in South Carolina and nationwide as to the ability of local churches to “disaffiliate” from the national church organization when a local church disagrees with the provisions of the Book of Discipline regarding the foregoing particulars.

The Justice believes that the responsibility of the chair of church council is not to take sides in the merits of the disputes between the members of the church who have competing views, but rather to educate the congregation (and the church council) about what the Book of Discipline says about the procedure of disaffiliation. In other words, the Justice intends to merely read and explain the procedure as set forth in the Book of Discipline. The Justice seeks an opinion as to the propriety of communicating with the congregation, without taking a position on the merits, as to what the Book of Discipline says about disaffiliation or whether the Justice should abstain from involvement in this issue.

That's a "yes"

A Supreme Court Justice serving as chairperson of a church council may inform other council members and inquiring church members about the procedure for disaffiliation from the national church organization.

(Mike Frisch)

The Value Of Excavation Services

An attorney who had made business arrangements with an established client who was unable to pay his $250 hourly fees has been reprimanded with probation  by the Maine Board of Bar Overseers

Here, there is no question that the transfer of the Audi, the note and mortgage and the payment through excavation services constituted “business with a client.” There is also no question that Flick failed to comply with the requirements of Rule 1.8(a). His conduct not only violated Rule 1.8(a) but also Rule 8.4(a), violating or attempting to violate the M.R. Prof. Conduct.

The stipulated facts

Flick had previously represented the complainant in other matters. Flick told the complainant that he would charge his usual rate of $250 per hour. The complainant did not have funds available to pay Flick. After some discussion, Flick and the complainant agreed that the complainant would pay for representation by transferring title to a 2009 Audi to Flick, by delivering a note and mortgage on some real estate to Flick and by the complainant providing some excavation services to Flick. Neither the exact value of these items nor the exact cost of representation was determined in advance. Flick spent many hours responding to communications from the complainant about the legal matters and spent several hours litigating one of the matters, and he obtained a good result for the complainant.

(Mike Frisch)

Harassing Judge Should Be Disbarred

An Illinois Hearing Board recommends the disbarment of a judge who defaulted on allegations of misconduct

The allegations deemed admitted establish that Respondent engaged in multiple instances of sexually harassing conduct toward three women while he was working in his capacity as a Cook County Circuit Court Judge. In 2016, while a female Chicago police officer was obtaining Respondent’s signature on a search warrant, Respondent attempted to kiss the officer on the lips, grabbed her hand and told her, “Touch my butt,” all without her consent. He also made lewd comments to the officer on another occasion when they met at her squad car regarding another search warrant. On two occasions in 2011, Respondent approached a female court reporter in a suggestive manner when they were alone in a courthouse elevator and asked how much money it would take for the court reporter to have sex with him. On September 11, 2018, Respondent made demeaning remarks about a female Assistant State’s Attorney after she appeared before him in a first degree murder case. Respondent was unhappy that the female attorney, who was his law
school classmate, had not congratulated him on his promotion to a new courtroom or said hello to him. Later that day, Respondent called another Assistant State’s Attorney into his chambers and began discussing the female lawyer’s failure to acknowledge him. Respondent referred to the female lawyer as a “bitch” and further stated, “Maybe it’s because I didn’t have sex with her. Or maybe it’s because I did have sex with her.”

Sanction

As a sitting judge, Respondent was required to observe high standards of conduct, comply with the law, and avoid impropriety. His disregard of these obligations for his own sexual gratification makes his misconduct especially egregious. In arriving at its recommendation of disbarment, the Panel also considered the following significant factors in aggravation: the harm to the victims, the legal profession, and the administration of justice; Respondent’s abuse of his position of authority; his pattern of misconduct; his selfish motives; his failure to accept responsibility or show remorse for his misconduct; and his disrespect toward the Court and the disciplinary process by failing to participate in this proceeding.

Respondent has no prior discipline. We considered that factor in mitigation, but it does not lead us to recommend a different sanction.

Chicago Sun-Times links to an Injustice Watch  report on his resignation.

(Mike Frisch)

Judge Removed

The Michigan Judicial Tenure Commission has ordered the removal of a judge on multiple findings of misconduct

In the Commission’s view, maintaining the integrity of the judicial process requires that Respondent be removed. As set forth in this Decision and Recommendation, Respondent’s multiple and distinct acts of pervasive on-the-bench misconduct comprising the first five counts of the seven-count Second Amended Formal Complaint (“SAFC”) are each egregious in their own right. Respondent incorrectly and incompetently applied contempt law, abusing her power and, in the process, ordering thousands of dollars to be unjustly paid and jailing another who was later released by the Chief Judge of the 36th District Court after spending a night in jail and ultimately acquitted. (Count I.) Respondent developed the personal opinion that a particular process server (Myran Bell) was untrustworthy, so, in prejudice of the actual administration of justice, Respondent formulated a process of dismissing or adjourning each and every case brought before her in which Mr. Bell was the process server irrespective of the merits of the plaintiffs’ cases, even after Chief Judge Blount ordered Respondent to stop, at which time Respondent began using thinly veiled pretexts to continue her obstinance. (Count II.) Respondent’s routine tardiness, missed days of work, and poor job performance resulted in the State Court Administrative Office (SCAO) stepping in with assistance from 36th District Court Chief Judge Blount and others to address the issues and make a performance plan for Respondent’s improvement, but Respondent defensively refused participation and instead attacked those assigned to help her with discourteous and unprofessional written threats and barbs, including biblical quotes insinuating that her colleagues and the administrators should or would go to Hell. (Count III.) Respondent further prejudiced the actual administration of justice by intentionally disabling the video equipment in her courtroom because she did not want those aforementioned colleagues or court administrators watching her, even though she had no court reporter, meaning that she knowingly conducted court proceedings with no official record and, in most cases, no record at all. (Count IV.) Respondent’s incredible “backup” plan was to unofficially record some (but not all) proceedings with her personal cell phone, which she improperly published on Facebook Live on at least one occasion. (Count V.)

These first five counts of the SAFC regard Respondent’s on-the-bench conduct, but there was more. When Respondent was not prejudicing the actual administration of justice or missing work or incorrectly applying the law or disrespecting her colleagues and administrators or conducting unrecorded proceedings, Respondent tried using her status as a judge while out in the public for improper personal gain, including to illegally park in a handicap loading and unloading zone at her gym (blocking the driver’s side door of a disabled person’s car who was legally parked in a handicapped spot), while also displaying a Detroit police “official business” placard (falsely) and showing her judge’s badge to the responding officer when the citizen whose car was blocked rightfully complained. (Count VI.)

And if all of this, as alleged and proven through the first six counts of the SAFC, was not bad enough, Respondent repeatedly lied under oath about her intentional disabling of her courtroom’s video equipment necessary for making official recordings of the proceedings in her courtroom and her motivations for doing so. (Count VII.) Besides these lies, the Commission learned during these proceedings that Respondent submitted a sworn but false affidavit of identity in support of her candidacy for reelection as a judge, which resulted in the Secretary of State being prohibited by statute from certifying Respondent’s name for inclusion on the general election ballot pursuant to MCL 168.558(4).

Hell is in fact a place in Michigan.

I know, having been to Hell and back. (Mike Frisch)

The MyPillow Precedent Hamstrings Sydney Powell

The United States District Court for the District of Columbia has dismissed Sydney Powell's counterclaim against Dominion

Even if Powell adequately alleged that Dominion had an ulterior motive in bringing its lawsuit, her counterclaim fails under the second element. Powell’s core allegation is that “Dominion’s initiation and maintenance of its lawsuit against Defendants constitutes an abuse of process.” Powell Counterclaim, ECF No. 49 at ¶ 73. “But the mere pursuit of a lawsuit, just like the mere filing [of] a lawsuit, does not support an abuse of process claim.” MyPillow, 2022 WL 1597420, at *4. Instead, Powell must allege that Dominion, after filing its suit, performed some act that perverted the judicial process. See Spiller, 362 F. Supp. 3d. at 6. But Powell’s complaint fails to link her abuse-of-process claim to any act that Dominion has taken other than filing and pursuing its lawsuit. See Powell Counterclaim, ECF No. 49 at ¶¶ 67–73 (focusing entirely on an ulterior motive). She has thus failed to state a claim for abuse of process.

District Judge Carl Nichols has the litigation. (Mike Frisch)

The Line Between Aggressive and Unethical Advocacy: The Doctor Is In

A hearing held in a Michigan Grievance Commission matter (link here) raises an interesting question about the line between aggressive cross-examination/advocacy and an ethical violation.

The proceeding involves the Respondent's motion to dismiss the charges rather than a hearing on the merits.

The charges involve a prosecutor's cross-examination of a defense expert in a murder prosecution that led the Michigan Court of Appeals to reverse the conviction on grounds of prosecutorial misconduct

Cross-examination is a powerful legal engine for discovering the truth. But when it repeatedly transgresses well established boundaries, an improper cross-examination denies a defendant a fair trial. The prosecutor’s interrogation of one of the experts in this case, Dr. Meghan Rowland, crossed the line on multiple occasions. The prosecutor likened Dr. Rowland to a cartoon character, accused her of writing her report in crayon, baselessly accused her of withholding evidence, misrepresented her testimony, and badgered her relentlessly. Counsel’s performance denied Evans a fair trial.

Findings

The...excerpts illustrating the prosecutor’s infringements of his ethical and legal obligations fall into several categories. First, the prosecutor repeatedly and gratuitously disparaged Dr. Rowland’s qualifications and her intelligence. No evidence supported the prosecutor’s snide and derisive comments maligning Dr. Rowland’s education and her professional competence. Second, the prosecutor inaccurately characterized Dr. Rowland’s opinions in a sarcastic, mocking, and inaccurate manner. This tactic was designed to generate the jury’s scorn rather than to shed light on the issues presented by the evidence. Third, the prosecutor repeatedly accused Dr. Rowland in a badgering fashion of deliberately ignoring or withholding evidence from the jury and accused her of being unable to distinguish “right from wrong.” No evidence underlay these attacks.

One comment drew particular focus

You have the PhD. You have all the training. You have done hundreds of these things. I mean, explain it to me, Lucy, I don’t get it.

The court explained

Calling Dr. Rowland “Lucy” was not an accident or a slip of the tongue. As most adults know, Lucy was a character in the Peanuts comic strip who, in a well-known series of comics, was portrayed as a bumbling and unqualified psychiatrist dispensing useless advice from a lemonade booth... Referring to Dr. Rowland as “Lucy” was misconduct, both prosecutorial and ethical.

And referenced the pertinent rule

Aside from offering his own opinions and his own “values,” the prosecutor accused Dr. Rowland of “play[ing] semantics” and offered to “write it out in Crayon” so she would better understand his views. The impropriety of this performance requires little elaboration. The gratuitous insults hurled at Dr. Rowland by the prosecutor dripped with hostility, ridicule, and aggression. They violated not only the prosecutor’s obligations as a prosecutor, but as an attorney. See MRPC 4.4 (“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person period.”).

In the disciplinary hearing, there was a suggestion that the reference may have been to Lucy Ricardo.

The panel asked whether the fact that there was a single denied objection was relevant. 

They also queried on the relevance of the fact that the court of appeals did not refer the matter to disciplinary authorities.

Finally, questions were raised about the significance of the fact that the witness handled herself with aplomb rather than wilt under the questioning. (Mike Frisch)

No Deferral For Jeffrey Clark

The District of Columbia Board on Professional Responsibility has affirmed the denial of Jeffrey Clark's request to defer the bar disciplinary proceedings.

The Board finds that no listed collateral proceeding - the federal and Georgia criminal investigations, the January 6th Committee investigation or a subpoena enforcement proceeding before the Court of Appeals - would be substantially likely to  "help to resolve material issues" in the ethics prosecution.

The Board notes that the subpoena enforcement proceeding has been resolved. (Mike Frisch)

Law School Attendance Records Prove The Crime

The Maryland Court of Appeals has suspended an attorney whose conviction is described by the United States Attorney for the District of Columbia

 In court documents, Tingwei admitted that at various times between 2016 and 2018, she was employed by two different home health agencies in the District of Columbia. The home health agencies employed her to assist D.C. Medicaid beneficiaries in performing activities of daily living, such as getting in and out of bed, bathing, dressing, and eating.

Tingwei was supposed to document the care that she provided to Medicaid beneficiaries on timesheets and then submit the timesheets to the home health agencies, which would in turn bill Medicaid for the services that she rendered. As part of her guilty plea, Tingwei admitted that she submitted false timesheets claiming to provide services that she did not actually render     

Tingwei earned her Master of Laws degree from the University of Maryland in May 2017. She was admitted to the New York state bar in February 2018 and the Maryland state bar in January 2020.

On 118 occasions between August 2016 and May 2017, Tingwei submitted timesheets claiming that she worked as a personal care aide in Washington, D.C., during the same hours when she either was scheduled to attend law school classes in Baltimore, or when she should have been traveling to or from Baltimore related to her law school program. For example, Tingwei submitted timesheets claiming that she provided services to two beneficiaries on April 13, 2017, one from 7 a.m. to 3 p.m., and the other from 3:30 p.m. to 8:30 p.m. Records show Tingwei’s key card swiping in at the University of Maryland’s law school campus at 5:30 p.m. and swiping out at 9:29 p.m. Cell phone records also showed her cell phone being in Baltimore between 8:03 a.m. and 9:31 p.m. that day.

Tingwei admitted that her fraud scheme began no later than August 2016 and continued through September 2018. She acknowledged successfully defrauding the D.C. Medicaid program out of $131,656.

(Mike Frisch)

Guano In Delaware

If this is a day ending in "y" then there must be discovery orders issued by the overburdened Delaware Court of Chancery in Twitter v. Musk

Defendants continue to press for the historical account data. Specifically, Defendants seek all information that the reviewers who conducted the mDAU audit had access to through an application called “Guano Notes,” including but not limited to information regarding accounts that were suspended or placed in ROPO status. Plaintiff maintains that Defendants are not entitled to this data under my August 25 Order and that it is not relevant in any event, because the agents who performed the quarterly mDAU audit were not instructed to consider it. Still, Plaintiff has attempted to moot this issue, offering to produce additional data other than Guano Notes reflecting the suspension and ROPO status of each of the 9,000 accounts.

I confess that I do not totally comprehend the significance of or burden in collecting Guano Notes. The parties should be prepared to drill into this issue—albeit in layman’s terms—during the September 27 hearing. I will hold my determination on Defendants’ Seventh Discovery Motion in abeyance until then.

Britannica gives a definition of guano

guano, accumulated excrement and remains of birds, bats, and seals, valued as fertilizer.

(Mike Frisch)

Disbarment Remains Possible In New Jersey

A "pump and dump" scheme led to a felony conviction and disbarment by the New Jersey Supreme Court.

The story is told in the report of the Disciplinary Review Board

In summary, respondent admitted that, for a five-year period spanning from 2013 through 2018, he conspired to commit securities fraud by (1) concealing Tobin’s ownership and control of various securities, and (2) employing paid promotional campaigns and manipulative trading techniques to artificially inflate the price and trading volume of those stocks to enable Tobin and others to secretly sell their shares at a substantial profit, thus, defrauding investors. The purpose of this conspiracy was for respondent, Tobin, and others to make a profit from the illegal stock sales and to conceal their actions from regulators, law enforcement, and investors.

Respondent pled guilty and cooperated in the criminal case but failed to advise the disciplinary authorities in New York and New Jersey about the conviction.

Rather New York

found, in aggravation, that, in November 2018, respondent applied for leave to resign for non-disciplinary reasons, a mere eight days prior to the filing of criminal charges against him – at which time, respondent had already been presented with a plea agreement from the United States – and he made no effort to advise of the federal criminal charges. Id. at 212. Indeed, the Supreme Court of New York learned of respondent’s criminal matter through its own investigation. Ibid. Accordingly, it concluded “that respondent’s actions were undertaken in a misguided attempt to avoid disclosing to [the Supreme] Court [of New York] and AGC that he was facing charges for his federal criminal activity, and [it found] that his deceptive behavior severely aggravate[d] his already serious conduct.” Id. at 212-213. As we note below, respondent was similarly deceptive in the course of his resignation in [New Jersey].

And New Jersey

In further aggravation, just as he did in New York, on November 29, 2018, respondent resigned, without prejudice, from the New Jersey bar, a mere two days prior to the filing of the information against him. At the time of his resignation in New Jersey, respondent already had been presented with a plea agreement from the federal government. Respondent executed that plea agreement prior to submitting his application to resign from the New Jersey bar, and he made no effort to advise the OAE of the federal criminal charges, in violation of R. 1:20-13(a)(1). Respondent’s deceptive behavior, whereby he attempted to conceal his criminal charges from the disciplinary authorities in two states, aggravated his already serious unethical conduct.

Sanction

...respondent’s misconduct involved all the aggravating factors enumerated by the Court in Goldberg and, thus, warrants his disbarment. Specifically, respondent’s misconduct was prolonged, spanning five years. He was motivated by greed, as evidenced by the profits generated from the fraud and his agreement to participate in the fraud in exchange for significant payment for his services. Most abhorrently, and as recognized by the sentencing judge, respondent’s misconduct was perpetrated with the use of his law license. Respondent intentionally abused both his position of trust and his status as an attorney.

(Mike Frisch)

Stage Three

An Illinois attorney has moved for consent disbarment in the face of charges that include

In February 2022, Movant falsely advised [client] Watson that he had been diagnosed with stage three pancreatic cancer and thereafter Movant filed a motion to withdraw from Watson’s criminal cases. In his motion to withdraw, Movant falsely advised the court that he was suffering from “a medical condition that prohibits me from continuing to practice law.” Movant knew that his statements to Watson and the court were false, because at no time was Movant diagnosed with pancreatic cancer or any other medical condition that would prevent him from practicing law. Based on his false representations, the trial court allowed Movant to withdraw from Watson’s matters and appointed the Will County Public Defender to represent Watson.

The same false representation was made to another criminal client (who has not received a promised refund) and the Administrator.

There were also charges of lack of diligence in other matters. (Mike Frisch)

Former DA Disbarred

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

Payne was the elected district attorney in the 12th Judicial District from January 2021 to July 2022, when he resigned. While in office, Payne failed to diligently supervise his employees, including an assistant district attorney who Payne later fired because of complaints about the lawyer’s conduct when performing his job duties. In mid-2021, a Victim Rights Act (“VRA”) subcommittee began investigating Payne’s office, citing concerns that the office failed to keep victims informed about their cases and failed to consult with victims about plea deals and dismissals. The investigation also identified instances in which employees from Payne’s office ignored, belittled, and shouted at victims. The VRA subcommittee recommended that Payne’s office take actions that included VRA training. During the training, Payne’s employees were unruly, directing foul language at the presenters and walking out of the training. Payne’s office did not resolve the VRA complaints, which were ultimately referred to the governor, who appointed the office of the attorney general to investigate. In July 2022, the attorney general appointed a monitor to review if Payne’s office was meeting its responsibilities under the VRA.

Under Payne, the 12th Judicial District Attorney’s office accumulated a significant backlog of cases and failed to act for months on warrants involving serious crimes and domestic violence. Payne’s failure to prosecute defendants had a negative effect on law enforcement’s and the public’s willingness to report crimes, harming law enforcement efforts and the community.

Days before a jury trial in early 2022, Payne told a named victim that his office had been unable to serve a police officer to appear at trial. Payne told the victim that pursuing the case would be futile without the officer’s testimony, and the victim acquiesced to Payne dismissing the case. But Payne’s representation was false: his office had served the officer that morning. In the motion to dismiss, Payne falsely stated that the victim was unwilling to testify at trial. Payne did not correct his misstatements to the court or to the victim.

Also in early 2022, Payne prosecuted a case for conspiracy to commit first-degree murder. In March, he told an employee in his office that the Colorado Bureau of Investigation (“CBI”) wanted the case to be dismissed. This statement was untrue. The prosecutor contacted the CBI agent involved in the case, who informed her that he had not told Payne that the CBI wanted the case dismissed.

A different matter was set for a jury trial in April 2022. Payne dismissed the case on the first day of the trial, purportedly because evidence favorable to the defense had not been disclosed. But Payne knew of the issue at the latest nearly a week before the trial was to begin and had not indicated to the court or the named victims that he would dismiss the case. He even filed jury instructions four days before the first day of trial. According to the minute order from the hearing, the court found Payne to be disingenuous as to the reasons for the dismissal. At the time Payne dismissed the case, 100 jurors were waiting to serve.

That same month, Payne participated in setting a preliminary hearing in another matter. The judge traveled eight hours to convene the hearing. On the day of the preliminary hearing, however, no prosecutor from Payne’s office appeared. A prosecutor eventually joined via Webex after the court clerk contacted Payne’s office, but the prosecutor was not prepared to proceed. The hearing was reset. The judge traveled another four hours to hold the hearing, during which the parties waived the hearing for a plea offer. Payne knew the day before the hearing that the defendant planned to waive the preliminary hearing, but he took no steps to notify the judge; had Payne alerted the judge, she would not have needed to travel to the hearing.

In 2022, Payne did not properly introduce hearsay statements from a minor victim in a juvenile sexual assault case. He then failed to appear for a hearing to address the child hearsay statements, assigning the matter to another prosecutor who was scheduled to handle a different docket that day and had not been prepared to address the child hearsay issue. Payne also made false statements, or failed to disclose to the court and the named victim and her family accurate information about the status of the case and reasons for the dismissal.

Finally, in 2022, during a political campaign to recall Payne from office, Payne began an investigation and filed criminal charges against the previous district attorney, a political rival and critic of Payne. Despite this antagonistic relationship, Payne did not seek an outside law enforcement agency or special prosecutor to oversee the investigation or make charging decisions. Ultimately, Payne’s actions prevented the court from making a probable cause determination in the case.

KUSA 9 News reported he resigned from office in July.  (Mike Frisch)

40 Pounds Of Trouble

The Arkansas Supreme Court has ordered an interim suspension of an attorney.

The Arkansas Democrat & Gazette reported on criminal charges

A 47-year-old Little Rock lawyer arrested with about 180 pounds of marijuana at the city airport admitted Tuesday to possessing a portion of the contraband in exchange for a six-year prison term.

David Matthew Littlejohn pleaded guilty to a Class B felony marijuana possession charge, which involves up to 100 pounds of marijuana, reduced from Class A felony possession, which tops out at 500 pounds. Littlejohn had been scheduled to stand trial Tuesday before Pulaski County Circuit Judge Leon Johnson.

A co-defendant from California is awaiting trial.

Questioned about what crime he had committed, Littlejohn told the judge that he had 40 pounds.

"I was arrested at the Little Rock airport with two suitcases with about 40 pounds of cannabis," Littlejohn said.

According to police reports, detectives were using a trained dog to inspect incoming luggage at the Bill and Hillary Clinton National Airport/Adams Field in January 2020 when the K-9 alerted on six suitcases inbound from California.

The luggage was claimed by Littlejohn and 37-year-old Janae Annette Wallace of Fairfield, Calif., who were both arrested. They were jailed overnight and released the next day on personal recognizance. Wallace is scheduled for trial in October.

The prosecutor is Elizabeth Whitfield, while Littlejohn was represented by attorneys Rickey Huffman of Benton, Rickey Hicks of Little Rock and Brent Miller of Hot Springs.

(Mike Frisch)

Guns In The Temple

The New York Commission on Judicial Conduct has proposed removal   of a village court justice charged in a

Complaint [that] alleged that in late 2015 or early 2016, inside the Whitehall Village Court, respondent brandished a loaded semi-automatic handgun at Brandon Wood ("Wood"), a defendant whose criminal case respondent was scheduled to hear that day. The Complaint further alleged that in late 2015, respondent gave an informal interview to his cousin, a journalism student, in which he described his practice of carrying a concealed firearm while presiding on the bench and stated that he had brandished his handgun in court at a defendant; that at an October 2018 meeting of the Washington County Magistrates Association, respondent, while seeking advice, told other judges that he had once brandished his handgun in the courthouse at a person he described as a "large Black man" and in February 2019, respondent was counseled by his supervising judge about brandishing his gun in court.

This press release describes the matter

Commission Administrator Robert H. Tembeckjian made the following statement.

“The courthouse is where threats or acts of gun violence are meant to be resolved, not generated. But for the fact that it happened in this case, it would otherwise be unfathomable for a judge to brandish a weapon in court, without provocation or justification. To then brag about it repeatedly with irrelevant racial remarks is utterly indefensible and inimical to the role of a judge.”