Tuesday, April 23, 2019

A Matter Of Consents

The District of Columbia Office of Disciplinary Counsel is making a laudable effort to improve on access to information.

Newest feature to their web page 

Petitions For Negotiated Discipline

Lawrence R. Radanovic, Disciplinary Docket No. 2014-D422
Chidinma M. Iwuji, Disciplinary Docket No. 2018-D007

The links to these negotiated dispositions give the Bar and the public a better understanding of how the consent process, finally taking hold in D.C. after a Bette Davis-style bumpy ride,  actually works.

Transparency breeds trust in the process. (Mike Frisch)

April 23, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Domestic Violence

A Colorado Hearing Panel ordered a split sanction for a domestic violence conviction

A hearing board suspended Lawrence R. Hill (attorney registration number 17447) for one year and one day, all but six months stayed upon completion of a three-year period of probation with conditions, including alcohol monitoring and treatment. The suspension takes effect April 19, 2019.

In 2017, Hill and his wife went to a bar, where they consumed alcohol and argued in the parking lot. Hill’s wife made him walk home from the bar. When Hill returned home, he found a baseball bat, walked up the stairs, and entered his wife’s bedroom, where he verbally threatened her while brandishing the baseball bat. He pleaded guilty to menacing, a class-three misdemeanor. His conduct and guilty plea involved an underlying factual basis of domestic violence.

Background

Respondent and his wife have been married for twenty-four years. In 2016, Respondent testified, he and his wife were $12,000.00 to $14,000.00 behind on their mortgage payments, and his mortgage company initiated foreclosure proceedings on the family home, setting the sale date in June 2017. The couple considered filing for bankruptcy or taking out a high-interest loan, but neither solution was “workable,” he said.

Respondent testified that in 2017 he was a solo practitioner practicing bankruptcy and family law. He said that he has always struggled financially as a lawyer, and his income dropped significantly in 2015 and 2016 because the U.S. economy was doing well and bankruptcy filings decreased. To make ends meet, Respondent took on various odd jobs, such as serving as a courier for FedEx and driving for Uber.

He was also concerned about their son, who was facing criminal charges .

After drinks at the Mirage and a fight, she had him walk home

Respondent testified that when he arrived home he wanted to “make a statement” to his wife, so he went into the garage and retrieved a children’s aluminum baseball bat. He took the bat into Ms. Hill’s bedroom. He said that he held the bat with both of his hands. He then shook the bat at Ms. Hill while standing ten to fifteen feet away from her in the doorway and threatening that if she “ever did that again,” he would “crack her skull.” Ms. Hill, in contrast, said that Respondent pointed the bat and held it within one to two feet from her face, yelling, “If you ever talk to me again, I will crack your skull, got that?” She said that even though he never struck her or any furniture with the bat, she felt traumatized. She was not concerned that he would physically harm her, however, because he had never done so before. According to Ms. Hill, she called her son, who in turn called 9-1-1.

He then left the room and went downstairs. Respondent testified that within minutes of going downstairs, there were eight to ten police officers at his front door. He said he was surprised that the police had been called, but he let the officers into his home because he respects authority. He felt that he was very honest with the officers about what had happened.

He attended counseling as part of the sentence

Ms. Hill said she has noticed a change in Respondent since he completed domestic violence counseling. She thinks he is more self-aware: instead of “blowing up” he just “yells” now. She confirmed that Respondent has been sober since April 2017, and he has, as a result, become calmer, more energetic, and happier. She believes that the incident in April 2017 was isolated, so she is not concerned for her safety. She testified that although she and Respondent depend on each other to “manage everything,” if he drank alcohol again she would leave him. She was adamant that Respondent has only been violent while under the influence of alcohol. Ms. Hill would like to see Respondent monitored for alcohol use but realizes that eventually he will need to self-regulate without supervision.

Respondent testified that unlike in April 2017, he no longer practices law as a “lone wolf.” He has practiced law at the Allstate Law Center for the past ten months. He characterized the firm as high volume, with a large support staff. He manages approximately fifty to seventy cases per month, from intake through the filing of a bankruptcy petition. He likes this work because he enjoys assisting people who are struggling financially. According to Ms. Hill, Respondent’s full-time position has improved his self-esteem. She is fearful that if he lost this job, he would not have a professional support system and would experience negative financial consequences.

The panel did not find the conduct attributable to alcohol abuse

the expert testimony shows that Respondent suffers from a chemical dependency. But the evidence does not demonstrate a direct causal connection between that dependency and Respondent’s misconduct on April 28, 2017. Nor does the evidence show that he has been largely rehabilitated absent the confines of legal supervision and that reoccurrence is thus unlikely.

(Mike Frisch)

April 23, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 22, 2019

Bar Referral For Statements About Judge

sunEthics has a summary of a recent Florida District Court opinion 

The Third DCA ordered Lawyer to show cause why he should not be sanctioned for violations of the Rules Regulating The Florida Bar and the Florida Rules of Appellate Procedure.  The found a reasonable basis to believe that Lawyer violated Rule 4-8.2(a) by making statements that Lawyer knew to be false, or made with reckless disregard, regarding the qualifications or integrity of several judges.  The statements included accusing a named circuit judge of acting with “blatant disregard for the rule of law,” saying that the judge “recently escalated her illegal conduct,” calling an appellate court opinion dishonest, “pretextual and arbitrary.”

  In his response, Lawyer acknowledged that his comments were “unprofessional and unwarranted” and that they were “inappropriate.”  Lawyer “accept[ed] full responsibility for his inappropriate action.”  Lawyer claimed that he had taken steps “to prevent any recurrence.”
 

If the conduct had been an isolated incident, the appellate court suggested that it may have closed the matter.  But the court had previously sanctioned Lawyer for “similar unprofessional statements.”  See Aquasol Condominium Ass’n, Inc. v. HSBC Bank USA, N.A., __ So.3d __ (Fla. 3d DCA, No. 3D17-352, 12/5/2018), 2018 WL 6344710.  In that prior matter, Lawyer asserted that his misconduct was an isolated incident.  In this case, “while admitting his subsequent conduct was unprofessional, he asserts all such unprofessional conduct stopped once he received the prior order to show cause, which acted as a wake- up call to take steps to address the personal issues causing this conduct.”
 

The incidents at issue in the instant case occurred before the prior order to show cause had been issued.  Nevertheless, the court referred the Lawyer to the Bar:  “[B]ecause we are not in a position to ascertain the veracity of this latest explanation and this latest explanation is inconsistent with the previous one, we formally refer this matter to the Florida Bar for investigation.”  Bank of America, N.A. v. Atkin, __ So.3d __ (Fla. 3d DCA, No. 3D18-1840, 4/10/2019), 2019 WL 1551555.

(Mike Frisch)

April 22, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Defaults With Teeth

A disbarment recommendation from a Louisiana Hearing Committee underscores the point I made last week concerning the inadequate default procedures in the District of Columbia.

After the attorney had been suspended, he was charged with acts of unauthorized practice of law.

In Louisiana, a failure to answer charges is a real default

On November 19, 2018, Respondent filed a motion to recall the deemed admitted order and a request to be heard in mitigation. By order signed November 29, 2018, Respondent’s motion to recall the deemed admitted order was denied for a failure to demonstrate good cause. However, the Committee granted Respondent’s request to be heard in mitigation. The mitigation hearing was held on March 1, 2019. Deputy Disciplinary Counsel Yolanda Cezar appeared on behalf of ODC. Respondent did not appear.

No witnesses were called in the misconduct phase but nonetheless

The ODC met its burden of proving that Respondent violated Rule 5.5(a) in that he practices law while he was ineligible to practice, and 8.4(a) in that he engaged in conduct prejudicial to the administration of justice. Respondent represented himself as a licensed attorney, made appearances in court holding himself out as a practicing attorney, and filed pleadings while his license to practice law was suspended.

Sanction

Respondent failed to appear or present any mitigating evidence on his behalf at the hearing in mitigation that he himself requested in this matter. His absence was strong evidence of his disregard for the profession and the efforts that were being made to uphold the profession by holding the hearing. His failure to participate in the prehearing activities or the hearing itself showed his disregard for his peers, and the public member serving in the hearing committee. Other aggravating factors include his prior disciplinary offenses, multiple offenses, and his experience in the practice of law prior to his initial suspension...

The Hearing Committee recommends that Respondent be disbarred from the practice of law.

If this same matter was brought in D.C. , there would be a full plenary hearing where Disciplinary Counsel would have to prove the charges and two levels of review.  (Mike Frisch)

 

April 22, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Slew Draws Short Suspension

The New Jersey Supreme Court has ordered a three-month suspension as proposed by the Disciplinary Review Board

...for respondent’s most serious infractions - misrepresentations to clients (two separate clients, Kim/KOTRA and RAK Foods), fee overreaching, and conflict of interest, a reprimand is required.

However, respondent is guilty of a slew of other violations as well: a combination of entering into an improper business transaction with a client; commingling; charging an improper contingent fee; practicing law while ineligible; various recordkeeping deficiencies; and failure to cooperate with ethics authorities. Together, these additional violations warrant the imposition of at least a censure.

In additional aggravation, respondent’s use of Fredericks’ name on his attorney letterhead was particularly brazen, having taken place after Fredericks explicitly directed him not to do so. Moreover, this is not respondent’s first brush with the disciplinary system. He has a 1998 admonition for possession of marijuana and drug paraphernalia.

The parties cited no mitigation.

For respondent’s numerous violations in these several client matters, combined with the aggravating factors, the Board determined that a three-month suspension is warranted.

(Mike Frisch)

April 22, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Three-Year Disbarment

A convicted attorney was recently disbarred by the Maine Supreme Judicial Court

  1. At the time of the significant events, Mr. Miller was employed by the Social Security Administration and had no private clients.
  2. Mr. Miller agrees that he had engaged in misconduct and violated specific portions of the Maine Rules of Professional Conduct for which he should be disciplined by a period of disbarment from practice subject to the Court’s approval under M. Bar R. 25(a).
  3. Mr. Miller admits that on July 5, 2017 he was convicted by his plea of guilty to a charge of Accessing With Intent to View Child Pornography in violation of Title 18, United States Code, Sections 2252A(a)(5)(B) and (b)(2), which is a federal felony offense.
  4. The Criminal Complaint specifically alleged that Mr. Miller "used a computer and the internet to access digital image files that depicted sexually explicit conduct and were produced using minors engaging in sexually explicit conduct."
  5. Beginning on an unknown date, Mr. Miller used the internet and "peer-to-peer" file sharing networks to search for and download child pornography to his computer.
  6. Through his searches, Mr. Miller utilized a computer program which made his IP address visible to others, and made the child pornography which he downloaded available to others over the peer-to-peer network. Miller states that he was unaware that the default settings on the program provided for file "sharing," and thereby allowed others to access the pornography he had downloaded.
  7. Miller’s computer was equipped with a "shredder" program, and as a result, downloaded files were deleted by the computer after viewing, removing the evidence of his ongoing criminal conduct.
  8. On or about December 19, 2017 Mr. Miller was sentenced by U.S. District Court Judge George Z. Singal to a prison term of 36 months, followed by 10 years of supervised release and a $5,100.00 total financial assessment.
  9. Mr. Miller admits that his conduct underlying those criminal convictions constituted violations of M. R. Prof. Conduct 8.4(b), (c), and (d), being criminal conduct that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, involving dishonesty, as well as being conduct that is prejudicial to the administration of justice.

The court ordered disbarment for a period of three years. (Mike Frisch)

April 22, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Fees Yes, Fraud No

The New York Appellate Division for the First Judicial Department declined to dismiss an excessive fee claim against an attorney but affirmed dismissal of fraud allegations

Plaintiff's fraud claim should have been dismissed because the complaint did not sufficiently plead justifiable reliance upon defendant's claim that it needed an additional $10,000 to continue its work on her lawsuit. In fact, the complaint specifically asserts that plaintiff knew the additional $10,000 legal fee demanded by defendant would not be used for her benefit, but he required it because other clients had not paid him. This admission negates an element of the fraud claim, that plaintiff justifiably relied on the defendant's alleged misrepresentation that "[defendants] needed $10,000 to continue their work [on her case]" (see Shalam v KPMG LLP, 89 AD3d 155, 157-158 [1st Dept 2011]; Havell Capital Enhanced Mun. Income Fund, L.P. v Citibank, N.A., 84 AD3d 588, 589 [1st Dept 2011]).

The claim for excessive legal fees (and the related discussion in the complaint of defendants' alleged breach of fiduciary duty based on the alleged overcharges) was correctly sustained. Plaintiff alleged that "[her] fee bore no rational relationship to the product delivered," and detailed that, in exchange for the $25,000 fee, defendants produced only a draft complaint that was essentially identical to the one that she had presented to them (see Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). This claim is not duplicative of the legal malpractice claim, as plaintiff's complaints regarding the over billing were not a direct challenge to the quality of the work but instead a claim that the fee paid bore no rational relationship to the work performed (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]; Johnson, 129 AD3d at 70). To the extent that the motion court read the pro se complaint as alleging a separate cause of action for breach of fiduciary duty, these allegations are subsumed in the cause of action for excessive attorney fees.

(Mike Frisch)

April 22, 2019 in Billable Hours | Permalink | Comments (0)

Saturday, April 20, 2019

Novel Claims Rejected

The Missouri Supreme Court affirmed the rejection of post-conviction claims of a defendant convicted of the murder of a police officer who was investigating his possible criminal involvement in a fatal traffic accident. 

The court majority rejected ineffective assistance of counsel claims

Movant raises four points related to Juror 58’s conduct during voir dire and while serving on the jury. Two months before serving on the jury, Juror 58 published a 184-page book, which he described as a fictionalized autobiography. The book contains six pages chronicling the protagonist’s brutal and graphic revenge murder of a defendant who killed the protagonist’s wife in a drunken-driving accident. The protagonist viewed the defendant as escaping justice in the court system because the defendant received only probation following his conviction. The book’s front and back covers contain illustrations of blood spatter. The back cover states the protagonist’s life changed forever when his wife was killed and her murderer was set free. The cover states the protagonist “sought vengeance” and “seeks justice” and “knows he will die fighting the system.”

Point one

Movant argues the motion court clearly erred in denying his claim trial counsel were ineffective for failing to question Juror 58 when he volunteered he was a published author. Movant claims questioning Juror 58 about the book’s contents would have uncovered grounds to strike him for cause. Movant claims he was prejudiced because the book’s contents demonstrated Juror 58 could not serve fairly and should have been struck for cause.

The issue was not explored in voir dire and

Juror 58 was chosen for the jury and served as the foreman. The jury returned a guilty verdict. That evening, Movant’s aunt provided trial counsel with a copy of Juror 58’s book. Kessler reviewed the book overnight and presented arguments concerning Juror 58’s fitness to serve as a juror the next day.

[Defense counsel] Kessler read excerpts into the record and argued the excerpts demonstrated Juror 58 was not truthful when he answered questions during voir dire. Kessler asked the circuit court to question Juror 58 on the record about the book’s contents and his personal beliefs. Kessler also requested the circuit court question all of the jurors about any effect Juror 58’s personal beliefs and opinions had on jury deliberations. The circuit court denied the request to question Juror 58 because it found no evidence of juror misconduct and believed questioning Juror 58 might improperly taint the whole jury. Kessler then moved for a mistrial, arguing he would have to concede ineffectiveness for failing to inquire about the book during voir dire. The circuit court overruled the motion but advised Movant he could question the jurors, if necessary, after the trial. Juror 58 later was removed from the jury by the consent of the parties and did not participate in the penalty phase.

Trial counsel sought a new trial and the claims regarding the juror were rejected on direct appeal

In this case, Movant had an opportunity to litigate this claim during the hearing on his motion for new trial. However, trial counsel declined to raise the issue in hopes of strengthening their argument for a life sentence for Movant. Further, Movant raised issues related to this claim on direct appeal, arguing he suffered prejudice because Juror 58 may have improperly influenced other jurors by speaking about the book’s contents, which he believed impacted the verdict. Shockley, 410 S.W.3d at 199-200. This Court found no basis for reversal was demonstrated because it would not speculate about Juror 58’s actions or influences when trial counsel declined to question Juror 58 at the hearing on Movant’s motion for new trial. Id. at 201-02.

The court majority rejected a host of other claims of ineffective assistance by trial and appellate counsel.

Juror 58 drew a dissent from Judge Laura Denvir Stith

I respectfully dissent from the portion of the principal opinion holding counsel were not ineffective in failing to question Juror 58 during voir dire about the provocative novel he admitted writing and in failing to call other jurors in support of Mr. Shockley’s motion for new trial. On direct appeal, this Court held, because of these failures, the record did not support Mr. Shockley’s claim that Juror 58 should have been stricken for cause or that the other jurors saw his book and it affected their deliberations. State v. Shockley, 410 S.W.3d 179, 201 (Mo. banc 2013). Because the postconviction hearing demonstrates counsel had no valid strategic reason for failing to voir dire Juror 58 and for choosing not to question other jurors about when and how they were exposed to his violent novel, I would find both failures constituted ineffective assistance that may have affected the outcome of the trial...

The principal opinion states that finding counsel’s voir dire ineffective would be equivalent to adopting a rule that “a potential juror’s employment as an author, standing alone, establishes the juror has ‘multiple sources of bias.’” The dispositive fact here is not  that Juror 58 was an author. What is relevant here is that Juror 58, on his own initiative, approached the bench during a break to inform the court he had not revealed as yet during voir dire that he was a published author and he thought “maybe I should be coming out with fact [sic] as well.” When a venireperson feels strongly enough that a piece of information may be relevant for consideration in voir dire that he himself suggests it to the court on his own initiative, defense counsel is ineffective in failing to investigate what made the venireperson believe the information needed to be disclosed . For this reason, the principal opinion’s attempt to distinguish Knese v. State, 85 S.W.3d 628, 632 (Mo. banc 2002), is unavailing. As in that case, the failure here to conduct a basic investigation of the juror’s bias was ineffective.

This error was compounded by counsel’s rejection of the circuit court’s offer to allow counsel to call Juror 58 and other jurors during the hearing on the motion for new trial. The failure to follow up during voir dire and by calling jurors in support of the motion for new trial meant the record before the circuit court and this Court on appeal did not support grant of a new trial, resulting in the conviction being affirmed on appeal.

The principal opinion states the decision not to call jurors in support of the motion for new trial was reasonable in that counsel believed, because the jury was unable to agree whether to impose the death penalty, the trial judge was unlikely to impose death, as they had never had a trial judge impose a death sentence when the jury could not agree on punishment. In other words, counsel filed a motion for new trial but chose not to support it with testimony in the hopes the judge would give a favorable ruling on death.

If counsel believed errors in the trial merited a new trial, they had a duty to file a proper and supported motion for new trial. They failed to meet their duty by filing a motion they admittedly chose not to fully support with facts. Moreover, if what counsel wanted was to have the judge decide punishment while knowing the jury deadlocked, they could have requested the judge and State consent to doing just that even if a new trial were granted. Failing to investigate juror misconduct, however, was not an option. Yet counsel made the decision to forego any questioning of Juror 58 or the other jurors about whether they were exposed to Juror 58’s novel and the extent of that exposure.

Knese v. State involved the following

Knese argues that his counsel, was ineffective for not striking two jurors as biased and unqualified.   Counsel has been a member of the Missouri bar since 1967, minus a nine-and-a-half-year disbarment. He tried over 20 criminal cases-including several capital cases.

[Editor's note: that is a rather significant minus] 

In preparation for voir dire, counsel reviewed the questionnaires completed by the venire.   However, he did not review those received on the morning of trial.   Two of these were from (eventual) jurors Dennis K. Gray and Richard R. Maloney.   The questionnaires requested opinions on crime and the death penalty.   Gray-the foreman-believes our laws are “way too soft” on criminals.   His solution to crime is to “build more jails,” and give out longer sentences and fewer paroles.   Regarding the death penalty he stated:  “make executions public.   If a criminal knew he was being executed in a public square in front of thousands of people, he might [think] twice about committing a murder.”   Maloney stated that he disfavored “endless appeals,” “parole boards,” “good time,” and “clergy to pamper a killer,” and wrote:  “if he is found guilty, do it.”

Counsel did not read these questionnaires until after trial.   He testified that when he read Gray's responses:  “I about vomited;”  “I missed it and there is no chance that I would have left [Gray] on a jury if I would have seen it ahead of time.”   Gray “would have been my first strike ․ the mistake in this case, I believe, is the most egregious mistake I've ever made in the trial of a case.   It could well have had catastrophic consequences for my client and there's no excuse for it.”   Counsel did not question Gray directly.   The court collectively asked the venire one question about following the court's instructions:  “Is there anybody that could not follow the Court's instructions with respect to the range of punishment?   Basically folks, that is what I'm asking you is the death penalty question.   Is there anybody here that feels that they could not follow the Court's instructions?”   See State v. Nicklasson, 967 S.W.2d 596, 611 (Mo. banc), cert. denied, 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998).   Gray did not respond to the court's question.

As for Maloney's questionnaire, counsel testified that he was “flabbergasted;”  “for any criminal defense lawyer ․ to leave a man who responds like he did ․ is just an egregious error, and especially in a case like this;”  he does not have “a ghost of a chance of being fair and-fair and impartial.”   Counsel would have struck Maloney.   He did not question Maloney directly.   As a member of the venire, Maloney did not respond to the general question-asked by the court-quoted above about following the court's instructions.

(Mike Frisch)

April 20, 2019 | Permalink | Comments (0)

Friday, April 19, 2019

Consent Disbarment After Manslaughter Plea

Another Arizona disbarment by consent

KOLD News 13 reported

Judge Teresa Godoy explained to a packed courtroom Monday morning that the sentence handed down to a defendant does not reflect the loss suffered when a crime is committed, but loved ones of Rosalia Gilbert couldn’t help but feel that way when they heard ten and a half years.

That was the sentence for Christopher Raboin, a former attorney in Tucson who pleaded guilty to manslaughter for Gilber’s death in November 2015.

Raboin and Gilbert were a couple. First responders found her dead in her home near Prince Road and Tucson Boulevard. Sheriff’s deputies pulled a pit maneuver to stop him from driving away in her vehicle.

Court documents state Gilbert, 46, was bludgeoned and strangled to death. Raboin was originally booked into the Pima County Jail for second-degree murder.

Judge Godoy stated that she received dozens of letters of support both Gilbert and Raboin leading up to Monday morning’s sentencing.

Raboin’s time served will count towards his 10.5 year sentence. The length of time is what Raboin’s attorney requested from the judge. Prosecutors and Gilbert’s loved ones from out of state asked for more.

Her mother, Vilma Klein, was the first to share a statement Monday in the courtroom. She described her daughter as her best friend and that she’s cried every day since losing her.

Klein said it was funny because she believed Raboin deserved to serve more time for what happened, but she ultimately expected the 10.5 year sentence.

Gilbert’s brother Bernardo Caceres, who lives in California, said Monday outside of court that justice wasn’t served. He said he would pray for the people of Arizona, where he believes the justice system is flawed. He said there is no closure.

“It is a new beginning of a life without her, a sad life without her,” said Caceres. “There isn’t a day that I haven’t thought about her.”When Raboin turned to the family to apologize for what had happened, Gilbert’s other brother flipped him off. Raboin said he takes full responsibility and that what happened to Gilbert was absolutely horrific.

Raboin’s attorney reminded the judge that he has no prior allegations of domestic violence and no felony convictions. He stated Raboin has a history of sleep terrors, which he described as worse than bad dreams and more like an unconscious attack that he was unaware was happening.

The University of Arizona School of Anthropology remembered the victim. (Mike Frisch)

April 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Guilty And Disbarred

The Arizona Presiding Disciplinary Judge accepted a consent to disbarment. 

KRUN 9 reported in January 2019

A Tempe attorney accused of shooting and wounding his girlfriend's former boyfriend in 2013 has changed his plea to guilty in the case.

Maricopa County Superior Court officials say Joseph Palmisano pleaded guilty Wednesday to assault and kidnapping.

He's scheduled to be sentenced on Feb. 22.

Palmisano was arrested in April 2013 on suspicion of attempted murder, aggravated assault and kidnapping charges.

Tempe police say Palmisano and Ryan Hall met in the parking lot of a business complex as Hall was dropping off his son with his former girlfriend.

An altercation ensued and Hall was shot.

Hall reportedly suffered two broken ribs and one of his lungs was nicked by the bullet.

Palmisano was 48 years old at the time of the shooting.

(Mike Frisch)

April 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

The Fault Is In D.C. 's Flawed Default Rules

I may be in error (an increasing possibility on all levels) but I believe that the 254-page Ad Hoc Hearing Committee Report filed today in the District of Columbia is the longest in history.

The evidentiary hearing of this case was held on March 12-15, 2018. ODC was represented by Julia L. Porter, Esq., Senior Assistant [now Deputy] Disciplinary Counsel. Respondent did not file an Answer to the Specification, participate in the hearing, or file a post-hearing brief. During the hearing ODC called four witnesses and submitted 176 documentary exhibits, all of which were admitted into evidence.

After the conclusion of all testimony and closing argument, the Hearing Committee recessed in executive session pursuant to Board Rule 11.11 to determine on a preliminary, non-binding, basis whether ODC had proved a violation of at least one disciplinary rule. Upon resuming proceedings, the Chair announced that the Hearing Committee had made such an affirmative determination. Upon inquiry by the Chair if there were any additional matters in aggravation of sanction that ODC wished to place before the Hearing Committee, ODC stated that Respondent had no record of prior legal ethics violations.

In the ODC case the Respondent set forth his position before declining to further participate

Pleases don't kill trees, waste taxpayer resources and ODC personnel on me.

ODC has no credibility or legitimacy to me. Or the drivel you generate.

You are simply dishonest lawyers who do nothing to regulate honest lawyers.

And racists to boot.

Rather than wasting time, money, and paper on your sophistries, please disbar me.

Disbarment by ODC would be an honor.

To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt.

But a disbarment letter from ODC will be framed and go up right alongside those diplomas.

Please do me the honor of disbarring me.

I will be so very very [sic] proud.

The committee declined to bestow the honor, proceeded to execute a veritable forest and rejected ODC's proposed disbarment in favor of a three-year suspension. 

The committee describes in exacting detail patterns of frivolous litigation, causing unnecessary delays, failures to follow rules and procedures and alleging ethics violations by his opposing counsel and a judge. 

And using social media to harass  and intimidate

On December 1, 2016, Respondent made a Twitter posting directed to the plaintiffs in different case [United States District Court] Judge Boasberg was handling, asking, "Would any of your members or supporters be interesting [sic] in protesting at the home of Judge Boasberg?" FF 161. Respondent's action was clearly improper. At a time when the issue of the ultimate sanction against Respondent was still undecided, Respondent used of a medium of mass communication directed to individuals entirely unrelated to him and the Hall case which was likely to ̶ and in fact did (id.) ̶ come to Judge Boasberg's attention, seeking to bring public pressure to bear on the adjudicative process itself. This was done not in the pursuit of any noble cause or issue of public importance, but simply to carry forward Respondent's own sense of private grievance against Judge Boasberg. It was the dark whisper, "We know where you live." This attempt at intimidation had the potential for causing serious interference with the administration of justice, and was a blatant violation of Rule 8.4(d)...

In his internet postings on April 7, 2016 (FF 100) and May 2, 2016 (id. n. 62), however, Respondent crossed the line between arguably proper representation of a client's interests and improperly acting to inflict intentional harm on Ms. Dettling and Ms. Dekker. In the context of stating that he represented a former client of Ms. Dettling, Respondent broadcasted to the world the accusations that Ms. Dettling had tried to cheat him, that Ms. Dettling and Ms. Dekker had mishandled a client's case and were being sued for malpractice, and that Ms. Dettling was a "slimeball" (id.). Ms. Dettling clearly felt embarrassed and burdened by Respondent's April 7, 2016 e-mail: she testified that she viewed it as "extortion." Id. This repeated use by Respondent of a means of mass communication directed to unknown third parties ̶in contrast to the prior e-mails he directed solely to Ms. Dettling and Ms. Dekker ̶ in order to say derogatory things about Ms. Dettling and Ms. Dekker is clear and convincing evidence that Respondent acted with no substantial purpose other than to embarrass and burden Ms. Dettling and Ms. Dekker, in violation of Rule 4.4(a).

And falsely accused a school official of filming exercising female teachers

Respondent also made two separate internet postings to the School Board's website. In the first posting, on September 7, 2016 posting (FF 215), Respondent suggested that assistant superintendent Goffredo (a target of some of the allegations in the Stevenson case (FF 195; 217 n. 109)) was "caught" secretly videotaping female teachers while they exercised. This posting was grossly inappropriate and not at all related to the issues of the Stevenson case...

On September 7, 2016 Respondent sent Mr. Meiswich a coercive e-mail that abused Respondent's role as an attorney in gathering information about the Stevenson case, and that threatened further abuse of the judicial process in order to harm Mr. Meiswich. FF 214. On the same day, Respondent made a salacious internet posting on the School District's Facebook page about the School District's assistant superintendent for human relations, Mr. Goffredo (FF 215), an individual who was explicitly viewed as an opponent in the Stevenson case.

He filed bar and judicial complaints and

The foregoing facts constitute clear and convincing evidence that Respondent made threats of criminal charges for the sole purpose of obtaining an advantage in a civil matter. Respondent's threats of criminal charges were directly proximate in time and made with reference to Ms. Bromley's termination and personal property disputes with e Management; Respondent threatened criminal charges explicitly as part of his attempt to obtain a settlement for Ms. Bromley; Respondent sent senior e-Management personnel copies of his July 8 e-mail to ensure they were directly aware of the threat he was making personally against them; and the repetition of Respondent's threats over a period of several weeks is strong evidence that they were made for the sole purpose of furthering Ms. Bromley's claims. The Hearing Committee therefore concludes that Respondent's threats of criminal charges violated Rule 8.4(g).

Why no disbarment?

Although, as previously noted in this Report, ODC argues for a sanction of disbarment (ODC Br. at 75-78), the Hearing Committee's reading of the foregoing  cases leads it to conclude that absent evidence of dishonesty or material misrepresentation, disbarment is not warranted. Nevertheless, considering the extreme seriousness of Respondent's misconduct, the multiple Rules violations involved in this case ̶ including, as in no other case discussed above, Respondent's attempted intimidation of a federal judge ̶ and the self-serving nature of Respondent's actions in the Dettling matter, it would understate the gravity of Respondent's misconduct to recommend a suspension of less than three years.

With fitness

In the present case there is clear and convincing evidence in the record that  Respondent shows absolutely no sign of recognizing the seriousness of his misconduct. To the contrary, he is expressly proud of his misconduct, and openly contemptuous of the disciplinary system. FF 270. Unlike the attorney in Tun, 195 A.3d at 74, there is no acknowledgement by Respondent that some sanction is warranted, and, therefore, no evidence that Respondent understands the seriousness of his misconduct.

I'm sure I will have more to say if I live long enough to read this report but I'll start with one question:

If an attorney does not deign to contest any aspect of bar charges, is a full plenary hearing a necessary and useful allocation of limited disciplinary resources?

Four days of hearings and an extensive (at least 80 page) post-hearing brief by ODC for an attorney who gave the disciplinary system a middle finger salute.

I have no doubt of the hearing committee's diligence - Chairman Martin Shulman is a paragon of thoroughness and professionalism as is Deputy Disciplinary Counsel Porter - but their laudable efforts should be directed to matters involving accused attorneys who care to contest serious charges. 

Many if not most jurisdictions deem a default as both an admission of the alleged facts and serious misconduct in and of itself. 

D.C.'s crabbed views on defaulting accused attorneys date back to this 1983 decision. It is well past time to rethink this policy. 

The case is In re Glenn H. Stephens III. (Mike Frisch)

April 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Clipped

A 60-day suspension from the Kentucky Supreme Court

Hubbard represented clients in a grandparents’ visitation case in McCracken Family Court. Attorney Alisha Bobo acted as opposing counsel in the case. The visitation case became contentious and Bobo sought to disqualify Hubbard from the case in October 2017 on the basis that he had become a fact witness. Hubbard disagreed. The next month, Hubbard clipped a picture of Bobo and her wife (Lisa Thompson Bobo) from a newspaper, drew an arrow to the couple, and wrote “2 pitifull [sic.], fat, ugly lesbians” beneath
the photograph, addressed an envelope to Bobo and her wife, and mailed it to them.

At a hearing in the visitation case on January 31, 2018, before Judge Deanna Wise Henschel, Bobo revealed the article she had received. When Judge Henschel directly asked Hubbard, he denied that he had mailed the newspaper clipping to Bobo. Then, Hubbard turned to Bobo on two separate occasions and denied sending the photograph to her and her wife. When Judge Henschel asked Hubbard yet again, he maintained his denial of sending the clipping to the Bobos. Finally, Hubbard was sworn in after being called as a witness by Bobo. Under oath, Hubbard denied it was his handwriting on the envelope containing the photograph and addressed to the Bobos.

In February, Bobo filed a bar complaint against Hubbard based on the events described above. The next day, Hubbard self-reported to the KBA, filing a complaint on himself. In Hubbard’s self-report, he admitted to mailing the clipping to the Bobos and provided an apology to the Bobos. Hubbard also issued a public apology.

As to the judge

Hubbard also admits that in May, after filing his answer to the charge in the current case, he filed a Judicial Conduct Commission (JCC) complaint against Judge Henschel. He admits this complaint was retaliatory and vindictive. Furthermore, Hubbard admits to asking attorney Tiffany Gabehart Poindexter (a family law practitioner in McCracken County who frequently appeared before Judge Henschel) if she was aware of a JCC complaint against Judge Henschel. Hubbard also admits that, although the above is his
recollection of his conversation with Poindexter, it is possible that Poindexter’s recollection of the conversation is accurate. Poindexter believed Hubbard asked her whether she knew Judge Henschel had been subpoenaed to a “judicial ethics hearing.” Hubbard also attempted to discuss with Poindexter his assertion that Bobo did not like him due to his stance on same-sex marriage and the potential for Poindexter to run against Judge Henschel. Poindexter, however, ended the conversation.

The parties agreed to the suspension.

The Courier Journal noted he had been a Congressman

Disgraced former U.S. Rep. Carroll Hubbard, a lawyer who was sent to prison for three years for corruption in office, is in trouble again — this time for allegedly calling another attorney and her spouse “pitifull (sic) fat, ugly lesbians.”

Hubbard, a Democrat who was disbarred following his conviction for three felonies in the 1990s but had his license reinstated, is under investigation for harassing communications, McCracken County Sheriff Jon Hayden said.

Hayden said his office interviewed Hubbard after receiving a complaint and will consult with a special prosecutor when one is appointed.

Hubbard, 80, is accused of sending an anonymous letter to another Paducah attorney, Alisha Kay Bobo, his opponent in a heated family law case. The letter included photos of Bobo and her spouse at a fundraising event and described them in disparaging terms.

When Bobo on Jan. 31 asked in court if his handwriting was on the letter, Hubbard initially said no. When reminded he was under oath, he refused to answer. He eventually cited his Fifth Amendment right not to incriminate himself after Family Court Judge Deanna Wise Henschel reminded him of that constitutional right. 

Bobo, 31, told Courier Journal the mailing was “appalling” — especially coming from an attorney. She said she grew up in Paducah and never before encountered bias based on her sexual orientation.

Hubbard initially declined comment for this article, then acknowledged he sent the letter. He called it "an unwise decision on my part." He said he wouldn't do it again, but also said Bobo goaded him into doing it.

The Kentucky Bar Association’s rules of professional courtesy say a lawyer shall not engage in “intentionally discourteous behavior” nor “intentionally embarrass another attorney.” Commentary to Kentucky Supreme Court rules says lawyers should treat “all persons involved in the legal process with courtesy and respect.”

Hubbard, a nine-term Democrat who represented the state’s 1st Congressional District, pleaded guilty in 1994 to charges stemming from an investigation into a House banking scandal.

Hubbard admitted he obstructed justice by staging a burglary of his district office to make it appear his campaign and House bank records had been stolen, and that he misappropriated more than $50,000 in campaign money for illegal use. He also admitted ordering his congressional staff to perform personal and political tasks for him while they were being paid by the government.

Prosecutors said Hubbard, who ran unsuccessfully for governor in 1979, used the campaign money to pay gas, heating and credit card bills, school tuition for his daughter and his former wife’s cable TV bill.

Hoping to stave off prosecution, he worked as a Justice Department informant under the code name “Elmer Fudd,” wearing a wire and taping phone conversations. He famously told the Washington Post that for more than six months, "I was an FBI slave.”

In 2001, the Kentucky Bar Association's board of governors voted 16-0 against reinstating Hubbard to practice but the state Supreme Court found he was of “good moral character” and voted unanimously to return his law license.

“He did a crime but he did his time,” retired Justice Bill Graves of Paducah said Wednesday in an interview. Graves said Hubbard’s alleged recent conduct does not sound “wholesome” or “professional,” but he may have had a First Amendment right to send the letter.

A person is guilty of harassing communications in Kentucky when, with intent to "intimidate, harass, annoy, or alarm," he communicates with a person “anonymously or otherwise … in a manner which causes annoyance or alarm and serves no purpose of legitimate communication." The crime is a misdemeanor punishable by a maximum fine of $250 and up to 90 days in jail.

Hubbard and Bobo represent parties in a pending grandparents' rights case.

Hubbard said in court that he was refusing to answer Bobo’s questions about the mailing because “her main goal as one who hates me is to get me to commit perjury.”

“Your honor,” he told the judge, “I think I need an attorney ... but I can’t think of the magic words.”

“Are you wanting to plead the Fifth?” Henschel asked.

"Yes," he said.

Hubbard in the interview said Bobo provoked him into sending the mailing by calling him prejudiced and vowing to use the case to avenge his past comments denouncing gay marriage.

"She has done me so dirty," he said.

He also alleged Bobo is trying to use the controversy surrounding the letter to gain publicity in Courier Journal so "gays in the Highlands" would vote for her in the Paducah Sun's reader's choice contest for best local lawyer.

Bobo called that assertion "absolutely hilarious" and denied calling Hubbard prejudiced, saying she didn't know he had denounced same-sex marriage in churches and radio broadcasts.

Hubbard said in various appearances that "God made Adam and Eve, not Adam and Steve," but that he doesn't dislike gay people.

"I have neighbors in Paducah who are gay and they are friends of mine," he said.

(Mike Frisch)

April 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Savings Grace

The Kentucky Supreme Court affirmed the dismissal of a wrongful discharge claim brought by an attorney against her former firm

Absent an employment contract, Kentucky adheres to the doctrine of employment-at-will by which an employer may terminate an employee’s employment for any or no reason. An exception to this rule exists when the termination violates public policy as expressed by the employee’s exercise of a constitutional or statutory right, which may give rise to an action for wrongful termination. In this case, Carol Greissman, a licensed attorney in Kentucky, was terminated by Rawlings and Associates, PLLC (hereinafter, “Rawlings & Associates”) for refusing to sign an agreement providing, inter alia, for nonsolicitation of Rawlings & Associates’ customers or clients following cessation of employment. Greissman’s refusal was based on her belief that the provision violated a Rule of Professional Conduct prohibiting non-competition agreements between lawyers and law firms. SCR1 3.130, Rule 5.6. The primary issue we must resolve in this case is whether the Court of Appeals erred in opining that the Rules of the Kentucky Supreme Court do not establish public policy which in turn may form a basis for a wrongful termination claim. We hold that the Court of Appeals erred in holding that Greissman’s complaint should have been dismissed for failure to state a claim, but nonetheless affirm on other grounds. The Oldham Circuit Court properly granted summary judgment in favor of Rawlings & Associates since the agreement at issue contained a savings clause which excepted the solicitation of legal work from coverage “to the extent necessary to comply with rules of professional responsibility applicable to attorneys.” Thus, we agree with the circuit court that the agreement furnished to Greissman for signature did not violate SCR 3.130, Rule 5.6 as a matter of law.

The attorney had been asked to sign the non-compete as were all other firm employees and was fired when she refused, claiming the document violated public policy

While an obligatory Rule of Professional Conduct as enacted by the Kentucky Supreme Court may qualify as public policy for purposes of a wrongful discharge claim, the professional rule must be designed to serve the interests of the public at large, rather than the sole interests of the profession. Here, SCR 3.130, Rule 5.6 is designed to protect society at large by allowing clients to freely choose counsel who can best represent their interests and by not limiting an attorney’s right to practice law. We believe the rule represents a fundamental and clear statement of public policy.

Saved by the savings clause

While we disagree with the Court of Appeals’ decision that Greissman’s complaint should have been dismissed for failure to state a claim, we nevertheless affirm because we agree with the circuit court’s grant of summary judgment in favor of Rawlings & Associates. On its face, the savings clause applies only to restrict Greissman’s ability to solicit non-legal business; it exempts the solicitation of legal work from coverage under the non-solicitation clause, expressly noting that the signor does not agree to those terms to the “extent necessary to comply with the rules of professional responsibility applicable to attorneys.” Unambiguously, the signor agrees not to solicit Rawlings’ non-legal business; the savings clause does not apply to the solicitation of legal work since that would violate the Rules of Professional Conduct. Indeed, the savings clause expressly recognizes that the Rules of Professional Conduct govern if any conflict exists between them and the agreement. Since the plain language of the savings clause excludes any interpretation of the agreement that conflicts with the Rules of Professional Conduct, the agreement did not violate SCR 3.130, Rule 5.6.

(Mike Frisch)

April 19, 2019 | Permalink | Comments (0)

The Severed Thread

Post-suspension crimes have led to the license revocation of an attorney by the Iowa Supreme Court

Anthony R. Johnson is an Iowa lawyer in Ankeny. He was employed as an accountant for Saxton Motors, LC. In August 2016, Johnson entered an Alford plea in the Iowa District Court for Polk County to the felony offense of fraudulent practice in the first degree. The charge was supported by evidence that Johnson embezzled substantial sums of money from his employer by making false entries in the records of the business for over a year. Essentially, Johnson funneled income from the business into two secret, unauthorized business accounts he established to receive the funds.

In October 2016, the district court sentenced Johnson to a suspended ten-year term of incarceration and placed him on probation. The sentence also imposed a fine and ordered him to pay restitution.

Johnson engaged in multiple instances of unethical conduct in the past. His license was suspended in 2009 for abandoning his legal practice in Ankeny. His license was never reinstated, and he has not engaged in the practice of law since that time.

The criminal conduct

In this case, each factor supports the conclusion that Johnson’s criminal activity, resulting in the conviction of first-degree fraudulent practice in violation of Iowa Code section 714.8 (2016), reflected adversely on his fitness to be a lawyer. Johnson made false entries in or alterations to his employer’s business records by concealing deficiencies resulting from his misconduct. See id. § 714.8(4) (providing a person is guilty of a fraudulent practice when they “[m]ake[] any entry in or alteration of any public records, or any records of any corporation, partnership, or other business enterprise or nonprofit enterprise, knowing the same to be false”). Over the course of a year, he deposited the proceeds of automobile sales and insurance payouts belonging to his employer into unauthorized bank accounts  for his own use. Additionally, he overpaid himself in excess of $6500.5 His deliberate and repeated acts resulted in the fraudulent acquisition of funds belonging to his employer. His actions were systematic, targeted, and prolonged and not the result of mere carelessness or misinformation. They demonstrated a clear disrespect for Iowa law and were contrary to the expectations, duties, and responsibilities of a legal professional.

Sanction

While Johnson has not practiced law for nearly a decade, his dishonest and criminal conduct as an accountant now compels us to revoke his suspended license to practice law. The stain he imposed on the profession while he practiced law has now been darkened by his actions as an accountant, and the time has come for the remaining thread that tethers him to the legal profession to be severed. The legal profession is, and must always be, one of justice, honor, civility, and service. It is a profession that requires lawyers to discharge their duties faithfully and ethically. See Iowa Code § 602.10110. These words are not hollow or superficial utterances for lawyers as they enter the profession. Instead, they are the basic precepts that bind all lawyers together and serve to sustain lawyers throughout a career. Our profession expects no more of lawyers, but demands no less. Here, Johnson not only gave less, his actions revealed him to be unfit to be an Iowa lawyer.

(Mike Frisch)

April 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

No Relief For Delays In Psychiatric Evaluation

The Law Society of Ontario Tribunal Hearing Division dismissed a motion to stay hearing on an interlocutory suspension

The main proceeding (Law Society Tribunal file no. 17H-125) concerns the capacity of Glenn Patrick Bogue (the Lawyer) to practise law. In addition to this capacity proceeding, the Law Society has brought a motion for an interlocutory suspension. These reasons concern the Lawyer’s motion that the interlocutory suspension proceeding be stayed on the basis of delay. It was one of several motions we heard on January 7 and 8, 2019.

The respondent calls himself Spirit Warrior. He is an Ontario lawyer who self-identifies as non-status Métis, and as a member of the Kinakwii Nation/Confederacy.

The delay involved a psychiatric evaluation

  Far from proving that it was negligent or caused unreasonable delay, the record shows that the Law Society pursued the psychiatric assessment with reasonable dispatch. The Lawyer complains that the Law Society should have had its assessment motion ready to proceed on April 13, 2017. In fact, the Law Society wrote to the Lawyer’s apparent counsel, Mr. Watson, on April 7, 2017, to propose a psychiatric assessment on consent. A few days later, Mr. Watson removed himself from the record and the Lawyer stated that he would be retaining counsel. The Lawyer did not follow up concerning the Law Society’s proposal for an assessment. It was the Law Society that renewed the negotiations on July 12, 2017.

It was reasonable for the Law Society to wait for the Lawyer to retain counsel before pursuing the request for a psychiatric assessment. A psychiatric assessment entails intrusions into a licensee’s privacy and may have significant legal ramifications. The Law Society respected the Lawyer’s right to have a reasonable opportunity to retain counsel. If the Lawyer had retained counsel, or advised he would not be doing so, this may have assisted both parties in negotiating the terms of an assessment. Throughout April, May, and June, the Lawyer repeatedly indicated that he would be retaining counsel shortly. He cannot fault the Law Society for accepting his representations concerning counsel. Reasonableness does not entail perfection and the Law Society should not be evaluated based solely on hindsight.

The fact that the Law Society stood firm with recommending Dr. Klassen does not demonstrate any negligence or unreasonable conduct. Both parties were entitled to advance their choice of psychiatrist. As it turned out, the Lawyer became extremely dissatisfied with Dr. Bloom and asked that he be replaced by Dr. Klassen. Dr. Klassen completed the assessment and his report was tendered in late November 2018. The Law Society cannot be held responsible for the Licensee’s earlier decision to insist on Dr. Bloom.

The Lawyer’s claim that he “acceded to Dr. Bloom on Aug. 1” ignores the fact that he withdrew his consent to an assessment in September and insisted that the Law Society present its arguments at a hearing.

The Lawyer’s claim that there was a breach of the panel’s order on the assessment is not sustainable. The order obligated him to attend for up to three sessions, but it did not prohibit him from attending more than three sessions if he wished to.

The Lawyer willingly attended all five sessions with Dr. Bloom. Only after the meeting on March 28, 2018 did their relationship break down. The Lawyer has known about Dr. Bloom’s scheduling preferences since September 27, 2017. He has known the terms of the assessment order since November 10, 2017. He initially expressed his eagerness to meet with Dr. Bloom. As late as March 25, 2018, the Lawyer was communicating with Dr. Bloom in a very positive manner.

If the Lawyer did not agree to attend any sessions after the first three, then he would not have done so. If he believed at the time that Dr. Bloom was acting improperly by scheduling more meetings, then the Lawyer would have sent e‑mails expressing his displeasure – as he did after the session on March 28, 2018 _ and the issue could have been placed before a panel under the terms of its order.

The Lawyer has not established on a balance of probabilities that the Law Society is responsible for any unreasonable delay in this proceeding or that he has experienced any significant prejudice due to such delay.

The history of this proceeding shows that the Lawyer brought four motions in writing resulting in hearings and nine sets of oral and written reasons. The LSO brought its original motion for suspension and two subsequent motions for a psychiatric assessment in the main capacity proceeding. None of the Lawyer’s four motions were successful.

It is our view, based on this history, that the responsibility for the majority of the delay in reaching the hearing of the main motion for interlocutory suspension rests with the Lawyer. The Lawyer generally demanded that his motions be heard before the interlocutory suspension motion. He repeatedly asked for delays and extensions. He brought multiple motions that had to be decided before the main motion.

(Mike Frisch)

April 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 18, 2019

It's My Party

A recently installed judge has been reprimanded by the Florida Supreme Court

In May of 2018, Judge Kollra and his opponent sat together for an interview with the Sun Sentinel newspaper editorial board. Judge Kollra was asked about his personal political affiliation, and he responded that he is a registered Republican. The same question was posed to Judge Kollra’s opponent, and he declined to answer. Although the newspaper did not ultimately publish information about Judge Kollra’s political affiliation, he understood that they could have. . . .

A second incident occurred just a few weeks later, in June of 2018. On June 13, 2018, Judge Kollra attended a judicial candidate forum that was advertised as an “endorsement event” for the Dolphin Democrats. The Dolphin Democrats is a partisan political organization . . . . Judge Kollra was subsequently notified that he had received the official endorsement of the Dolphin Democrats. On June 24, while participating in a judicial candidate forum hosted by the Hills Democratic Club, Judge Kollra concluded his stump speech by telling the attendees that he had recently received the endorsement of the Dolphin Democrats.

The violation

The JQC explained that Canons 7C(3) and 7D “very clearly and unambiguously” prohibit partisan political conduct by judges or candidates for judicial office.

Sanction for partisanship

Judge Kollra is a relatively new judge, and having been first appointed in 2016, and this was his first ever foray into an election of any kind. He has no prior disciplinary record with the Commission.

He was admitted to [T]he Florida Bar in 1978, and has maintained an exemplary and, heretofore, unblemished record as a licensed attorney. Further, Judge Kollra admitted to his misconduct, and has cooperated with the Commission in all respects during this inquiry. He deeply regrets that his conduct could have degraded the public’s perception of the impartiality and nonpartisan nature of judicial elections. He hopes to rectify this, in part, by taking responsibility for his misconduct, and accepting the sanction.

(Mike Frisch)

April 18, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Satisfaction Required

The Wisconsin Supreme Court has ordered a 60-day suspension and satisfaction of a judgment in an attorney discipline matter

Attorney Hudec was admitted to practice law in Wisconsin on May 21, 1979. He has a substantial disciplinary history: a 1989 consensual private reprimand; a 1993 consensual private reprimand; a 2001 consensual private reprimand; a 2008 consensual public reprimand; and a 2014 public reprimand.

That's a lot of wrist slaps.

Here one complaint involved the representation of a plaintiff in a defamation suit

Over the following months, Attorney Hudec missed a variety of court-imposed deadlines. In April 2013, B.K. filed a motion for sanctions as a result of these missed deadlines. Attorney Hudec failed to inform N.K. of this motion, and failed to inform her of the subsequently scheduled hearing on the motion. Attorney Hudec then failed to appear at the sanctions hearing. The circuit court dismissed plaintiffs' case with prejudice, finding Attorney Hudec's actions were egregious, extreme, substantial, and persistent. The circuit court noted the following facts: (1) Attorney Hudec had been granted extensions for various medical issues; (2) court-mandated mediation never took place; (3) Attorney Hudec failed to provide requested discovery to opposing counsel; (4) Attorney Hudec failed to file a pretrial report; and (5) Attorney Hudec stated that he intended to withdraw as counsel for plaintiff, but failed to so do, filing only unsigned documents.

The client sued

Although the referee's report does not note as much, the court takes judicial notice that, according to Wisconsin's Consolidated Court Automation Programs (CCAP) records, a $9,235.48 judgment against Attorney Hudec and in N.K.'s favor was entered on December 14, 2018, and Attorney Hudec has not filed a notice of appeal of the judgment.

Sanction

We agree with the referee that a 60-day suspension is appropriate. Clearly, Attorney Hudec's many previous reprimands have not impressed upon him the importance of his ethical obligations...

Although the OLR did not seek restitution related to the N.K. matter, the parties stipulated, and the referee agreed, that the court should condition Attorney Hudec's continued practice of law on his satisfaction of any monetary judgment entered in N.K.'s civil lawsuit against him. As mentioned above, CCAP records show that N.K. obtained a $9,235.48 judgment against Attorney Hudec in December 2018. Consistent with the parties' stipulation and the referee's recommendation, we deem it appropriate to require, as a condition of the reinstatement of his Wisconsin law license, that Attorney Hudec satisfy this judgment.

(Mike Frisch)

April 18, 2019 in Bar Discipline & Process | Permalink | Comments (0)

No Interim Suspension For Misdemeanor DUI Conviction

The Nevada Supreme Court declined to interim suspend an attorney convicted of misdemeanor DUI

This is a petition under SCR 111 concerning attorney Hera Armenian, based on a conviction for one count of driving under the influence, a misdemeanor. Armenian self-reported the conviction to the State Bar. Although the State Bar is not required to file a petition under SCR 111 upon being advised of an attorney's "first-time conviction for a misdemeanor traffic violation involving alcohol," SCR 111(4), the petition filed in this matter indicates that this is not Armenian's first such offense.

Our records confirm that Armenian has been previously convicted of a misdemeanor traffic violation involving alcohol. In re Discipline of Armenian, Docket No. 71741 (Order Declining to Impose Temporary Suspension, Dec. 15, 2016). Accordingly, bar counsel was required under SCR 111(4) to present this matter to a hearing panel before filing this petition. Bar counsel did so.

Because misdemeanor driving under the influence is not one of the crimes specifically enumerated in SCR 111(6) as a "serious" crime, temporary suspension and referral to the disciplinary board are discretionary with this court. SCR 111(9). Having considered the petition and supporting documentation, we conclude that Armenian's offense does not warrant the imposition of a temporary suspension at this time. And because bar counsel has presented this matter to a hearing panel as required by SCR 111(4), a separate referral to a disciplinary board is not necessary. The hearing panel shall proceed as proposed in the panel's order entered on March 13, 2019.

(Mike Frisch)

April 18, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 17, 2019

Professionals Beware

Is a physician-patient relationship a necessary predicate to a medical malpractice action?

No, according to the Minnesota Supreme Court, which reversed the grant of summary judgment against a medical provider that did not admit the patient despite her nurse practitioner's recommendation.

This case arises out of an interaction between employees of two Minnesota health systems. A nurse practitioner in one system sought to have a patient admitted to the hospital of the other system. Admission was allegedly denied by a hospitalist. Three days later, the patient died.

She died of a staph infection. 

To be sure, most medical malpractice cases involve an express physician-patient relationship. And a physician-patient relationship is a necessary element of malpractice claims in many states.

But we have never held that such a relationship is necessary to maintain a malpractice action under Minnesota law. To the contrary: when there is no express physician-patient relationship, we have turned to the traditional inquiry of whether a tort duty has been created by foreseeability of harm.

A legal ethics chestnut from the distant past is a case that I teach in class one

We have applied the same principle to legal professionals. In Togstad v. Vesely, Otto, Miller & Keefe, Joan Togstad met with an attorney to discuss a potential medical malpractice claim on behalf of her husband, John. 291 N.W.2d 686, 689–90 (Minn. 1980) (per curiam). The attorney took notes and asked questions as Togstad told her story, and then said “he did not think [she] had a legal case.” Id. at 690. Relying on this statement, the Togstads did not pursue the claim for some time. Id. When Joan Togstad decided to investigate the claim again, she learned that the statute of limitations had run. Id. In response to a legal malpractice claim, the attorney and his firm argued that there was no attorney-client relationship between Togstad and the attorney and, therefore, that he and the firm owed her no duty of care.

We held that there was a duty, based on foreseeability of harm. The duty attached, we said, when legal advice was given “under circumstances which made it reasonably foreseeable to [the attorney] that Mrs. Togstad would be injured if the advice were negligently given.” Id. at 693.

In other words, although there was not an explicit attorney-client relationship, the attorney still owed Togstad a duty “derived from the professional relationship.” Molloy II, 679 N.W.2d at 717. It was reasonable for Togstad and her husband to rely on the attorney’s professional advice and foreseeable that both would be harmed if the advice was negligent. Id. at 718.

...for 100 years in Minnesota, a physician has had a legal duty of care based on the foreseeability of harm. Although ours is the minority rule, it is by no means unique. This rule has served Minnesota sufficiently well, and we have no compelling reason to overrule our precedent.

Justice Anderson dissented

At issue here is whether Dr. Richard Dinter owed Nurse Practitioner Sherry Simon’s patient Susan Warren a duty of care. Because it was not reasonably foreseeable that Warren, who never met or talked to Dinter, would rely on Dinter’s decision, reached in a single phone call between Dinter and Warren’s actual treating professional, Simon, there is no legal duty here. I therefore respectfully dissent.

In my view, no duty existed here. Dinter could not have reasonably foreseen based on this single conversation that Simon, who did owe a duty to Warren, would fail to make reasonable treatment decisions regarding her patient, including further infection-related testing of her patient or electing to move her patient to emergency care. Even viewing the evidence in the light most favorable to Warren, the record contains no evidence from which we can infer that it was reasonably foreseeable to Dinter that Simon’s single phone call and limited disclosure of information regarding her patient would be determinative in preventing further care for Warren, including hospitalization, if that is what the professional who was actually treating Warren—Simon—deemed necessary for her patient. Concluding that Dinter owed a duty to Warren under these facts stretches foreseeability too far.

The case might be called Palsgraf for doctors

By concluding that a duty exists in these circumstances, the court introduces confusion into the law governing tort claims based on professional relationships. The court acknowledges that although Simon worked in a healthcare system that provided for “collaborative management,” see Minn. Stat. § 148.171, subds. 3, 6, 11, 13 (2012), Simon’s collaborating physician was not her supervisor, and Simon had her own “authority, based on [her] training and licensing, to provide . . . direct care” to patients. These points are difficult to reconcile with the court’s conclusion that Dinter should have foreseen that his discussion with Simon about her patient’s condition—a discussion far less formal than the collaborative relationship between Simon and Baldwin—would be relied on by Simon, and derivatively, by her patient.

The fact that Dinter interacted with another medical professional, who then interacted with the party asserting that a duty was owed, is the critical distinction from the cases cited by the court. None of our previous decisions on which the court relies imposed a duty on a professional in the absence of an actual interaction between that professional and the party that claimed the duty was owed...

Skillings, Togstad, and Molloy show that reliance by persons who seek out the advice of professionals may be reasonably foreseeable even in the absence of an express contractual relationship between those persons. These cases do not, however, address reliance by professionals on the advice of other professionals, the circumstances that prevail here, and for good reason.

As the court of appeals observed, the most immediate result of the court’s expansive holding is that hospitalists who wish to avoid liability must “refuse to take calls from other professionals to discuss potential hospitalization of those professionals’ patients.” Warren v. Dinter, No. A17-0555, 2018 WL 414333, at *4 (Minn. App. Jan. 16, 2018). This new rule is unlikely to serve Minnesotans well, particularly those who may have access to primary health care but lack access to a deep network of medical specialists.

Parade of horribles

Today’s expansion of duty also has a broader impact. The informal conversation that occurred between Simon and Dinter is not unique to the medical profession. Lawyers, accountants, architects, engineers, and other professionals often engage in similar conversations with their colleagues—brief conversations, by telephone, on complicated topics, without formal transfer of paperwork, and without follow-up, that serve as a reasonable means of evaluating professional decisions and judgment calls. Often, the subject of these conversations—the client, the patient, or the customer—is unaware of the exchange. And, just like in this case, the professional that seeks the input of colleagues will take that input into consideration in making final decisions, such as Simon did here in turning to Baldwin and in deciding to discharge Warren without further consideration of hospitalization.

But if these kinds of conversations create a duty, and thus potential liability, then no prudent professional will share insight, ideas, and recommendations with a colleague “without a promise of indemnification,” Ford v. Applegate, No. B159756, 2003 WL 22000379, at *7 (Cal. Ct. App. Aug. 25, 2003), as amici persuasively argue.

Chief Justice Gildea joined the dissent. (Mike Frisch)

April 17, 2019 in Comparative Professions | Permalink | Comments (0)

Maine Court Shocked Prosecutors Claim That Video Of The Crime Irrelevant

A defendant charged with driving on expired tags made a standard request for any dash cam video of the incident. 

The prosecutor never responded nor sought to ascertain whether such video existed.

At trial, the trooper testified that there was in fact a dash cam video.

The only witness for the State at the hearing was the trooper, who  testified that he saw the expired sticker as Reed-Hansen passed him, coming  from the opposite direction. He estimated that both he and Reed-Hansen were  traveling at approximately fifty miles per hour. In response to a question from  Reed-Hanson at the hearing, the trooper confirmed that he was running a  dash-cam at the time Reed-Hansen drove by him. The court stopped the  hearing in order to allow the parties to address the discovery failure.

Ted Williams could not see that well. 

The trial court's reaction to the prosecutor's irrelevance claim 

The court’s patience was obviously tried by the State’s continued  insistence that the video showing the alleged crime being committed had no  “evidentiary value.”

The appealed disposition

Responding to the State’s motion for findings, the court issued an  order making additional findings of facts and stating its conclusions of law. In  its order, the court rebuked the State for its approach to its discovery obligations and affirmed its earlier order granting Reed-Hansen’s motion to  suppress.

On appeal, the prosecutors again failed to cover themselves with glory

Troublingly, notwithstanding the State’s admission at the hearing,  and confirmation during oral argument, that the State failed to comply with  Rule 16(c), the State’s brief includes this argument: “The State firmly believes . . . that the court erred in both fact and law in finding a discovery violation.” In  addition, the State argues that the court should have reviewed the video itself, despite the parties’ agreement as to the contents of the brief video and their  description of its contents to the court. Finally, the State argues that the court  abused its discretion in selecting a sanction that effectively ended the  prosecution.

The court recognized the various obligations on prosecutors create challenges and that mistakes happen but

Given the substantial responsibility placed on the prosecutors to  provide timely discovery, however, it is all the more important that the  obligation be treated seriously. The court here expressed its frustration with  the State’s cavalier attitude toward discovery in several ways...

In arguing that the video was not “exculpatory,” and therefore not  discoverable, the State confuses its obligation pursuant to Rule 16(c) with its  obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The due process  concepts articulated in Brady require the State to disclose to the defendant  evidence that is “favorable to the accused, either because it is exculpatory, or because it is impeaching . . . .” State v. Twardus, 2013 ME 74, ¶ 32, 72 A.3d 523 (quoting Strickler v. Greene, 572 U.S. 263, 281-82 (1999)). Rule 16(c), in  contrast, requires the disclosure of items, including video recordings, that are  “material and relevant to the preparation of the defense.” M.R.U. Crim. P. 16(c).  The Committee Advisory note to Rule 16(c) lucidly distinguishes the State’s  Rule 16(c) obligation from its Brady obligation. 

Can you hear me now?

What the State seems to miss in the matter before us, however, is  that there is a fine line between inadvertence and practices that the court  described here as “slipshod.” Carelessness in this critical area of constitutional  rights is not acceptable and is not an excuse. Moreover, the State’s continued  insistence that the defendant “suffered no harm” as a result of the State’s failure  to turn over the video of the crime makes it painfully evident that the State still  does not understand the nature of its obligations.

The court's opinion is linked here. (Mike Frisch)

April 17, 2019 | Permalink | Comments (0)