Wednesday, October 20, 2021
The Michigan Attorney Discipline Board reduced the one year suspension of a tri-county hearing panel to 180 days and until further order for misconduct as a judge
After proceedings held pursuant to MCR 9.115, the hearing panel found that while respondent was a judge at the 15th District Court, he engaged in numerous ex parte communications with his friend, an attorney that routinely appeared in front of him, and failed to disclose his personal friendship or disqualify himself from matters in which his friend was involved. The hearing panel found multiple violations of Canons 2A and B; and Canon 3A(4)(a) of the Code of Judicial Conduct; MRPC 3.5(b); 8.4(a)-(c); and, MCR 9.104(1)-(4) and ordered that respondent’s license to practice law in Michigan be suspended for one year, effective November 22, 2019.
After review proceedings held pursuant to MCR 9.118, the Board issued an order that affirmed, in part, modified, in part, and reversed, in part, the hearing panel’s findings of misconduct, as set forth in an accompanying opinion. The Board’s order also reduced the discipline imposed from a one-year suspension to a 180-day suspension, effective October 16, 2021, and until further order of the Supreme Court, the Attorney Discipline Board, or a hearing panel, and until respondent complies with the requirements of MCR 9.123(B) and (C) and MCR 9.124. Costs were assessed totaling $5,660.63.
The board opinion is linked here.
We find that the particular messages referenced in the hearing panel’s report, (pp 3-6) support the panel’s conclusion that respondent violated Canons 2 A and 3A(4)(a). While most of the text messages involved here did not deal with substantive matters or issues on the merits, the fact remains that some clearly did. Furthermore, the colorful, and at times offensive language of some of the messages supports the panel’s finding that respondent failed in his duty to exercise good judgment, and avoid impropriety.
Michigan Live reported on his resignation. (Mike Frisch)
A public defender who had sued the ACLU for an allegedly defamatory blog post is a public figure under the New York Times v. Sullivan standard, according to a recent opinion of the Georgia Supreme Court
The proper provision of constitutionally required legal representation for indigent criminal defendants in Glynn County’s misdemeanor cases is a matter in which the public has an independent interest.
The blog post suggested that the public defender accepted outside fee payments.
under the requirement set forth in New York Times, the ACLU’s blog post statements “relat[ed] to [Zeh’s] official conduct,” 376 U.S. at 279, because the statements claimed that Zeh, as Glynn County’s public defender for defendants charged with misdemeanor crimes, ignored and extorted his indigent clients. The ACLU’s post accused Zeh of being a “crooked public defender,” ignoring his clients, requiring an indigent defendant to pay for representation, “perpetuating Glynn County’s wealth-based incarceration system,” and “failing to provide legal assistance to his clients who cannot afford a private attorney.” Moreover, the post highlighted the federal class action lawsuit against Zeh, the County, and other County government officials, which alleged that Zeh, in his public position, not only unlawfully charged Cox and Hamilton a fee for his public defense services but also and more broadly “enforced a policy of delaying representation to misdemeanor arrestees” and “ha[d] a policy of not visiting public defense clients in
the detention center, representing clients at their bail setting proceeding, or requesting a preliminary hearing or bail modification hearings on their behalf.”
With malice towards none
In this case, Zeh contends that the defamation case pleadings and affidavits, viewed in his favor, prove that the ACLU published the blog post statements with reckless disregard for their accuracy. He argues first that the author and editors of the post should not have relied on Cox’s and Hamilton’s claims against Zeh in the federal case filings because Cox’s allegations were not trustworthy. In addition, Zeh argues that the ACLU should have further investigated the allegations by reviewing the Glynn County court records relating to Cox’s 2015 case and contacting Zeh before publishing the blog post. Neither argument is persuasive.
...the defamation case pleadings and affidavits show that at the time the ACLU published the blog post, it knew information that supported Cox’s allegations, but did not know information indicating that the allegations were false. Significantly, Cox’s claims about Zeh did not come out of the blue. Rather, his allegations on behalf of the proposed plaintiff classes were generally consistent with the other class representatives’ allegations in the original federal complaint about Zeh and his practice of ignoring indigent defendants – allegations that Zeh hardly mentioned in his defamation complaint or in his briefing here. Notably, when the blog post was published, Zeh had not yet filed in the federal case his response to the proposed amended complaint denying Cox’s and Hamilton’s allegations or presented any evidence indicating that their claims were inaccurate.
Duty to investigate
Here, the existing record shows that the ACLU’s statements in the blog post were not fabricated, imagined, or based wholly on an unverified source like an anonymous telephone call. Instead, the statements relied on pleadings and sworn declarations filed publicly in a federal court case, which were not inconsonant with information that the ACLU Foundation lawyers had previously gathered and alleged regarding Zeh and serious problems in the Glynn County misdemeanor public defense system. And as discussed above, at the time the ACLU published the blog post, it had no obvious reason to doubt Cox’s and Hamilton’s allegations. The ACLU may have acted imprudently, but the defamation case pleadings and affidavits do not establish by clear and convincing evidence that the ACLU’s failure to review the State and Superior Court records for Cox’s 2015 shoplifting case or to contact Zeh about the allegations evinced a deliberate intent to avoid discovering the truth.
The anti-SLAPP motion should have been granted
the trial court erred in denying the ACLU’s anti-SLAPP motion to strike Zeh’s lawsuit; and the Court of Appeals erred in affirming that ruling.
A remand on discovery issues
the record as it now stands indicates that when the ACLU published the disputed blog post statements, it did not possess a high degree of subjective awareness that Cox’s and
Hamilton’s allegations were probably false, but discovery on this issue could conceivably uncover admissions by the post’s author and editors or other evidence from Cox and Hamilton showing that the ACLU actually knew or entertained serious doubts about the accuracy of the statements. If Zeh obtained and presented such additional evidence, he potentially could defeat the ACLU’s antiSLAPP motion to strike
...we remand the case to that court with direction to remand the case to the trial court to rule on Zeh’s discovery motions and then proceed in a manner consistent with this opinion.
The Brunswick News reported that he is no longer the public defender and is the subject of criminal charges.(Mike Frisch)
Monday, October 18, 2021
A Hearing Committee of the Law Society of Saskatchewan has deemed an applicant rehabilitated from misconduct that involved inappropriate social media posts that led to his suspension as a teacher
At the time of the STF hearing, the Applicant signed an Agreed Statement of Facts (“ASOF”) in which he acknowledged posting to his Twitter account posts that were objectively sexually suggestive, posts which identified himself as an educator, and posts with race and sexual orientation based content. Further, the ASOF stated that Mr. Baron’s school division issued computer contained a personal letter that was written by Mr. Baron and saved as a Word document. That letter named a student and was offensive in its description of the student.
Mr. Baron is 42 years old. He and his family reside in a small rural community. After he lost his teaching certificate in 2015 he began working as a legal assistant at Shawn Patenaude Law, and has since continuously been employed there with the exception of time spent in law school. When his teaching license was returned to him he considered a return to the classroom but ultimately decided to go to law school instead. When he applied to the College of Law he understood that his past disciplinary history would bring him under scrutiny when he applied for admission as a lawyer.
To his credit, the Applicant continued to be involved in his community both during and after his teaching suspension. He coaches children’s sports, is in a community theatre group, and sings in a barber shop quartet. He sits on the board of Saltcoats Regional Park, and is involved in various other community committees devoted to community services and improvements. From time to time he assists the Saltcoats school’s debate team.
On the subject of the objectionable social media posts, the Applicant acknowledged in correspondence to his former school division which was filed as an exhibit that the Tweets “could fairly be characterized as objectionable in nature, especially in the context of the field of education… For me, my Twitter account was like the stage at a comedy club… I acknowledge that this content is offensive; it was intended as such.” He believed that by using a pseudonym for the Twitter account and by avoiding specific reference to his school, colleagues, and students that somehow his Twitter account was exempt from the rules of his profession. In his viva voce evidence before the panel, the Applicant discussed how at the time he made these posts he was attempting to participate in a comedy community populated by “shock” comedians whom he admired. He readily acknowledged that he gave insufficient regard to how making these kind of jokes could impact his role as a teacher, or how these posts could be hurtful to others. When asked to do so he immediately removed the posts. When asked about his perspective on such shock comedy today, the Applicant testified that he sees no place for that kind of comedic content in his life and that he wishes to contribute in a more positive way to his community.
Society encourages those who have made mistakes to learn from those mistakes, to rehabilitate themselves, and to reintegrate as a contributing member of the community. Mr. Baron has done these things. The decisions of this law society and others, have permitted others who have arguably committed worse transgressions to return to the practice of law. They were given a second chance and this Panel sees no reason to deny Mr. Baron his second chance. We find it is not inimical to the public interest or to the standing of the legal profession to admit Mr. Baron as a Student-at-law.
The Rhode Island Supreme Court imposed reciprocal discipline of a censure based on a like Massachusetts sanction
From September 2016 to January 2020, respondent was in-house litigation counsel to a medical company. In December 2017, one of that client’s wholly owned subsidiaries was sued in Georgia for personal injury, and the matter was assigned to respondent.
A trial in the case was scheduled to begin on March 11, 2019. After settlement discussions began in earnest, respondent purported to authorize the client’s outside litigation counsel to settle the case for $250,000. The respondent, however, had failed to obtain required authorization from the management of the self-insured client.
On March 6, 2019, five days before the scheduled start of the trial, the plaintiff in the litigation agreed to the proposed settlement. The plaintiff signed the client’s standard release on March 21, 2019, but respondent realized that she did not have management’s approval. Instead of obtaining that approval, she misrepresented to outside counsel that payment was delayed, but forthcoming.
When payment was not made, the plaintiff took steps to enforce the settlement. The respondent then told outside counsel, falsely, that there was a problem with “the insurer.” A motion brought by the plaintiff to enforce them settlement was granted in May 2019, and when payment was still not made, the client was twice held in contempt. The respondent continued to misrepresent to outside counsel that payment was delayed, but forthcoming.
In September 2019, the plaintiff obtained a judgment against the client to collect on the settlement and eventually filed suit directly against the client and its insurer to collect the funds.
After respondent terminated her employment with the client company in January 2020, the client learned of and paid the settlement, together with interest, attorneys’ fees, costs, and contempt sanctions.
This stipulation also recognized several mitigating factors relevant to the severity of the disciplinary sanction agreed to by the parties. The parties also noted extraordinary personal circumstances in mitigation described in an impounded memo that respondent submitted to the BBO with the stipulation. The stipulation noted that respondent had no prior disciplinary history, had acknowledged full responsibility for the harm caused to her client, and recognized that her extenuating personal issues explained, but did not excuse, her conduct.
Friday, October 15, 2021
The Iowa Supreme Court has ordered a 30 day suspension
Attorneys who engage in business dealings with their clients create an inherent conflict of interest under our rules of professional conduct. Such conflicts are not prohibited—as long as the attorney first meets strict disclosure requirements and provides adequate information so their clients can make an informed consent to the conflict. Attorney Bruce A. Willey appears before us for the second time for engaging in similar conduct for which we previously disciplined him but with different clients and in deals that predate the conduct giving rise to Willey’s previous discipline. The Iowa Supreme Court Grievance Commission (commission) recommends we suspend Willey’s license for thirty days on the theory that had we known about this conduct we would have suspended his license for a longer period the first time. Upon our de novo review of the record, we suspend Willey’s license for thirty days.
The court rejected the claim that the attorney-client privilege impaired his ability to defend himself
We first address, and reject, Willey’s suggestion he could not defend himself related to Midwest because Midwest was not a complaining party and therefore had not waived its attorney–client privilege.
...The plain language of our disciplinary rules reveals that Willey could disclose attorney–client confidences in defending himself regardless of Midwest’s consent to the disclosure.
As to informed consent
Here, the Midwest waiver violated rule 32:1.8(a) in a number of ways. First, it misrepresented Willey’s interest in Catalyst as an “anticipate[d]” and “future” interest rather than identifying his actual 50% ownership interest through Orion’s Pride in violation of subparagraph (3) requiring written disclosure of the attorney’s “role in the transaction.” Iowa R. Prof’l Conduct 32:1.8(a)(3); see also Iowa Sup. Ct. Att’y Disciplinary Bd. v. Wright, 840 N.W.2d 295, 301–02 (Iowa 2013) (holding attorney “failed to obtain the clients’ written informed consent to the proposition that he held a contingent fee interest in Madison’s inheritance claim”). Willey also failed to disclose that Wild had significant financial liabilities, was judgment proof, and had failed to enter any successful ventures in the time they worked together, information that made his personal guaranty likely worthless. The purpose for the loan—to fund Catalyst’s investment in a risky and unsecured foreign trading platform—was important information about the nature of the proposed loan. Each of these pieces of information were omitted in violation of rule 32:1.8(a)(1), requiring the transaction and terms on which the attorney obtained his interest in the company to be “fair and reasonable to the client” and “fully disclosed and transmitted in writing.”
The court found dishonesty as well.
Willey suggests an attorney cannot receive an enhanced sanction for conduct occurring prior to a previous disciplinary action. There is no such blanket rule. In past cases, we have refrained from enhancing the sanction due to the specific facts, such as where enhancement of the sanctions would not have deterred conduct and protected the public or the attorney had already been sufficiently sanctioned.
...Notwithstanding the mitigating factors, we must consider the aggravating factors involved in the Catalyst-Midwest transaction. We consider the experience of an attorney to be an aggravating factor. Bartley, 860 N.W.2d at 339. Willey was an experienced attorney and CPA, who specialized in tax and business law and who had been practicing for many years. Willey I, 889 N.W.2d at 658. Similar to Willey I, here, the structure of the investment was “questionable from the beginning with an outrageous promise of a return on the investment.” Id. In Willey I we stated that no one could “reasonably counsel a client that [the transaction] was a sound investment opportunity.” Id. The same applies here. During the hearing, neither Willey nor Wild could satisfactorily explain how the transaction with Ramis would work. That Willey has engaged multiple clients in dubious investment schemes is troubling.
Thursday, October 14, 2021
The New Jersey Supreme Court rejected the majority finding below of intentional misappropriation and concluded that censure should be imposed for negligent mishandling of entrusted funds.
The case demonstrates the court's lack of commitment to the principles articulated in the 1979 decision in In re Wilson, a case long regarded as an important precedent in matters involving knowing misuse of entrusted funds. See my updated comments below.
The Disciplinary Review Board majority found knowing misappropriation and recommended disbarment.
An overdraft led to a demand audit, which had found numerous recordkeeper violations but no misappropriation
As respondent constructed her records, she realized that, eighteen months earlier, in January 2016, she had advanced unrelated client trust funds to pay a debt owed by her client, John Petrelli, “while awaiting reimbursement of the [trust funds] by Petrelli.” On October 5, 2017, respondent reported this information to the OAE
From the DRB dissent where some members favored a three-month suspension and others a reprimand or censure
when the Supreme Court says that disbarment will “almost” always be the discipline imposed [for intentional misappropriation] , it plainly envisions the possibility of reasoned exceptions.
In our view, there is a world of difference between conduct showing bad character or wanton indifference and conduct that exhibits an isolated lapse of judgment unlikely to result in actual harm. Our ethics system, at its best, ought to take into account such meaningful distinctions in culpability in determining discipline – even for charges of knowing misappropriation. The unique confluence of facts in this case should make it an exception to the rule.
The facts are detailed in the majority decision and need not be repeated here. Suffice it to say that respondent’s conduct is the most “technical violation” of Wilson we have seen. In ways, respondent’s conduct was more an oversight, closer on the scale to a negligent misappropriation. After a large snowstorm and her husband’s medical emergency kept respondent out of her office for three days, she returned to find a letter from her adversary threatening to abruptly void a recent settlement if the agreed payment was not received in three days. To protect her client, respondent cut a check. Respondent was not conscious of any meaningful risk that writing a settlement check from her trust account would jeopardize the funds of other clients. It did not cross her mind. That is not surprising, given that there was no real-world risk to other clients.
Five days before she wrote the check, she had instructed her client to “immediately” send funds to cover the settlement, which she understood he would do. Because her client had a consistent track record of making payments promptly, she expected the same on this occasion. Under these circumstances, it was reasonable to expect that the settlement funds from respondent’s client would be received before the settlement check drawn on her trust account was even deposited.
Unfortunately, her client’s money to fund the settlement arrived a few days later. Respondent had enough funds available in her business account to cover any shortfall. Moreover, the bulk of the money in respondent’s trust account was held as a deposit relating to a pending sale of her sister’s home, which was expected to later be used by the sister to buy their mother’s home. Respondent in turn expected to and did eventually share in the proceeds once their mother’s estate was settled.
Any risk to funds entrusted to respondent by other clients was remote, theoretical, and negligibly brief. There was no motive other than to protect her client’s settlement; no self-interest; no dishonesty; no premeditation or plot; no obfuscation; no recurrence; no harm; and no grievance by any client. After later realizing her incomplete knowledge of proper recordkeeping, respondent responsibly took a course to increase her awareness of trust fund management. She also self-reported the incident by highlighting it to the Office of Attorney Ethics, which had not previously known of this lapse. Respondent thereafter fully and truthfully cooperated with the OAE investigation.
Nothing about this incident suggests that respondent lacks professional integrity. In our view, disbarring a lawyer with an unblemished record and an admirable reputation after nearly twenty years of practice based on a fleeting, isolated oversight would be far too harsh a sanction. It is worth noting that the District Ethics Committee below found negligent misappropriation only and recommended a censure.
I'm not sure I have a problem with this result but the court should have explained how this was either negligence (a tough sell on the facts) or an exceptional circumstance.
A voluntary self-report where there is little to no likelihood of detection is a huge mitigating factor in my eyes.
I took that position as a disciplinary prosecutor in this case. (Mike Frisch)
UPDATE: I've now taken a closer look at the DRB majority report in this very important matter.
The District Ethics Committee found negligence and recommended a censure. On review, the DRB majority - consistent with any common understanding of the term - found the conduct was knowing and that disbarment was compelled under the court's In re Wilson precedent.
The court's order finds negligence without any explanation, in a way that sub silentio overrules Wilson.
When it comes to professional discipline for mishandling entrusted funds (aka other people's money), New Jersey appears to have a shadow docket.
The Florida Supreme Court declined to prevent discovery into the financial arrangement between a defense law firm and its medical expert in a personal injury case
After the plaintiff requested certain information regarding the financial relationship between the defendant’s law firm and the defense’s medical expert, the defendant moved for a protective order, but the trial court denied the motion. Younkin, 44 Fla. L. Weekly at D549. The defendant then filed a petition for writ of certiorari in the Fifth District. The district court denied the petition, concluding that the trial court’s order was consistent with the Fifth District’s earlier decision in Vazquez v. Martinez, 175 So. 3d 372 (Fla. 5th DCA 2015). Younkin, 44 Fla. L. Weekly at D549- D550.
We thus reframe the certified question as follows:
Whether it is a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s nonparty law firm and an expert witness retained by the defense?
And we answer in the negative. Because Worley is distinguishable, and because the trial court’s discovery order was consistent with binding district court precedent, see Vazquez, 175 So. 3d at 374, the discovery order did not depart from the essential requirements of the law.
Justice Poulson dissented and decried unequal discovery requirements for plaintiffs and defendants
Because I would recede from Worley and require disclosures equally from plaintiffs and defendants, I respectfully dissent.
The court issued this opinion reaching the same conclusion in an unrelated case
Because the trial court’s order permitting discovery related to the financial relationship between Dodgen’s insurer and defense experts was consistent with established law, we agree with the Fourth District that the trial court did not depart from the essential requirements of the law in denying Dodgen’s motion for protective order.
The Florida Supreme Court has rejected a referee's report and concluded a company engaged in unauthorized practice
TIKD Services, LLC is not a law firm, and its chief executive officer, Christopher Riley, is not a member of the Bar. TIKD operates a website and mobile application through which a driver can receive legal assistance in the resolution of a traffic ticket. A driver who receives a traffic ticket in one of the four counties in which TIKD operates can request services by creating an account with TIKD via its website, agreeing to its Terms of Service, and uploading a picture of his or her traffic ticket. TIKD then analyzes the ticket to determine whether it should provide any services to the driver. If TIKD declines the ticket, the driver is notified, and he or she is not charged a fee. If TIKD accepts a ticket, the driver is charged a percentage of the ticket’s face value, and his or her contact information is forwarded to a Florida-licensed attorney whom TIKD has contracted with to provide traffic ticket defense services to its customers. All costs associated with defending the traffic ticket are paid by TIKD, including any court costs or assessed fines. TIKD does not guarantee that a driver’s case will be resolved favorably and provides a full refund if points are ultimately assessed against a driver’s license.
TIKD advertises the legal services that are at the core of its business model directly to the public and thereby directly solicits drivers with legal problems. When a driver engages its services, TIKD conducts a business review of his or her legal matter to determine whether it can profitably handle the case (with profitability as the only apparent criterion considered). It then either rejects the representation or sends the case to one of the lawyers it contracts with. TIKD could routinely miss critical deadlines that substantially impair the legal rights of its clients. It could also fail in its contractual obligation to pay fines owed, resulting in a client’s loss of driving privileges or other legal sanctions. However, because TIKD is not a lawyer, this Court would be powerless to act for the protection of the public. See art. V, § 15, Fla. Const.
Second, TIKD collects money from its legal clients and promises to use that money to pay any court costs or fines that the legal client incurs as a result of the traffic citation. If a lawyer took up-front money from a client to satisfy monetary obligations anticipated to be incurred at the conclusion of a legal proceeding, the lawyer would be required to hold that money in trust for the benefit of the client. R. Regulating Fla. Bar 5-1.1(a). Because TIKD is not a law firm, there are no protections in place to safeguard the money of these legal clients and thereby assure that the money is actually available to satisfy the future legal obligations associated with the legal matter.
Third, an inherent conflict and corresponding risk to the public arises whenever a nonlawyer like TIKD controls and derives its income from the provision of legal services. Like any other business entity, TIKD is motivated by a desire to maintain and increase profitability. When coupled with the provision of legal services to the public, there is a risk that such motives will eventually give rise to a conflict between the profit demands of the nonlawyer and the professional obligations of attorneys to act in the interests of a client. See R. Regulating Fla. Bar 4-1.7(a)(2). TIKD is not subject to the Bar’s jurisdiction and, other than Bar discipline proceedings against individual attorneys, there is no means by which to protect the public or guard against such conflicts.
Fourth, as a nonlawyer, TIKD simply lacks the skill or training to ensure the quality of the legal services provided to the public through the licensed attorneys it contracts with, nor does it possess the ability to ensure compliance with the Rules of Professional Conduct or to otherwise guard against the type of conflict discussed above. By contrast, if this were a law firm, its owners would e ethically required to properly supervise any less-experienced lawyers to whom they assigned a legal matter, see R. Regulating Fla. Bar 4-5.1(a)-(b), and those owners would possess the legal training that would prepare them for that supervision. Nowhere is TIKD’s lack of skill or training in the legal profession more evident than in its advertisements, which include statements such as, “TIKD provides you with a more convenient, more cost-effective alternative to hiring your own lawyer or using a lawyer referral service.” Such advertisements are likely to lead a reasonable person to believe that utilizing TIKD’s services is equivalent to or a substitute for hiring an attorney.
The court imposed a permanent and perpetual injunction.
Justice Couriel dissented
Here, the record contains no evidence that the public received any incompetent, unethical, or irresponsible representation due to TIKD’s business. The lawyers to whom TIKD introduced its users were all members of the Florida Bar, subject to its rules and to its (and our) discipline. We have been directed to no alleged malpractice, or even dissatisfaction, involving lawyers matched with their clients by TIKD. We therefore cannot conclude, on this record, that the public needed the Bar’s protection from TIKD, or that its operations even once had a negative effect on the administration of justice.
A consent 18 month suspension from judicial office has been ordered by the South Carolina Supreme Court
In September 2018, Respondent posted the following on his Facebook page: "For my birthday this year, I'm asking for donations to American Red Cross. I've chosen this nonprofit because of food, water, and much more provided for those affected by Hurricane Florence in NC & SC." In the introduction of Respondent's Facebook page, Respondent identified himself as a Probate Judge and stated that he managed the Oconee County Probate Court. Respondent admits that his conduct violated the following provisions of the Code of Judicial Conduct, Rule 501, SCACR: Canon 2(B) (prohibiting the use of the prestige of judicial office to advance interests of the judge or others); and Canon 4(C)(3)(b)(iv) (prohibiting a judge from personally participating in the solicitation of funds or other fundraising activities).
A second count
On October 18, 2017, Respondent prepared a certification for submission in litigation pending in the Superior Court of New Jersey. In the certification, Respondent personally attested to the character of a South Carolina resident stating, "[i]ncidentally, [Mr. S.] has a reputation for truth, honesty, reliability and trustworthiness, and the court even waived bond because of this and its trust of [Mr. S.]." Respondent further attested in the certification, "I am aware of the fact that there is a claim in New Jersey that [Mr. S.] has made fraudulent conveyances of his mother's money. THIS IS A COMPLETE AND UNADULTERATED LIE, AND COMPLETELY UNTRUE. There is NO VALIDITY TO THAT STATEMENT AT ALL." (emphasis in original).
The statement violated provisions of the Code of Judicial Conduct.
An aggravating factor was prior discipline for Facebook posts and his promise to refrain
Despite these assurances, Respondent restored the reference in his Facebook profile identifying himself as a Probate Judge with the Oconee County Probate Court and again used social media for fundraising purposes.
As a condition of discipline, Respondent agrees to complete the National Judicial College's online judicial ethics course, "Ethics and Judging: Reaching Higher Ground."
Reciprocal discipline of censure has been imposed by the New York Appellate Division for the Third Judicial Department
Respondent was admitted to practice by this Court in 1986 and is also a member of the bar in Florida, where he presently resides and formerly served as a member of the judiciary in Broward County. In February 2020, the Supreme Court of Florida approved a stipulation and consent judgment wherein respondent admitted to posting a threatening online comment directed at another member of the Florida judiciary. As a consequence, the Court suspended respondent from the practice of law in Florida for a 45-day term.
His contentions failed to persuade
Respondent's contentions regarding potential conflicts or bias in the proceedings were never raised to Florida disciplinary authorities or before the Supreme Court of Florida and, in any event, are unsupported on the record before us. Moreover, we note that respondent stipulated to his misconduct in that state while represented by counsel and attested that he had acted "freely and voluntarily" in consenting to discipline, and had "tender[ed] [his] plea without fear or threat of coercion" (see Matter of Hoover, 196 AD3d 994, 994-995 ; Matter of Winograd, 184 AD3d 1073, 1074 ; Matter of Edelstein, 144 AD3d 1311, 1312 ). We therefore reject his contentions regarding a lack of due process in the Florida proceedings. Similarly, respondent's arguments regarding an infirmity of proof are rendered meritless by his stipulation to the facts that underlie the Supreme Court of Florida's finding of misconduct (see Matter of Winograd, 184 AD3d at 1074; Matter of Mora, 163 AD3d 1, 6 ; Matter of Frants, 160 AD3d 171,
). Finally, we find that the threatening language at issue constitutes conduct that adversely reflects on respondent's fitness as a lawyer, and the language preceding that statement offers no compelling justification to depart from that conclusion.
The court considered mitigating factors including timely reporting of the Florida action. (Mike Frisch)
Wednesday, October 13, 2021
A British Columbia Law Society Hearing Panel imposed a fine for an attorney's threats to his former intimate partner
The key issue at [the criminal] trial was whether, as the Respondent claimed in his testimony, he had not intended to intimidate LC, or for her to take his words seriously, but rather was engaging in a jesting, joking or humorous rant.
Evidence at the trial
At the time of the trial, the Respondent predominantly practised family law but had also practised criminal law. He was articulate, and thought before he spoke, but he was also a “joker” who enjoyed making people laugh. LC was a calm, nonemotional and self-confident person. She was strong and physically fit, and was not a fearful person.
He was "annoyed" that she had received the proceeds of their rental condo in settlement
The Respondent owned several firearms that he had left in the family home when he moved out. Sometime after the separation, LC asked one of their mutual friends to collect the firearms and store them at his house, as she did not want to keep them or give them back to the Respondent. LC did not tell the Respondent that she was moving the firearms to the friend’s house.
Two prior communications gave context to the charged one
The first prior communication occurred sometime in 2016 or 2017. LC had read a comment on the Respondent’s Facebook page in which he wrote about “killing his past and maybe getting 25 years”. The next day, he called LC and said “I bitterly hate you”. When she asked why, the Respondent stated that she kept taking their child away from him and said “That is why spouses hate each other and kill each other when they are deprived of the parenting rights they believe they are entitled to.” Judge Meyers rejected the Respondent’s testimony that, in making these comments, he was not intending to frighten, intimidate or scare LC, and concluded that the Respondent had spoken these words in anger and had deliberately intended to scare her.
The second prior communication took place on April 9, 2017. The Respondent sent an email to LC in which he said “You may want to take a different approach. I saw you waving at the window today. I want you dead.” In his testimony, the Respondent said that he had made this comment because he felt he was paying too much for child support and was being shortchanged on parenting time. Judge Meyers concluded that, in sending this email, the Respondent had intended to scare, intimidate and threaten LC. It was a blatant and clear threat. Judge Meyers also held that LC was shaken and upset by the email, as reflected in a response that she had sent to the Respondent. The Respondent then replied to LC stating that his comment had been over the line and inappropriate. LC chose not to go to the police just yet. Judge Meyers accepted that the Respondent called LC the next morning and apologized.
The judge rejected the "humorous rant" explanation for the following telephone statements
(a) The Respondent called LC a “greedy guts” for wanting more money than she deserved, given that he had paid for repairs to the condominium plus lawyer fees.
(b) The Respondent said that the Ontario lawyer was letting him down and was “an f’ing jerk”, which was unusual language for him to use, and talked about putting bullets into the lawyer’s head.
(c) The Respondent went on to talk about a former criminal client who could solve problems by menacing, intimidating, hurting people, or just making them disappear.
(d) The Respondent said something about how people who were within six or two degrees of separation of them, could end up with bullets in them, and said that LC should beware, be careful or be warned. LC did not know whether the Respondent was referring to her, her family, her lawyer or somebody else, but she took his rant as very threatening.
(e) The Respondent mentioned not caring if he ended up spending the rest of his life in an eight-by-eight jail cell.
In finding that the Respondent had intended to threaten LC, Judge Meyers rejected as unbelievable his testimony that, by pure coincidence, he was arranging to pick up the guns that day to take advantage of a sale on gun storage boxes. This explanation was rejected because the guns had been out of his care for almost two years and he had sought to get them back on the same day as he made this “nasty” call to LC.
He self-reported the conviction and explained to the Law Society
the Respondent recounted the life-altering effect of being arrested, handcuffed, strip-searched, charged and tried in a criminal court, given that he was a lawyer living in a small community.
The panel sustained a "conduct unbecoming" charge and imposed a fine
Having considered the cases mentioned above and, in particular, Chow, we conclude that the $12,000 fine proposed by the parties in their joint submission falls within the range of disciplinary actions for the Respondent’s conduct unbecoming.
In what may well be the longest hearing committee report (a fulsome 263 pages) in District of Columbia Bar history, an Ad Hoc Hearing Committee has recommended a six-month suspension with fitness
Respondent...is charged with violating Rules 3.1, 3.3(a)(1), 3.4(c), 8.4(a), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct (the “Rule” or “Rules”), arising from a civil judgment against him and his conduct in connection with a subsequent settlement agreement. Disciplinary Counsel contends that Respondent committed all of the charged Rule violations and that, as a sanction for his misconduct, Respondent should be suspended for six months, with reinstatement conditioned upon a showing of fitness, payment of any outstanding sanctions, and compliance with any pending court orders. Respondent contends that Disciplinary Counsel has failed to establish, by clear and convincing evidence, any of the charged Rule violations.
The investigation began eight years and one name change (it was Bar Counsel back then) ago.
The hearing was held in 2016.
The prosecutor has long since retired.
It gets worse - the investigation was predicated on long ago completed civil litigation.
On December 28, 2009, Respondent filed a notice of appeal to the District of Columbia Court of Appeals from the $1.2 million judgment against him. This appeal was docketed as No. 09-CV-1593. DCX 53 (Docket Sheet for Appeal No. 09-CV-1593) at 2; DCX 17 (Memorandum Opinion and Order, dated Dec. 14, 2012) at 3 n.7. Respondent’s appeal from this non-appealable order was frivolous. The Court of Appeals later dismissed Respondent’s appeal [in December 2012].
On the proposed sanction
We believe that the scope and seriousness of Respondent’s misconduct (particularly his false statements and related dishonesty to the court) could easily justify recommending a more severe sanction than the sanction that Disciplinary Counsel recommends. We are loath to recommend a harsher sanction than that proposed by Disciplinary Counsel, however.
Because the matter must be reviewed in turn by the Board of Professional Responsibility and the Court of Appeals, count on adding a few more years before the case is resolved.
The court has seen a steady stream of bar discipline matters that take a decade or more from soup to nuts without so much as a disapproving tut-tut.
It would be nice - but unexpected - if this embarrassed someone. (Mike Frisch)
The Idaho Supreme Court imposed sanctions on an attorney for pursuing a frivolous appeal
We conclude that this case presents a textbook example of an appeal that was pursued in violation of Rule 11.2, and that attorney fees should be awarded against appellant’s counsel personally as a sanction. Vernon K. Smith, the Drinkards’ counsel, has shown a penchant for disregarding Idaho Appellate Rules, and his failure to abide by this Court’s prior admonitions warrants a sanction in this case.
The merits (or lack thereof)
The Drinkards’ claims are not well-grounded in fact, nor are they warranted by existing law or an extension thereof. First, the Drinkards’ appeal contains little in the way of legal argument or authority The Drinkards’ brief fails to include appropriate citations to the record or a comprehensible argument. Large swaths of the Drinkards’ argument are merely block-quoted statutes or lengthy sections of cases with little attempt at a cogent argument explaining the applicability to the facts of the case. Second, Smith asks this Court to disregard existing law—not based on a good faith argument to reverse that law—but because he disagrees with how this Court applied the law in a case in which he was a party. Disagreeing with this Court is not a sufficient reason to disregard precedent or to advocate that this Court do so. Appellate arguments must be “warranted by existing law . . . .” Id. Smith pursued this appeal against Alpha even though he had litigated the very case that decided principles of law against his position here. Smith II, 164 Idaho at 53, 423 P.3d at 1005. He was thus aware that the issues on appeal have been settled directly against his position in this case. Pursuing the appeal anyway is frivolous and a waste of time and needlessly increased the cost of litigation for Smith’s clients and for Alpha.
The court noted prior warnings but
As noted, these warnings included admonitions not to simply argue positions against what had been decided by this Court previously.
Now, Smith appeals to this Court, representing the Drinkards, raising the exact issues on which this Court has ruled against him before. Smith asks this Court, in effect, to second-guess the holding we reached in Smith II, a case, as we have noted, in which he was a party. But the Drinkards’ case by any other name is still the same argument. On our own motion, we may award fees and costs against both the party and the party’s attorney who have violated Rule 11.2. We have done this before in a case involving Smith. Still, Smith continues to flout Idaho Appellate Rules and the standard for good faith appeals. As such, the Drinkards’ appeal was filed in direct contravention of I.A.R. 11.2(a); it was frivolous, unreasonable, and without foundation. For these reasons, the Court sanctions Smith by requiring him to personally pay Alpha’s attorney fees and the costs Alpha incurred in defending its position in this appeal.
A social media post drew a censure from the New York Appellate Division for the Fourth Judicial Department
Respondent conditionally admits that, in 2018, he represented a client in a child custody proceeding wherein the client was seeking an order requiring supervision for visitation between the client’s former spouse and their minor child, whose permanent residence was in another state. The client sought that relief, at least in part, based on allegations that the former spouse had previously left the minor child unsupervised with the 18-year-old son of the former spouse’s boyfriend, after which the 18 year old was adjudicated a youthful offender for having sexual relations with the minor child. Respondent admits that, following a court appearance on the application for supervised visitation, he published on social media certain details regarding the sexual misconduct incident, including the home state of the victim and the age and gender of the victim and youthful offender. Respondent admits that, inasmuch as he practices law in a “small town” where it was widely known that he was representing one of the parents of the victim, the information that respondent published on social media effectively revealed the identities of the victim and youthful offender. Respondent also admits that the social media post served no substantial purpose other than to embarrass or harm a third person. The parties stipulate, however, that respondent removed the information from social media after approximately one day in response to concerns raised by opposing counsel in the child custody proceeding.
Saturday, October 9, 2021
The Idaho Supreme Court reversed and remanded a disqualification and gag order in a bicycle accident claim against the property owner.
The issue involved an associate move
The law firm Hepworth Holzer, LLP (“Hepworth Holzer” or “the firm”), petitions this Court for a writ of mandamus or prohibition, seeking relief from a district court order disqualifying it as counsel for Dr. Gary Tubbs in a personal injury lawsuit against Bogus Basin Recreational Association, Inc. (“Bogus Basin”). Bogus Basin was represented by Elam & Burke in the proceedings. Elam & Burke moved to disqualify Hepworth Holzer after an associate attorney who worked at Elam & Burke when Tubbs initiated his lawsuit went to work for Hepworth Holzer and assisted the firm on a memorandum in support of a motion to reconsider filed in the case. The district court granted Elam & Burke’s motion. The district court ordered that “[a]ny attorney associated with Hepworth Holzer, LLP, including [the associate attorney], are disqualified from any further representation of [Dr.] Gary Tubbs in this matter and from providing any information from its files after January 21, 2021, and cannot relay any information discussed or received about this case after January 21, 2021[,] to Tubbs or any new attorney/firm representing Tubbs.” Hepworth Holzer contends the district court’s disqualification and gag order is clearly erroneous and unconstitutional.
Dr. Gary Tubbs was severely injured in a bicycle accident that occurred on Bogus Basin’s property. In 2019, Tubbs hired Hepworth Holzer to represent him on a contingency fee basis in a personal injury lawsuit against Bogus Basin. John Janis was the primary attorney representing Tubbs. Elam & Burke represented Bogus Basin. The case proceeded to summary judgment, where Bogus Basin argued that Tubbs’ claims were barred because, after the accident, he signed three waiver agreements releasing Bogus Basin from any and all liability or claims arising from Tubbs’ use of the Bogus Basin ski area. After Elam & Burke filed Bogus Basin’s motion for summary judgment, but before a final judgment was entered, an associate attorney working for Elam & Burke resigned and started working for Hepworth Holzer. Later, the district court granted summary
judgment to Bogus Basin. After working at Hepworth Holzer for one month, the associate attorney helped draft a memorandum in support of a motion for reconsideration in Tubbs’ case. In the motion to reconsider, Tubbs allegedly raised a new legal argument that Bogus Basin claimed was attributable to the associate attorney’s prior communications and access to internal files while he was still an attorney for Elam & Burke...
Bogus Basin’s motion alleged the associate attorney did research and had knowledge of work product and strategy in defending the case against Tubbs based on his
employment with Elam & Burke. Bogus Basin alleged the associate attorney’s conflict was imputed to the entire firm under Idaho Rule of Professional Conduct (“I.R.P.C.”) 1.10. Tubbs opposed the motion, supported by the declaration of Hepworth Holzer attorney John Janis. The associate attorney also submitted a declaration in which he adamantly denied: (1) ever having represented Bogus Basin while employed by Elam & Burke, (2) having otherwise obtained any confidential information about Bogus Basin, or (3) having used any information related to Bogus Basin to its disadvantage. In support, the associate attorney emphasized that he did not bill Bogus Basin for any legal services—highlighting the brief nature of his involvement in the case.
Hepworth Holzer suffered a distinct and palpable injury from the district court’s order that it cease all representation and communication with Tubbs. The firm had invested significant time, money, and resources into its representation of Tubbs. The value of its reputation and standing in the local legal community is also at stake. Not only did the district court’s order preclude the firm’s ability to recover any financial benefit of that representation, but it also placed Hepworth Holzer in breach of its contract with Tubbs. Hepworth Holzer’s injury is directly connected to the district court’s order; thus, Hepworth Holzer has standing to petition this Court for relief.
The trial court had jurisdiction to disqualify
Here, the district court used its discretion to grant Bogus Basin’s motion to disqualify Hepworth Holzer based on an imputed conflict of interest. A writ of prohibition is not appropriate here because the district court did not exceed its jurisdiction in issuing the disqualification order. Hepworth Holzer’s request to enter such a writ is therefore denied.
But mandamus relief was appropriate
Here, the district court entered its disqualification and gag order based on its review of documents Elam & Burke submitted to the district court in camera. The documents were not provided to Hepworth Holzer, leaving the firm with no recourse or ability to challenge the district court’s decision, inasmuch as it could not know the basis for the district court’s ruling. The district court erred as a matter of law by limiting Hepworth Holzer’s opportunity to be heard and preventing the firm’s ability to meaningfully respond to Bogus Basin’s claims of impropriety.
Ultimately, no one at Hepworth Holzer, including the associate attorney, could discern what argument allegedly raised confidential arguments that would merit the far-reaching action taken by the district court. The district court needed to consider the prejudice that would result to Tubbs in disqualifying Hepworth Holzer as his counsel. “The goal of the court should be to shape a remedy which will assure fairness to the parties and the integrity of the judicial process.” Foster, 145 Idaho at 32, 175 P.3d at 194 (quoting Weaver, 120 Idaho at 697, 819 P.2d at 115) (“whenever possible, courts should endeavor to reach a solution that is least burdensome to the client.”).
Tubbs suffered substantial and catastrophic physical injuries that led to him filing the underlying lawsuit. Tubbs’ prejudice includes the loss of his long-standing counsel who is familiar with the facts of the case and who undertook representation on a contingent fee basis. It is impractical to conclude that Tubbs retaining new counsel is “a plain, speedy and adequate remedy in the ordinary course of law.” The district court’s order disqualifying Hepworth Holzer as counsel is reversed.
And remanded to a new judge
while we make no finding that the district court is biased against Hepworth Holzer in this case, to avoid even the appearance of impropriety we order that the administrative district judge assign a new judge to this case upon remand. This holding is limited to the unique facts presented here and this determination, made via a special writ, should not be viewed as an expanded means of disqualifying a sitting judge throughout a case.
Thursday, October 7, 2021
The Georgia Supreme Court declined to readmit an incarcerated former attorney
The record shows that Bartko was first licensed to practice law in Georgia in 1995. In 2014, Bartko voluntarily surrendered his license to practice law, which is functionally equivalent to disbarment, after he was found guilty of federal charges of conspiracy, mail fraud, and selling of unregistered securities. He was sentenced to 272 months’ imprisonment and ordered to pay $885,946.89 in restitution. The conviction was affirmed on appeal. See generally In the Matter of Bartko, 295 Ga. 862 (764 SE2d 553) (2014).
In December 2020, while temporarily moved to home confinement under the federal Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Bartko filed his application for certification of fitness to practice law. In his application, Bartko acknowledged that he has approximately ten years remaining of his original prison sentence. The record also shows that he has paid virtually none of the restitution.
Bartko later petitioned the Board to waive application of its policy of not considering applications from currently incarcerated individuals until after the applicant’s sentence is completed. Though he is out of prison, Bartko is still serving his sentence of incarceration at home under the CARES Act. The Board denied the petition, explaining that Bartko had not shown sufficient cause to warrant any waiver of the policies.
Bartko is still serving a lengthy sentence for serious offenses, including fraud, and he has made little progress toward satisfying his obligation to pay restitution. Consequently, we affirm the Board’s decision denying the waiver.
A North Carolina attorney has been charged with misconduct with a client he was defending in a criminal matter.
When the client expressed concerned about travel costs for a hearing that was continued, Respondent allegedly said he could help her if she gave him "some business" which she interpreted as performing a sex act for compensation.
He allegedly brought the request up again in a phone conversation.
What about the business we talked about? Well, do you want to come by?
She took an Uber to his law office, where she asked
What are we going to do?
Well, nothing that's going to be illegal. I'm not looking for any kind of oral, anal, or vaginal sex.
He then allegedly offered $100 for a "hand job" plus $60 for the Uber.
She left without any contact or payment.
He was charged with and pled guilty to misdemeanor solicitation of prostitution. (Mike Frisch)
A complaint filed by the North Carolina State Bar alleges that an attorney engaged in misconduct in a domestic case that involved child custody and support.
The complaint alleges that lawyer and client met at a restaurant after a court hearing where he "flirted with [the client] and kissed her."
From that point forward, most of [the attorney's] communications with [the client] were flirtatious, romantic, or sexual.
He allegedly proposed romantic trips and "sent...graphic messages, explicit propositions, one or more semi-nude photos of himself, and at least one photograph of his genitals."
He did advise her to seek independent legal advice but allegedly did not obtain the client's informed consent.
The attorney allegedly gave the client "$500, permitted [her] to use his credit card, and wrote her a check for $8,000.00."
The client "resisted [his] efforts to persuade her to engage in a sexual relationship, and ultimately sought other counsel to complete her case."
The complaint further alleges improper post-termination disclosures to opposing counsel. (Mike Frisch)
The Massachusetts Supreme Judicial Court declined to order relief sought for a District Attorney's decision not to charge protestors, affirming the conclusion of a single justice
The complaint stems from the district attorney's decision to nol pros several cases against individuals who were arrested at a "Straight Pride Parade" in Boston on August 31, 2019, and at a rally that followed the parade. Those who were arrested apparently were at the parade and rally to object to those events. They were charged with an assortment of crimes, mostly disorderly conduct and assault and battery on police officers. Del Gallo alleges that, as a marcher in the parade and a speaker at the rally, he was a victim of the disorderly conduct2 because the conduct interfered with his right under the First Amendment to the United States Constitution to participate in the events, although it is difficult to find any specific allegation in his lengthy complaint suggesting that any of the charged individuals or their conduct actually prevented him from marching or speaking or even interfered in any way with his doing so.
Various contentions failed to persuade
we cannot imagine that the Legislature intended to confer "victim" status on someone in Del Gallo's position simply because he or she was involved in an event's planning and was disappointed that the event ultimately was met with protest and allegedly was marred by disorderly conduct.
Oral argument in two bar cases was scheduled yesterday in the Tennessee Supreme Court.
Summaries from the court's web page
- Tyree B. Harris, IV v. Board of Professional Responsibility of the Supreme Court of Tennessee– This attorney-discipline case originated from attorney Tyree B. Harris’s conduct in the law firm of Willis & Knight, PLC. The Board of Professional Responsibility filed a petition for discipline against Mr. Harris alleging that he violated Tennessee Rule of Professional Responsibility 8.4 during his testimony in a child support modification proceeding when he failed to disclose his receipt of $225,000 from the firm’s escrow account. A hearing panel of the Board of Professional Responsibility determined that Mr. Harris “engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation” in violation of Rule 8.4(c) based on his testimony in child support modification proceedings. The hearing panel suspended his license for one year. The trial court affirmed the hearing panel’s decision, and Mr. Harris has appealed pursuant to Tennessee Supreme Court Rule 9, section 33.1(d). He challenges the ruling of the trial court affirming the hearing panel’s decision finding that he violated Rule 8.4 and the imposition of the one-year suspension as punishment for the violation.
- Charles Edward Walker v. Board of Professional Responsibility of the Supreme Court of Tennessee– This is an attorney-discipline case. The Tennessee Board of Professional Responsibility filed a Petition for Discipline against attorney Charles Edward Walker on August 29, 2018, alleging Mr. Walker committed multiple disciplinary violations based on four separate complaints. The Board filed a Supplemental Petition for Discipline against Mr. Walker on February 15, 2019 based on a fifth complaint. A disciplinary hearing was held on both petitions on November 12-13, 2019. The Hearing Panel found that Mr. Walker violated Rules 3.1, 3.3, 3.4, 4.1, and 8.4(a), (c) and (d) of the Rules of Professional Conduct. As a result, the Hearing Panel ruled that Mr. Walker should be suspended from the practice of law for three years, including two years of active suspension and one year on probation under supervision of a practice monitor. The Hearing Panel also assessed costs against Mr. Walker in the amount of $4,464.07. The Chancery Court of Davidson County affirmed the decision of the Hearing Panel, and Mr. Walker has now appealed to the Tennessee Supreme Court. His appeal relates to the chancery court’s ruling on the initial complaint against him, in which Mr. Walker and his employees were found to have engaged in conduct intended to deceive a chancellor regarding documents used to redeem property from a tax sale.