Wednesday, September 28, 2022

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

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

As I understand (and I might not be correct), the proceeding involves the Respondent's motion for judgment on the pleadings; the Grievance Administrator relies solely on a court opinion to establish the misconduct.

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

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

Findings

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

One comment drew particular focus

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

The court explained

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

Image result for lucy peanuts the doctor is in

And referenced the pertinent rule

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

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

Further, it was argued that there was a single denied objection and that the court of appeals did not refer the matter to disciplinary authorities. (Mike Frisch)

September 28, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 27, 2022

No Deferral For Jeffrey Clark

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

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

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

September 27, 2022 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Law School Attendance Records Prove The Crime

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

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

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

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

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

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

(Mike Frisch)

September 27, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 26, 2022

Guano In Delaware

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

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

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

Britannica gives a definition of guano

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

(Mike Frisch)

September 26, 2022 in Current Affairs | Permalink | Comments (0)

Saturday, September 24, 2022

Disbarment Remains Possible In New Jersey

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

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

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

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

Rather New York

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

And New Jersey

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

Sanction

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

(Mike Frisch)

September 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Stage Three

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

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

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

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

September 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 23, 2022

Former DA Disbarred

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

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

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

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

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

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

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

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

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

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

September 23, 2022 in Bar Discipline & Process | Permalink | Comments (0)

40 Pounds Of Trouble

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

The Arkansas Democrat & Gazette reported on criminal charges

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

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

A co-defendant from California is awaiting trial.

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

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

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

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

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

(Mike Frisch)

September 23, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Guns In The Temple

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

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

This press release describes the matter

Commission Administrator Robert H. Tembeckjian made the following statement.

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

September 23, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 22, 2022

Document Review

The Illinois Administrator has filed charges alleging billing misconduct by a Dentons attorney

In late 2020 and early 2021, Respondent was assigned to a document review project in which he was to review a substantial number of documents belonging to one of Denton’s clients to determine which documents should be produced by the client in response to discovery requests in a litigation matter. As part of his review of the client’s documents, Respondent was responsible for determining which documents were relevant and responsive to the discovery requests in the litigation, which were irrelevant or non-responsive, and which documents may be subject to attorney-client privilege. Respondent would use the firm’s document review software to mark the documents as reviewed, and would flag the reviewed documents as responsive, non-responsive, or subject to privilege.

Between December 2020 and March 2021, with regard to the document review project described...above, Respondent marked a total of 425 documents as having been reviewed by him and recorded a total of approximately 277 hours of time related to the review of said documents. Respondent then submitted his billing entries to his supervisors at Dentons.

In or about March 2021, upon reviewing Respondent’s work, Respondent’s supervisors at Dentons determined that Respondent had not opened or reviewed approximately 405 of the 425 documents that he claimed to have reviewed, and for which he submitted time records, as described...above.

Respondent’s records of time he spent on document review, as described...above, were false because he had only reviewed approximately 20 of the 425 documents he had marked as reviewed. In addition, between December 2020 and March 2021, Respondent had not spent 277 hours reviewing the documents he claimed to have reviewed.

(Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Clark Prosecution Update

It looks like a boatload of motions and orders in unredacted format have been posted on the cases of public interest link in the Jeffrey Clark prosecution. 

Among the documents is a hearing committee order recommending that the Board on Professional Responsibility deny a motion to delay the proceedings and rejecting his pre-hearing challenge to jurisdiction.

Disciplinary Counsel takes Respondent to task in opposing a motion to extend time to respond to the charges 

From the outset of this investigation, Mr. Clark has sought to stall this proceeding.

Of particular interest is the unredacted Hearing Committee report and recommendation posted on September 16 concluding that the matter should not be deferred pending the resolution of a subpoena enforcement action in the Court of Appeals and other travails of the Respondent.

An order of the Board denies as moot a motion to recuse a former member Matthew Kaiser.

The motion to recuse alleges that the bar investigation was initiated in response to a letter from Senator Richard Durbin and that notice of the charges were "blasted out to reporters by the Office of Disciplinary Counsel."

And - for whatever it's worth - no complaint was filed by the former President.

Recusal is generally appropriate when someone actually is sitting in judgment of a matter.

Also posted is the motion to dismiss prior to a hearing on jurisdictional grounds.(Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

The Wrong Path

The Kentucky Supreme Court affirmed the denial of an application for bar admission without examination 

the Character and Fitness Committee of the Office of Bar Admissions appropriately evaluated Christopher D. Jefferson’s application for admission without examination and correctly determined that by virtue of his not having “completed degree requirements for a J.D. or equivalent professional degree from a law school approved by the American Bar Association or by the Association of American Law Schools[,]” SCR 2.014(1), he is ineligible for admission without examination.

The petitioner graduated from The Birmingham School of Law.

His application went to the wrong office

Ms. Browne [Director and General Counsel of the Office of Bar Admissions]...advised Jefferson that the Supreme Court Rules provided a path for admission to the bar by examination for graduates of non-accredited law schools and that the Board of Bar Examiners was the appropriate body under Kentucky rules to make the determination of quality of the legal education.

He was admitted in Alabama in 2013. (Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

In Humane

A convicted attorney has been disbarred on consent by the Michigan Attorney Discipline Board.

Michigan Live reported on the conviction and probation imposed

Semaan stole funds from the trust of his deceased client that were intended for the Michigan Humane Society. Semaan drafted the victim’s trust in 2011 and when the individual later passed away in 2013, he was responsible for distributing 50% of the funds to the charity according to what was specified in the trust.

Instead, he placed a total of $262,732.68 into his lawyer’s trust/escrow account and distributed two payments to individuals named in the trust but did not provide the Michigan Humane Society with a notice of their interest in the trust or the 50% disbursement.
 
(Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Chandra Levy Prosecutors On Docket

The District of Columbia Board on Professional Responsibility will hear oral argument today at 2 pm in the bar discipline matter brought against two prosecutors of the high profile Chandra Levy murder.

A Hearing Committee has recommended that one be suspended for 90 days and the charges against the other were not proven

We find that Disciplinary Counsel proved by clear and convincing evidence that Respondent Haines violated Rules 3.8(e), 8.4(d) and 1.6(a). See Board Rule 11.6; In re Cater, 887 A.2d 1, 24 (D.C. 2005). We also conclude that Disciplinary Counsel failed clearly and convincingly to prove that Respondent Campoamor-Sanchez committed any Rule violation. Accordingly, and for the reasons discussed herein, we recommend that Respondent Haines be suspended for ninety days, and that the charges against Respondent Campoamor-Sanchez be dismissed.

The charges involve alleged disclosure violations and - in Haines - a "pillow talk" confidentiality violation

In an exchange of internal emails before the Guandique trial, Respondent Haines and Respondent Campoamor-Sanchez disagreed about strategy and division of labor. 

On November 8, 2010 and November 14, 2010, Respondent Haines forwarded the emails to her boyfriend, who was not employed by the USAO or the Department of Justice. Those emails contained confidential and secret information related to the strategy for prosecuting the Guandique case. 

No one from the USAO gave Respondent Haines permission to disclose the confidences and secrets contained in those emails. (citations to record omitted)

Disciplinary Counsel has appealed the dismissal recommendation.

Tune in here for the live stream, (Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 20, 2022

Class Action Against Class Counsel Revived

The Tennessee Court of Appeals reversed and remanded the dismissal of a legal malpractice claim against class counsel

This is a proposed class action lawsuit pertaining to actions allegedly taken by attorney Kathryn Barnett and others in connection with prior class action litigation concerning the Galilee Memorial Gardens cemetery. In the prior class action case (“the Galilee Class Action”), Ms. Barnett served as lead counsel for a class that alleged several defendant funeral homes had wrongfully abandoned the remains of the class’ deceased loved ones at the cemetery. See Wofford v. M.J. Edwards & Sons Funeral Home Inc., 528 S.W.3d 524, 527 (Tenn. Ct. App. 2017) (affirming trial court’s decision granting class certification in the Galilee Class Action). Under the operative complaint in the present case, which is brought by Plaintiff April Hawthorne, a member of the Galilee Class Action class, it is generally alleged that Ms. Barnett and attorney John Morgan, along with their corporate affiliates, refused to entertain and respond to over $14,475,000.00 in settlement offers made by the funeral home defendants during the pendency of the Galilee Class Action.

Result

Having considered the matter on appeal, we respectfully disagree with the trial court and hold that claims for legal malpractice and breach of fiduciary duties are sufficiently well-pleaded in the complaint. It is not exactly clear why the trial court was of the opinion that the Plaintiff’s allegations do not rise to the level of actionable conduct, but it appears clear to this Court that the Plaintiff has pled facts implicating valid legal theories. Indeed, the Plaintiff has accused the class counsel in the Galilee Class Action of having acted recklessly, by among other things, ignoring settlement offers and rejecting them on illogical bases, and of having failed to carry out fundamental obligations owed to represented clients, namely not communicating the fact that settlement offers had been made. Of course, the Plaintiff has asserted that damages resulted from class counsel’s failures to act upon the settlement offers such that actual settlements could be achieved.

We also conclude that the claim for punitive damages was sufficiently pled and note that the complaint submits that the Defendants’ actions were, among other things, “at the bare minimum, reckless.” We, therefore, reverse the trial court’s dismissal of the legal malpractice, breach of fiduciary duties, and punitive damages claims.

(Mike Frisch)

September 20, 2022 in Clients | Permalink | Comments (0)

The Attention They Deserve

Another day, another Musk slap from the Delaware Court of Chancery in denying a motion to reconsider a discovery ruling in the Twitter litigation

Defendants appear to be under the impression that they can take unreasonable positions in their discovery requests, when conferring with their opponents, and in motion practice, and then, through reargument, propose a more reasonable approach. A motion for reargument is not a vehicle for renegotiation. A court makes rulings, not proposals for the parties to counter. Defendants’ approach wastes judicial and litigant resources.

Defendants should be forewarned that I will give future motions for reargument the attention they deserve. If a motion appears to have merit, then I will address it promptly. Otherwise, I will take the motion under advisement for the full 90-day period and address the motion, to the extent a ruling remains warranted, in connection with post-trial briefing.

No misapprehension

I did not misapprehend this argument. I simply rejected it as relevant. Defendants’ displeasure with that decision is not a basis for reargument.

(Mike Frisch)

September 20, 2022 in Current Affairs | Permalink | Comments (0)

Utter Failure

The Georgia Supreme Court adopted a Special Master's recommendation and has disbarred an attorney

The record reflects that the State Bar filed a notice of discipline seeking Arrington’s disbarment and alleging that Arrington paid his 2017-2018 Bar dues with a check drawn on his trust account; that he made deposits to his trust account from his personal account and “his American Funds account”; that he made payments from his trust account that appeared to be related to personal expenses – to “American Funds Balance,” to “Prog Mountain” for an insurance
premium, and to someone who appeared to be a family member; and that on multiple occasions, he made cash withdrawals from his trust account in amounts ranging from $25 to $350.

While a lesser sanction might be appropriate in some trust account matters

Arrington’s utter failure to participate in the disciplinary process, however, means that there is no basis for the Court to conclude that any sanction less than disbarment is appropriate.

(Mike Frisch)

September 20, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 19, 2022

Destroy-It!

The Connecticut Appellate Court has denied reinstatement to a Petitioner disbarred in the wake of a partially-reversed federal conviction.

The Second Circuit ordered a new trial on the racketeering, racketeering conspiracy, bribery and wire fraud charges on the ground that the government unconstitutionally suppressed material exculpatory and impeaching evidence. Id., 165. The Second Circuit did not order a new trial on the obstruction of justice charges, stating that, [e]ven if the suppressed notes had an impeaching effect so strong as to call into question  Silvester’s testimony on other matters, the government’s evidence of [the defendant’s] obstruction of justice was overwhelming. In light of the forensic examiner’s detailed testimony regarding the suspicious timing of the deletion of relevant files from [the defendant’s] laptop using Destroy-It! software, and its corroboration with [Robert] Trevisani’s testimony about [the defendant’s] mention of Destroy-It! as software to be used in order to hide something . . . we do not think that the suppression of [Special] Agent [Charles E.] Urso’s notes raises a reasonable probability that the verdict on the obstruction of justice count would have been different. . . . Id., 165 n.13.

The Second Circuit opinion is linked here.

His 2017 application for reinstatement was referred to the Standing Committee on Recommendations for Admission to the Bar for New Haven County (committee)

Before the committee, the defendant also stated affirmatively that he believed that he was innocent of any wrongdoing and that he had not committed the crime of obstruction of justice, even though his conviction on that charge had been affirmed on appeal.

The committee found that his "blatant refus[al]" to acknowledge wrongdoing merited rejection.

On review

On June 1, 2021, an evidentiary hearing was held before a three judge panel of the Superior Court to determine whether to accept or reject the committee’s recommendation that the defendant’s application for reinstatement be denied.

The superior court was unanimous in denying reinstatement.

Before the Appellate Court

The defendant first claims that the court improperly accepted the report by the committee because the committee exceeded the scope of its investigative authority by inquiring as to the defendant’s presuspension misconduct. Specifically, the defendant argues that the committee’s inquiry into his actions that served as the basis for his racketeering, racketeering conspiracy, wire fraud, and bribery convictions, and the conclusions it drew from his refusal to answer questions about those actions, were improper because those convictions were reversed by the Second Circuit and the scope of the committee’s investigation does not include alleged but unajudicated misconduct. We disagree.

Because

it is clear that a committee’s consideration of an applicant’s present good moral character is an expansive inquiry. The committee may consider the applicant’s conduct prior to or after his or her suspension, regardless of whether that conduct served as the basis for his or her suspension. The committee may also consider all conduct in determining the applicant’s present fitness.

The claim of innocence

In the present case, the defendant argues that he did not need to accept his established conviction with sincerity and honesty because he proved his claim of innocence to the committee. This argument only further exhibits the defendant’s confusion with the reinstatement process, particularly, his belief that his claim of innocence presupposes that all other criteria from Ganim are met, which is simply not what the committee found. The committee was not investigating or recommending guilt or innocence; instead, the committee was charged with determining whether the defendant had been rehabilitated, as well as whether he possessed good moral character and the requisite fitness to practice law, which must all be ‘‘viewed against the backdrop of the defendant’s misconduct and the disrepute it brought’’ to both the defendant and the legal profession. Id., 462.

The underlying criminal case was reported by the United States Attorneys Office for the District of Connecticut

According to the evidence presented during a trial in this matter, SPADONI was the general counsel of Triumph Capital Group Inc. (“Triumph Capital”). In November 1998, shortly after former Connecticut State Treasurer Paul J. Silvester had lost his bid for re-election, SPADONI, Silvester and others engaged in a scheme through which two of Silvester’s close associates received from Triumph Capital sham “consulting contracts” worth $1 million each in return for the investment of $200 million of state pension assets in a Triumph Capital-related investment fund, Triumph Connecticut-II.

In 1999, federal investigators began looking into investments that Silvester had handled at the end of his term as treasurer. After a federal grand jury subpoena was served on a Triumph-related fund looking for documents related to the Connecticut investment, SPADONI used a file-erasing program called Destroy-It! and began to delete computer files to prevent them from being obtained by subsequent grand jury subpoenas. SPADONI continued to use Destroy-It! as Triumph Capital employees were called before the grand jury and additional subpoenas were issued.

 On July 16, 2003, a federal jury convicted SPADONI for violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, RICO conspiracy, bribery, wire fraud, and obstruction of justice. On October 25, 2006, Judge Burns sentenced SPADONI to 36 months of imprisonment, five years of supervised release and a $50,000 fine. SPADONI appealed his conviction and, on September 25, 2008, the U.S. Court of Appeals for the Second Circuit upheld the conviction on the obstruction of justice count, but ordered a new trial on the remaining counts of conviction. The government will not retry SPADONI on the remaining counts of conviction.

The more charitable (if that is the correct description) District of Columbia Court of Appeals readmitted a disbarred attorney notwithstanding his continuing claim of innocence.

He had been convicted of attempted malicious wounding 

The jury heard evidence that Mr. Sabo cut the brake lines of a vehicle owned by his former girlfriend, Heather Nicole Lawrence, days after she ended their relationship. When Ms. Lawrence next drove her vehicle, she lost control and hit a fence, a low brick wall, and a tree. No one sustained injury.

Judge Steadman dissented. (Mike Frisch)

September 19, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 17, 2022

A Giant Passes

I note the passing of a giant of the District of Columbia Bar Earl J. Silbert.

My generation of Assistant United States Attorneys revered Earl as no other. Many, many people I deeply respect regarded him as the perfect leader of a U.S. Attorney's office from a standpoint of both integrity and competence.

I first saw Earl in action in the spring of 1972 when I was a 1L at Georgetown and thinking the law might not be for me.

My friend Jim Hibey's older brother Richard suggested I go see a criminal trial.

I sat in on this case that Earl prosecuted and was transfixed, totally sold on the idea of criminal trial work.

I first worked with Earl in the mid-1980s when I was a newly-minted assistant bar counsel and he served as a hearing committee chair. 

I was fortunate later to try a multi-week case against him in which he defended a partner in a prominent law firm accused of dishonest billing.

He was a relentless litigator who challenged me at every turn but always with the utmost professionalism.

The case was remanded several years after we had argued it in the Court of Appeals.

Editor's note: To clarify, I was never an AUSA. I regularly litigated with the D.C. office in the 1970s and 1980s. (Mike Frisch)

September 17, 2022 in Current Affairs | Permalink | Comments (0)

Friday, September 16, 2022

Ohio Unveils New Web Page

A new look for the web page of the Ohio Supreme Court.

As a confirmed Luddite, I view any change to a familiar and accessible source of information with a level of trepidation.

Knowing as I do the high quality and commitment to transparency of the Ohio courts - the nation's best - I can only assume that the changes here are improvements. (Mike Frisch)

September 16, 2022 | Permalink | Comments (0)