Legal Profession Blog

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A complaint of judicial misconduct has been dismissed as "unfounded" by the Chief Judge of the United States Court of Appeals for the Ninth Circuit

As to the allegation regarding whether the district judge “has a custom and practice of not promptly adjudicating matters,” a review of the district judge’s record of pending matters reveals that there is no “habitual delay in a significant number of unrelated cases.” Although federal courts strive to resolve pending matters expeditiously,delays do occur; thus, any allegation of habitual delay must be considered in the context of the workload of the subject judge and the district as a whole. After a review of the district judge’s record of pending matters, the workload of the district judge, as well as the workload of judges in the district, this allegation is dismissed as unfounded.

(Mike Frisch)

Changing Story And Legal Malpractice

The Delaware Supreme Court reversed the Superior Court's grant of summary judgment in a legal malpractice action

This appeal arises from a claim of professional negligence relating to legal services that appellee Margolis Edelstein provided to appellant GMG Insurance Agency. Margolis defended GMG and Howard Wilson, a GMG employee, in a noncompete action brought by Lyons Insurance Agency, Inc. in the Court of Chancery.

After GMG failed to prevail fully on its motion for summary judgment in the Court of Chancery, GMG fired Margolis. Around the same time, GMG also fired Wilson. On the eve of trial, with GMG represented by new counsel and Wilson represented by separate counsel, Wilson filed an affidavit recanting his prior testimony. Wilson’s new sworn statements were drastically inconsistent with his prior testimony and unfavorable to GMG. GMG requested a continuance from the Court of Chancery to seek discovery on Wilson’s changed statements, but the court denied that request. Instead of proceeding to trial, GMG settled its part of the litigation for $1.2 million. The trial still went forward as to Wilson.

After the Court of Chancery action concluded, GMG filed a legal malpractice claim against Margolis in the Superior Court. There, GMG asserted that but for Margolis’s negligent representation in the Court of Chancery, GMG would not have been exposed to the consequences of Wilson’s eleventh-hour change in testimony. The Superior Court granted summary judgment in favor of Margolis on GMG’s professional negligence claim, finding that Margolis’s representation did not fall below the applicable standard of care and that, in any event, Wilson’s eleventh-hour affidavit recanting prior testimony was a superseding cause that broke the causal chain linking Margolis’s alleged negligence and GMG’s claimed damages. We hold that this decision was in error because there are material disputed facts as to whether Margolis deviated from the requisite standard of care. The court also erred by failing to address GMG’s contention that, but for Margolis’s alleged negligence, GMG would have prevailed on all claims in the Court of Chancery litigation. And, finally, the Superior Court erred by concluding that Wilson’s affidavit was a superseding cause as a matter of law. Accordingly, we reverse the judgment of the Superior Court and remand for further proceedings.

The court here

We conclude that the Superior Court erred in three ways. First, the Superior Court erred in granting summary judgment for Margolis because there are disputes of material fact as to whether Margolis’s representation of GMG in the Chancery Litigation breached the standard of care owed by Delaware attorneys. Second, the court erred by failing to address GMG’s contention that, but for Margolis’s alleged negligence, GMG would have prevailed on all claims in the Chancery Litigation. Third, the Superior Court erred in concluding as a matter of law that the Wilson Affidavit was a superseding cause that broke the causal chain leading to the settlement of the Chancery Litigation.

Plaintiff's claims of actionable malpractice

GMG proffered record evidence supporting a finding that Margolis breached the standard of care for a Delaware attorney during the Chancery Litigation in three ways: (1) by failing to competently handle discovery and develop the record, documented in part by Margolis’s contemporaneous internal emails; (2) by failing to adequately brief and argue in favor of dismissing Lyons’s tortious interference claim, shown by Margolis’s conclusory or non-existent discussion of that claim in its submission to the Court of Chancery; and (3) by simultaneously representing GMG and Wilson despite a potential conflict of interest, which may have hindered Margolis’s ability to appropriately counsel GMG. 

The alleged conflict was the joint representation of GMG and Wilson

In sum, when the facts and inferences are viewed in the light most favorable to GMG, a reasonable juror could conclude that Margolis breached the standard of care owed by a Delaware attorney while representing GMG in the Chancery Litigation. Because the factual record and the reasonable inferences to be drawn from it could support a finding in GMG’s favor on its allegations of negligence, the Superior Court erred in granting summary judgment in favor of Margolis.

Causation and Wilson's changing story

Our concurring colleagues reprove us for insufficiently attending to the intentionality—and conceivable criminality—of the Wilson Affidavit. That is not our intention. We readily concede that, under § 442B of the Restatement, whether the harm is intentionally caused by the intervening actor is a relevant and potentially dispositive issue. But, in our view and according to § 442B’s explicit terms, it will only be dispositive when the intentionally caused harm “is not within the scope of the risk created by the [initial] actor’s [here, Margolis’s] conduct.” And the Superior Court did not address—and the concurrence seems to downplay—that essential aspect of the superseding-cause doctrine. Nor could the Superior Court have addressed that issue on summary judgment, because whether Wilson’s changed testimony was within the scope of the risk created by Margolis’s conduct—i.e., whether Margolis’s conduct was indeed the proximate cause of the harm or not— involves a factual question for the jury.

In brief, the Superior Court’s departure from the principles discussed above led it to the erroneous and reversible conclusion that the Wilson Affidavit was, as a matter of law, a superseding cause of GMG’s damages.

EITZ, Chief Justice, concurring, in which VALIHURA, Justice, joins:

I agree with the Majority that the Superior Court erred in granting Margolis Edelstein’s motion for summary judgment. But I would reverse because a material issue of disputed fact exists whether GMG committed a fraud on the court and therefore forfeited any right to relief. And even if GMG was not privy to or did not participate in Wilson’s perjured testimony, the Superior Court should still decide whether the false testimony was an unforeseeable intervening act by a third party and therefore a superseding cause that cuts off Margolis’s liability. The Majority’s superseding cause analysis fails to account sufficiently for intentional acts by third parties – such as Wilson’s perjury – that are superseding acts that can break the causation chain.

On remand

if the court concludes that GMG was a party to or had knowledge of Wilson’s perjured testimony (the lie/truth scenario) and GMG now relies on the perjured testimony to support its legal malpractice action, then GMG committed a fraud on the court and is not entitled to any relief.

(Mike Frisch)

Disbarment For Conspiracy To Defraud Client

The Oklahoma Supreme Court has disbarred a convicted attorney effective as of the date of his interim suspension

The Respondent, after a guilty plea, was convicted of violating 18 U.S. C. § 371 (conspiracy). The charge involved conspiracy to commit honest services wire fraud related to his misuse of insider information of his client Continental Resources, Inc. He is currently serving a 60-month sentence. The Complainant filed the required Notice of Criminal Conviction with this Court and we ordered the interim suspension of the Respondent's license to practice law. The Respondent, although notified of these disciplinary proceedings, has not requested a hearing or otherwise responded to these proceedings. The Complainant requested the Respondent be disbarred. We hold the appropriate discipline is disbarment.

The court described the alleged conduct

According to the Superseding Information, the Respondent was hired by a senior landman employed by Continental Resources, Inc. (Continental) to perform oil and gas title work for Continental. The Respondent along with the landman and several others conspired to make copies of Continental's confidential drilling and leasing plans in exchange for kickback payments to the landman. The information included maps, drilling schedules, and other information detailing what leaseholds Continental planned to acquire and how much Continental was willing to pay for them. With this information, the coconspirators were able to negotiate directly with land and mineral owners to acquire the leases that Continental planned to acquire. Through numerous entities created to avoid detection, the coconspirators purchased and leased the minerals of interest and then re-sold and re-leased those minerals to Continental and other oil and gas companies. The coconspirators exchanged hundreds of text messages detailing their plans to exploit --- and their exploitation of --- Continental's confidential information. In addition to re-selling and re-leasing land and minerals to Continental, the coconspirators maintained Overriding Royalty Interests in the leases they acquired with the insider information. The coconspirators also obtained various bank accounts and wired money between them in furtherance of their scheme. The Superseding Information determined these overt acts violated 18 U.S.C. § 371. In the Respondent's Plea Agreement, entered contemporaneously with the Superseding Information, he agreed to plead guilty to violating 18 U.S.C. § 371. The Judgment In A Criminal Case adjudicated him guilty of violating only this section of law. The earlier indictments were dismissed.

Sanction

The Respondent's crime was intimately tied to his role as an attorney. He was hired to perform oil and gas title work for Continental and used this relationship to conspire with an employee of the client to defraud the client. The only distinction between this matter and Shofner is that the Respondent was engaged in fraud at his client's expense rather than in furtherance of his client's interest. If anything, it arguably compels an even stronger discipline than that in Shofner if it were possible; disbarment being the strongest discipline. In addition to his conviction, the Respondent's suspension for failure to pay his 2023 bar dues, his name being stricken from the Roll of Attorneys for his failure to comply with his 2021 Mandatory Continuing Legal Education requirements, and his failure to respond to these disciplinary proceedings, combine to adversely reflect on his fitness as a lawyer. We hold that disbarment is the discipline that will best serve the welfare of the public and the integrity of the bar.

(Mike Frisch)

The Musings Of Sal Tortorella

A three-month suspension of a Superior Court judge has been imposed on consent  by the New Jersey Supreme Court.

From the complaint filed by the Judicial Ethics Advisory Committee

At all times relevant to this matter, Respondent served as a Judge of the Superior Court of New Jersey, assigned to the Criminal Division in the Bergen Vicinage, a position he continues to hold.

Respondent, using the alias "Sal Tortorella," created an account on TikTok, a social media application that allows users to create short videos set to music or other audio and share those videos on the platform, on which Respondent posted 40 videos between April 11, 2021 and March 4, 2023.

Videos

In 11 of the videos Respondent posted to TikTok, either the content - e.g., including references to violence, sex, and misogyny - location - i.e., in chambers, in the courthouse, and in a bed - or Respondent's physical appearance - e.g., wearing his judicial robes and/or partially dressed while lying in bed - were inappropriate and brought disrepute to the Judiciary. For example:

a. Respondent recorded several TikTok videos in his chambers, including songs which contained profanity, graphic sexual references to female and male body parts, and/or racist terms.

i. In one such video recorded in chambers, Respondent, wearing a T-shirt with his face close to the camera, lip-syncs the following lyrics from Jump by Rihanna: "If you want it let's do it. Ride it, my pony. My saddle is waitin', come and jump on it. If you want it, let's do it."
ii. In a second video, Respondent, while in chambers with law books visible behind him and wearing a suit and tie, lip-syncs the following: "All my life, I've been waiting for somebody to whoop my ass. I mean business! You think you can run up on me and whip my monkey ass? Come on. Come on!"
iii. In a third video, Respondent, while in his chambers wearing a suit and holding cash, pretends to light a match while lip-syncing the following lyrics from Sure Thing by Miguel:

If you be the cash, I'll be the rubber band. You be the match, I will be a fuse, boom. Painter, baby, you could be the muse. I'm the reporter, baby, you could be the news. 'Cause you're the cigarette, and I'm the smoker. We raise a bet, 'cause you're the joker.

b. Respondent recorded a TikTok video of himself wearing a "Beavis and Butt-Head" T-shirt while walking through the courthouse with Get Down by Nas playing in the background. The song contains explicit lyrics concerning a criminal case and a courtroom shooting as well as derogatory and discriminatory terms, drug and gang references, and the killing of a doctor in a hospital who treated another gang member.

c. Respondent posted two more videos that contained profanity and/or graphic sexual references.

i. In one video, while seated in a car, Respondent, wearing a "Freedom of Speech" T-shirt, lip-syncs the following: "Go ahead baby. You hittin' them corners too god damn fast. You gotta slow this motha****a down. You understand? I almost spilled my [Cognac] on this 200-dollar suit."
ii. In another video, Respondent smiles at the camera with the following screen text visible: "When an ex-girlfriend calls you "Santa" because of your new white beard." The song playing in the background, Touch It by Busta Rhymes, contains graphic lyrics. The following lyrics are audible during the video: "For the record,just a second, I'm freakin' it out. While she tryin' to touch, see, I was peepin' it out. She turned around and was tryin' to put my d**k in her mouth. I let her."

By his conduct in posting these and similar videos to TikTok, Respondent exhibited poor judgment and demonstrated disrespect for the Judiciary and an inability to conform to the high standards of conduct expected of judges.

Answer linked here. (Mike Frisch)

No Wrongful Death Claim For Pet Cat

The Idaho Supreme Court in the main affirmed a Court of Appeals decision in a lawsuit over the death of a pet cat

This case addresses the types of damages available to bereaved pet owners for the death of a family pet and the treatment of its body post-mortem. The Schrivers seek to recover damages for the emotional distress they endured after their cat died following a veterinary procedure and the body was subjected to a necropsy, allegedly performed against their will. They assert that pet ownership creates a strong emotional bond between human and pet, which makes their grief foreseeable, and therefore, compensable. They also assert that a pet’s value to its owner is relational in nature, which they argue gives rise to the recovery of non-economic damages for the loss of companionship when that pet dies as a result of alleged malpractice. In essence, the Schrivers ask this Court to recognize a wrongful death action for the loss of their cat. We decline to do so.

While the loss of a beloved pet undoubtedly brings much sadness, our decision today reflects the bedrock legal principle that pets, like livestock, are personal property. Our decision upholds the long-standing rule of law that when a pet has no fair market value at the time of its death, the proper measure of damages is the pet’s actual, economic value to the owner, including the monetary value assigned to the pet’s pedigree, habits, traits, and reputation. The pet’s valuation does not, however, include the sentimental value attached to the pet’s companionship.

We also affirm the Idaho Court of Appeals’ longstanding conclusion that emotional distress damages are not available for the destruction of an animal as part of a claim for trespass to chattels or conversion. Instead, a claim for emotional distress damages for loss of personal property must be pursued as part of a negligent infliction of emotional distress or intentional or reckless infliction of emotional distress claim. In this case, a claim for negligent infliction of emotional distress is not available to the Schrivers because that type of claim must start with a duty of care to avoid emotional harm to others. We, along with a majority of jurisdictions across the nation, decline to recognize such a duty on the part of a veterinarian. However, an action for intentional or reckless infliction of emotional distress rests not on the establishment of a duty of care but on the extreme and outrageous nature of the conduct at issue. Whether the necropsy at issue in this case rises to the level of extreme and outrageous conduct sufficient to award recovery for emotional distress is a question of fact best left to the jury. Accordingly, and for the reasons expressed more fully below, we affirm the district court’s decision in part, reverse in part, and remand for further proceedings.

Gypsy had been adopted at eleven weeks and was brought into the veterinarian for what her owner thought might be an upper respiratory infection. An IV catheter was put in a vein

Approximately two hours after the attempted cystocentesis, Dr. Raptosh checked on Gypsy and noticed that she had labored breathing; Gypsy’s heart then stopped. Dr. Raptosh attempted CPR, but Gypsy passed away.

The owner's reaction

Following Gypsy’s death, Andrea became depressed and suffered from suicidal ideation. She also suffered from migraines, sleep disturbances, and tachycardia. She sought medical treatment for her emotional distress and was ultimately placed on medications.

The precedent of the pet donkey shot on purpose

Importantly, the Idaho Court of Appeals in Gill permitted the recovery of emotional distress damages for the death of the pet donkey because the alleged conduct of the defendant in that case could be considered “extreme and outrageous,” the critical element necessary for a claim of intentional or reckless infliction of emotional distress. Id. at 1138-39, 695 P.2d at 1277-78. In each case cited by the Schrivers in which a court permitted recovery of emotional distress damages for claims of conversion or trespass to chattels that involved a pet, there is an element of outrageousness with respect to the alleged conduct of the defendants.

(Mike Frisch)

Disciplinary Counsel Seeks Disbarment of Jeffrey Clark

District of Columbia Disciplinary Counsel has filed its Opening Brief in the Jeffrey Clark bar discipline matter, arguing that the Board on Professional Responsibility should overturn fact findings and legal conclusions of the Hearing Committee and recommend that the Court of Appeals disbar him

Following the 2020 election, the Department of Justice actively investigated allegations of irregularities that might have affected the results. By December 1, it had found no fraud that might have affected the outcome, and Attorney General Barr said so. President Trump refused to accept this fact, and once Mr. Barr announced his departure, the President began to pressure the new leadership of the Department to announce that the election was corrupt. The Department officials with the most knowledge of the election investigations refused to accede to the President’s pressure, so he found someone who would.

Jeffrey Clark was the Assistant Attorney General in charge of the Environmental and Natural Resources Division and the acting head of the Civil  Division. He had no criminal investigative experience and had played no role in the Department’s election investigations. He was, however, willing to do the President’s bidding, and he composed a letter to Georgia officials, a “proof of concept,” which was also meant to serve as a template for several other states. The letter said that the Department was investigating election irregularities and falsely claimed it had identified significant concerns that might have affected the outcome of the election in Georgia. The letter also falsely said that Georgia had certified two sets of presidential electors, one for Mr. Biden and one for President Trump, and had submitted two sets of ballots to Congress. It urged the Georgia legislature to assemble in special session, conduct an inquiry to determine who had won the election, and submit ballots to Congress based on that determination.

At the time Mr. Clark proposed to send this letter, the Governor of Georgia had already certified the election for Mr. Biden, the Electoral College had met and declared Mr. Biden to be the winner, and the only remaining step to finalizing the election results was Congress’s certification of the electoral vote, which was to occur little more than a week after Mr. Clark drafted his letter. The leadership of the Department refused to send the letter because it contained falsehoods. Therefore, President Trump proposed, and Mr. Clark agreed, that he would become Acting Attorney General in order to do so. This plan was thwarted only because in a contentious Oval Office meeting, the entire leadership of the Department plus the White House Counsel and his deputy threatened to resign if Mr. Clark were appointed.

The Hearing Committee found that Mr. Clark attempted to engage in conduct involving dishonesty by trying to send the false letter he had drafted. It found that he acted with reckless dishonesty but concluded that it could not find clear and convincing evidence of intentional dishonesty because witnesses testified that Mr. Clark seemed sincere in his views. The Committee, however, did not have the benefit of a first-hand assessment of Mr. Clark’s sincerity because he invoked his privilege against self-incrimination and refused to provide any substantive testimony. The Committee also concluded that, since intentionality had not been proven by clear and convincing evidence, a sanction other than disbarment should be imposed—i.e., a two-year suspension with a fitness requirement.

In finding that intentionality had not been proven, the Committee refused to infer from Mr. Clark’s invocation of the privilege that he had no actual evidence of election irregularities that would have justified sending the letter. It also ignored that he had never been able to tell any of the witnesses what these irregularities were, that he refused a superior’s order to discuss the Georgia investigations with the United States Attorney in Atlanta who had conducted them, and that it was an objective fact that—contrary to what Mr. Clark’s letter claimed—Georgia had not appointed two sets of electors or submitted two sets of ballots. The Board should conclude that Mr. Clark’s dishonesty was intentional.

The Committee did not conclude that by attempting to call the state legislature into special session to conduct an unjustified inquiry, a week before the Congress was required to certify the election results, Mr. Clark attempted to substantially interfere with the administration of justice. It reasoned that there was no identifiable case or tribunal with which Mr. Clark had interfered. In reaching this conclusion, the Committee failed to understand that Mr. Clark was charged with an attempt, and that he tried, but failed, to persuade the Georgia legislature to convene as a tribunal to determine which slate of electors and ballots should be submitted to Congress. Because there was no special session, the tribunal was not convened, and there was no identifiable case—but not for Mr. Clark’s lack of effort. In short, he attempted to substantially interfere with the administration of justice, and the Board should so conclude.

Finally, the only appropriate sanction for Mr. Clark’s misconduct is disbarment. Anything other than the ultimate sanction is an insufficient condemnation of a lawyer who used his law license in an attempt to disenfranchise the majority of Georgia voters and who failed to adhere to his oath to support the Constitution, which requires that the candidate receiving the majority of the electoral vote be elected President. Other lawyers who attempted to bring about similar consequences, Rudoph Giuliani and John Eastman, have been found to deserve disbarment. Mr. Clark should likewise be disbarred.

Disciplinary Counsel vigorously disputes the Hearing Committee's observation that his characterization of Respondent's conduct was "overheated rhetoric."

To the contrary

A reluctance to reach hard conclusions in a controversial case in order to assuage doubts about the fairness of the proceeding—Solomonic baby-splitting—is not a principled method of adjudication. That is a political approach, not the application of neutral principles. A neutral approach to reaching legal conclusions cannot tolerate putting a thumb on the scale to provide the assurance of fairness any more than it can tolerate doing so to reach a desired result. The Hearing Committee reached a sanction of less than disbarment by giving Mr. Clark every benefit of the doubt. For example, it did not consider the many “quite strained” (or as the Court of Appeals said, quoting the district court, “absurd”) legal arguments Mr. Clark advanced in an effort to derail these proceedings. See In re Clark, 311 A.3d 882, 888 (D.C. 2024) quoting In re Jeffrey B. Clark, 678 F. Supp 3d. 112, 127 D.D.C. 2023). The Committee acknowledged that the way a respondent conducts himself in disciplinary proceedings can be taken into account, citing In re Yelverton, 105 A.3d 413, 430 (D.C. 2014) and In re Lattimer, 223 A.3d 437, 453 (D.C. 2020) (per curiam). HCR at 202-203. See also In re Doman, 314 A.3d 1219, 1235 (D.C. 2024) (sanction based in part on many unreasonable arguments advanced by respondent, an adamant refusal to accept responsibility). But it declined to do so, lest it chill advocacy.

The Hearing Committee failed to consider the magnitude of Mr. Clark’s misconduct. He sought to pervert the operations of the Department of Justice for the benefit of a political candidate in a manner that, if successful, would have undermined a basic principle of our democratic republic—the candidate with the most electoral votes wins and the losing candidate acquiesces to the results of the election. It blinks reality not to find that he attempted to bring about this result by making intentionally false statements on behalf of the Department in his Proof-of- Concept letter. But even under the Hearing Committee’s more pinched view, he was exceedingly reckless with the truth in a context where he should have been exceedingly careful. The honor of the profession, the integrity of the Court, and the protection of the public demand that such a lawyer be disbarred.

The public documents in the matter can be accessed at this link.  Click on the link to Cases of Public Interest.(Mike Frisch)

The Dangerous World Of International Finance

An applicant for bar admission has proven good character despite being on parole for a wire fraud conviction, according to a decision of the Ontario Law Society Tribunal Hearing Division

The reason for the referral is that Dr. Kalaycioglu is currently on parole after having served 16.5 years of a 27-year (mandatory) sentence after being convicted of wire fraud in the United States. He was released on full parole shortly after he was transferred to Canada.

Dr. Kalaycioglu’s conduct since he was charged with these serious offences has been exemplary. He has demonstrated sincere remorse, and his actions and the character references that he has produced reflect that he has been rehabilitated. We conclude that Dr. Kalaycioglu has earned a second chance and deserves the opportunity to serve the public as a lawyer.

The conviction was affirmed by the United States Court of Appeals for the Eleventh Circuit in an unpublished decision.

The United States Supreme Court denied certiorari. 

After incarceration

 Unlike many others who find themselves on the wrong side of the law, from the outset of his incarceration, Dr. Kalaycioglu started working on his rehabilitation. He committed his time to improve the lives of fellow inmates through tutoring and teaching – helping hundreds of inmates to obtain their high school diplomas and encouraging them towards college education. He educated himself to help come to terms with, understand, and accept responsibility for his misconduct. He made restitution to those harmed in the fraud to which he was a party by assigning judgments that he obtained against persons to whom he had made loans in his financing business, including judgments against his co-accuseds. He furthered his education by obtaining an MBA with a specialism in finance, which gave him insights into what he had done wrong, and the red flags of fraud that he had missed. He then obtained an LLM with merit, and an LLB with first class honours, from the University of London. He also qualified as a personal fitness trainer and nutrition counsellor.

He was paroled on October 31, 2019

We find that Dr. Kalaycioglu is sincere in his remorse and contrition for the harm that he caused, he has undergone substantial rehabilitative efforts, and his conduct since the events leading to his incarceration have been faultless. He has obtained the reinstatement of his licence as a professional engineer, holds a position as an adjunct professor at Toronto Metropolitan University, and he has a job at a leading-edge robotics firm. At the same time, he has completed a Canadian LLM and his NAC accreditation, passed the LSO Bar Exams, and completed his law practice placement. Dr. Kalaycioglu’s principal supervising attorney concluded, “he has proven himself to be an individual of exceptional dedication, reliability and integrity.”

The crime

Dr. Kalaycioglu was asked to, and did make, representations to potential investors and an investment advisor about the ability of Meridian Bank- to provide attractive returns on certificates of deposit to secure their investments. He falsely represented that the deposits at Meridian Bank were insured, and that the owners of the Bank included Citibank and UBS. When he made these representations, Dr. Kalaycioglu believed them to be true, but he did not conduct any due diligence to verify the accuracy of his representations. Given that the IIG Principals had already said that IIG could not repay the Bensa loan, Dr. Kalaycioglu appears to have been wilfully blind to the badges of fraud...

Dr. Kalaycioglu’s misconduct was serious. Innocent investors lost their investments, in part because of his misconduct. With reflection and a better understanding of what transpired, Dr. Kalaycioglu now accepts his guilt, and had demonstrated insight into the harm that he caused to the investors. He has expressed genuine remorse.

Present character

 Since his conviction, Dr. Kalaycioglu has committed himself to redemption with thoughtfulness, and generosity of self and spirit. He identified the desperate need of his fellow inmates to obtain a basic education so that they could lead more productive lives when released from jail. At the same time, he educated himself, through three degrees while incarcerated, and in the process gained important insight into his own wrongdoing. Dr. Kalaycioglu committed himself to leading a better life on his release, including both by regaining his engineering licence and contributing to the scientific community, but also to take the remaining steps to become a lawyer. He has risen from adversity and excelled at everything to which he has turned his attention.

Passage of time

We appreciate that Dr. Kalaycioglu remains on parole until July 31, 2027. The LSO argued that there is a risk that if Dr. Kalaycioglu breaches his parole, he could go back to jail. While, of course, anything is possible, there is in our view no reasonable prospect that Dr. Kalaycioglu will breach his parole. He has confirmed that he has no interest in returning to the world of international finance. His focus has been, and still is on, succeeding in robotics engineering and establishing a law practice where he can leverage his engineering expertise to providing legal advice where the professions intersect in the areas of licensing and intellectual property, as well as providing legal services to those in need, where he will be able to draw on his lived experience. Dr. Kalaycioglu has not breached the parole conditions since they were imposed almost five years ago, and he is committed to moving his life forward in a positive, law-abiding manner. He confirmed that he has had, and will have, no difficulty in complying with the parole conditions. His evidence is that money has lost its power over him. All he desires is a stable income, to spend time with his family, and to have a positive impact with the rest of his life.

Conclusion

Over 20 years ago, Dr. Kalaycioglu made serious errors in judgment. He got involved in international finance when he had no real understanding of its complexities. He got deeply involved in the affairs of fraudsters, who took advantage of Dr. Kalaycioglu’s naivety, and he allowed this to happen because he was, in his words, “mesmerized” by the promise of substantial profits. This resulted in his participation in serious fraudulent activities. After serving 16.5 years in prison, Dr. Kalaycioglu is no longer the same person he was at that time. He has accepted responsibility for his wrongdoing, and fully rehabilitated himself and set himself firmly on a path of redemption and public service.

For the reasons set out above, we concluded that Dr. Kalaycioglu is presently of good character.

A condition

Dr. Kalaycioglu shall disclose to any potential employers in the legal field a copy of the Reasons for Decision of this Panel and a copy of the Parole Board Decision, and until such time as the parole period expires, if he is a sole practitioner or partner in a law firm, he shall disclose a copy of the Reasons for Decision of this Panel and a copy of the Parole Board Decision to all clients or potential clients.

(Mike Frisch)

In Serious Issue

An interlocutory suspension has been ordered by the Ontario Law Society Tribunal Hearing Division

The respondent was sued for unlawfully converting $36,200 to his own use. He put funds provided to him by the plaintiff into a personal account, rather than his trust account, and kept them. The trial judge found that this was an unlawful taking. In addition to ordering him to repay the $36,200 to the plaintiff, she awarded $50,000 in punitive damages against the respondent.

Two of the other allegations are similar to this one, in that they also involve improper handling of trust monies. In one, a client retained the respondent to register a certificate of pending litigation. The respondent deposited the retainer into a non-trust account. He then did the same thing when retained on a family law matter.

 

A fourth allegation is that the respondent was charged with impaired driving offences and failed to advise the Law Society of the criminal charges.

 

The fifth and sixth allegations are that the respondent practised law while under suspension for failing to pay his annual fees.

 

The seventh and eighth allegations relate to a practice review conducted by the Law Society in 2019. The practice review directed the respondent to make a number of changes to his website because the public could be misled by the information displayed there. The Law Society maintains that the respondent either delayed or failed to make the changes required of him by the practice review.

 

As part of the practice review, the respondent undertook not to prepare any wills. Despite this undertaking, the respondent prepared a will in September 2020, in which he was named as the estate trustee.

 

The final allegation is about a failure to co-operate with a Law Society investigation.

 

A Law Society investigator did a search of judgments reported on CanLII where the respondent was counsel. She identified four cases where judges of the Superior Court or Court of Appeal had commented negatively on the respondent’s conduct of the litigation. The Law Society is investigating whether the judgments show that the respondent failed to conduct himself with honour or integrity; failed to be courteous, civil and act in good faith; and failed to provide competent legal services to clients.

 

The Law Society investigator requested the respondent’s documents in relation to the four files, including retainer agreements, dockets and client communications. It alleges that the respondent has refused to provide a full response to these requests.

 

Restrictions insufficient

 

In these circumstances, restrictions on the respondent’s licence would be inadequate. The respondent’s integrity and willingness to comply with his professional obligations are in serious issue. We do not see restrictions that will sufficiently address the risk that we have found. If ordered, we cannot be confident that restrictions will be honoured. The protection of the public and the public interest in the administration of justice can only be ensured by suspending the respondent’s licence.

 

(Mike Frisch)

You've Got To Be Carefully Taught

The Delaware Superior Court declined the dismiss a defamation claim brought against Deadspin by a family who had come from California to attend a Kansas City Chiefs game played in Las Vegas, Nevada.

The child ("H.A.") had worn a Chiefs jersey and had painted his face red and black. His image had been briefly broadcast and the image was then circulated online.

Deadspin published the image describing the child as wearing "blackface" as showing racial animus and "surmized" that his parents had taught him his racial hatred.

The screenshot had showed only the black part of the child's painted face. The article was posted on "X" with a "Community notes" notation that the image only showed the black and not the red part of the child's face.

The family contends that they received "hateful messages and death threats" and that Deadspin had rebuffed their request that it be removed; rather, the original post had been republished.

The court ruled that these arrestions were "provably false assertions of fact and are therefore actionable" as defamation.

The court also denied a forum non conveniens motion to dismiss favoring of California of Deadspin, which is incorporated in Delaware. (Mike Frisch)

Accusations Lead To Misconduct Findings

The Ontario Law Society Tribunal Hearing Panel found that an attorney has engaged in misconduct 

From May 2017 until December 2017, while representing his employer, Mr. Murphy repeatedly accused KE and his staff of fabricating the misfiling of the notice of intent to defend. He accused KE of fraud and of conspiring with his staff and his process server in respect of the misfiling. Mr. Murphy made these accusations to KE, to his former law partner, and to the Superior Court of Justice in his submissions for costs in the motion heard before Master Wiebe. The Law Society submits that Mr. Murphy failed to act with honour and integrity while representing his employer and failed to be courteous, civil and act in good faith towards KE.

As stated in Groia v. Law Society of Upper Canada, 2018 SCC 27 at para. 88,

it is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted.

This standard, however, is not a subjective one. There can be no reasonable factual foundation for allegations if a lawyer either knew that the allegations were unfounded or demonstrated a wilful or reckless disregard for the facts: Law Society of Ontario v. Fuhgeh, 2020 ONLSTH 75 at para. 170.

In our view, there was no reasonable factual foundation for Mr. Murphy’s allegations that KE and his staff fabricated evidence. His allegations were speculative, without reasonable basis, and solely intended to deflect from his own failure to respond to the statement of claim in time and having to bring a motion to set aside the noting in default.

Evidence refuting the allegations

 Aside from common sense, there was ample evidence supporting the misfiling:

• A copy of the misfiled notice of intent to defend and the fact that it had the same court file number except for one digit.

• The fact that the process server was unable to successfully note the defendant in default during her first attendance at the court office to do so.

• The letter from Mr. D., Mr. B.’s supervisor, stating that a misfiling could have happened and that Mr. B.’s information was the result of a computer check, which would not have shown the misfiling in the physical file.

• The affidavit of the process server detailing what had occurred, including her attendance at the court office, the individuals she spoke with and how the misfiling was corrected.

Most significantly, Mr. Murphy’s allegations against KE were not brought in good faith. He did not respond to KE’s letter of April 13, 2017 in which KE consented to moving aside the noting in default because of the filed notice of intent to defend. Mr. Murphy knew that he had not filed a notice of intent to defend. Yet, he did not correct KE’s erroneous belief that a notice of intent to defend had been filed. He wanted to hold KE to his consent to setting aside the noting in default and ignore the reason why KE was so consenting. It was to Mr. Murphy’s advantage to have KE continue to erroneously believe that a notice of intent to defend had been filed to avoid the embarrassment of having to move to set aside the noting in default.

Ultimately, there was no reasonable basis for KE to have fabricated evidence of a filing error just to rescind his professional courtesy to set aside the noting in default.

Not only were the allegations unfounded but Mr. Murphy’s communications were abusive, offensive, and threatening, rather than courteous, civil, and made in good faith. Referencing an ethical issue, he wrote to KE that he would report him. He threatened to report KE to the Law Society in addition to “contempt of court” proceedings. He left KE voicemail messages in which he gave him a chance to “purge” his contempt.

Mr. Murphy also did not limit his accusation to KE. He contacted the process server company and accused the process server of lying and of planting the notice of intent to defend. He sought to involve KE’s former law partner to try and get him to influence KE to protect KE’s reputation. Mr. Murphy maintained his allegation of evidence fabrication during the motion before Master Wiebe.

The Law Society alleged that Mr. Murphy also accused court staff of conspiring with KE. Mr. Murphy denied this allegation. He clarified that he only accused KE of duping court staff rather than conspiring with court staff. We agree that at least during the period leading up to December 2017, Mr. Murphy did not accuse court staff of any fraudulent activity.

Allegations against paralegal at the firm of opposing counsel

Mr. Murphy’s conduct and communications with CA were especially egregious. After the Civil Matter had concluded, he contacted CA at her new place of employment. Mr. Murphy had absolutely no evidence for his accusations against CA. CA had simply been the commissioner of affidavits sworn by KE and another member of his staff in the defence of the costs motion. There was no evidence that CA was involved in the Civil Matter other than to commission affidavits. There was no evidence that she prepared the affidavits and certainly no evidence that she fabricated evidence. However, Mr. Murphy accused her of perjury, asked that she surrender to law enforcement and wrote that she could be sentenced. He continued writing to her after the cease-and-desist letter of July 2, 2020, going so far as contacting her supervisor at her new place of employment.

A penalty hearing will follow. (Mike Frisch)

Censures In Tennessee

A public censure has been imposed by the Tennessee Board of Professional Responsibility

Ms. Cox was formerly employed with a company that places attorneys to work in full-time positions as in-house counsel. Ms. Cox worked remotely out of her home in South Carolina. Ms. Cox was required to submit weekly timesheets confirming that she completed her required hours. During a seven (7) week period, Ms. Cox was unable to complete any work due to personal issues. Ms. Cox submitted timesheets for each of the seven (7) weeks, falsely claiming that she had worked her required full-time hours.

By these acts, Ms. Cox has violated South Carolina Rules of Professional Conduct 8.4(b) (criminal conduct); 8.4(c) (moral turpitude) and 8.4(d) (conduct involving dishonesty) and is hereby Publicly Censured for these violations.

The same sanction was imposed in an unrelated matter

Ms. Tobin is a Certified Estate Planning Specialist. From August 2004 to 2023, Ms. Tobin provided estate planning services for a client, including drafting multiple Living Trusts. At the client’s request, Ms. Tobin listed herself in the estate documents as beneficiary of a substantial gift of $30,000 and a necklace. Ms. Tobin knew that she could not prepare an estate document bequeathing a substantial gift to herself, but did not advise the client of this restriction nor decline representation to avoid ethical violations. Rather, Ms. Tobin listed her law partner as the drafter of the estate documents without his knowledge and presented the documents to the client for signing, thereby knowingly making a false statement of fact and engaging in fraudulent, deceptive, or misleading conduct.

(Mike Frisch)

Over The White Noise

An Investigative Panel of the Florida Judicial Qualifications Commision has filed charges against a judge

While presiding over cases, trials, hearings, and other proceedings, you have behaved intemperately, including shouting at people appearing before you, and otherwise lacking the patience, dignity, and courtesy required by the Code of Judicial Conduct. It is also alleged that your conduct in certain instances evinced bias for or against parties or attorneys appearing before you. Examples of this misconduct include:

a. While presiding over the case of Randy Casey v. Hernando Lancheros, et al. (2017-CA-0586), among other instances of inappropriate comments and behavior, you shouted at Plaintiff's attorney, and later accused him of “provoking” your “angry face” Some of these inappropriate exchanges occurred in the presence of the jury. Although the white-noise device may have prevented those in the courtroom from hearing exactly what you said at sidebar conferences, observers were able to hear your raised voice and see that your facial expression and overall demeanor evinced a bias against one party or their attorney.

b. In the case of Alisha Oliver v. Holly Swarthout (Orange County Case No. 2021-CA-2065), you behaved intemperately towards people appearing before you. It is also alleged that your raised voice could be heard again over the white-noise machine, and that your facial expression and overall demeanor evinced a bias against one party or their attorney

c. While presiding over the matter of Megan Regan v. Hernando Lancheros, et al.(Orange County Case No. 2017-CA-8661) you behaved intemperately towards people appearing before you. You also threatened the plaintiff’s attorney with direct criminal contempt.

d. While presiding over the case of Jain v. Baker (Orange County Case No. 2016-CA-7260) in September 2023 you consistently and repeatedly treated the Plaintiff's attorney in a manner that was not patient, dignified or courteous.

A motion to disqualify

In the matter of Holt v. Nelson, Case No. 6D24-966 (2020-CA-005088-O 9" Circuit) a party filed a Motion to Disqualify you, alleging bias against the party’s law firm, “signaling” by you to the opposing party, and intemperate behavior.

Alleged

the appellate court reversed your ruling on the Motion to Disqualify, stating that it was not moot, but furthermore stated that your commentary passing on the facts alleged mandated disqualification. Passing on the facts alleged in a Motion to Disqualify is prohibited by Fla. Rule of Gen. Prac. & Jud. Admin 2.330(h)

Prior caution

In JQC Case No. 2019-648 the Commission cautioned you against allowing yourself to be provoked into intemperate behavior by what you perceive as unprofessional conduct by attorneys or parties. In that case you were recorded shouting down an attorney who appeared before you in the matter of Willey v. Stillman, (2010-DR-8250). This matter is hereby reopened and realleged as part of a pattern of misconduct.

Click Orlando.com reported on the charges and noted

Ashton was first elected as a circuit judge in 2018. He was assigned to the domestic violence division, then the civil court division from 2021 until April of this year, when he transferred back to the domestic violence division.

Before that, Ashton was a state attorney and the prosecutor who handled the Casey Anthony trial.

Ashton is currently running for reelection in a runoff race against challenger Alicia Peyton in November.

ABC News noted in August 2015

Florida state attorney Jeff Ashton, known for his role as a prosecutor in the Casey Anthony trial, admitted today to "indulging a curiosity" by joining the Ashley Madison cheating website.

Ashton, who is married, apologized to his family and the public at a press conference this afternoon.

"Two years ago, I was curious about the Ashley Madison website and I used my personal credit card to sign up for the site," he said.

Ashton said his involvement with Ashley Madison, a website for married people seeking affairs, was limited to online. He said he indulged a curiosity by joining the site, but claimed he never met anyone in person and no laws were broken.

Ashton said he was "so curious how this could exist."

(Mike Frisch)

The Bellamy Salute

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of defamation and related claims

In 1989, thirty-four members of the Kappa Gamma fraternity at Gallaudet University were photographed together performing the Bellamy salute, which was created in the late 19th century for the Pledge of Allegiance. Unfortunately, it now also resembles the Nazi salute. Thirty years after the photograph was taken, the president of Gallaudet, referencing it, described Kappa Gamma as the “face of systemic racism” at Gallaudet. The Washington Post republished this statement and described the photograph as depicting “anti-Semitic” behavior and a “Nazi salute.”

The plaintiffs here are three alumni of Gallaudet’s Kappa Gamma chapter, and the estate of a fourth who passed away while this litigation was pending. Two of the alumni appeared in the 1989 photograph. All four sued Gallaudet and the Post for defamation and related torts. The district court dismissed the complaint on the grounds that none of the disputed statements concerned the plaintiffs, and many of them were not actionable.

We disagree in part, but nonetheless affirm. We conclude that the statements about the photograph concerned the individuals who were in it. But we agree with the district court that those statements were protected opinions.

The history of the salute

Francis Bellamy wrote the Pledge of Allegiance and created the salute for use while reciting it. The salute is performed by holding the right arm fully outstretched at an upward angle. It was widely used in the United States beginning in 1892. But it resembles the salutes adopted by fascist Italy in the 1920s and Nazi Germany in the 1930s. So in 1942, Congress amended the Flag Code to provide that the Pledge should be performed not with a Bellamy salute, but “with the right hand over the heart.” In 2015, Gallaudet prohibited fraternities from wearing robes at public events because of their resemblance to garb worn by the Ku Klux Klan. Gallaudet did not prohibit the salute.

The Gallaudet President suspended Kappa Gamma in the wake of the George Floyd protests and made this statement by youtube video

Kappa Gamma, pictures distributed on social media of their use of hooded robes and of the salute, they have become the face of systemic racism. This behavior is unacceptable.

A second video

In a later video posted in July, [President] Cordano clarified that Kappa Gamma was “not suspended because of old photos,” but based on “new evidence” of its “intention to bring back the use of robes.”

The Washington Post covered the controversy in a series of three articles.

Students in the photograph sued

we conclude that Cordano’s statement plausibly refers to the individuals in the photograph as well as to the fraternity itself.

But

In this case, statements describing the students in the salute photo as the “face of systemic racism” and “anti-Semitic” are likewise not actionable. In the abstract, “systemic racism” is a “hopelessly imprecise” phrase and is thus not provably false...

Others might conclude that the condemnation is unfair, given a tradition dating back not to Hitler and Mussolini, but to Francis Bellamy. Regardless, we are confident that the contested statements at issue here, although inflammatory, were not provably false.

And

The alumni also allege that Cordano and the Post stated or implied that the students in the photo performed a Nazi salute. They allege that Cordano signed a “version of a Bellamy salute” that “g[ave] the appearance” of a Nazi salute. J.A. 34. And they allege that the Post reported that the students in the photograph had performed an “apparent Nazi salute.” Id. at 56–57. These statements are opinions based on facts not provably false. The parties agree that a Bellamy salute and a Nazi salute are at least similar in appearance. Id. at 22. In fact, the alumni do not identify any difference between them. And anyone inspecting the photograph—which is necessary to connect the epithets used to Costello and Millios—would easily recognize what are at a minimum obvious similarities.

The panel consisted of Henderson and Katkas (who authored the opinion), Circuit Judges, and Edwards, Senior Circuit Judge.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I join my colleagues regarding the law that controls this case without reservation — but I do so with nose held. The highest-ranking official of a respected and public-spirited university serving specialized students for over 150 years has successfully deflected criticism and skirted responsibility in an apparently long-running controversy. And the fourth estate is once again — and under the law — blameless. The only parties to suffer are the alumni plaintiffs, whose antiquated gesture of fraternal allegiance — gratuitously publicized 35 years later — has most likely blighted the remainder of their lives.

(Mike Frisch)

Attorney Charged With Misrepresenting State Bar's Ethics Advice

A rather unusual complaint filed by the North Carolina State Bar alleges that the accused attorney misrepresented ethics advice provided by the State Bar's ethics counsel at a court hearing.

The client of the attorney is the mother of a child who is the subject of a custody complaint. The child has both a United States and a Pakistani passport, situation about which the court had expressed concern. In response, the attorney allegedly agreed to hold both passports as "an officer of the court."

Respondent did not secure the passport and the client and child apparently fled the country, not appearing at subsequent court proceedings.

When opposong counsel expresed concern, Respondent made an email inquiry to the State Bar's ethics counsel.

Opposing party sought an emergency hearing; Respondent appeared without her client or the minor child.

The alleged misrepresentations took place at the emergency hearing and involve the Respondent's assertions as to what that she could and could not reveal under her duty of confidentiality as purportedly advised by ethics counsel.

An arrest warrant was issued for the client. (Mike Frisch)

Endless Journey Ends

The Connecticut Appellate Court declined to consider a sanction challenge not raised below

Here, the reliable, probative, and substantial evidence in the record provides clear and convincing evidence that the plaintiff acted incompetently in violation of rule 1.1 of the Rules of Professional Conduct. Lombardi retained the plaintiff to represent both her and her business, which is a limited liability company. The plaintiff, however, failed to inquire into the legal status of Lombardi’s business and, instead, assumed that Lombardi was doing business as a trade name, and, therefore, he did not include the business as a party to the litigation.

Findings below

The reviewing committee found that, although ‘‘[v]arious documents and letters from the [Internal Revenue Service] that were submitted into evidence were addressed to Lombardi Roberts Travel, Inc., d/b/a Endless Journeys,’’ only ‘‘[t]wo documents in evidence . . . referenced [Lombardi] in her individual capacity,’’ thereby indicating that Lombardi’s business was a separate legal entity. Thus, because the plaintiff failed to name Lombardi’s business as a party, the court that heard the underlying civil action, which found that the business sustained $2369.22 in economic damages, was unable to award those damages to Lombardi in her individual capacity.

Conclusion here

Had the plaintiff adequately prepared for litigation, as required by rule 1.1 of the Rules of Professional Conduct, he would have learned that the business is an entity that had to be named as a party for the court to award the economic damages sought. The fact that another attorney, rather than the plaintiff, represented Lombardi and her business at trial does not absolve the plaintiff of his earlier incompetence in filing the complaint without adequate preparation. On the basis of our review of the record, we conclude that the record fully supports the reviewing committee’s finding that, by clear and convincing evidence, the plaintiff had violated rule 1.1.

Contention that he should not have been ordered to complete three CLE hours

On the basis of our review of the record, it is clear that the plaintiff is raising this claim for the first time in this appeal. The plaintiff, however, fails to assert any arguments or facts demonstrating exceptional circumstances that would justify review of this unpreserved claim. Accordingly, we decline to review the merits of this claim.

(Mike Frisch)

Provisional Suspension Renewed

The Quebec Disciplinary Council granted

the application for renewal of the order for immediate provisional suspension of the respondent's right to practice the profession and the right to use the title of lawyer, submitted by the applicant under section 122.0.5 of the Professional Code .

Respondent has been charged as an accessory after the fact of a murder

The respondent convinced the Council, both through her testimony and her argument, that there are exceptional circumstances in this case. These include, in particular: the conditions of the release order that prohibit her from practicing her profession under penalty of incarceration; the media coverage of her arrest and the charge against her; her professional and personal situations that are unfavorable to returning to work; the amounts already disbursed in the context of her criminal trial and the original application under section 122.0.1 of the Professional Code , which have significantly reduced her budget; as well as the fact that the Council's decisions are public, allowing the public to inquire about its status as such, and that the Order's register clearly indicates that the respondent is provisionally suspended.   

The Council also notes that at this stage of the case, the respondent has not been found guilty of a criminal or disciplinary offence.

The Montreal Gazette reported on the charges

A defence lawyer who has worked often at the Montreal courthouse was arrested Thursday and is charged with being an accessory after the fact to a murder carried out in 2019.

Noémi Tellier, 35, of Longueuil was charged at the Joliette courthouse and her case will return to court later this month. The charge carries a maximum life sentence. According to the arrest warrant issued in the case, Tellier, a lawyer since 2012, is alleged to have been an accessory to the homicide from the day before it was carried out on May 8, 2019 to Nov. 10, 2023.

The victim of the homicide was Francis Turgeon, 33, a man described as a prolific methamphetamine dealer in a court decision delivered in 2020 in an unrelated case. He was killed at his home in Repentigny.

Two men — Kevin St-Pierre, 34, and James Patrice Mardy, 33 — were arrested in November and are charged with first-degree murder. Their case returns to court on the same day as Tellier’s on May 29.

Another man named Wesley McKenzie was arrested days after Turgeon was killed, but the murder and conspiracy charges filed against him were later dropped.

According to La Presse, St-Pierre is Tellier’s former partner and they had a child together. In 2022, the pair were involved in a civil court case together in Joliette that challenged how some items were seized when a search warrant was carried out in the Sûreté du Québec’s investigation of the homicide.

On April 24, Tellier pleaded guilty at the Longueuil courthouse to impaired driving. She entered the plea on the same day she made her first court appearance on the charge and received a $2,000 fine.

Le Journale de Montreal also had details

She faces a charge of accessory after the fact, because she allegedly helped Kevin St-Pierre, the father of her child and close to the Hells Angels, to cover up the murder of drug trafficker Francis Turgeon in Repentigny, Lanaudière, in May 2019.

Kevin St-Pierre and James Patrice Mardy are accused of killing the independent trafficker who allegedly incurred a debt of $80,000 to the Hells Angels because he refused to pay his sales "tax" on the territory.

After the crime, the accused allegedly carried out counter-surveillance maneuvers and attempted to make people forget about an SUV that had been used by the co-accused to carry out reconnaissance near the victim's home.

(Mike Frisch)

Carnival Of Murder

The Kansas Supreme Court affirmed a conviction for one count of capital murder, one count of conspiracy to commit first-degree murder, one count of solicitation to commit first-degree murder, and one count of theft of a defendant who was not the killer but "her [four] co-conspirators [who pled guilty] all testified that she was the principal organizer and planner of the two murders."

The facts in this case, as developed in the course of a nine-day jury trial, are complicated and, at times, read more like a fictional drama than a real-world criminal act.

The setting does sound like a Stephen King creation

Jason Wagner owned a carnival company that provided entertainment at fairs in the Midwest. In late July 2018, his company moved from a fair in Oklahoma and set up rides and concessions at the Barton County fair.

Frank Zaitshik owned a competing carnival company headquartered in Florida. Zaitshik is either a regular businessman whose company, like Wagner's, earns a profit by providing entertainment, or he is a sinister crime boss who has close ties to the Sicilian mafia and who masterminded a pair of murders at the Barton County fair. The former is the theory of the State and almost all the witnesses at the trial; the latter is the description provided by the defendant in this case and is the persona the defendant convinced others to obey.

Victims

Alfred and Pauline Carpenter were an elderly couple from Wichita who traveled around the Midwest, setting up their camper and trailer at state fairs and selling inexpensive merchandise to fairgoers. They intended to close down and sell their business after the Barton County fair.

Defendant

Kimberley Younger, the defendant and appellant in this case, is a woman in her fifties who worked for Wagner for several years as a truck driver and ticket seller. Younger was known to her employers and coworkers by several different names, none of them Kimberley Younger. She had a Florida driver's license under the name "Myrna Khan." She was known to her friends as "Jenna Roberts." And, at one point in the investigation, she identified herself as "Tiffany Jones." She purported to have connections with Frank Zaitshik, who, she maintained, operated a criminal enterprise through his carnival company.

Younger was romantically involved with, and possibly married to, Michael Fowler, another carnival employee. The two shared a unit in the carnival's mobile bunkhouse. Over time, Fowler became convinced that Zaitchik wanted to legally adopt him so that Fowler could become the heir to Zaitchik's crime empire, even though Fowler had never met Zaitchik. Fowler was led to this belief because he started receiving Facebook messages from "Frank Zaitchik" indicating a desire to develop a close fatherson relationship and because Younger, known to Fowler as Jenna, passed along messages that she had supposedly received from Zaitchik. After a while, Younger showed Fowler adoption papers on her computer that Zaitchik supposedly had sent her. Zaitchik indicated through his Facebook messages that he had no children and wanted an heir, but Fowler would have to carry out certain activities to prove himself worthy of and loyal to Zaitchik's syndicate. This included ferreting out rival Mexican crime families who were attempting to undercut Zaitchik's business.

Instruction

After a time, Zaitchik communicated to Fowler that he would have to carry out a killing so that he would have blood on his hands and would not be able to walk away from his "family."

Also caught up in this scheme were Rusty Frasier and his girlfriend, Christine Tenney. They worked at the carnival and shared a unit in the same bunkhouse as Fowler and Younger. They understood that Fowler was destined to inherit a fortune, and Younger gave them instructions, supposedly provided by Zaitchik, on how they were to assist Fowler. Younger told Tenney that it was Fowler who was supposed to complete the kills, and it was Frasier's and Tenney's job to help him. Younger mentioned another carnival worker, Zach Panacek, as a possible target. The final member of this group was Fowler's nephew, Thomas Drake, who also worked for the carnival.

The Carpenters became the target and were stabbed and shot to death

Following Younger's instructions (again supposedly provided by Zaitchik), the foursome then put Alfred's body in the camper near Pauline's and cleaned up around the site. Tenney and Drake participated in the cleanup, obtaining bleach and other cleaning supplies. With Younger driving, they took off with the trailer attached to the truck and camper in the early morning of July 14.

After several stops along the way, including a stop to replace a flat tire on the trailer, they arrived in Van Buren, Arkansas. Fowler's daughter and son-in-law were living in an apartment complex there called Vista Hills, and the group stayed with them. From there they took the camper to an unpopulated area in Ozark National Forest, where Fowler's son-in-law and the boyfriend of another daughter assisted them in putting the bodies in a shallow ravine and covering them with a mattress and some rocks and dirt. While they were away, Tenney secretly contacted her sister and told her she was with a group of individuals who had murdered two people and she needed help. The sister then contacted law enforcement.

The investigation led to the defendant

Younger initially denied that any murder had taken place, but she eventually told an elaborate version of what had happened, blaming the events on a crime syndicate directed by a man named Frank Zaitchik, whose hired hitman, a carnival employee named Fred Viney, carried out the killings and forced her and her friends to clean up the site and dispose of the vehicles and bodies.

On appeal, an issue involved zoom testimony

We have reviewed the trial court's findings and determine they were legally sufficient and were supported by the record. Because the trial court chose between two permissible views of the evidence, we will not find clear error in that choice. See Hernandez, 500 U.S. at 369. We therefore find no violation of the federal Constitution's Confrontation Clause and no error in allowing Zaitshik to testify remotely.

Statement

While it is true that Younger was in custody and was unaware that her statements in the car were being recorded and could be used against her, she was not constitutionally protected from incriminating herself by making spontaneous statements and there was no error in admitting her outbursts.

In custody statements

Considering the record as a whole and taking into account that the trial court suppressed a portion of her statements, we find no violation of Younger's Miranda rights requiring suppression of her other statements. She wanted to talk, she wanted the local prosecutor to hear her story, and she expressed her willingness to talk without an attorney present on her behalf.

The court rejected a host of other claims.

STEGALL, J., concurring:

I join in the bulk of the majority's opinion. I write separately to note one point of divergence. The majority declines to address Younger's claim that her rights under section 10 of the Kansas Constitution Bill of Rights were violated when the court permitted Frank Zaitshik to testify via Zoom. Before us, Younger has argued that even if this remote testimony did not violate the Sixth Amendment to the United States Constitution, section 10 provides rights that are distinct from and broader than the Sixth Amendment and should have prevented the testimony. The majority finds Younger's section 10 claim to be unpreserved and declines to address it. State v. Younger, 319 Kan. ___, slip op. at 21-22. I disagree.

Nonetheless

Despite my disagreement with the majority's decision to decline to explore this paramount question, were we to conclude that admission of Zaitshik's remote testimony did violate Younger's section 10 right to a face-to-face confrontation, that error would still be subject to a constitutional harmless error analysis. See State v. Williams, 306 Kan. 175, 202, 392 P.3d 1267 (2017). And given the overwhelming evidence of Younger's guilt in this case, and the fact that Zaitshik was not a key part of the State's case, but merely a rebuttal witness, I am not convinced that there is a reasonable probability that his testimony had any effect on the verdict.

Section 10 of the Kansas Bill of Rights

[Defendant's] written objection to the Zoom testimony quotes section 10 of the Kansas Constitution Bill of Rights, which provides that "[i]n all prosecutions, the accused shall be allowed . . . to meet the witness face to face."

Oral argument linked here. (Mike Frisch)

Pattern Of Neglect

The Iowa Supreme Court has suspended an attorney with no possibility for reinstatement for 90 days

We find the following facts as stipulated or otherwise established by the record. Fenton received his Iowa law license in 1996. In 2002, due to his “chronic difficulties with anxiety and depression,” our court placed Fenton on a disability suspension. Ten years later, Fenton’s law license was reinstated. He opened a solo practice in Des Moines and began accepting court-appointed cases through the State Public Defender’s Office. Fenton works without any support staff, meaning he is responsible for administrative tasks, including ensuring deadlines and hearings are properly placed on his calendar. By his own admission, Fenton has not developed an effective calendaring system and has turned down suggestions that he hire support staff to assist him.

Prior issues led to suspension

Fenton consented to a sixty-day disciplinary suspension of his license in 2020. His license was reinstated in August of that year.

After reinstatement

On September 13, 2022, based on the complaints of Peavy and Sanborn, the Board and Fenton entered into a one-year deferral agreement pursuant to Iowa Court Rule 35.14. Under this rule, the Board “may defer further proceedings [against an attorney] pending the attorney’s compliance with conditions the board imposes for supervision of the attorney for a specified period of time not to exceed one year unless the board extends the time prior to the conclusion of the specified period.” Iowa Ct. R. 35.14(1).

But

During the term of the deferral agreement, Fenton violated its conditions in five different matters. The Board revoked the deferral agreement and filed its complaint.

This proceeding

After revoking the deferral agreement, the Board charged Fenton with multiple rule violations in a two-count complaint. The parties submitted a partial stipulation but disagreed over mitigating and aggravating circumstances, one rule violation, and the appropriate sanction. The commission held a hearing on December 18. 

As a result

The commission issued its findings of fact, conclusions of law, and recommendations on April 1, 2024. The commission found that Fenton violated multiple rules. The commission found several mitigating factors: Fenton’s history of taking pro bono cases and serving marginalized communities, his service to the bar association, his court appointments, his mental health difficulties, his mother passing away in September 2023, and his acceptance of responsibility for his actions.

The commission also found several aggravating factors: Fenton’s seventeen years of practice, his admission that “it was easy” to neglect his marginalized clients because of their status, his prior discipline for similar misconduct, the multiple rule violations with multiple clients, and his violation of his deferral agreement. The commission recommended a ninety-day suspension.

The court weighed the aggravating and mitigating factors

On balance, we believe a ninety-day suspension is appropriate. Fenton neglected seven client matters. He has a history of neglect and lack of client communication—highlighted by his deferral agreement, his prior sixty-day suspension, and his prior admonition for similar misconduct.

Given Fenton’s lengthy mental health history, we agree with the Board’s recommendation that Fenton provide an evaluation by a licensed mental health professional verifying his fitness to practice law as a condition for reinstatement.

(Mike Frisch)

Sharpe Practices

The Iowa Supreme Court has revoked an attorney's license.

As executor of an estate

First, Haack’s last will and testament devised 5% of her estate to the  St. Paul Lutheran Church Endowment Fund (the Church), where Haack had been a member for 55 years. The intended gift was approximately $100,000, but the Church never received notice of the probate proceeding or its intended bequest. The Church only learned of the possibility of an intended bequest about three years after the estate was opened when a friend of the decedent inquired about it to the Church. Ultimately, the Church never received any money from the estate. A resolution concerning the intended bequest was reached between the Church and Sharpe on October 23, 2023.

Prior to the resolution, Sharpe took several steps to hide the bequest from the Church. A $100,000 check from the client trust account was written for the Church but never delivered. Additionally, when [decedent's niece] McConnell checked on distributions in July 2019, Sharpe claimed there were not enough funds for the $100,000 devise to the Church, which was not true. Sharpe also hid the bequest from the probate court. The first and final report by the executor was filed on August 26 and did not list the Church as a beneficiary or include a waiver from the Church. The Church was included, however, in the amended report and inventory filed with the probate court on the same day and was included in the report and inventory sent to other beneficiaries. Lastly, in January 2021, a certified public accountant (CPA) enlisted by Sharpe to help with the estate again inquired about the Church’s gift and Sharpe did not respond.

Issue with estate taxes

The estate was closed on August 27 without any estate taxes being filed. Sharpe once again contacted [accountant] Linn on September 1 and did not receive a response. Linn passed away on February 7, 2020, without having filed any taxes for the Haack estate.

In early 2021, Sharpe hired a CPA to file the estate taxes. The delay in filing resulted in the Iowa Department of Revenue assessing approximately $51,000 in penalties and interest on the estate.1 In total, the estate owed $244,187.70 in taxes. In February, Sharpe paid $224,983.54 to the State of Iowa Treasurer out of the client trust account, and McConnell personally paid the remaining $19,204.16 without reimbursement from Sharpe. On August 12, 2022, the Iowa Department of Revenue certified that the Iowa inheritance tax  was paid in full—almost three years after the estate closed.

Attorney's fees

Sharpe made a total of twenty transfers to her firm ranging from $1,000 to $15,000. In total, the amount transferred from the estate was $65,290.71 more than the awarded attorney fees. Sharpe used these funds for personal expenses.

As Sharpe transferred excess funds to herself, she concealed her actions from McConnell. On March 1, 2021, Sharpe informed McConnell that there was no money left in the estate, so McConnell could not be reimbursed for an expense. Sharpe further claimed, “I have not been paid my entire fee because I was worried there wouldn’t be enough money for taxes.” At the time of that message, Sharpe had already overpaid herself by $54,290.71. When McConnell went to collect the estate’s file on August 31, Sharpe produced two client ledgers that omitted all attorney fees claimed by Sharpe between August 28, 2019, and January 9, 2020, which totaled $91,500. Ultimately, when the estate taxes were finally paid, the Haack account had a negative balance because of Sharpe’s excessive withdrawals.

There were trust account issues in other matters.

Sanction

Although there is no standard sanction for attorney disciplinary cases, we have repeatedly held that converting client funds without a colorable future claim will result in revocation of the attorney’s license...

This case is an egregious example of converting client funds in violation of our professional rules. Sharpe converted $65,290.71 for her own personal use and has presented no evidence of a colorable future claim to the funds. It does not matter that her firm later reimbursed part of the funds to the client trust account or that Sharpe eventually settled with the Church concerning its bequest...

Further, we need not consider mitigating and aggravating factors when an attorney has converted client funds with no colorable future claim. Kozlik, 943 N.W.2d at 600. Still, it should be noted that Sharpe’s actions resulted in multiple rule violations, caused client and third-party harm, and her lack of cooperation with the Board prolonged the commission’s proceedings.

(Mike Frisch)

Eligible To Seek Reinstatement

A felony conviction drew a back-dated suspension from the Nebraska Supreme Court, making the attorney eligible to apply for reinstatement

After a bench trial, the respondent was found guilty of “Count I: Abuse of a Vulnerable Adult, a Class IIIA Felony.” The court found the respondent “not guilty of Count II: Theft by unlawful taking, $5,000 or more.” The respondent was sentenced to a 5-year term of probation to include incarceration for 90 days in the county jail.

She was interim suspended in January 2020

The temporary suspension concerned criminal charges regarding the respondent’s mother, who was in a nursing facility, and arose out of contentions between the respondent and the nursing facility. These criminal charges were eventually dismissed.

These proceedings

The respondent represented Rachel K. and Richard K., the mother and stepfather respectively of J.R.K., an autistic person with several other mental health conditions. Rachel and Richard did not have a prior relationship with the respondent at the time they retained her legal services in 2011. After Rachel passed away, J.R.K. wanted to change her name to Richard’s last name to have some better connection to her stepfather, as he was her only remaining relative living in Nebraska. Richard did not object. The respondent sought a legal name change for J.R.K., and it was approved.

J.R.K. is an adult woman with developmental and mental disabilities. She also had some physical ailments. Due to these disabilities, she receives Social Security disability income and qualifies for Medicaid benefits, including vocational and residential services. During the relevant time period, J.R.K. lived with, and was assisted in her daily activities by, an extended family home provider, who was paid a daily contract rate by the State of Nebraska. J.R.K. also earned income from working at her part-time jobs. The respondent testified that J.R.K. sometimes had difficult emotional or violent behaviors.

In the early years of the respondent’s representation of Rachel and Richard, she had infrequent contact with J.R.K. J.R.K. lived at home with Rachel and Richard and had already qualified for and received Social Security disability payments, and the respondent had not been involved in obtaining those benefits.

Rachel and Richard had tried to find a home placement for J.R.K. but were unsuccessful because of J.R.K.’s behaviors. When they were appointed guardians and conservators, it was to help find living arrangements for J.R.K. and to manage her limited income. They did not involve the respondent in preparing reports. They occasionally asked the respondent questions but did not involve her in the paperwork.

Her ongoing involvement resulted in the criminal charges

The respondent’s payments to herself out of accounts on which she was trustee resulted in the criminal charges against her for theft and exploitation of a vulnerable adult discussed above. The respondent did not obtain court approval for payments to herself. In this regard, she testified in the criminal case, “I had a good faith intentional belief that these trusts allowed for the trustees to make any payments on the behalf of professional services without court supervision. It was the old way of doing things with these Special Needs Trusts.” During Rachel’s life, she had paid the respondent out of these accounts. The respondent believed that the termination of the conservatorship removed the “Special Needs Trusts” from judicial supervision and that the trust would not operate like the guardianship accounts.

The respondent claimed that she had a standing agreement with Rachel and Richard that when she did things required to attend to J.R.K.’s needs, she would be paid her legal rate. The respondent testified that she performed all the services she invoiced for and more.

The court noted letters of support and a number of challenges she faced

It is the judgment of this court that the respondent is hereby suspended from the practice of law from January 27, 2020, to the date this opinion was filed. The respondent is eligible to  apply for reinstatement as of the date of this opinion, which application will be considered on the basis of a showing of her fitness to practice law and compliance with all requirements.

The case is STATE EX REL. COUNSEL FOR DIS. V. VANDERFORD, 317 Neb. 771 (Mike Frisch)