Legal Profession Blog

Second Chance Muffed In AI Misuse

I don't often advise the readership of matters unless I have located them through original research.

But I just saw a United States District Court for the Central District of California Special Master decision reported at The Volokh Conspiracy that - in particular- law professors would do well to consider incorporating into their teaching materials.

Reason for Special Master

In January 2025, the Court appointed me as Special Master in this insurance-related civil action. Central to the reason for my appointment was an ongoing dispute between the parties regarding the insurer’s assertion of various privileges in discovery.

The sad story

Here’s an abbreviated summary of the events. Plaintiff is represented by a large team of attorneys at two law firms (a lawyer moved from the Ellis George firm to K&L Gates during the course of the state court litigation underlying the insurance coverage action; the representation in the present case is shared between the two firms). The lawyers admit that Mr. Copeland, an attorney at Ellis George, used various AI tools to generate an “outline” for the supplemental brief. That document contained the problematic legal research.

Mr. Copeland sent the outline to lawyers at K&L Gates. They incorporated the material into the brief. No attorney or staff member at either firm apparently cite-checked or otherwise reviewed that research before filing the brief with the Special Master. Based on the sworn statements of all involved (which I have no reason to doubt), the attorneys at K&L Gates didn’t know that Mr. Copeland used AI to prepare the outline; nor did they ask him.

A further wrinkle. During my initial review of Plaintiff’s brief, I was unable to confirm the accuracy of two of the authorities that the lawyers cited. I emailed the lawyers shortly after receiving the brief to have them address this anomaly. Later that day, K&L Gates re-submitted the brief without the two incorrect citations – but with the remaining AI-generated problems in the body of the text. An associate attorney sent me an innocuous e-mail thanking me for catching the two errors that were “inadvertently included” in the brief, and confirming that the citations in the Revised Brief had been “addressed and updated.”

I didn’t discover that Plaintiff’s lawyers used AI – and re-submitted the brief with considerably more made-up citations and quotations beyond the two initial errors – until I issued a later OSC soliciting a more detailed explanation. The lawyers’ sworn statements and subsequent submission of the actual AI-generated “outline” made clear the series of events that led to the false filings. The declarations also included profuse apologies and honest admissions of fault. 

AI misuse plus

Yet, the conduct of the lawyers at K&L Gates is also deeply troubling. They failed to check the validity of the research sent to them. As a result, the fake information found its way into the Original Brief that I read. That’s bad. But, when I contacted them and let them know about my concerns regarding a portion of their research, the lawyers’ solution was to excise the phony material and submit the Revised Brief – still containing a half-dozen AI errors. Further, even though the lawyers were on notice of a significant problem with the legal research (as flagged by the brief’s recipient: the Special Master), there was no disclosure to me about the use of AI. Instead, the e-mail transmitting the new brief merely suggested an inadvertent production error, not improper reliance on technology. Translation: they had the information and the chance to fix this problem, but didn’t take it. Cohen, 724 F.Supp.3d at 259.

The nameless

Although it’s necessary to identify some parties involved here, I decline to name-and-shame all of the lawyers in this order. They know who they are, and don’t need further notoriety here.

A cautionary tale to be sure. (Mike Frisch)

ALL CAPS

A complaint recently filed by the Illinois Administrator

In September 2014, the United States Patent and Trademark Office (“the Agency”) removed Respondent from his position as a probationary patent examiner. Respondent challenged the removal by filing an employment complaint against the Agency with the Equal Employment Opportunity Commission (“EEOC”), and on October 5, 2016, an administrative law judge dismissed Respondent’s request for a hearing and remanded his complaint to the Agency for the issuance of a final agency decision. The judge took that action as a sanction for what she determined had been Respondent’s failure to comply with her orders or to respond to the Agency’s requests for information.

The Agency issued its final agency decision on December 2, 2016, finding that Respondent’s separation from employment had not been based on discrimination, retaliation, or harassment. Respondent appealed that decision to the EEOC’s Office of Federal Operations, which later concluded that Respondent’s appeal of the Agency’s decision had been untimely. Respondent unsuccessfully continued to litigate his claims against the Agency before the federal district court for the Eastern District of Virginia and the United States Court of Appeals for the Fourth Circuit.

Beginning in 2019, Respondent initiated contact with the Agency’s Office of Equal Employment Opportunity and Diversity, complaining that he continued to be the subject of discrimination because the Agency had not selected him for a patent examiner position as vacancies for that position arose. The Office of Equal Employment Opportunity and Diversity referred Respondent’s complaint to the Department of Commerce’s Office of Civil Rights for investigation to avoid a potential conflict of interest, and Respondent’s claims were eventually assigned to an administrative law judge.

In the course of Respondent’s continuing pursuit of his various litigation and employment claims against the Agency, he learned that one of the attorneys representing the Agency was “Victim One,” a Black woman. On June 15, 2021, Victim One filed a motion before the EEOC seeking sanctions against Respondent based on the contention that Respondent’s prosecution of his claims included frivolous filings and involved disrespectful and abusive behavior directed at the administrative law judge assigned to the case, Agency counsel, and Agency witnesses.

Between 2019 and June 22, 2023, both Victim One and “Victim Two,” who was one of the attorneys involved in the investigation of Respondent’s EEOC complaint, had received over 500 emails from Respondent degrading them and using severely vulgar language. Victim Two had never met Respondent or spoken to Respondent and generally disregarded Respondent’s emails until early 2023, when, due to the increasingly threatening tone of Respondent’s emails, Victim Two installed a security system at her home.

On June 22, 2023, Respondent sent an email to multiple officials, including Victim One, Victim Two, and “Victim Three,” Victim One’s supervisor, a woman who is of Asian heritage, stating:

The BLACK N*****S [multiple names, including Victim One] and their RACIST CRIMINAL FELON WHITE TRAILER TRASH C***S [multiple names, including Victim Two], and SECRETARY OF COMMERCE GINA RAIMONDO and RACIST CRIMINAL FELON SLANTY-EYED YELLOW ASIAN C***S [multiple names, including Victim Three] need to be dragged out of their federal offices lined up and SHOT IN THEIR F***ING HEADS! ALL ARE IMMEDIATE AND ABSOLUTE DANGERS TO THE AMERICAN PUBLIC AND THE U.S. CONSTITUTION. ALL NEED TO BE LINED UP AND SHOT IN THEIR RACIST F***ING HEADS! (Bold and all capital letters in original; obscenities in original not redacted)

On July 10, 2023, Respondent sent Victim Two an email which stated that “[VICTIM TWO] IS A FILTY RACIST WHITE TRASH CRIMINAL FELON C*** WHO SHOULD BE DRAGGED OUT AND SHOT IN HER RACIST HEAD.” (Bold and all capital letters in original; obscenities in original not redacted) On July 22, 2023, Respondent sent Victim Two an extensive email, which, in addition to containing vulgar language, stated that “One day I will go to Virginia to protest against the WHITE RACIST C*** [VICTIM TWO]….[VICTIM TWO] NEEDS TO BE HUNG AND LYNCHED ON A TREE AND SHOT IN HER RACIST F***ING HEAD.” (Bold and all capital letters in original; obscenities in original not redacted) Because Victim Two felt that Respondent’s language was a direct personal threat to her safety, she sent Respondent a cease-and-desist communication by email.

On August 1, 2023, Respondent sent an email to Victim Two referring to her as a “FILTHY RACIST CRIMINAL C***,” “SATAN’S-SEMEN-SWALLOWING WHORE,” “STANKY OVERSIZE-HOLE C*** WHORE,” and a “STINKY C*** WITH A GRAND CANYON SIZED VAGINA” and stating that “THE FILTHY RACIST BITCH [VICTIM TWO] IS A CRIMINAL FELON….THE FILTHY SATAN-C***-S***ING WHORE IS GUILTY!” (Bold and all capital letters in original; obscenities in original not redacted)

Victim Two went to the police leading to a felony arrest warrant.

On or about August 7, 2024, Respondent sent an email message to Victims One, Two, Three, and multiple other current and former officials associated with the Agency, in which Respondent stated that he knew where Victims One, Two, and Three, and seven other officials lived and either providing their home addresses or stating that he knew their home addresses. Respondent’s message stated, in part: “

OUR 10-YEAR ANNIVERSARY IS APPROACHINGFIGHTING SINCE SEPTEMBER 4, 2014 -AND I MUST PLAN SOMETHING SPECIAL FOR ALL OF THE RACIST AND CRIMINAL FELON TRASH INVOLVED IN ROYAL VERSUS DEPARTMENT OF COMMERCE, ET AL…. EVENTUALLY, MY FIGHT AGAINST A RACIST, UNLAWFUL, AND OPPRESSIVE FEDERAL GOVERNMENT AGENCY WILL CATCH A SPARK!” (Bold, all capital letters, and italics in original)

Respondent further stated:

In 2013-2014, when you all foolishly believed that you were omnipotent and could engage in your conspiracy of racism, violations of Title VII and the U.S. Constitution, and criminal felonies against me, I’ll bet you never considered for a second that I would oppose you and protest you for 10 years-and I got many more years left in me too! Are you all still laughing?.... And my opposition and protest will continue until I find federal employment.

Respondent concluded the message by advising the recipients that “YOU ARE NOT UNTOUCHABLE!” (Bold and all capital letters in original)

As a result

On September 10, 2024, police officers prepared and submitted a report to Magistrate Rougier-Chapman, who on that same date issued a misdemeanor warrant for Respondent’s arrest for harassment by computer in violation of Virginia Compiled Statutes section 18.2-152.7:1.

Also alleged

On or about August 22, 2024, Respondent searched the internet for Victim One’s home address, then located the addresses of others in her neighborhood in suburban Washington, D.C. At that time, Respondent also wrote and mailed letters to several of Victim One’s neighbors that contained Victim One’s home address and Victim One and Victim Three’s uspto.gov email addresses, and made the following statements about the women:

• That Victim One was an “EXTREMELY UNETHICAL INDECENT UNDIGNIFIED SLAVISH CRIMINAL FELON BLACK PORCH N***** MONKEY,” and “A TRIFILING IMMORAL DEI AUNT JEMIMA N***** PUPPET”;
• That Victim One “willfully and gleefully played ‘STEPIN FETCHIT’ for her EXTREMELY RACIST UGLY UNETHICAL IMMORAL SLANT-EYED SICK YELLOW ASIAN C*** ‘MASSA’”, Victim Three; and
• “My opinion is that TRIFLING IMMORAL DEI AUNT
JEMIMA N***** PUPPET [VICTIM ONE] mother may have been IGNORANT GHETTO TRASH or a CRACK WHORE because she -obviously – did not teach her SLAVISH DEI AUNT JEMIMA N***** daughter [VICTIM ONE]: No matter what happens…always maintain your integrity and dignity; they can never take that away from you.” (Obscenities and ethnic and misogynistic slurs not redacted in original; bold, all capital letters, italics, and underlining in original)

(Mike Frisch)

Medical Student A Servant?

A doctor who supervised a medical student in performing a procedure may be liable to the injured plaintiff, according to an opinion of the Georgia Supreme Court

we agree with the Court of Appeals’ lead opinion that OCGA § 51-1-38 (a statute that immunizes medical students from civil liability under certain circumstances) did not provide a basis for holding the defendant physicians vicariously liable. We also agree with the lead opinion’s ultimate conclusion that the defendant physicians could not be held vicariously liable under the borrowed servant doctrine, albeit for different reasons than those expressed in the Court of Appeals’ lead opinion. As we explain below, the defendant physicians could not be held vicariously liable under the borrowed servant doctrine because that doctrine operates as a defense to a claim of vicarious liability under the doctrine of respondeat superior, not as an independent basis for imposing vicarious liability on a defendant. But we disagree with the lead opinion’s conclusion that, as a matter of law, the defendant physicians could not be held vicariously liable for the medical student’s negligence under general agency principles. As explained below, under the doctrine of respondeat superior, a general principle of agency law, a physician can be vicariously liable for the negligent acts or omission of a medical student under his supervision if the evidence shows that, when the injury occurred, the medical student was acting as the physician’s “servant” in furtherance of the physician’s goals and within the scope of the physician’s business. And because genuine issues of material fact remain regarding whether the defendant physicians were vicariously liable under the doctrine of respondeat superior for any negligence committed by the medical student, we reverse the Court of Appeals’ judgment affirming the trial court’s grant of partial summary judgment to the defendants on the issue of vicarious liability.

The lawsuit involves allegations of injuries that occurred in a hysterectomy.

On August 12, 2019, Dr. Quang performed “a total laparoscopic hysterectomy with left salpingo-oophorectomy” on Plaintiff. During the procedure, Dr. Nguyen assisted Dr. Quang. And a medical student, who was a student at Philadelphia College of Osteopathic Medicine (“PCOM”), assisted the defendant physicians. The medical student’s role in the procedure was to insert a sponge stick into Plaintiff’s vagina as directed by Dr. Quang and to maneuver the sponge stick as directed by the defendant physicians in order to lift Plaintiff’s bladder up, help the defendant physicians visualize Plaintiff’s anatomy, and help guide Dr. Quang to the appropriate location for incision. The defendant physicians visually confirmed that the medical student had initially inserted the sponge stick into Plaintiff’s vagina. But at some point during the procedure, the medical student removed the sponge stick from Plaintiff’s vagina and placed it in Plaintiff’s rectum, which made Plaintiff’s injury “more likely.”

(Mike Frisch)

Judgmental Immunity

The Georgia Supreme Court concluded that the judgmental immunity doctrine had been misapplied by the Court of Appeals but nonetheless held in favor of defendant Barnes & Thornburg in a legal malpractice case

The court [of appeals] also emphasized that Leonard “was a seasoned litigator with experience litigating issues in both Georgia and New York” and that this experience formed the basis for his opinion that Georgia law was more favorable to Cox-Ott’s position; on that basis, the court concluded that Leonard could not be held liable for his decision to proceed under Georgia law. Id. at 623 (2) (a) (i).

But the mere fact that an attorney’s judgment is based on his experience does not automatically establish that the attorney exercised reasonable care in reaching that judgment such that he should be insulated from liability. Accordingly, in determining whether Cox-Ott had established the requisite element of her malpractice claim, the Court of Appeals erred by considering only whether Leonard “engaged in an honest exercise of professional judgment,” but instead should have determined, under the circumstances of this case, whether Leonard exercised reasonable care in reaching that judgment. Therefore, because it does not rest on an accurate statement of the law of professional legal malpractice in Georgia, we disapprove those portions of the Court of Appeals’ decision relying on the doctrine of judgmental immunity in affirming the grant of summary judgment in this case.

Nevertheless, we affirm the Court of Appeals’ judgment in this case. Besides concluding that Cox-Ott’s claims were barred by judgmental immunity, the Court of Appeals also held that Cox-Ott failed to establish the causation element of her professional malpractice claim. See Cox-Ott, 370 Ga. App. at 624-626 (2) (a) (i)(ii). Cox-Ott did not ask us to review this independent ground for affirmance of the judgment against it, nor did we grant certiorari to address it, so we do not disturb it. As a result, the judgment of the Court of Appeals must be affirmed on that basis. 

The case

Cox-Ott consulted with Leonard in connection with a dispute with an insurer regarding the premium amount on a life insurance policy that was taken out to fund Cox-Ott’s family trust. Following his own investigation into the dispute, Leonard discussed potential paths forward with Cox-Ott, and it was his understanding that CoxOtt wanted to enforce the policy. Leonard thereafter outlined two potential strategies in a letter he sent to Cox-Ott, though Cox-Ott denied receiving this letter. Leonard explained that, in his opinion, the insurer could agree either to rescind the policy and return the premiums or to reform the policy to one better suited to Cox-Ott’s needs.

After the insurer refused to reform the policy, Leonard recommended filing suit against the insurer, raising claims for fraud and reformation of the policy. The suit could have been brought in either Georgia or New York, and Leonard recommended that suit be brought in Georgia. According to Leonard, his recommendation was based on his experience that New York courts were “not as favorable to policyholders because there are so many major insurers . . . headquartered there, and NY law isn’t as favorable . . . as Georgia,” as “most calls go to the insurers, and not the insureds.”

Leonard subsequently brought suit against the insurer in Georgia on behalf of the family trust, asserting state law claims for fraud, negligent misrepresentation, and reformation. The insurer removed the case to federal court and moved to dismiss, which the district court granted, finding that “the trust affirmed the policy by seeking its reformation” and that the merger clause contained within the affirmed policy barred the trust’s fraud claims. See C & C Family Trust 04/04/05 ex rel. Cox-Ott v. AXA Equitable Life Ins. Co., 44 FSupp3d 1247, 1256-1259 (B) (2) (N.D. Ga. 2014). The United States Court of Appeals for the Eleventh Circuit affirmed the dismissal. See C&C Family Tr. v. AXA Equitable Life Ins. Co., 654 Fed. Appx. 429 (11th Cir. 2016).

Cox-Ott, individually and as trustee for her family trust, then sued Leonard and Barnes & Thornburg for professional negligence, asserting that Leonard was negligent for electing to proceed under Georgia law rather than New York law and for asserting a claim for reformation rather than rescission, among other reasons. The trial court ultimately entered summary judgment against Cox-Ott, finding that the judgmental immunity doctrine precluded Cox-Ott’s professional negligence claim. The Court of Appeals affirmed the trial court’s determination that Cox-Ott’s claims were barred by judgmental immunity, which it said “protects an attorney from liability for acts and omissions in the conduct of litigation which are based on an honest exercise of professional judgment.” See Cox-Ott v. Barnes & Thornburg, LLP, 370 Ga. App. 615, 620, 622-626 (2) (a) (i)-(ii) (898 SE2d 619) (2024). In particular, the Court of Appeals held that research into the choice of law issue was not required in order for Leonard’s decision to be protected by judgmental immunity and that Leonard’s recommendation as to venue was similarly protected because of his expertise and experience. Id. at 622-623 (2) (a) (i). The court also held that Leonard’s recommendation to pursue reformation rather than rescission was likewise protected since it was “an honest exercise of professional judgment.” Id. at 625 (2) (a) (ii). Finally, the court concluded that, irrespective of judgmental immunity, Cox-Ott could not establish the causation element of her professional negligence claims. Id. at 624 (2) (a) (i), 627-628 (2) (b). Thereafter, we granted Cox-Ott’s petition for a writ of certiorari to determine whether “the doctrine of judgmental immunity applied by the Court of Appeals correctly state[s] the law of Georgia with respect to professional negligence claims against attorneys[.]”

(Mike Frisch)

Lot (Owners) Wife

The New York Appellate Division for the First Judicial Department reduced a Maine three-year term of suspension to one-year as reciprocal discipline

Respondent, who had practiced criminal defense in New York prior to moving to Maine in 2020, was admitted to the Maine bar in May 2022 and was registered with the Maine Commission on Indigent Legal Services (MCILS). Respondent’s discipline in Maine stems from a series of actions he took over an approximately six-month period.

First, in September 2022, respondent went to a car lot with his criminal client, J.C., to retrieve her car which had been impounded as a possible forfeiture. While the hold on the vehicle was released, respondent and his client had been informed that the vehicle would not be returned until the outstanding storage fees had been paid. Nevertheless, respondent and J.C. went to the impound lot with intent of retrieving the vehicle without paying the storage fees. Respondent felt that the storage fee of $75 per day was unreasonable and that the state should pay the fee incurred while the State determined whether to seek forfeiture of the vehicle. When respondent and J.C. arrived at the lot, they proceeded directly to J.C.’s car and tried to start it. They did not first engage the lot owners to ask about the car or the fees. Because the car’s battery was dead, respondent and J.C. attempted to charge the battery using respondent’s car. The lot owner’s wife approached respondent and J.C. and asked them to leave the property. Respondent refused and indicated that he would not leave without his client’s car.

The lot owner’s wife called 911 and attempted to stop both respondent’s and J.C.’s cars from leaving by blocking the way using a backhoe. While waiting for the police to arrive, respondent moved his car closer to J.C.’s vehicle and bumped into the lot owner with his car.

Because of his conduct at the impound lot, respondent was summonsed and charged with assault, reckless conduct, criminal trespass, and attempted theft. J.C., who was under bail conditions that included no new criminal conduct, was also charged. The criminal case against respondent has not yet been tried.

In the disciplinary proceeding that led to his suspension, respondent asserted that the criminal charges against him stemming from the incident in the impound lot were brought in retaliation for an August 2022 email that he sent to an Assistant District Attorney (ADA) C.R. threatening to file a federal lawsuit on behalf of another client who was charged with criminal trespass on town property. Specifically, respondent’s client, who had been served with a “No Trespass Notice” forbidding his presence at a specific location, was charged with trespass after he appeared to vote at his lawful polling place. The disciplinary judge found respondent’s retaliation claim to be without merit.

In December 2022, at J.C.’s arraignment, a pre-recorded video was played for the defendants present in court. The video discussed the criminal process and explained their rights. Respondent stood up and addressed those awaiting arraignment and stated that the video was propaganda, that it was purposefully misleading, and that the criminal system is corrupt. Respondent offered to discuss it with anyone present at the proceeding. After respondent was charged in the car lot incident, respondent filed a motion to withdraw as defense counsel in cases where he had been appointed as a member MCILS. Respondent claimed a possible conflict in that it could be perceived, due to his criminal case, that he would curry favor with the district attorney’s office to positively impact his criminal case at the expense of his clients’ cases. The court granted the motion and new counsel was appointed.

Nonetheless, respondent met with several clients who stated that they wanted respondent to continue to represent them. Respondent obtained written waivers of conflict for some of the clients and oral waivers for others. In one matter, respondent entered a notice of appearance and filed a motion to dismiss arguing that the client had been deprived of the right to an attorney of his choice, namely respondent. Respondent drafted similar motions to dismiss for several other clients but instructed the individuals not to file the motions. In these matters, respondent’s name was not on the motions, and he did not enter his appearance; nor did respondent consult with the attorneys who were representing those defendants. The basis for the purported pro se motions to dismiss was that the clients were denied the right to have respondent as their attorney. The disciplinary judge opined that “[t]he motions had no chance of success.”

In February 2023, respondent brought a federal action on behalf J.C. (the client from the impound lot incident) and others challenging Maine’s abandoned vehicle law. The disciplinary judge opined that, while certain allegations in the complaint may have had merit, respondent alleged, without basis, that “towing companies, law enforcement agencies, and the Bureau of Motor Vehicles were engaged in a scheme to steal motor vehicles.”

In a December 14, 2022, email, respondent accused ADA H.S. of tampering with video evidence in the case of defendant J.W., who had met with respondent but did not retain him. Respondent also never entered an appearance on J.W.’s behalf. In the email, respondent stated that he intended to report the ADA to federal criminal authorities and offered the ADA H.S. opportunity to provide information in her defense. The ADA, who felt that the intent of the email was to intimidate her, initiated a criminal investigation of respondent based primarily on his email, which the disciplinary judge opined “may not have been appropriate.” Nevertheless, the judge also opined that “[t]he information [respondent] had as of [the] date [of his email], or any date, provided no justification for [his] email threatening [the ADA] with criminal prosecution. Furthermore, [respondent] was not representing J.W. at the time.”

Also, on or about February 8, 2023, respondent initiated a confrontation with ADA M.R. whom respondent felt had endangered his client’s life when he publicly raised his client’s allegations of gun theft by the police. As described in the resulting disciplinary order:

“as [the ADA] was leaving the courthouse, [respondent] called out from a courtroom and followed [the ADA]. [Respondent] was very angry and out of control. He swore at [the ADA] repeatedly and belittled him. He ‘got in his face.’ “Although [respondent] was not going to strike [the ADA], a judicial marshal felt the nature of the confrontation suggested that he might. The marshal stepped between them and instructed [respondent] to leave the courthouse. It took a couple of requests before [respondent] complied and left the courthouse.  “[The client] did not feel that [the ADA’s] actions endangered his life. He did feel as though [respondent] was sticking up for him. “[The ADA] was genuinely shaken and made a complaint to the Board based on the incident. There is no evidence his complaint was done in consultation with anyone from [the ADA’s office] or anyone else.”

The disciplinary judge found that respondent violated Maine Rules of Professional Conduct (ME RPC) rule 1.1 when he failed to provide his client J.C. with competent representation by taking her to remove her car from the impound lot “knowing the lot owners would object to removing the car from the lot and knowingly exposing her to the risk of complicating her legal situation, including an arrest and a charge of Violating Conditions of Release.” The judge continued, “Although he did make an effort to persuade to take a different course, he did not explore any other legal action. Exposing his client to the consequences of an extra-legal action is not competent representation.”

The court also found that respondent violated ME RPC’s rules 1.1 and 1.7 (conflict of interest) with respect to his former MCILS clients based on his activities related to his motion for withdrawals and subsequent communication with former clients regarding the possible filings of pro se motions to dismiss.

In addition, the court found that respondent’s filed action alleging the existence of a criminal car theft ring and other allegations concerning a conspiracy to silence him, among other things, violated ME RPC 3.1 (frivolous litigation).

The court further found that respondent made frivolous and false statements during the disciplinary proceeding, namely, baseless accusations regarding, among others, bar counsel; and he requested that a judge in his federal disciplinary matter recuse himself because he “had served in the ‘fetid and corrupt’ state court system.”

Respondent was also found to have violated ME RPC’s rule 3.7(a) (“[a] lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary witness”) based on the filed federal action, noting, among other things, that “[respondent] himself confuses his role as advocate and his role as participant in the pleadings themselves.” The court’s additional finding that respondent violated ME RPC’s rule 4.4(a) (“(i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person”) was based on his confrontations with the ADAs.

The court also found that respondent violated ME RPC’s rules 8.2(a) (“[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge”), 8.4(a) (violate or attempt to violate a disciplinary rule), and 8.4(d) (conduct prejudicial to the administration of justice) based upon, among other things, respondent’s statements to two judges, other conduct before the courts, and his urging of defendants to file the pro se motions to dismiss.

Reciprocal discipline

a three-year suspension would be excessive. Respondent has never been the subject of discipline, either publicly or privately, during his 32 years of practice in New York. A one-year suspension is the appropriate reciprocal discipline as it takes into account the seriousness of the Maine court’s misconduct findings, respondent’s pattern of misconduct, and his lack of remorse; it is, furthermore, in reasonable accord with the relevant precedent

Sanction

the motion should be granted and respondent suspended from the practice of law for a period of one year, effective 30 days from the date of this order, and until further order of this Court.

(Mike Frisch)

No Proof Of Bias

Cleveland.com reports on a decision not to remove a judge from presiding at a high-profile criminal trial

The Ohio Supreme Court rejected a request to remove the judge presiding over the public corruption case against suspended East Cleveland Mayor Brandon King.

The decision came late Wednesday after King’s attorney, Charles Tyler, alleged Cuyahoga County Common Pleas Judge Hollie Gallagher had prejudged a motion and bullied him in open court.

In her ruling, Chief Justice Sharon Kennedy found Gallagher is capable of presiding over the case with “integrity, impartiality and competence.”

King, 57, served as the city’s mayor since 2016. He was indicted last October on 12 counts, including theft in office, unlawful interest in a public contract and soliciting or receiving improper compensation

His trial, set to begin last week, was delayed after Tyler filed a last-minute motion to dismiss three of the charges. Tyler claimed Gallagher had already decided the motion in her chambers, then ordered him to argue it in open court as a ploy to berate and embarrass him.

Tyler’s request to remove Gallagher put the trial on hold. No new date had been set as of Friday, according to court records. In a letter to Kennedy last week, Gallagher responded to the accusations, admitting she was “justifiably” unhappy about Tyler’s motion but denying she had prejudged it. She said she wasn’t disrespectful or hostile to Tyler.

Kennedy, in her decision, said a judge’s unhappiness or anger alone doesn’t prove that the jurist is biased or prejudiced.

“Moreover, the fact that the judge indicated during the in-chambers conference that she was inclined to deny his motion does not mean that she prejudged the case,” she wrote.

Cleveland.com and The Plain Dealer reached out to Tyler. Gallagher has not commented on the case.

At the time of King’s arrest, Cuyahoga County Prosecutor Michael O’Malley said the mayor demonstrated “a complete disregard and disdain for the rule of law.”

(Mike Frisch)

Georgetown In Maine

The Maine Grievance Commission imposed a reprimand and probation for misconduct in a parental rights matter

J.T., a client of Attorney Davis’s, filed a complaint on May 2, 2024. Respondent filed an initial response on June 12, 2024. During the course of the Board’s investigation, Attorney Davis was afforded opportunities for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b). As a result, on or about November 19, 2024, a panel of the Grievance Commission reviewed Attorney Davis’s actions in this matter, and based upon that review, found probable cause to believe that Attorney Davis had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel directed Bar Counsel to prepare and present a Formal Disciplinary Charges Petition before a different panel of the Grievance Commission.

Attorney Davis was retained in November of 2022 by J.T. to handle a private termination of parental rights which required, first, service and filing of a motion to modify to obtain sole parental rights by J.T. The opposing party, J.T.’s ex-husband, had not had a relationship with the child for many years, and his address was unknown.

Attorney Davis had drafted the motion to modify by December 14, 2022. In January or early February of 2023, J.T. told Attorney Davis she needed to step back from the litigation due to her daughter’s recent health diagnosis. Both Attorney Davis and J.T. believed at that time that the opposing party was located in Lincoln County. On June 13, 2023, J.T. attended court for a child support action brought by D.H.H.S. against the opposing party. On that date she learned that the opposing party said that he resided in Georgetown, Maine, that he said he would terminate his parental rights and to have her attorney contact him, and she notified Attorney Davis of those facts and of his phone number on that day.

Attorney Davis was in a mediation at a different court that day. Respondent acknowledged receiving the text message from J.T. containing the contact information. Attorney Davis reported in the investigation that she called the contact number for the opposing party twice. At the time, Attorney Davis mistakenly considered Georgetown to be in Lincoln County instead of in Sagadahoc County. Attorney Davis’s attempts to locate the opposing party were focused on Lincoln County and included reviewing police ledgers, checking with the local jail periodically, checking with the court clerk’s office, searching online and reaching out asking Lincoln County Deputies if they had contact with him in the community or at court.

On February 13, 2024, the motion to modify had still not been served. J.T. saw the opposing party in a grocery store parking lot in Bath, obtained his license plate information, and gave that to Attorney Davis. Attorney Davis called J.T. and notified her that service was being done in Lincoln County. During the February 13, 2024 call, J.T. reminded Attorney Davis of the text message from June 2023 stating that the opposing party was in Georgetown. Attorney Davis did not recall that text message and JT sent it to her again.

J.T. called the Sagadahoc County Sheriff’s Department on April 29, 2024 to inquire about service. They had received no service for the opposing party.

On May 1, 2024, J.T. called Lincoln County and was told that they had never had any record of service on the opposing party. Respondent reported that she could not send service if she did not have an address for the opposing party. Respondent reported and provided proof that she sent service to Sagadahoc County on February 23, 2024, but when she followed up with Sagadahoc County they confirmed they did not have it. After J.T.’s communication about the lack of service, Attorney Davis immediately hand-filed a service packet with Sagadahoc County on May 1, 2024. Attorney Davis did not attempt to obtain any alternate method of service on the opposing party from November of 2022 to May of 2024, when the complaint was filed.

Violations

In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Attorney Davis agrees that she did in fact violate the Maine Rules of Professional Conduct Rule 1.1, 1.3, 8.4(a) , and the Panel so finds. The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Davis agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors applicable under M. Bar R. 21.

(Mike Frisch)

Not Held In Trust

A justice of the Massachusetts Supreme Judicial Court imposed a stayed three-month suspension and probation 

The following facts were found by the hearing committee and adopted by the board. The respondent, admitted to practice in Massachusetts in 1985, primarily handles criminal defense and personal injury matters. In September 2015, he was retained to defend a client in a civil case, accepting a $10,000 retainer to be billed at $350 per hour. Contrary to Rule 1.15, the respondent deposited the funds into his operating account. He explained that he had never previously handled an unearned retainer and was concerned about credit card chargebacks affecting his IOLTA account.

As of January 4, 2016, the respondent had earned only $3,587.50 of the retainer but had spent all or most of it. He ultimately earned the full retainer by March 2017. The client later retained him in connection with a related federal criminal investigation, during which she filed a complaint alleging ineffective assistance regarding her Fifth Amendment rights.

In the ensuing bar counsel investigation, the respondent initially failed to provide complete financial documentation. It was only after a subpoena to the respondent's bank that bar counsel discovered the retainer had never been deposited into a trust account. The respondent later acknowledged this in a letter dated September 27, 2021.

The respondent also admitted to violating several IOLTA-related rules, including a failure to maintain individual client ledgers and separate ledgers for bank fees, from 2015 through 2020. As of the hearing, he remained unclear about these requirements.

Sanction

Considering the totality of the circumstances, including the intentional misuse of client funds and multiple rule violations, I conclude that a three-month suspension, stayed for one year on the condition of quarterly IOLTA reporting, is appropriate.

(Mike Frisch)

Ohio Hears Bar Matter

A summary of a bar discipline matter scheduled to be heard tomorrow by the Ohio Supreme Court

Attorney Gregg Rossi of Youngstown faces discipline for professional misconduct involving a nondisclosure agreement (NDA) he drafted for a friend accused of assault. The Board of Professional Conduct found that Rossi made a false statement to a court about the NDA and engaged in conduct prejudicial to the administration of justice. The board recommends to the Supreme Court of Ohio that Rossi be suspended from practicing law for six months with conditions for reinstatement.

Rossi objects to the board’s suggested sanction, arguing for a public reprimand or a stayed suspension. Rossi’s objections require the Supreme Court to hear the disciplinary case during oral arguments.

Friend Charged With Assault
In December 2021, John Yerkey was charged in Mahoning County Court No. 5 with the assault of Theresa Dean. Yerkey and Dean were in a romantic relationship. Rossi represented Yerkey in the case.

Rossi and Yerkey had known each other professionally and personally for many years. Yerkey, a chiropractor, referred clients to Rossi and used Rossi as his attorney for several matters. Yerkey also rented a house from Rossi.

As a condition of bond in the assault case, the court ordered Yerkey to have no contact with Dean. A few days later, on Christmas Eve, Dean texted a Christmas message to Yerkey and said she was willing to talk. Rossi reminded Yerkey on several occasions of the no-contact order.

In February 2022, Yerkey texted Rossi saying the court was asking Dean for text messages about their relationship. Yerkey also said Dean might be interested in an agreement to prohibit both of them from sharing photos, data, and communications regarding their relationship.

Attorney Drafts Non-Disclosure Agreement
At Yerkey’s request, Rossi drafted an NDA for the time period from May 2021 to February 2022. The agreement included a requirement that Dean ask the prosecutor to dismiss the charges. The NDA stated that breaches of the agreement would incur a $1,000 penalty. Dean later testified that Yerkey had suggested the NDA and she thought it would protect both of them. She said Yerkey had implied he would share private information with her employer, which could harm her professionally.

She also noted that Rossi never discussed the NDA with her, and he didn’t tell her she could enlist the advice of an attorney. She signed the NDA at Rossi’s office after hours. Afterward, Dean informed the prosecutor’s office that she could no longer talk about the case. The prosecutor filed a motion to obtain the NDA. In the response, Rossi wrote, “The terms and conditions of this Agreement were negotiated between Teresa Dean and undersigned counsel and entered into, providing mutual release and non-disclosure agreement with respect to the alleged incident.”

Dean eventually hired an attorney and resumed cooperation with the state. Yerkey was found guilty of assault and sentenced. 

Board Finds Attorney Violated Two Ethics Rules
The professional conduct board found that Rossi made a false statement to the court regarding the NDA. Rossi’s statement indicated that he negotiated the agreement when he didn’t, the board determined. Instead, information was obtained from Yerkey, who by communicating with Dean was violating the no-contact order and potentially violating victim’s rights laws, the board report stated. The board also noted that texts from Rossi to Yerkey said the attorney couldn’t recommend violating the order, but mentioned Yerkey could benefit in the long run if he were on good terms with Dean. The assistant prosecutor said that had he known of a violation, he would’ve asked the court to revoke Yerkey’s bond. The judge stated that she would have scheduled a hearing on the issue if such allegations were made.

The board determined that Rossi’s conduct was prejudicial to the administration of justice. Among the reasons, the NDA was drafted in part to influence the case against Yerkey, the attorney failed to explain the NDA to Dean, and the attorney didn’t suggest she find legal counsel before signing. The conduct also led to additional motions, hearings, and delays in the case, the board report concluded.

Among the aggravating circumstances weighing against Rossi, the report noted the multiple ethics violations, a dishonest or selfish motive, and Rossi’s refusal to acknowledge the misconduct. Rossi’s lack of a prior disciplinary record, his cooperative attitude during the disciplinary proceedings, and evidence of the attorney’s good character and reputation were found to be mitigating factors.

Attorney Disputes That NDA Restricted Victim
Rossi maintains that the NDA was designed to protect the professional reputations of both Yerkey and Dean. The attorney contends that the NDA didn’t require Dean to refuse to cooperate with the prosecutors, only that she request dismissal. In addition, Rossi argues, the statement had no effect on the outcome of the criminal case, given that Yerkey was found guilty.

Rossi also states that the Court has tempered the presumed actual suspension for an attorney’s dishonest conduct in certain circumstances that apply in his case. He argues there was no course of misconduct. Instead, there was one misstatement in a court filing, he maintains. In addition, he points to the mitigating evidence. He explains that he has served as an attorney for 34 years with no prior discipline and he has an excellent reputation in the community.

He contends that he is an experienced attorney who made a mistake. He argues for a public reprimand, citing other disciplinary cases where that sanction was imposed. However, if the Court determines a suspension is appropriate, a stayed suspension would be adequate to protect the public, he contends.

Disciplinary Counsel Questions Attorney’s Claims Regarding NDA
The Office of Disciplinary Counsel, which filed the complaint against Rossi, responds that just his conduct regarding the NDA was enough to warrant an actual suspension. The NDA was designed to silence a victim in a criminal case, the disciplinary counsel argues. The office notes that attorneys can use NDAs, but contracts that interfere with the reporting of crimes are void on public policy grounds. If the NDA truly weren’t meant to thwart the prosecution, Rossi could have informed his client or Dean of that fact, or drafted an NDA with that specific exclusion, or told the trial court or prosecutor that Dean could participate in the prosecution, but Rossi took none of these steps, the disciplinary counsel maintains.

The disciplinary counsel argues that Rossi has shown no awareness of the harm he caused or any regret for his conduct. He also testified he did nothing wrong in securing the NDA. He has minimized his behavior by suggesting it was inconsequential because Yerkey was eventually found guilty in court, the disciplinary counsel asserts.

If Rossi had only lied about negotiating the NDA with Dean, his mitigating factors weighed against the ethics violation would be enough to support a fully stayed suspension, the disciplinary counsel states. However, Rossi interfered with the administration of justice by drafting an NDA designed to silence the victim and by encouraging Yerkey to violate the no-contact order, the disciplinary counsel argues.

– Kathleen Maloney

(Mike Frisch)

The Punching Bag

A bar discipline matter scheduled to be argued May 20 before the Missouri Supreme Court involves, in part, an appeal of a "no misconduct" finding as recounted in the brief of Disciplinary Counsel

Client Effie Barrett’s personal injury case was assigned to Judge James Vano in the District Court of Johnson County, Kansas. The Panel found that Respondent “was agitated with opposing counsel and believed that Judge Vano was being a little unfair in accepting opposing counsel’s representations.” R. at p. 3708 (with reference to Tr. 928). The Information alleges:

Respondent made clear his disdain for the trial judge assigned to the Barrett case. He printed out pictures of the judge and his son, defaced them with devil horns and a knife stabbed through the judge’s head. He tied them to a punching bag in the office in full view of all the firm’s employees and possibly clients.

R. at p. 7 (Information); p. 392 (Ex. 10). Respondent testified that he “made a photocopy, put it on a bag, threw a couple punches in fun” and he was only “blowing off steam[.]” He denied defacing the photos and suggested that perhaps his eleven-year-old daughter had gotten the photo(s) out of the trash, drawn on them, and put them back up on the punching bag. Tr. 2976-80. The Panel decision states:

[T]his is not the behavior that an attorney should engage in. Behaving in this manner, even in a private firm, disrespects the judiciary and reflects poorly on the legal system. While the Panel concludes that this conduct did not violate the Rule per se, it believes that is should be considered an aggravating factor. R. p. 3724-25.  However, the Panel was wrong to conclude that this was not a violation.

Respondent’s conduct demonstrated a “failure to show restraint and respect for the judicial system even while disagreeing strongly with it or its decision.” In re Disciplinary Action against Michael, 836 N.W.2d 753, 765 (Minn. 2013) (holding that “Disrespectful conduct directed at a tribunal can be prejudicial to the administration of justice.”) (internal citations omitted).

Disciplinary Counsel supports an indefinite suspension with a right to reapply after six months but stayed in favor of probation for two years.

From Respondent's brief

This case primarily focused on accusations from three short-term non-attorney employees of [Kansas City Accident Injury Attorneys]. Those employees – whose employment with KCAIA all began and ended between March 2018 and March 2019 – falsely alleged Mr. Roswold was a drunk racist who worked only “two or three hours a week,” instead constantly interrupting KCAIA’s operations, ignored clients, and mishandled numerous cases. Through counsel, Mr. Roswold repeatedly asked Informant, the Office of Chief Disciplinary Counsel, and the Hearing Panel to narrow or dismiss the false charges against him. Informant refused, and the Hearing Panel responded that it lacked the necessary authority.

Over eleven days of hearings – more than eight for Mr. Roswold’s case – Mr. Roswold then demolished these three complainants’ credibility and their perjurious accusations, using testimony from ten witnesses (including four lawyers) and thousands of pages of contemporaneous evidence – even Skype messages (which are like texts) from the complainants themselves – that show Mr. Roswold is a high-energy, efficient and effective lawyer and hypervigilant law firm manager. Mr. Roswold also demonstrated the three former employee complainants wanted to punish him by weaponizing the discipline system, by filing – in one complainant’s words – a “huge can bar complaint.” Ultimately, the Hearing Panel rejected the vast majority of the charges but found enough questions to recommend Mr. Roswold should receive a reprimand. Because the Informant had actually proved no violations, Mr. Roswold rejected the Hearing Panel’s Decision and asks this Court to impose no sanction.

The punching bag issue

Informant also asks this Court to hold Mr. Roswold violated Rule 4-8.4(d) – engaging in conduct prejudicial to the administration of justice – by making a photocopy of a judge’s picture, placing (actually taping) that picture on a punching bag in his office, and throwing a “couple of punches in fun” at the picture to “blow off steam.” (Informant’s Brief at 17)

Mr. Roswold admits, and the evidence proves, that on a Saturday evening at approximately 5:30 PM, Mr. Roswold placed a picture of a judge and the judge’s adult son on a punching bag. (Tr. 927, 1076-1077 (Grubaugh); 2316, Tr. 2976-79, 2982) Mr. Roswold then took down the pictures within 10 minutes and threw them away. (Tr. 2976- 77, 2982, 2984) Mr. Roswold did not say anything at all about the judge at the time. (Tr. 594, 653; 928, 933-34, 1076-77, 1191) Mr. Roswold “never dreamed it would become anything other than private.” (Tr. 2979)

There was no indication on the picture whom the picture showed, or that it showed a judge. (Tr. 237-38 (Gardner admitted no names and no judicial attire); Tr. 931 (Grubaugh); Tr. 2317 (Roswold))

Also, the punching bag was hanging in a part of the office where, the overwhelming weight of the evidence supported, no client would be able to see it. (Tr. 932 (Grubaugh); Tr. 1191, 1257 (Jim Brady); Tr. 1329 (Christy Griffin); Tr. 1554, 1700 (Robert Adams); Tr. 1787 (Sharon Ratzlaff); Tr. 1924 (Mieke Bruce); Tr. 2316-17, 3045 (Roswold)) Only Mr. Roswold, Mr. Grubaugh, and Mr. Roswold’s daughter saw the photos on the punching bag. (Tr. 933 (Mr. Grubaugh said that he, Mr. Roswold, and Robert Adams did); Tr. 1554, 1699-1700 (Mr. Adams correcting that he was not present); Tr. 2976-77, 3044 (Mr. Roswold’s daughter was present)) There was no evidence any non-employee saw it. (Tr. 193 (complainant Gardner did not know if any client saw any picture on the punching bag))

Purely private conduct – particularly First Amendment-protected conduct – not seen by any client or anyone outside the firm besides Mr. Roswold’s then-11-year-old daughter cannot constitute conduct prejudicial to the administration of justice. Accordingly, Informant has failed to prove Mr. Roswold violated Rule 4-8.4(d) with regard to the placing of images on a punching bag by a preponderance of the evidence, as Rule 5.15(g) requires.

Briefs

SC100824_chief_disciplinary_counsel_brief

SC100824_Roswold_brief

 

(Mike Frisch)

Sanction At Issue In Missouri

An oral argument scheduled for tomorrow before the Missouri Supreme Court

SC100925

In re: Roy King Jr.

Jackson County

Attorney discipline

Roy King Jr. is an attorney practicing in Kansas City. Over the years, this Court has reprimanded and suspended him for violating various rules of professional conduct. He also been admonished for other ethical rule violations. In April 2022, a bank notified the chief disciplinary counsel that King’s client trust account was overdrawn, with at least one check being written for an operating expense that should not have been paid from the client trust account. Upon investigation, an auditor for the chief disciplinary counsel found various cash withdrawals and payment of paralegal fees but was unable to determine on behalf of what clients those payments were made. King also did not comply with the auditor’s requests to provide sufficient information for her to complete the audit. King tried to hire a bookkeeper to help him manage the accounts, but the bookkeeper told the auditor she would not work with him because he was using his client trust account as a personal account. King later made a sworn statement admitting he had kept his own money in his client trust account to avoid having the IRS garnish his accounts and wrote checks for cash from his client trust account to pay his living expenses. The auditor also noted King was not keeping general or client ledgers and was not reconciling his accounts. In October 2023, the bank again notified the chief disciplinary counsel that King’s client trust account was overdrawn. The auditor found King was still making cash withdrawals from the client trust account to pay personal expenses. King stated he maintained primarily a municipal case practice for which he charges a flat fee, has not had clients complain about him, did not intend to commit fraud, struggled with his bookkeeping and had not read the ethical rules governing how to maintain client trust accounts. Following a July 2024 hearing, the disciplinary hearing panel found King had violated Rules 4-1.15 and 4-8.4(c) and recommended he be disbarred. The chief disciplinary counsel asks this Court to disbar King; King argues the Court should consider mitigating factors and issue discipline that allows him to continue practicing.

This case presents two questions for this Court – whether King violated rules of professional misconduct and, if so, what discipline, if any, is appropriate.

 

SC100925_chief_disciplinary_counsel_brief

SC100925_King_brief

 

(Mike Frisch)

Suspension Imposed For Domestic Violence And Probation Violation

A 30-day suspension has been imposed by a tri-county hearing panel of the Michigan Attorney Discipline Board and affirmed by the Board on appeal

The Grievance Administrator filed a combined Notice of Filing of Judgment of Conviction and Formal Complaint against respondent. The notice, filed in accordance with MCR 9.120(B)(3), stated that respondent was convicted of domestic assault, a misdemeanor, in violation of West Bloomfield Ordinance Sec. 15-51, in the matter titled Township of West Bloomfield v Daniel Joseph Lehman, 48th District Court Case No. 21-WB01579-D01-OM. The formal complaint alleged that respondent, while on probation for his criminal matter, was involved in a domestic altercation and consumed alcohol, resulting in his arrest and guilty plea to a probation violation on March 29, 2022, and that respondent failed to report his domestic violence conviction to the Grievance Administrator and Attorney Discipline Board.

After proceedings conducted pursuant to MCR 9.115 and MCR 9.120, Tri-County Hearing Panel #62 found that respondent engaged in conduct that violates a criminal law of a state or of the United States, an ordinance, or tribal law pursuant to MCR 2.615, in violation of MRPC 8.4(b) and MCR 9.104(5); and engaged in conduct prejudicial to the administrator of justice, in violation of MCR 9.104(1) and MRPC 8.4(c). The panel also found respondent’s conduct violated MCR 9.104(2)-(4).

The panel ordered that respondent’s license to practice law in Michigan be suspended for 30 days and that he be subject to conditions relevant to the established misconduct. Respondent filed a timely petition for review and was granted an automatic stay by virtue of MCR 9.115(K). After review proceedings were held in accordance with MCR 9.118, the Board affirmed the hearing panel’s decision in its entirety. Total costs were assessed in the amount of $2,883.88.

(Mike Frisch)

No Reasonable Apprehension Of Bias

A motion to disqualify prosecuting counsel has been denied by the Ontario Law Society Tribunal Hearing Division

The issues to be determined on this motion are:

•           Has the licensee established facts from which a reasonable apprehension of bias can be drawn in respect of Mr. Kates and Ms. Novac (Discipline Counsel)?

•           Has the licensee identified a disqualifying conflict of interest such that Mr. Kates and Ms. Novac should be disqualified from acting for the LSO in this matter?

The answer to each of these questions is “No.” No reasonable apprehension of bias can be drawn from the simple fact that Discipline Counsel takes instructions from the LSO in the context of a conduct hearing in respect of a professional regulator. Mr. Watson adduced no evidence from which such an inference could be drawn. The licensee has also not adduced any evidence of a disqualifying conflict of interest.

 

Findings

Mr. Watson argues that discipline counsel are “prosecutors” for the purposes of Rule 5.1‑3 of the Rules. The LSO agrees that discipline counsel must abide by the Rules, and by analogy, Rule 5.1‑3 applies to their work. This Rule states that “When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.” The commentary to this Rule makes it clear that the Rule is addressing the role of a public prosecutor in a criminal or quasi-criminal context. That is not the role of discipline counsel, who are the lawyers acting for the LSO in the conduct hearing. Insofar as Rule 5.1‑3 applies by analogy, this is limited to the duty of discipline counsel to exercise their discretion reasonably and for proper purposes, and to act with fairness towards the licensee who is subject to the conduct application, guided as appropriate by policy, direction and instructions from the LSO: Law Society of Upper Canada v DeMerchant, 2017 ONLSTA 5 at paras 17 and 21.

Mr. Watson appears to have erroneously conflated the fact that the LSO has a duty to protect the public interest with the public functions of a criminal prosecutor, and has then superimposed the LSO’s public protection mandate onto discipline counsel to turn them into a public prosecutor. This is incorrect. In any event, to the extent that Rule 5.1-3 applies to the conduct of discipline counsel, and Mr. Kates in this case, I find that he has complied with this Rule, based on the evidence before me. The evidence shows that he has acted resolutely, honourably and he has treated Mr. Watson with candour, fairness, courtesy, and respect.

 

Denied

 I conclude that Mr. Watson has failed to establish either ground upon which he seeks to have Discipline Counsel disqualified. Both arguments were wholly without merit.

I note that this motion was not brought until after Mr. Watson had failed to respond to two requests to admit that had been served by the LSO, and he was therefore deemed to have admitted to the facts contained therein. On this motion, Mr. Watson sought not only to remove Discipline Counsel but to vitiate all the steps that had been taken in the proceeding, i.e. including the delivery of the requests to admit. This has the appearance of a back door attempt by Mr. Watson to relieve himself of the deemed admissions from his failure to respond to the requests to admit. I am alive to the fact that disqualification motions may be tactical delaying tactics or used for other positioning purposes: Lautec Properties Inc. v Barzel Windsor (1984) Inc., 2002 CanLII 7578 (ON SC) at para 44. I conclude that is what has happened in this case given the complete absence of any legitimate complaint against Mr. Kates and Ms. Novac.

 

(Mike Frisch)

Playa del Carmen

The Quebec Disciplinary Council ordered the immediate provisional removal of a recently-admitted attorney.

Among the many allegations

In Montreal, since or around January 24, 2025, and until the filing of this disciplinary complaint, published, disseminated, communicated on its website www.hathawaylegal.com information that is false or that it should know to be false, in particular leading the public to believe that the firm is composed of several experienced lawyers when it practices alone and had only two years of practice at the time of this publication, thereby contravening article 19 of the Code of Ethics of Lawyers .

The attorney was admitted in July 2022

The complainant's investigation also revealed that the respondent, less than three months after his swearing-in which took place in July 2022, was the subject of very serious criminal charges, namely:

-       knowingly uttering a threat to cause death or bodily harm to CD;

-       having acted towards MS with the intention of harassing her or without regard for the fact that she felt harassed, having the effect of making her reasonably fear for her safety or that of one of her acquaintances;

-       having acted towards L.-AH with the intention of harassing her or without caring that she felt harassed, having the effect of making her reasonably fear for her safety or that of one of her acquaintances;

-       having carried and concealed a weapon;

-       having used a firearm when making threats;

-       Having carried or had in his possession a weapon for a purpose dangerous to public peace and/or with a view to committing an offense.

Complainant alleges that Respondent failed to comply with his obligation to notify them of the criminal matters

The complainant reports that it was only after being summoned on February 24, 2025 to the Office of the Syndic of the Bar and having been contradicted with his numerous lies and deceptions, that the respondent admitted that he had been practicing full-time from Playa del Carmen in Mexico, and had been doing so since at least September 2024.

 The complainant states that his investigation determined that all of the respondent's excuses to customers regarding alleged car accidents and hospitalizations were "just a pack of lies."

All the elements discovered during the investigation show that the actions of this lawyer, who has not yet practiced for three years, constitute a general lack of integrity towards all the players in the judicial system, namely the public in general, his clients, his professional body and the courts.

According to the complainant, this modus operandi , which is found in all the files under investigation, is as follows:

-       False advertising on a website leading clients to believe that they are dealing with a team of experienced lawyers when in reality this lawyer has barely more than two (2) years of experience and practices alone or invents a scenario which falsely leads the client to believe that he is “referred” by a reference site which, in fact, belongs to the respondent;

-       The respondent demands full payment for the services to be rendered before even taking the slightest step in the files and in violation of the Regulation respecting accounting and professional practice standards for lawyers , does not deposit the advances received in a trust account and immediately collects all amounts received from clients;

-       Once these advances have been appropriated, the respondent becomes difficult, even impossible to reach, cancels preparation meetings at the last minute, does not return calls, does not respect his commitments to call back clients;

-       And when a client shows his dissatisfaction with the handling of his file, the respondent multiplies the lying excuses and deceptions of all kinds to camouflage his lack of availability and diligence;

-       He cunningly reassures customers by claiming that he has never abandoned a customer and has always provided quality services, even though this is completely false, as the latter is the subject of a multitude of requests for investigation;

-       He even invents an impressive track record with a success rate of over 95% when it is completely false;

-       He falsely claims to various clients that he has had car accidents and been hospitalized, that he has had health problems and had to go to the hospital to justify not having followed through on promises of appointments or to try to justify his absences from court;

-       When the case finally comes to trial, the clients learn with amazement that the respondent has made a request without their knowledge to proceed with the hearing before the Administrative Housing Tribunal ("TAL") in virtual mode while they are present in Court;

-       And not only is the respondent on videoconference, but he is also in Playa del Carmen in Mexico while he claims to the Court that he has to be "  traveling to Toronto  " at the time of the scheduled hearings;

-       On at least three occasions, the respondent simply failed to appear at the hearings, leaving the client completely helpless and forced to proceed in his absence...

Respondent did not respond.

Ordered

GRANTED the Application for the issuance of an interim order of striking off  the complainant dated March 18, 2025 filed against the respondent.  

ORDERED the immediate provisional removal of the respondent until service of the decision dismissing the complaint or imposing a sanction, as the case may be, unless the Council decides otherwise.  

 

ORDERED the publication of a notice of this decision in a newspaper, all in accordance with the provisions of the fifth paragraph of article 133 C. prof .,  and this, at the respondent's expense.    

 

REFERRED the file to the Chief President of the Office of Presidents of Disciplinary Boards in order to set, with the cooperation of the parties, the date of the hearing on guilt.  

 

CONDEMNED the respondent to pay the expenses .  

 

(Mike Frisch)

 

Appeal Misconduct Draws Sanction

Mishandling of a criminal appeal has led to a six-month suspension by the New Jersey Supreme Court.

The Disciplinary Review Board set out the particulars

Based on the foregoing facts, respondent stipulated that he violated RPC 1.5(b) by failing to set forth, in writing to the Swans, the basis or rate of his $10,000 flat legal fee. He also stipulated to having violated RPC 1.1(a), RPC 1.3, and RPC 3.2 by grossly mishandling Rogers’s direct appeal and PCR petitions. Specifically, respondent failed, for five years, to ensure that the Appellate Division received the trial transcripts necessary for appellate review and, rather than take any timely corrective action, he simply allowed the appeal to remain dismissed. Further, he conceded that he filed “duplicative” motions to reinstate the appeal, without including the necessary transcripts or attempting to explain why he had failed, for five years, to prosecute the appeal. Additionally, he failed to adhere to Judge Covert’s briefing deadlines in connection with the second PCR petition.

Respondent stipulated to having violated RPC 1.4(c) by failing to advise Rogers or the Swans of (1) the “procedural impropriety and negligible likelihood of success of the PCR” petitions, (2) the dismissal of the PCR petitions and the appeal, and (3) his inability to obtain an expert “who would testify in Rogers’s favor.” Specifically, although he provided Rogers, the Swans, and Joseph with copies of “some” of his Superior Court and Appellate Division filings, his clients remained unaware of the “status” of the appeal or the PCR petitions, including his mishandling of those matters, until substitute counsel assumed the representation, in April 2019.

Additionally, respondent admitted having violated RPC 3.1 by filing multiple PCR petitions without any basis in law or fact. Specifically, at the time he filed the petitions, he knew he had not obtained an expert to undermine Rogers’s convictions. Further, the parties stipulated that respondent’s “concurrent[] . . . pursuit of a direct appeal” while filing a PCR petition was procedurally improper. Moreover, he admittedly violated RPC 3.1 by filing multiple motions to reinstate the appeal, without any basis in fact, because, in many of those motions, he knew that he had not obtained the entire “transcribed record.”

Respondent also stipulated to having violated RPC 8.4(c) (two instances) by misrepresenting, in his October 12, 2016 and January 18, 2017 certifications to the Appellate Division, the timeframe in which he had obtained all required trial transcripts. Likewise, respondent twice violated RPC 8.4(d) by wasting both the Superior Court’s and the Appellate Division’s judicial resources through his filing of duplicative motions and PCR petitions that “had no viable basis.”

Violations found

In sum, we find that respondent violated RPC 1.1(a); RPC 1.3; RPC 1.4(c); RPC 1.5(b); RPC 3.1 (two instances); RPC 8.4(c) (one instance); and RPC 8.4(d) (two instances). For the reasons set forth above, we dismiss the charge that respondent violated RPC 3.2, as well as the second charged instance of RPC 8.4(c). Further, based on the lack of any evidence that an active appeal 33 was pending at the time respondent filed the PCRs on Rogers’s behalf, we decline to find that he separately violated RPC 3.1 on this basis. The sole issue left for our determination is the appropriate quantum of discipline for respondent’s misconduct.

Sanction

Respondent’s persistent disregard to the interests of his incarcerated clients demonstrates that he clearly has failed to utilize his experiences with the disciplinary system as a foundation for reform. See In re Zeitler, 182 N.J. 389, 398 (2005) (“[d]espite having received numerous opportunities to reform himself, [the attorney had] continued to display his disregard, indeed contempt, for our disciplinary rules and our ethics system”). His conduct also needlessly wasted the judicial resources of both the Superior Court and the Appellate Division, occurred while his client’s liberty interest was at stake, and smacked of the same misrepresentations he made in Crisonino I. However, respondent’s misconduct in the instant matter spanned far longer than the two-year timeframe in Crisonino I and, unlike in that matter, his acts of dishonesty in this matter repeatedly were targeted towards a court.

Conclusion

Despite numerous opportunities to rectify the representation, respondent, for years, inexplicably refused to pursue Rogers’s basic post-conviction remedies for which he had been retained. Rather, he engaged in a prolonged course of dishonesty towards his clients and repeatedly filed false or frivolous submissions with courts, in an attempt to obscure his inexcusable and gross mishandling of this matter. Considering the timing of his prior reprimand for substantially similar infractions, his persistent and alarming indifference to the interests of his incarcerated clients, and the lack of any compelling mitigation, we determine, consistent with disciplinary precedent, that a six-month suspension is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar.

(Mike Frisch)

The Family Has A Lot Of Buffers

The United States Court of Appeals for the First Circuit remanded a trial court order dealing with demonstrations around the Karen Read trial

On April 4, 2024, in response to a request from the prosecution, and attempting to balance competing fair-trial and free-speech interests during the first trial, the state court entered an order creating a buffer zone around the Courthouse. That order provided, in relevant part, that "no individual may demonstrate in any manner, including carrying signs or placards, within 200 feet of the courthouse complex during trial of [the Read] case, unless otherwise ordered by this Court." ordering, the state court explained:

[I]t is well documented that protestors have shouted at witnesses and confronted family members of the victim. Individuals have also taken to displaying materials which may or may not be introduced into evidence during trial, and airing their opinions as to the guilt or innocence of [Read] on their clothing or on signage. Witness intimidation has also been a prevalent issue in this case.

The order, in effect, curtailed all demonstrations along three sides of the Courthouse, while demonstrations persisted beyond the buffer zone in an area west and northwest of the Courthouse. Several demonstrators intervened to challenge the order in state court, arguing that it violated their rights under the First Amendment and the analogous state constitutional provision. See Spicuzza v. Commonwealth, 232 N.E.3d 145, 147 (Mass. 2024). The Massachusetts Supreme Judicial Court ultimately rejected their challenge, concluding that the record lacked evidence to support their claim that the order "extend[ed] beyond the court house grounds," and that the state court had adequately balanced free-speech and fair-trial concerns in crafting the order. Id. at 149.

Before commencing Read's retrial, the Commonwealth sought a new and broader order further limiting demonstrations. In support, the Commonwealth attached an affidavit from a juror in the prior trial, an affidavit from a Massachusetts police sergeant who supervised Courthouse security personnel during the first trial, two news stories covering the protests at the first trial, social media posts about protester behavior at the first trial, and a list submitted by local organizations and businesses of the issues they encountered with protestors during the first trial.

On March 25, 2025, the state court agreed, expanding its ban on "demonstrat[ing] in any manner" to encompass not only a radius of 200 feet around the Courthouse, but also the area west and northwest of the Courthouse, "bounded by Bates Court, Bullard Street, Ames Street, and Court Street" (the "Order"). In justifying this now-expanded buffer zone, the state court explained that "during the first trial," people within the Courthouse could hear "the collective voices of groups of demonstrators gathering outside the [original] buffer zone," including "along High Street between Bullard Street and Ames Street." Indeed, the Order documented that "after trial, a  deliberating juror reported that during deliberations, the jurors could hear protestors outside screaming and yelling." Additionally, "[v]ehicles honking their horns in response to signs and gestures from these demonstrators could . . . be heard frequently during the first trial." The Order concluded that "[t]o ensure a fair trial with an impartial jury, extending the buffer zone is necessary to -- i.e., it likely applies equally to speech directed toward random passersby and speech directed toward trial participants. And Plaintiffs do not appear to ask us to allow them to engage in the latter type of speech: At oral argument, they indicated that they seek only to engage in quiet, offsite demonstrations on public property, in areas and at times that do not interfere with trial participants' entrance into and exit from the Courthouse, that do not interfere with the administration of justice, and that will not influence any trial participants in the discharge of their duties. These fresh clarifications bring into focus Plaintiffs' argument that Cox's tailoring holding should not control this case. prevent jurors from outside influence and to prevent interruptions and distractions during trial."

The court

The Order, by contrast, seems to lack a mens rea requirement-- i.e., it likely applies equally to speech directed toward random passersby and speech directed toward trial participants. And Plaintiffs do not appear to ask us to allow them to engage in the latter type of speech: At oral argument, they indicated that they seek only to engage in quiet, offsite demonstrations on public property, in areas and at times that do not interfere with trial participants' entrance into and exit from the Courthouse, that do not interfere with the administration of justice, and that will not influence any trial participants in the discharge of their duties.

These fresh clarifications bring into focus Plaintiffs' argument that Cox's tailoring holding should not control this case. With Plaintiffs' position now clarified, we think it prudent to vacate (but not reverse) the district court's denial of a preliminary injunction and remand this case for further proceedings to determine how the Order has been interpreted and applied and whether the lack of a mens rea requirement renders the Order insufficiently tailored.

(Mike Frisch)

In Debt

A decision of the New Jersey Appellate Court is summarized on the court's web page.

The litigation was initiated after a bar discipline investigation was commenced.

That investigation was stayed pending this constitutional challenge.

In this litigation, a law firm and its partner challenge the constitutionality of the so-called "limited attorney exemption" of the Debt Adjustment and Credit Counseling Act ("DACCA"), N.J.S.A. 17:16G-1 to -9.  The present case was initiated when the Office of Attorney Ethics ("OAE") launched an investigation of plaintiffs who, among other things, represent debtors in bankruptcy and collections cases.  Such debt adjustment work may violate DACCA, which prohibits debt adjusters from operating for-profit in New Jersey unless exempted by the statute. 

     DACCA initially exempted "any attorney-at-law of this State."  In 1986, however, the Legislature amended DACCA to narrow the exception to the current "limited attorney exemption," which exempts only those attorneys who are "not principally engaged as debt adjuster[s]." N.J.S.A. 17:16G-1(c) (emphasis added). While rarely prosecuted, attorneys "principally engaged" in debt adjustment work may be subject to heavy civil and criminal sanctions under DACCA and the Criminal Code.

     This court invalidates the limited attorney exemption within DACCA because it (1) violates principles of separation of powers, and (2) is void for vagueness.

     First, this court holds that DACCA's limited attorney exemption is an unconstitutional violation of separation-of-powers principles.  As applied to attorneys who principally conduct their legal practice for clients seeking an adjustment of their debts, N.J.S.A.17:16G-1(c)(2)(a) represents an undue encroachment upon the Court's exclusive authority to regulate attorneys set forth in Article VI, Section 2, paragraph 3 of the New Jersey Constitution. 

     Second, this court further holds that the limited attorney exemption is unconstitutional for its vagueness.  The ambiguity of the limited attorney exemption denies attorneys due process because of the statute's failure to provide them with fair notice of what constitutes "principal engagement."

     This court therefore reverses the trial court's grant of summary judgment to defendants and remands the matter for further consideration of plaintiffs' civil rights and other claims. In doing so, this court invalidates the limited attorney exemption in N.J.S.A. 17:16G-1(c)(2)(a) and its cross-reference to N.J.S.A. 2C:21-19(f).  The rest of the statute remains intact.

Plaintiff

Plaintiff Anchor Law Firm represents clients in New Jersey and other states in numerous practice areas, including but not limited to, litigation defense and debt settlement. Co-plaintiff Andrew M. Carroll is a New Jersey attorney who provides legal services in his private practice to individuals and businesses in various legal areas, including bankruptcy. He is a member of the Anchor law firm, responsible for New Jersey debtor-creditor matters for Anchor's clients.

Bar investigation

In or around March 2021, the OAE of the New Jersey Supreme Court opened an investigation to determine: (1) whether Carroll was "principally engaged" as a debt adjuster in violation of DACCA, and (2) whether Anchor engages "principally" in the practice of debt adjustment services in violation of DACCA. Sometime thereafter, the OAE administratively stayed its investigation pending the outcome of this litigation.

Separation of powers

The separation-of-powers question here therefore hinges on whether N.J.S.A. 17:16G-1(c)(2)(a), as applied to attorneys who principally conduct their legal practice for clients seeking an adjustment of their debts, represents an undue encroachment on the Court's exclusive authority to regulate attorneys. We conclude it is.

To analyze this question of encroachment, we must consider what is meant by "the practice of law." Our Supreme Court has long recognized the practice of law is not "limited to the conduct of cases in court but is engaged in whenever and wherever legal knowledge, training, skill and ability are required." Stack v. P.G. Garage, Inc., 7 N.J. 118, 121 (1951). "[I]t is clear that the 'practice of law' is not limited to litigation, 'but extends to legal activities in many non-litigious fields.'" State v. Rogers, 308 N.J. Super. 59, 66 (App. Div. 1998) (quoting N.J. State Bar Ass'n v. N. N.J. Mortg. Assocs., 32 N.J. 430, 437 (1960))

Regulation

Defendants argue DACCA creates no undue encroachment on the Judiciary's exclusive authority over the practice of law because the limited exemption only permits the DOBI Commissioner and criminal prosecutors to fine and punish lawyers who are "principally engaged" in debt adjustment activities. This begs the question of whether the State Constitution permits the Executive Branch of government to regulate the debt adjustment activities of any lawyers. We conclude it does not, at least when the attorney is engaged in the practice of law.

Chilling effect

In this case, DACCA is exposing lawyers who "principally" engage in debt adjustment matters to heavy civil and criminal sanctions. That exposure can easily discourage lawyers from undertaking the representation of clients who are beset with debts and who could benefit from their expertise and services. As the court rightly observed in Furman, the activity of debt adjustment is "often an integral and essential part of an attorney's job when [the attorney] represents a debt-ridden client." 67 N.J. Super. at 143

(Mike Frisch)

Privilege Waived

The Tennessee Supreme Court has upheld the hospital quality improvement committee privilege but found it had been waived under the circumstances of the case

In many respects, a healthcare organization’s QIC privilege is similar to the corporate attorney-client privilege. The privilege belongs to the corporate client. Boyd, 88 S.W.3d at 213. But because a corporation cannot speak for itself, “the power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors,” who must exercise the privilege consistent with their fiduciary duties and in the best interests of the corporation. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348–49 (1985). Just as a healthcare organization’s management exercises the organization’s attorney-client privilege and holds the power to waive it, so too does a healthcare organization’s management exercise the organization’s QIC privilege and holds the power to waive it. See id.

In this case, Memorial is a healthcare organization as defined under Tennessee Code Annotated section 68-11-272(b)(1). It is undisputed that Memorial “formed or retained” the QIC to evaluate the care rendered to Mr. Castillo. Tenn. Code Ann. § 68-11-272(b)(4). Therefore, Memorial holds the privilege and may waive it. See id. § 68-11-272(c)(1). Mr. Houston, as Chief Operating Officer, had the authority to waive the privilege on behalf of Memorial. See Weintraub, 471 U.S. at 348. And he did so.

(Mike Frisch)

No Reimbursement

The New York Appellate Division for the Third Judicial Department affirmed the denial of compensation from the state's client protection fund

Following a jury trial in October 2007, petitioner was convicted of rape in the third degree. Petitioner then fired his trial counsel and hired attorney Robert Feldman to represent him in an effort to have his conviction overturned through postconviction motions and/or an appeal. In November 2007, Feldman filed a CPL 330.30 motion on petitioner's behalf, arguing that vacatur was required due to trial counsel's failure to advise petitioner regarding his right to testify at the rape trial. In April 2008, as the motion remained pending, petitioner fired Feldman and retained new counsel. New counsel then proceeded to represent petitioner at an evidentiary hearing held on the pending CPL 330.30 motion filed by Feldman, and Feldman was called to testify at said hearing. That motion was granted, and petitioner's conviction was vacated. Following a new trial, petitioner was acquitted of the charges. Thereafter, petitioner asked Feldman to refund the $30,000 tendered pursuant to their retainer agreement, and Feldman refused. Thus, petitioner commenced two actions against Feldman, seeking recovery under various legal theories. These actions were consolidated and proceeded to trial, after which the jury found Feldman liable to petitioner for breach of contract and malpractice, among other things.

Petitioner then sought and was denied reimbursement from the Lawyers Fund for Client Protection

Here, the record reflects that petitioner hired Feldman to challenge his criminal conviction and that Feldman filed a CPL 330.30 motion on his behalf. Although petitioner fired Feldman before that motion was decided, it is undisputed that Feldman prepared and filed the motion through which petitioner ultimately obtained relief. Inasmuch as Feldman rendered at least some of the services for which he was retained, respondent's determination that petitioner failed to establish that Feldman made a misrepresentation or false promise to provide legal services in exchange for the legal fee advanced is supported by a rational basis (see 22 NYCRR 7200.8 [e] [1]; see also 22 NYCRR 7200.8 [e] [3] [i], [ii]). As respondent determined, petitioner's claim is more properly characterized as either malpractice or a fee dispute, neither of which is eligible for reimbursement (see 22 NYCRR 7200.8 [d]; Matter of Saferstein v Lawyers' Fund for Client Protection, 30 AD3d 653, 655 [3d Dept 2006], lv dismissed & denied 7 NY3d 887 [2006]; Matter of Plater v O'Sullivan, 294 AD2d 719, 719 [3d Dept 2002], lv denied 98 NY2d 611 [2002]).

Petitioner also argues that he provided sufficient evidence to establish that he is owed a refund because the jury in his civil suit against Feldman awarded petitioner $10,000 for Feldman's breach of the retainer agreement. We note, however, that such award accounted for only a portion of the $30,000 legal fee tendered. While damages caused by a breach of contract may be awarded based on a party's failure to fully perform under a contract (see generally 36 NY Jur 2d, Damages § 32), such a "failure to perform or complete a legal engagement" does not, without more, establish an eligible claim for reimbursement (22 NYCRR 7200.8 [e] [2]). As petitioner failed to provide satisfactory evidence of an eligible claim, respondent's determination is supported by a rational basis, and nothing in this record suggests that such determination was arbitrary and capricious or an abuse of discretion (see Matter of Plater v O'Sullivan, 294 AD2d at 719). Petitioner's remaining contentions have either been rendered academic for the foregoing reasons or they have been reviewed and lack merit.

(Mike Frisch)

Campaign Violations, Undignified Comments, Lead To Sanctions Of Florida Judges

The Florida Supreme Court has issued opinions in two judicial misconduct matters.

One matter drew a 10-day suspension without pay and reprimand

In response to charges by the Judicial Qualifications Commission, Broward County Judge Mardi Levey Cohen has admitted that she engaged in conduct that violated the Code of Judicial Conduct during her 2022 reelection campaign. The Commission and Judge Levey Cohen agree that, as discipline, she should be suspended for 10 days without pay and publicly reprimanded. To that end, the parties have filed with our Court an Amended Stipulation and Amended Findings and Recommendations of Discipline. We accept the amended stipulation and findings and will impose the recommended discipline. See art. V, § 12(c)(1), Fla. Const. (authorizing the Court to accept, reject, or modify the Commission’s findings and recommendations).

The charges involve two distinct acts of misconduct. First, after receiving an email from a person claiming to be a relative of Judge Levey Cohen’s opponent in the 2022 campaign, the judge disseminated unverified information that accused the opponent of fraud. Second, to retaliate against a church where her opponent had campaigned, Judge Levey Cohen filed an Internal Revenue Service complaint challenging the church’s tax-exempt status. She then sent the church a copy of the complaint with a false return address of “IRS EO Classification,” suggesting that the correspondence was from the IRS itself.

The Commission and Judge Levey Cohen agree that these actions violated Canons 1, 2A, 7A(3)(b), and 7A(3)(e)(ii) of the Code of Judicial Conduct.

The other drew a public reprimand

The Judicial Qualifications Commission has filed with our Court a Stipulation and Findings and Recommendations of Discipline to resolve a charge against Orange County Judge Martha Adams. The parties agree that Judge Adams violated the Canons of Judicial Conduct through “biased, impatient, undignified, and discourteous behavior [toward] the staff and management of the Ninth Circuit State Attorney’s Office.” The parties further agree that Judge Adams should be disciplined by the imposition of a public reprimand. We accept the stipulation and findings and will impose the recommended discipline. See art. V, § 12(c)(1), Fla. Const. (allowing the Court to accept, reject, or modify the Commission’s findings and recommendations).

The parties agree that, while presiding over criminal cases in her court, Judge Adams directed rude and intemperate comments at members of the State Attorney’s Office. She called one assistant state attorney an “ass”; talked about making the life of one State Attorney’s Office employee “a shambles”; and said that the State Attorney’s Office was conspiring to remove her from the bench and that therefore she would have to start “being a ‘bitch’ ” in her rulings. We accept the Commission’s conclusion that these actions violated Canons 1, 2A, 3B(4), and 3B(5) of the Code of Judicial Conduct. Aside from generally requiring judges to uphold the integrity of the courts, these canons demand that judges treat parties respectfully and impartially.

Judge Adams’ comments are well outside the bounds of what is acceptable for members of our judiciary. In many cases, adequate discipline for such behavior would require more than a public reprimand. The record shows, though, that Judge Adams had a clean disciplinary record throughout her seventeen years of prior judicial service and that she had no other complaints of this nature. The Commission also found that Judge Adams has expressed deep regret and apologized in writing to the individuals directly affected by her misconduct. We accept the Commission’s determination that, given this mitigation, discipline short of a suspension is sufficient.

(Mike Frisch)