Tuesday, June 15, 2021

Neither AUSA Nor Lawyer Be: "Many Great Trial Lawyers Are...Outright Narcissists"

A criminal conviction has been affirmed by the United States Court of Appeals for the Fourth Circuit

After wrecking his car, Joseph Ziegler falsely claimed to be an Assistant United States Attorney to avoid charges and retrieve his impounded car. The real United States Attorney prosecuted him for impersonating a federal officer. Though not a lawyer, Ziegler waived his right to counsel and represented himself at trial. The jury convicted him. Ziegler now claims that the district court erred in permitting Ziegler to represent himself because he was incapable of doing so and because the district court failed to make necessary inquiries into his mental competency to waive counsel. He also argues the evidence does not show that he “acted” as a federal officer. We review both issues deferentially and find no error. The district judge thoughtfully evaluated Ziegler’s request to waive counsel and represent himself. Having observed Ziegler firsthand, the district court did not abuse its discretion in permitting Ziegler to waive his right to counsel and represent himself. And the jury’s guilty verdict is supported by the evidence. So we affirm.

He had been seen speeding by a county deputy sheriff who pursued him until he had crashed. He refused a field test.

Ziegler said that he would rather go to jail than deal with the inquiries because the charges would be dropped. He explained this was inevitable because he was an Assistant United States Attorney working for Mike Stuart (the district’s United States Attorney). Ziegler claimed that the deputies did not have jurisdiction to detain him; that he did not need a driver’s license to drive in a state where he did not reside; and that he had been pulled over multiple times over thirty years and “gotten out of all of them” because he was an Assistant United States Attorney.

At the courthouse

At the courthouse, Ziegler told a magistrate assistant, “I’m an Assistant U.S. Attorney and I should not be here.” J.A. 481. Ziegler then spoke to the magistrate judge during his initial appearance, explaining that he was an “Assistant U.S. Attorney” and wanted to represent himself.

He posted bond

Ziegler then went to talk to the state prosecutor, who explained he could not speak to him without his attorney. Ziegler again claimed he was an Assistant United States Attorney working with Mike Stuart on special assignment and would represent himself. Despite the state prosecutor’s request to end the conversation, Ziegler continued to talk about his case and his constitutional rights. Ziegler also demanded help getting his car back from the impound. The state prosecutor interrupted several times to ask for his supervisor’s name, but Ziegler refused to answer beyond claiming he worked for “Mike Stuart.” The state prosecutor then contacted the United States Attorney’s Office and learned that Ziegler was not an Assistant United States Attorney.

On appeal

Ziegler raises two issues on appeal. And we affirm the district court on both. First, Ziegler argues that the district court erred in permitting him to waive counsel. But we find the district court properly addressed Ziegler’s request to represent himself. Second, Ziegler argues that he did not “act” as a federal official when he claimed to be an Assistant United States Attorney to several deputies and to the tow-shop owner to get his car back. But a reasonable jury could find sufficient evidence that Ziegler acted as an Assistant United States Attorney in both instances and thus find him guilty.

A passing grade

Ziegler’s performance during trial only confirmed his competency. Ziegler gave an opening and closing argument, conducted far-reaching cross-examinations, introduced evidence, including three witnesses, and won several objections. While Ziegler continued to make some bizarre statements and mistakes, those occurrences related more to a lack of training and experience, which is to be expected of any non-lawyer, than to concerns about  competency. In fact, Ziegler did quite well for someone proceeding pro se. His apparent ability to consider strategic choices, develop a defense strategy, and operate in the courtroom is all evidence of competence to both stand trial and waive the right to counsel.

Attention trial lawyers

Still, Ziegler contends that his grandiose statements about his legal acumen, his combative approach to witnesses, his bizarre questions and theories, and his arguments with the court should have raised red flags. We disagree. Many great trial lawyers are combative and a bit full of themselves, if not outright narcissists. And “persons of unquestioned competence have espoused ludicrous legal positions.” 

Ya think?

WSAZ3 had a story on the conviction

A Michigan man who falsely claimed he worked for U.S. Attorney Mike Stuart got an opportunity to meet the federal prosecutor in southern West Virginia for the first time, in court.

“This guy doesn’t work for me and is clearly not the type of person who could ever work for me. First – not smart. Second – an absolute fraudster. Finally – an absolute fake,” ” said Stuart.

(Mike Frisch)

June 15, 2021 | Permalink | Comments (0)

The Second Time Around

A second effort to seek reinstatement after a 2005 license annulment has succeeded in the West Virginia Supreme Court of Appeals

For the second time, Keith L. Wheaton petitions this Court for reinstatement of his license to practice law in West Virginia, which was annulled in 2005 as a result of several, serious acts of misconduct. When we denied his first petition for reinstatement in 2011, we concluded that Mr. Wheaton had failed to satisfy any of the requirements for reinstatement that we enumerated in the order annulling his license. And, we determined that he had neither demonstrated a record of rehabilitation nor shown that he possessed the integrity, moral character, and legal competence to resume the practice of law. In stark contrast to his first petition for reinstatement, Mr. Wheaton now presents evidence of his rehabilitation and that he has complied with, or is in the process of complying with, the requirements we set for his reinstatement. The Hearing Panel Subcommittee (HPS) found that Mr. Wheaton’s license should be reinstated with conditions. While the Office of Disciplinary Counsel (ODC) does not join in that recommendation because Mr. Wheaton has not “fully satisfied” the reinstatement requirements set in 2005, it also does not oppose Mr. Wheaton’s reinstatement.

The misconduct

from 1997 to 2002, Mr. Wheaton committed a series of misdeeds that included misappropriation and conversion of client funds; making material misrepresentations to clients, a bankruptcy trustee, bankruptcy court, and counsel for the ODC; failing to communicate with clients; and failing to diligently pursue claims on behalf of clients.

The reinstatement is subject to a number of conditions.

Justice Armstead dissented'

Despite this large outstanding debt, the majority opinion concludes that “Mr. Wheaton has made great strides in satisfying the requirements for reinstatement we set in 2005.” I strongly disagree with this conclusion. Mr. Wheaton’s misconduct resulted in substantial financial harm, and this Court justifiably required that he satisfy the various resulting debts prior to seeking reinstatement. He has not done so. In fact, while Mr. Wheaton has now entered into one or more repayment agreements to pay the remaining amounts he owes, the fact remains that in the many years since he was directed to make such payments, he has made little, if any, effort to fulfill such obligations. Significantly, he had made no payments toward the largest of these debts, including the $45,000 assessed by the federal bankruptcy court.

...The harm that may result from the majority’s ruling is twofold. First, under syllabus point three of Vieweg, we must consider whether Mr. Wheaton’s reinstatement will have a “justifiable and substantial adverse effect on the public confidence in the administration of justice.” The number of clients that have filed complaints against Mr. Wheaton was immense—at least twenty-two. Should Mr. Wheaton engage in misconduct upon being reinstated, these twenty-two clients, and the general public, may justifiably ask why this Court would allow Mr. Wheaton to practice law again despite causing substantial harm in the past, and despite his failure to follow through with the requirements for reinstatement this Court set forth in Wheaton I.

Second, an attorney who is currently disbarred and is required to repay a large sum of money prior to seeking reinstatement may assume that such requirement is not mandatory. Instead, relying on the majority opinion in this case, such an attorney may assume that they can be reinstated by only repaying a minimal fraction of such debt and waiting several years to reapply. This sends an unfortunate message both to members of the State Bar, as well as to the general public.

Matters such as these are often difficult for this Court. We truly want to see attorneys rehabilitated and restored to the practice of law when it is appropriate. It is undeniable that Mr. Wheaton has made significant progress in his efforts toward rehabilitation and it is clear to see that the attorney that seeks reinstatement today is essentially a different person than the one who previously sought reinstatement so many years ago. I wholeheartedly commend him on this progress. However, due to the seriousness and sheer number of his prior offenses, his lack of effort over the past several years to fulfill the restitution that he was ordered to pay in Wheaton I to gain reinstatement,
and the need for this Court to be consistent in our treatment of applicants who are similarly situated, I am unable to agree that his reinstatement is warranted at this time. Therefore, while I strongly disagree with the majority’s ruling, I wish Mr. Wheaton success upon his reinstatement and urge him to make all reasonable and diligent efforts to continue to repay the outstanding debt that this Court ordered him to repay in Wheaton I.

(Mike Frisch)

June 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Retired Judge Censured For Facebook Sex Talk And More

The North Carolina Supreme Court has censured a district court judge for stipulated misconduct on Facebook, where he identified himself as a judge and had "thousands" of friends

Although some of Respondent’s FB messages have been deleted, a review of Respondent’s existing FB messages during the period from November 2018 to May 2019 shows that Respondent, who is married, knowingly and willfully initiated and engaged in conversations with at least 35 different women that ranged from inappropriate and flirtatious to sexually explicit. In some cases, Respondent and the female also had telephone conversations, exchanged texts and had personal meetings (including in some cases sexual encounters).

Respondent knowingly and willfully engaged in FB conversations of a sexual nature with 12 women during the period from at least November 2018 through July 2019.

The stipulation further sets forth that the judge's social media activities interfered with his judicial duties.

The Judicial Standards Commission had filed other charges not addressed in the stipulation, including

(1) by engaging in sexual misconduct while serving as and exploiting his position as Chief Judge of his judicial district through a pattern of predatory sexual advances towards numerous women in Respondent’s community, many of whom were involved in matters pending in the district where Respondent served as Chief Judge

The judge

Prior to the incidents described herein that began in or about 2017, Respondent had enjoyed a long and distinguished career as a judge of his district for almost twenty years. As Chief District Court Judge, Respondent made a number of significant contributions to the administration of justice during his 13 years in that position.

On sanction

the Commission also considered the fact that respondent “is no longer a sitting judge of the State of North Carolina and has agreed that he will never serve in such capacity again,” that he “had served for approximately 18 years as a judge, and for over a decade as chief judge of District 29A, without any disciplinary matters before the Commission,” that he “had contributed to improvements to the administration of justice in his district,” and that he is in “the early stages of frontotemporal dementia.” Based on the conclusions of law and these mitigating factors, the Commission recommended that respondent be censured.

(Mike Frisch)

 

June 15, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Woke

The Indiana Supreme Court has suspended an attorney

We find that Respondent, Robert Cheesebourough, committed attorney misconduct by neglecting one client’s case, making improper threats in another case, and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be suspended for at least one year without automatic reinstatement.

The threat

Respondent represented members of a church’s board of directors in an action in Madison Superior Court brought by other members of the church, who were represented by “Opposing Counsel.” Respondent and his clients believed the opposing parties had improperly used church funds to pay Opposing Counsel. Respondent sent a cease-and-desist letter to Opposing Counsel demanding, among other things, that the suit be dropped and that the funds used to pay Opposing Counsel be returned to the church. In that letter, Respondent threatened to file a disciplinary grievance against Opposing Counsel and the judge, and a criminal complaint against Opposing Counsel, unless Opposing Counsel and the opposing parties complied with Respondent’s demands.

Sanction

Respondent has prior discipline for similar misconduct and an extensive history of noncooperation with disciplinary investigations. Respondent also has been administratively suspended seven times for noncompliance with continuing legal education requirements and nonpayment of dues and disciplinary costs. All of this, save for one administrative suspension, has transpired within the last few years. Respondent also engaged in a pattern of dishonesty toward the hearing officer during these proceedings, and his testimony during the final hearing – including his assertions he was unable to stay awake long enough to claim certified mailings of the disciplinary grievances filed against him – demonstrates an indifference to fulfilling even the most basic responsibilities of an attorney. We find ample support for the hearing officer’s recommendation that Respondent be suspended for at least one year and thereafter remain suspended until he can prove clearly and convincingly that he is fit to resume practice, and neither party has filed a brief urging a different sanction be imposed.

(Mike Frisch)

June 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 14, 2021

Alleged Agreement Alterations Draw Bar Charges

The Illinois Administrator has filed a complaint alleging that an attorney had altered a settlement agreement 

After Rober left the courtroom, Respondent made additions to the one-page order in the Dissolution of Marriage Case. Specifically, she added language in the margin indicating that neither party shall abuse, harass or intimidate the other party, and that either party could require the other to perform and present results of a drug test.

Respondent then prepared a two-page proposed order in the Dissolution of Marriage Case. The two-page order misstated the agreed terms of the temporary parenting time agreement in at least two ways. First, it indicates that Gregory, not Aftan, would have the majority of the parenting time. Second, the duration of the temporary parenting time agreement was extended from until the next CMC (approximately 21 days) to until case resolution or further order of court.

The two-page order also contained provisions that Respondent and Rober had not discussed, let alone agreed upon, including but not limited to:

A. Gregory receiving exclusive possession of the marital home;

B. That neither party shall abuse, harass or intimidate the other party—directly or through third parties;

C. That upon reasonable suspicion, either party could require the other party to perform and present results of a drug test;

D. That no child support would be ordered during the pendency of the cause;

E. Joint temporary parental responsibilities as to the minor child;

F. That both parties equally split the cost of any medical, school or extracurricular activities of the minor child during the pendency of the cause;

G. That neither party would take the minor child’s phone away from him as punishment; and

H. Both parties’ attendance/completion of a "Children’s First Class".

The misstatements concerning the temporary parenting time agreement and several of the added provisions were favorable to Respondent’s client, Gregory.

After preparing the two-page order that Rober had neither reviewed nor approved for entry, Respondent threw the one-page order into a wastebasket in the courtroom.

Respondent approached the bench and presented the orders. Since Rober had left the courtroom, Judge Henze asked Respondent if the orders reflected Rober’s agreement and if he had seen them. Respondent stated yes, to both questions.

Respondent’s answers to Judge Henze’s questions that the orders reflected Rober’s agreement and that Rober had seen them were false.

Respondent knew that the statements...were false when she made them.

That upon being apprised of the information..., Judge Henze ordered Respondent and Rober to appear in her courtroom the next day, November 1, 2019, regarding what had occurred.

 That on November 1, 2019, prior to appearing in Judge Henze’s courtroom, Respondent asked Rober to falsely state that the two-page order was what they had agreed to.

WGEM reported on related criminal charges

A Quincy attorney entered an Alford plea in Adams County Court Friday to attempted forgery charges.

Roni VanAusdall was originally charged with three felony counts of attempted forgery in Adams County for allegedly fabricating documents in a divorce case pertaining to an agreed court order VanAusdall claimed to have had with attorney Nick Rober.

Court records state that VanAusdall knew that no such agreement existed.

VanAusdall entered an Alford plea to a Class A misdemeanor attempted forgery charge in court Friday, the felony charges were dropped as part of the plea.

VanAusdall is due back in court April 1 for sentencing.

In entering an Alford plea, VanAusdall admits the evidence presented by the prosecution would be likely to persuade a judge or jury to find her guilty beyond a reasonable doubt but does not admit to the criminal act.

(Mike Frisch)

June 14, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Interception: View From The Barstool

The Massachusetts Supreme Judicial Court has affirmed the dismissal of a civil complaint filed by the Mayor of Somerville against defendants who had recorded a conversation with his permission but by impersonating a friend

We summarize the factual allegations set forth in the complaint. On May 29, 2019, the Boston Herald, a Boston daily newspaper, published an article criticizing the Boston Bruins hockey team and the National Hockey League for distributing Barstool Sports promotional towels to attendees in advance of a professional ice hockey game in Boston. Barstool Sports is a corporation doing business in the Commonwealth that operates a blog with "a reputation for publishing crass content." Two days later, [plaintiff] Curtatone posted a statement on his social media Web page criticizing the Bruins' association with Barstool. He wrote, "As a fairly rabid sports fan one of the more regrettable things I've seen is the attempt to disguise misogyny, racism & general right-wing lunacy under a 'sports' heading. Our sports teams & local sports fans need to push back to stress that's not for us. . . ." In response to Curtatone's statement, Barstool's president, David Portnoy, accused Curtatone of being a "professional" and "legitimate" criminal on Portnoy's own social media Web page. Using the same social media platform, Portnoy also accused Curtatone's family of engaging in rape, extortion, stabbing, and arson.

In light of this public dispute, Barstool employee Minihane attempted to interview Curtatone, identifying himself using his real name and affiliation, but he was unsuccessful. Minihane then contacted a Somerville public information office employee, falsely identifying himself as Kevin Cullen, a reporter for the Boston Globe, the city's largest daily newspaper, and asked to interview Curtatone. Curtatone agreed to an interview with Cullen, unaware that the interviewer would actually be Minihane.

Minihane interviewed Curtatone via telephone on June 6, 2019. Minihane altered his normal speaking voice to sound like Cullen and maintained throughout the interview that he was Cullen. At the beginning of the call, Minihane asked Curtatone for his consent to "record" the interview, and Curtatone consented. Minihane audio-video recorded his side of the conversation. Barstool Sports then posted the recording on its blog.

No violation of the statute at issue

With these definitions and this context in mind, it is readily apparent that the plaintiff's arguments are foreclosed by the plain meaning of the act. Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against "interception" within the act.

...Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an "interception" within the meaning of the Commonwealth's wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

(Mike Frisch)

June 14, 2021 | Permalink | Comments (0)

A Holiday Party

Set for oral argument Tuesday before the Ohio Supreme Court

Columbus Bar Association v. Natalie J. Bahan, Case No. 2021-0224
Logan County

A Logan County lawyer is challenging her second sanction in as many years regarding an ongoing dispute with a retired judge and allegations of improper conduct fueled by alcohol consumption.

The Board of Professional Conduct has recommended that Bellefontaine attorney Natalie Bahan receive a six-month, fully stayed suspension for failing to maintain a respectful attitude toward the courts and engaging in conduct that adversely reflects on her fitness to practice law. The charges include her “loud, profane, and drunken conduct and remarks directed at” now-retired Judge William Goslee during a 2018 Logan County Bar Association holiday party at a local restaurant.

Bahan denies the allegation that she violated the ethics rules governing Ohio attorneys, and maintains her soft-spoken expletives about Goslee are protected by her constitutional freedom of speech rights and that Goslee wasn’t offended by her words because he continued to speak while accepting a “mock” award from the local bar.

The Supreme Court in 2020 publicly reprimanded Bahan for ethical rule violations associated with her attempts to be hired by a woman arrested in a high-profile murder case. Goslee, who retired from the Logan County Common Pleas Court in 2019, was involved in filing the grievance against Bahan that led to the sanction. (See Logan County Lawyer Reprimanded for Seeking to Represent Jailed Woman.) The Columbus Bar Association, which initiated both the prior and current disciplinary complaints, maintains that the board’s findings support a minimum a six-month stayed suspension.

The Supreme Court is obligated to hear objections to board recommendations in attorney discipline cases. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Party Rant Leads to Ethics Charge
In March 2017, Rosalie Kennedy was arrested and jailed for the murder of her husband. Bahan did not know Kennedy but became interested in the case after learning of the arrest. Bahan went to the local jail to visit Kennedy by telling others she intended to advise Kennedy of her rights, but actually intended to ask the woman to allow her to be part of her defense team. Ethics rules ban lawyers from making in-person contact to solicit employment when the lawyer is significantly motivated by financial gain.

A grievance was filed against Bahan, and a professional conduct board hearing on the matter was approaching when Bahan attended the December 2018 Logan County Bar Association holiday party. Goslee was to receive a mock award from the bar association. During the presentation, Bahan interrupted by calling Goslee several profane names. Party attendees indicated Bahan had consumed alcohol and was intoxicated.

While Bahan claims she said the words quietly, Miranda Warren, president of the county bar association, apologized to the caterer and the restaurant owner on behalf of the bar association because of Bahan’s behavior.

Ethics Rules Violated, Board Concludes
The board concluded Bahan didn’t maintain a respectful attitude toward the courts, a violation of the ethics rules. Bahan she didn’t violate the rule by aiming her remarks at Goslee during the holiday party. She notes in cases where the Supreme Court found violations of the rule, the unprofessional comments made by lawyers regarding judges or other officials happened in court or in the midst of a legal proceeding. She argues that Goslee is not a “court” and that her actions didn’t violate the rule and are also opinions protected by the First Amendment to the U.S. Constitution.

The Columbus Bar Association counters the rule covers remarks made about judges outside of legal proceedings and Bahan never denied making the comments, but only argues she was justified in making them because she thought the bar association was rewarding and encouraging improper judicial behavior. The association also notes the Ohio Supreme Court in past decisions has ruled that constitutional free speech rights can’t shield a lawyer from discipline related to proven unethical conduct.

Unprofessional Behavior Involving Alcohol Use Alleged
The bar association charged Bahan with engaging in conduct that adversely reflects on her fitness to practice law based on the “cumulative” effect of seven alcohol-related incidents occurring between 2010 and 2019. Two of the incidents involved calling the Logan County Sheriff’s Office while allegedly intoxicated.

In one instance, Bahan and her husband had an argument at a 2019 charity benefit. When she couldn’t locate her husband, she assumed he left her. She called the sheriff’s office to report her car was stolen. Bahan notes that she discovered her husband was still at the party and called the sheriff’s department back 10 minutes later to tell them to disregard the call. Nonetheless, sheriff’s deputies visited her home two hours later to check on her well-being. The responding deputy reported that Bahan appeared intoxicated and testified at board proceedings that it wasn’t proper to report a vehicle as stolen when taken by a spouse.

The board also noted a 2017 incident when Bahan contacted the sheriff to report that her teenage son stole her iPad. The responding officers reported the call was mostly to resolve an argument with her husband and reported that she appeared intoxicated and was slurring her speech.

The board concluded the two incidents involving law enforcement constituted “conduct prejudicial to the administration of justice.” The board report cites five other incidents related to alcohol use  presented by the bar association, but only considered three of the incidents to cumulatively lead to conduct adversely effecting her fitness to practice law.

No Proof Alcohol Misuse Led to Ethics Violations, Lawyer Argues
Bahan maintains the board hasn’t proven any alcohol-related misconduct. The board report found that she was twice evaluated by the Ohio Lawyers Assistance Program (OLAP), which didn’t result in determinations that Bahan had an alcohol problem or recommend that she enter into a contract with OLAP for treatment She suggests the board’s charges be dismissed.

The bar association disputes the board’s finding about OLAP’s alcohol assessments, arguing that the proceedings indicated the OLAP determinations were based on Bahan’s self-reports of the interactions and that full OLAP evaluations never took place. The bar association urges the Court to review the board proceedings and conclude that Bahan should at least receive a stayed suspension, if not a more severe sanction.

 Dan Trevas

(Mike Frisch)

June 14, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 11, 2021

Bad Advice And Vigilante "Justice"

A two-week suspension for "erroneous advice" has been imposed by a hearing committee of the Alberta Law Society.

The advice was provided to a client facing criminal charges

The Admitted Citation arose from the legal advice Mr. McKen gave to R.S. on May 19, 2013, when Mr. McKen was acting as Brydges duty counsel. The term "Brydges duty counsel" derives from the Supreme Court of Canada's decision in R. v. Brydges1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, in which the Court held that the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms imposes a duty on the police to provide detainees information and access to a legal aid lawyer if needed. "Brydges duty counsel" refers to those legal aid lawyers who assist recently arrested individuals, usually on a summary basis.

The situation

 On May 19, 2013, Mr. McKen was on contract to act as Brydges duty counsel and to provide summary legal advice by telephone to individuals who had been arrested or detained. In that capacity, he received a telephone call from R.S. (Phone Call), who had just been arrested after driving his vehicle into the patio of a restaurant in Edmonton (Incident). R.S. struck a family of four and a server. A two-and-a-half-year-old boy was killed, and everyone else who had been struck was injured. On arrest, the police demanded that R.S. provide a breath sample to determine if he was impaired.

 According to Mr. McKen, the Phone Call lasted approximately seven minutes. He did most of the talking, and did not ask R.S. if he had been drinking.

 McKen advised R.S. that the penalty for failing to provide a breath sample would be less than the penalty for impaired driving causing death (Erroneous Advice). Mr. McKen admitted that the Erroneous Advice was incorrect because:

1)   Prior to 2008, the maximum sentence for refusing to provide a breath sample was the same as that for impaired driving. However, the maximum sentence for failing to provide a breath sample was lower than the potential sentence for impaired driving causing death or bodily harm. 

2)   In 2008, a new offence under section 255(3.2) of the Criminal Code of Canada (Criminal Code) was created (Refusal Following Death). This section provided that the maximum sentence for failing or refusing to provide a breath sample after a collision causing death was life in prison. At that time, this was the same maximum sentence as the maximum sentence for impaired driving causing death.

3)   Mr. McKen was unaware of this change in the law.

The client ended up pleading guilty and serving time for the crime of refusal following death.

It gets worse, although not attributable to the advice

The consequences to R.S. and his family were not confined to his conviction and jail sentence. At the scene of the Incident, a mob assumed R.S. was impaired, dragged him from his vehicle, and assaulted him before the police arrived. Sometime following the Incident, R.S. was abducted from his home in the middle of the night by vigilantes who drove him to a secluded area, cut off his thumb with pruning shears, and left him unconscious in the snow. His wife was attacked by vigilantes in a shopping mall parking lot, breaking her nose and teeth. 

The parties agreed that the two-week suspension was appropriate.

The incident was reported by Global News. (Mike Frisch)

June 11, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Unpaid Fee Lost

The Rhode Island Supreme Court affirmed the denial of relief to an attorney seeking post-mortem payment of the bills to a client

The trial testimony reveals that in 1991, plaintiff, a practicing attorney, met David F. LaRoche (David F.), who had been referred to plaintiff by another attorney for representation connected to an involuntary bankruptcy case. The plaintiff represented David F. for the entirety of that bankruptcy action and, later, another bankruptcy action. The plaintiff received some compensation for this representation; however, he did not receive all that he had billed. As a result, David F. owed plaintiff approximately $160,000 for his representation. No payments were ever made as to that amount.

In the summer of 2001, plaintiff and David F. entered into an agreement, memorialized in a promissory note, wherein the sum due to plaintiff was reduced to $140,000, and terms were established for that sum to be paid. The promissory note was due on October 10, 2006. According to plaintiff, he never received any payments from David F. on this note.

At some point, David F. informed plaintiff that he was gravely ill. Upon receiving this information, plaintiff determined that he would not take action against David F. while he was dealing with his illness. David F. died on February 26, 2009.

After his informal efforts to collect failed, the attorney filed suit in June 2010. The matter was tried in September 2014.

The trial court issued its decision in July 2019, rejecting unjust enrichment claims against a slew of individual and business defendants associated with the deceased.

The record contains no explanation for the seemingly unreasonable nearly five-year delay between the filing of posttrial memoranda and the issuance of the trial justice’s decision. We remind all judicial officers of their obligation to dispose of court business promptly and diligently.

Here, he appealed the failure to order a constructive trust

As no claims survived under the trial justice’s decision—and, on appeal, the plaintiff did not contest the trial justice’s decisions as to those claims—there is no surviving claim for which a constructive-trust remedy might be imposed.

(Mike Frisch)

June 11, 2021 in Billable Hours, Clients | Permalink | Comments (0)

"Three Montana Adults" And Judicial Independence

The Montana Supreme Court has upheld the constitutionality of a recent legislative provisions governing judicial appointments

In this original proceeding, Petitioners challenge the constitutionality of Senate Bill 140 (“SB 140”), a bill passed by the 2021 Montana Legislature and signed into law by the Governor. SB 140 abolishes Montana’s Judicial Nomination Commission and the process that had previously been in place to screen applicants for vacancies on the Supreme Court and the District Courts and replaced it with a process by which any person who otherwise satisfies the eligibility requirements for a Supreme Court Justice or District Court Judge can be considered for appointment by the Governor provided they obtain letters of support from three Montana adults.

Justice Rice

I concur with the Court’s decision, but write to address the extraordinary, indeed, extraconstitutional, actions taken by the Legislature and the Department of Justice during the pendency of this proceeding.

He details his concerns but concludes

The rightful consequence of these actions would be to revoke the Legislature’s intervention, strike its brief, and to view with caution any future requests made of this Court by the Legislature. Similar sanctions would likewise be appropriately imposed upon the Department of Justice for its contemptuous actions herein. My initial thought was to ask the Court to impose these sanctions, but a second thought prevailed: until the Legislature and the Department of Justice can demonstrate a proper understanding of the Judiciary’s constitutional authority, there is little hope they could comprehend contempt of it.

Justice McKinnon dissented

In my opinion, by giving the governor plenary power to select judges, SB 140 poses precisely the threat to the independence of Montana’s judiciary that Montana has historically been burdened with and that the 1972 Framers sought to prevent. This Court’s failure to call SB 140 for what it is gives a green light to a partisan branch of government to select judges who are charged with the responsibility of providing a check on that power. While perhaps this design exists in other states and federally, the 1972 Framers did not want it to exist in Montana. Obviously, this Court will have to consider the constitutionality of statutes enacted by the Legislature and signed into law by the governor. Principals of separation of power and our constitutional design provide that the necessary check on partisan power and overreach is through an independent and nonpartisan judiciary. The Court’s decision today weakens that balance. There is little question in my mind that the Framers, burdened with a history of political corruption and overreach and committed to a qualified and independent judiciary, were united in their conviction that the governor should no longer have plenary authority to make a direct appointment, as in the 1889 Constitution. Foremost on the Framers’ minds was an independent judiciary and ensuring that power was not disproportionately placed in one branch of government. In my opinion, SB 140 is inconsistent with the plain language of Article VII, Section 8, and what was at the core of the Framers’ convictions—to preserve the integrity and independence of Montana’s judiciary in light of our significant history of political corruption and overreach into the courts.

June 11, 2021 | Permalink | Comments (0)

Thursday, June 10, 2021

Nine Years Not In Tibet

An attorney's representation of a creditor and the beneficiaries of a trust created a conflict of interest that blossomed from potential to actual, according to an opinion of the District of Columbia Court of Appeals

Respondent clearly violated Rule 1.7(b)(1) when an actual dispute arose among his clients. Once [creditor] Mr. Ridley demanded that the Fishers return the payment from trust funds, and the Fishers asserted their right to keep it, respondent should have realized that his clients had actually developed adverse positions in the same matter. Even if he obtained informed consent, respondent could not continue representing both Mr. Ridley and the Fishers, as respondent could not “reasonably” believe that he would be able to provide “competent and diligent representation” to each client under the circumstances. See D.C. R. Prof’l Cond. 1.7(c)(2). Yet respondent did not move to withdraw from representing any of the clients. Instead, he moved the court to adopt the outcome preferred by Mr. Ridley, advancing a position “adverse” to the one “taken by” the Fishers “in the same matter” and thereby violating Rule 1.7(b)(1).

And

We also agree with the Board that respondent violated Rule 1.3(b)(2) by filing the praecipe. That provision bars lawyers from “intentionally . . . [p]rejudic[ing] or damag[ing] a client during the course of the professional relationship.” Respondent was “demonstrably aware” that his praecipe not only asked the court to compel Mr. Fisher to repay the funds Mr. Hopson distributed to him, but also accused the Fishers of making misrepresentations. 

But the court rejected the presumptively correct sanction recommendation

we agree with respondent that the sanction proposed by the Board is too harsh. Respondent has no prior disciplinary history. His work in this case benefitted his clients on the whole by allowing them to replace an allegedly negligent trustee; he also reduced that trustee’s recovery from the trust by tens of thousands of dollars compared to the amount she initially sought in her counterclaim. Respondent’s violations marred these efforts but only caused his clients minimal prejudice and did not result in them suffering a financial loss. Nor did his conduct reflect bad faith. As the Committee found, respondent did not act based on self-interested motives, but rather misunderstood how the rules applied to a complex situation.

Resisting this conclusion, Disciplinary Counsel argues that respondent filed the praecipe to ensure he received his fees, an interpretation the Committee did not expressly endorse but one it opined the record “might” support. We deem this view implausible.

Thus

Rather than suspend respondent for three months, as the Board recommended, we suspend him for thirty days and stay the suspension in favor of one year of probation. As conditions of probation, respondent must complete six hours of continuing legal education on professional responsibility that Disciplinary Counsel approves and that includes a course on representing multiple clients in civil cases. Additionally, respondent must not during probation be the subject of a disciplinary complaint that results in a finding of misconduct in this or any other jurisdiction.

A rather distressing note on the timeline of the process.

This case was argued in May 2018. Indeed, two of the listed disciplinary counsel have long since departed.

The disciplinary complaint was filed in mid-2012 and charges were brought in July 2014. 

Nine years is far too long to resolve a bar complaint involving a single discrete set of circumstances.  (Mike Frisch)

June 10, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 9, 2021

Stayed Suspension Proposed For Attempted Voyeurism

An attorney convicted of attempted voyeurism after being caught trying to take an upskirt photograph or video while riding the L'Enfant Plaza Metro escalator had agreed to a stayed six-month suspension as discipline negotiated with the District of Columbia Disciplinary Counsel.

The agreement states that he "placed his cell phone on top of his duffel bag and attempted to record images under the woman's skirt" without her consent.

He was confronted by a friend of the victim. The victim then asked to see his cell phone and saw "blurry photos or video that appeared to have been taken that day."

The offense is a misdemeanor and not a "serious crime" as defined by Rule XI, section 10.

The term "serious crime" shall include (1) any felony, and (2) any other crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime."

The agreement further states that the crime does not involve "moral turpitude" on its facts. Disbarment is mandatory for moral turpitude offenses.

The agreement must be passed on by a hearing committee with its ultimate fate in the hands of the Court of Appeals,

The agreement provides that the attorney participate in therapy. as a condition of the stayed suspension. (Mike Frisch)

June 9, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Hearing Panel Dismissal Reversed

The Michigan Attorney Discipline Board reversed a hearing panel order directing the Administrator to prove authority to bring charges

The hearing panel erroneously concluded that the Grievance Administrator was required to produce written evidence or other documentation showing that the Commission had received authorization to file the complaint. These documents are not within the scope of MCR 9.115(F)(4), which provides for the disclosure of documentary evidence “that is to be introduced at the hearing by the opposing party.” There is no indication the Grievance Administrator intends on introducing the requested documents as evidence. Therefore, disclosure of these documents is not required under MCR 9.115(F)(4).

The panel erred in dismissing the matter

Here, when the Grievance Administrator signed the Formal Complaint, he was entitled to a presumption that the Commission had approved the filing. Respondent has not put forth any evidence to rebut this presumption, and the hearing panel erred in finding otherwise. Respondent asserts that he does have evidence, and relies on a May 24, 2016 letter that indicated “the Commission determined that the evidence reviewed does not warrant further action" and that the Commission "has directed that this Request for Investigation be closed.” (Respondent's Attachment B.)

Respondent’s reliance on the May 24, 2016 letter is misplaced. On August 15, 2017, the complainant filed a complaint for superintending control with the Michigan Supreme Court. On September 21, 2017, the complainant and counsel for the Grievance Administrator entered into a stipulation to dismiss the complaint for superintending control, in which the Grievance Administrator agreed to reopen the file and resubmit the matter to the Attorney Grievance Commission after further review and analysis. (Petitioner's Appendix A, p 50.) Respondent was served with the stipulation on the same day. (Petitioner's Appendix A, p 51.) Therefore, contrary to his claim on review, respondent was aware that the investigation was being reopened. Given these circumstances, there is no difference between this case and any other case where an investigation results in the filing of a formal complaint.

(Mike Frisch)

June 9, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Uncovered For Employee Theft

The New Jersey Appellate Division has affirmed that an attorney's insurance coverage did not extend to cover employee theft

Plaintiff Jill Cadre is a New Jersey attorney who conducts her practice as a limited liability company — The Cadre Law Firm, LLC. Rule 1:21-1B (the Rule) governs the practice of law as an LLC and, among other things, mandates that attorneys who do so must procure professional liability insurance that provides coverage to the LLC for damages "arising out of the performance of professional services by attorneys employed by the [LLC] in their capacities as attorneys." R. 1:21-1B(a)(4).

Plaintiff purchased a LawyerCare professional liability insurance policy (the Policy) from defendant ProAssurance Casualty Company. In 2015, in preparation for a compliance audit by the Office of Attorney Ethics (OAE), plaintiff discovered that one of her employees, Miguel Mayorga, a paralegal, misappropriated approximately $800,000 of clients' funds held in the LLC's trust account in connection with real estate closings. Plaintiff notified defendant of a potential claim under the Policy. Defendant declined coverage, relying on the Policy's definition of covered "damages," which specifically did not include "misappropriated client funds."

The attorney then filed a declaratory judgment to enforce coverage under the insurance policy.

The court rejected the suggestion that policy coverage is co-extensive with ethical obligations with respect to entrusted funds

Simply put, the [ethical] Rule regulates the conduct of attorneys, not insurers. Plaintiff cites no authority for the proposition that the Court, acting within its constitutional spheres of attorney discipline and administration of the courts, has the power to enact a rule that regulates the conduct of insurers doing business in the state, a function the Legislature delegated to DOBI. N.J.S.A. 17:1-15...

The Rule is a "disciplinary rule" firmly rooted in the Court's exclusive constitutional powers. The Court in Mortgage Grader did not, for example, use that power to revive the malpractice insurance policy that had lapsed to provide coverage to the LLP and the innocent defendant-partner during the wind down period and offer the plaintiff a source of recovery if successful in its malpractice claim.

Plaintiff's contention that the Policy must be reformed because it failed to comply with the requirements of the Rule is unavailing.

On the merits of the coverage claim

The motion judge rejected these arguments by noting the limitation on covered damages was not ambiguous, and plaintiff knew or should have known the Policy provided no insurance for claims involving damages resulting from misappropriated client funds. The judge also found plaintiff's purchase of a second policy covering "employee theft" to be persuasive in demonstrating plaintiff was aware the Policy provided no coverage for misappropriated funds. Lastly, the judge noted that plaintiff could not have relied upon any misrepresentation by defendant about the Policy's coverage and whether it complied with the Rule because plaintiff was unaware of the Rule until the OAE requested the certificate of insurance.

June 9, 2021 | Permalink | Comments (0)

"Uninterested In Honest, Responsible Advocacy"

An attorney with a "considerable disciplinary history" has had his license revoked by the Wisconsin Supreme Court.

The court quoted the referee's findings

Mr. Petros barely adequately answered the allegations in OLR's complaint, he hasn't met any of the deadlines in the Scheduling Order, he hasn't responded to OLR's discovery requests, he hasn't responded to [the OLR's counsel's] repeated attempts to contact him, he missed the November 10, 2020 Zoom status conference, and he hasn't responded to the Order To Show Cause. For an experienced lawyer, like Mr. Petros, I find his shortcomings constitute egregious non-action and bad faith, and . . . [a] tacit concession that he has no viable defense to any of the allegations in the OLR complaint. Therefore, I recommend the Supreme Court accept my findings and suggestion that Attorney Petros's pleadings be stricken and that he be found in default.

The court accepted the default.

Sanction

We further agree with the referee that license revocation is the appropriate sanction. "Revocation of an attorney's license to practice law is the most severe sanction this court can impose. It is reserved for the most egregious cases." In re Disciplinary Proceedings Against Cooper, 2013 WI 97, ¶34, 351 Wis. 2d 350, 839 N.W.2d 857.

This case fits that description. The referee correctly pointed out in his report that we have imposed revocation when the respondent-lawyer has engaged in a clear pattern of substantial, repeated violations of disciplinary rules.

...Such a clear pattern of misconduct is present here. Since Attorney Petros' licensure in Wisconsin in 2009, he has consistently been in ethical trouble, with discipline imposed
against him 2013 (in Minnesota), 2014 (as discipline reciprocal to that imposed by Minnesota), 2017, 2020, and again now, in 2021. There are common themes to his misbehavior: lack of candor, both by omission and by direct misrepresentation; money mishandling; failure to diligently pursue cases; and a persistent failure to cooperate with the OLR. Attorney Petros appears uninterested in honest, responsible advocacy, and tends to dodge or disappear altogether when called to account for his actions. Our profession has no place for persons who cannot be on to follow the basic standards and procedures set forth in our ethical rules. Attorney Petros' law license must, therefore, be revoked.

(Mike Frisch)

June 9, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 8, 2021

Adderall Fee Leads To Motion For Consent Disbarment

An Illinois attorney has filed a motion for consent disbarment after a criminal conviction

 On February 3, 2017, Movant was charged in a two-count information with conspiracy to deliver a controlled substance (Adderall, a prescription stimulant) (Count I) and possession of a controlled substance (Count II) in the Circuit Court of Rock Island County. The case was docketed as People v. John G. Steckel, and assigned number 2017CF120.

The charges resulted from Movant’s agreement to represent a client in exchange for Adderall as payment. Movant was also charged with possession of less than 15 grams of Adderall.

On May 10, 2019, the prosecution in case 2017CF120 amended the charge in Count I to possession of a controlled substance with the intent to deliver, a Class 2 felony, and dismissed Count II of the information. Movant then plead guilty to the amended charge in Count I.

On November 19, 2019 a grand jury in Rock Island County, returned a two-count indictment against Movant, charging him with delivery of methamphetamine (Count I) and unlawful use of a property (allowing methamphetamine to be delivered in the property) (Count II). The case was docketed as People v John G. Steckel, and assigned number 2019CF1017.

 The 2019 charges were based on a delivery of less than five grams of a substance containing methamphetamine to an undercover police officer, and allowing another person to deliver methamphetamine in a house within Movant’s control.

On February 8, 2021, Movant plead guilty to delivery of methamphetamine, a Class 2 felony, as set forth in Count I of the indictment. Count II of the indictment was dismissed.

(Mike Frisch)

June 8, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Maine Accepts License Surrender

The Maine Supreme Judicial Court has accepted the license surrender of an attorney previously suspended on an interim basis.

Maine Public reported on the interim suspension

The Maine Board of Overseers of the Bar has taken the unusual step of suspending a Gardiner attorney for what it says are "multiple violations " of the Maine Rules of Professional Conduct, including sexual harassment and conflict of interest.

Clarence Spurling was ordered to vacate his law office and has been suspended from practicing law until further notice.

Following a hearing earlier this month, Superior Court Justice Valerie Stanfill found that Spurling engaged in unwelcome touching and made sexual advances to two of his clients, one of whom was incapacitated at the time.

"Under the facts presented by the Board, this court concludes that Attorney Spurling’s misconduct serves as an imminent threat to clients, the public and to the administration of justice," Stanfill wrote.

According to a published report, Spurling was fired from his job as a Maine probation officer in 1984 for sexually harassing female coworkers.

He ran unsuccessfully to serve as a Kennebec County probate judge in 2016.

Kennebec Journal published a February 2021 story on civil suits by former clients.

An attorney whose license to practice law in Maine has been suspended has denied allegations made in a civil complaint by the second of two women who say he sexually assaulted them.

...The woman’s claims include sexual assault, legal malpractice and intentional and negligent infliction of emotional distress, stemming from her interactions with him while he served as her attorney. Her complaint alleges he repeatedly touched her in a sexual way, made inappropriate sexual jokes to her on several occasions, flirted with her and made sexually suggestive comments to her, suggesting to her that she should dress provocatively when she came to see him.

In his response, Spurling said the woman acted voluntarily, knowingly and intentionally and that she consented to his conduct. He said her claims are a result of her own conduct and preexisting condition. And while he acknowledged he touched her inappropriately he disagreed about the nature of that touching.

As for her claims of negligence, he said her negligence was equal to or greater than his alleged negligence.

Spurling also said no attorney-client relationship existed between them during the time the behavior that prompted her claim took place.Because this woman and another, who filed a civil claim in October against Spurling, are alleging sexual assault and have not consented to speaking on the record, the Kennebec Journal is not naming them.

(Mike Frisch)

June 8, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 7, 2021

Ramming Speed

An interim suspension pending final discipline has been ordered in Florida for conduct described by the ABA Journal

A disciplinary referee is recommending immediate disbarment for a suspended Orlando, Florida, lawyer accused of ramming her car into a rented vehicle on her ex-husband’s driveway, breaking his girlfriend’s car windows and spitting on police.

Lawyer Francine Blair Bogumil, 40, allegedly told the ex-husband after the incident to “surrender” or face the consequences, texting him, “S- - - [is] bout to get ugly,” the Miami Herald reports, citing court documents.

Bogumil was suspended earlier this year after she pleaded no contest in the car damage case and an earlier incident in which she was accused of battery on a law enforcement officer, according to the referee’s May 3 report, available here.

She was sentenced to 51 weeks in jail in the car damage case and nine months in jail in the battery case—to run concurrently with the 51-week sentence.

According to the Miami Herald’s account of the April 30, 2020, incident, Bogumil rammed her Land Rover into the back of a rented white GMC Yukon in her ex-husband’s driveway, which pushed the SUV into the garage door.

Bogumil’s ex-husband said he came outside and saw Bogumil throwing objects at his girlfriend’s BMW sedan, breaking her car windows, the newspaper reports.

Bogumil allegedly slapped the ex-husband twice in the face, and he slapped her back once. The girlfriend said Bogumil yelled at her, “I will kill you, b- - - -!”

When a sheriff’s deputy who arrived on the scene told Bogumil to stop shouting, she allegedly replied, “No. F- - - you!” and spat at him.

After her arrest and release on bond, Bogumil allegedly violated a no-contact order.

In January 2021, Bogumil pleaded no contest to aggravated assault with a deadly weapon, assault on a law enforcement officer, domestic violence battery, violation of a domestic violence restraining order, and criminal mischief. On March 25, she pleaded no contest to battery on a law enforcement officer.

The referee’s report said Bogumil has no prior disciplinary violations since her admission to the bar in 2006. She has a history of mental health and substance abuse issues for which she sought treatment after her arrest.

(Mike Frisch)

June 7, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Who Speaks For Vern? Judge Hotten In Dissent

The Maryland Court of Appeals has held that non-economic damages are not available for the tortious  shooting death of a beloved Chesapeake Bay retriever by a police officer.

The death occurred when the dog approached the officer, who was going door-to-door investigating a "spate" of burglaries.

The sole  living witness was the officer.

Officer Price testified that he put his left forearm up at “roughly” the level of his neck as the dog approached. Officer Price stated that the dog placed its front paws on his forearm for about one second. He recalled taking one step back and pushing the dog away from him. Afraid that the dog was going to attack his face, Officer Price testified that he shot the dog twice while the dog’s paws were still on his left arm. The dog then made a screeching noise and limped across the yard, where the dog collapsed. After the shooting, Officer Price informed dispatch of what happened, saying “a dog came at me.” According to Officer Price, the dog did not bite or scratch him during the incident.

Officer Price is 5’8” and, at the time of the incident, weighed about 250 pounds. He testified that he had a taser, baton, and mace on his person at the time. Furthermore, he admitted that he did not vocalize any commands to the dog. At the time of the incident, Officer Price had been a sworn officer for less than a year.

Vern's owner on the impact of the death

After the testimony of his two sons, Mr. Reeves took the stand. He stated that he became interested in training dogs while stationed in Afghanistan. Mr. Reeves explained that he purchased Vern for $3,000 with the goal of eventually breeding Chesapeake Bay retrievers. He took a year off from work to train the dog. Mr. Reeves taught Vern voice commands, silent commands, and water training. Mr. Reeves testified that Vern “was my best friend in the world, period.”

Mr. Reeves also testified that he was taking medication to cope with the loss of Vern. He stated that he no longer had any plans to breed Chesapeake Bay retrievers. Timothy testified that his father moved from Maryland to California after Vern was killed, and that the family “had all left because that incident for my father has just destroyed him.”

The jury spoke

The jury then found that Officer Price was grossly negligent and awarded Mr. Reeves $500,000 in economic damages and $750,000 in noneconomic damages, for a total of $1,250,000. Finally, for the trespass to chattel claim, the jury awarded Mr. Reeves $10,000 in economic damages. The jury also made a factual finding on the verdict sheet that the dog was not attacking Officer Price at the time of the shooting.

On May 18, 2017, Petitioners filed a motion for judgment notwithstanding the verdict, remittitur, and/or a new trial. The circuit court denied the motion in full. The circuit court then reduced the jury award for trespass to chattel from $10,000 to $7,500, pursuant to CJP § 11-110. The court further reduced the total damages award for the gross negligence claim from $1,250,000 to $200,000 pursuant to the LGTCA, resulting in Mr. Reeves receiving a total of $207,500 in damages. 

On review of the decision of the Court of Special Appeals

Here, Mr. Reeves’ gross negligence and trespass to chattel claims are premised on the same set of operative facts. They are thus alternative legal theories for the same recovery. Therefore, Mr. Reeves is entitled to one recovery as compensation. Notwithstanding the fact that Mr. Reeves suffered a tragic loss, the only injury before us for which Mr. Reeves can recover is the death of his dog, because the jury awarded no damages for the constitutional harms.

...In sum, the plain meaning of CJP § 11-110 is that it defines what compensatory damages are available in the case of the tortious injury to or death of a pet and limits the total amount that may be recovered. It does not allow for recovery of other forms of compensatory damages not expressly included therein.

As to gross negligence

viewing the facts in the light most favorable to Mr. Reeves, we agree with the Court of Special Appeals that Mr. Reeves presented sufficient evidence at trial for a rational juror to find that Officer Price was grossly negligent. Thus, we uphold the circuit court’s denial of the Petitioners’ motion for judgment notwithstanding the verdict. However, despite the fact that there was sufficient evidence on the gross negligence claim, as explained above Mr. Reeves’ damages are limited to $7,500 for his claims, as both the trespass to chattel claim and the gross negligence claim sought recovery for the same harm and both are torts covered by CJP § 11-110. Thus, consistent with the jury’s award and the circuit court’s reduction of the award, Mr. Reeves is limited to $7,500 on his trespass to chattel claim, and $0 on his alternative gross negligence claim.

In other words: the jury giveth; the court taketh away.

A moving dissent by Judge Michele  Hotten notes a trend in favor of expanded compensation for pet owners

Marylanders have strong emotional bonds with their pets, especially their dogs. Most people, including Mr. Reeves, considered his dog a part of the family and “his best friend in the world[.]” The designation of dogs as mere personal property belies common experience, cultural values, and societal expectations. Treating dogs as mere property also erases a dog’s intrinsic attributes as a living being and the ir replaceable instinct to love and protect human companions. A dog, unlike an inanimate object, welcomes its human companion after a day at work, protects its human companion when in danger, and exhibits behavior and emotions that is consistent with grief and distress when its human companion is ill, injured, or passes away. Given prevailing societal values, attitudes, and norms, it no longer appears tenable to deny emotional damages for a cherished family dog, killed with gross negligence, in the same way that the common law precludes emotional damages for an inanimate object that was accidentally broken.

...The Majority has missed an opportunity to recognize pets, not just as emotive, intelligent, loving, and cherished members of our families, but as representing more than mere personal property. In the past, courts did not wait for legislative enactment to expand the concept of personage when societal needs, values, and interests demanded it. This Court can break from precedent when “passage of time and evolving events” render it “archaic or inapplicable to modern society[.]” State v. Stachowski, 440 Md. 504, 520, 103 A.3d 618, 627 (2014). Greater legal protection of beloved family pets is long overdue.

The average Marylander may be surprised to hear that while the law treats a caring, loyal, and vivacious pet dog as personal property, it treats a corporation as a person.

And a cite to Dred Scott and the doctrine of coverture

The legal arc of Maryland is one of progress and bends inexorably towards greater recognition of rights. The common law designation of pets as personal property, rooted in legal formalism, conflicts with society’s values and the trajectory of common law in Maryland and throughout the country. Our pets are more than just living beings. They are widely considered best friends, guardians, and members of the family. Maryland law should recognize and bestow pets with the same degree of dignity.

Given my own personal experience with dogs, I can only say that Judge Hotten speaks for me. (Mike Frisch)

June 7, 2021 | Permalink | Comments (0)

Sunday, June 6, 2021

Pulpit For A Bully

The Arkansas Supreme Court accepted a recommendation for judicial discipline

Judge Sims is a circuit court judge for Pulaski and Perry Counties in the Sixth Judicial District of Arkansas and has served in that capacity since 2003. Previously, he served as a district court judge in North Little Rock, Arkansas. In his judicial career, he has presided over criminal, civil, probate, and domestic-relations cases. The report of uncontested sanction arises from complaints filed with the Commission concerning Judge Sims’s courtroom comments and conduct toward members of the Bar.

These matters were resolved without a formal disciplinary hearing. On advice of counsel, Judge Sims has agreed that the sanction of suspension is appropriate for his actions in JDDC case #19-264. The investigation panel approved the disposition and the regular members of the Commission approved the recommendation of suspension without pay for ninety (90) days with sixty (60) of those days held in abeyance for one year on the condition that Judge Sims complete or adhere to the following remedial measures:

1. Attend a class on mindfulness, patience, or civility through the National Judicial College, National Center for State Courts or other reputable judicial training organization and provide proof of attendance no later than December 31, 2021;
2. At his own expense, hire a counselor or life coach to help consult with him about how he treats professionals appearing in his court. Judge Sims or his representative must provide information to the JDDC about his cooperation and progress. No personal details need to be submitted;
3. Have no more complaints that result in public charges or agreed discipline; and
4. Be on notice that future complaints concerning intimidation, bullying, retaliation, or harassment will be investigated as the failure to learn and change from the remedial measures in this agreement will be included as evidence of intent and lack of mistake.

The court majority adopted the recommendation

SHAWN A. WOMACK, Justice, dissenting. Because the constitutional authority by which the Arkansas Judicial Discipline and Disability Commission was created ceased to exist after the passage of Amendment 80, I respectfully dissent from the court’s decision to ratify the actions of an unconstitutional entity. See In re Ark. Jud. Discipline & Disability  Comm’n Appointments, 2021 Ark. 27 (per curiam) (Womack, J., concurring).
I dissent.

Fox16.com noted

A Pulaski County Circuit Judge faces suspension from the bench state after he admits to bullying and intimidating at least three female attorneys in his courtroom.

KATV.com reported on the matter and links to the recommendation. (Mike Frisch)

June 6, 2021 in Judicial Ethics and the Courts | Permalink | Comments (1)