Wednesday, May 22, 2024

No Health Care For The Deceased

A medical examiner who conducts an autopsy cannot be liable under the state Medical Professional Liability Act, according to a decision of the West Virginia Supreme Court of Appeals.

The claim involves asserted negligence in determining cause of death

Respondent’s wife, Mrs. Cipoletti, died on January 9, 2017. Dr. Mock, the OCME’s Chief Medical Examiner, performed an autopsy. Dr. Mock’s subsequent report, entitled “Report of Death Investigation and Post-Mortem Examination Findings,” provides:

It is my opinion that June Burford Cipoletti, a 59-year-old woman, died as a result of right temporoparietal cerebral infraction due to atherosclerotic cardiovascular disease with contributory hypertensive cardiomegaly and dilated cardiomyopathy with acute on chronic alcohol intoxication. The potential cardiotoxicity associated with acute ethanol intoxication cannot be excluded as contributory.

Manner of Death: The circumstances surrounding death, as determined by the death investigation and post-mortem examination, indicate that the manner of death is accident.

The court reversed a decision of the trial court to deny a motion to dismiss

The circuit court found that Dr. Mock’s conduct fell under and was governed by the MPLA, thus depriving Petitioners of qualified immunity.10 Petitioners argue that this finding was erroneous and assert that Respondent may not maintain an MPLA claim because the MPLA requires a health care provider to provide “health care” to a “patient” resulting in “the injury or death of a person.” Petitioners assert that conducting an autopsy on a decedent and completing a death certificate listing the manner and cause of death does not fall within these parameters...

The MPLA defines the term “patient” as “a natural person who receives or should have received health care from a licensed health care provider under a contract, expressed or implied.” W. Va. Code § 55-7B-2(m) (Emphasis added). Consistent with the foregoing definition, this Court has held that a decedent cannot be a “patient” under the MPLA.

(Mike Frisch)

May 22, 2024 in Comparative Professions | Permalink | Comments (0)

Tuesday, May 21, 2024

Blurred Lines And Actual Prejudice

The Maine Supreme Judicial Court affirmed the granting of a motion to disqualify a lawyer and his law firm in a tort claim action based on the "lawyer as witness" rule

Jamie Pacheco appeals from a judgment of the Superior Court (Androscoggin County, Stewart, J.) granting a motion to disqualify filed by Gene Libby, Esq., and Libby, O’Brien, Kingsley, and Champion, LLC (collectively Libby), to preclude Jeffrey Bennett, Esq., and his firm, Legal-Ease, LLC, P.A. (collectively Bennett), from continuing as counsel for Jamie. We affirm the court’s judgment.

Facts

In 2015, Jamie filed a complaint for divorce against her then husband, Kevin Pacheco. Jamie was represented in the divorce proceedings by Bennett. Kevin was represented by two attorneys prior to being represented by Libby.

During the divorce proceedings, Bennett voluntarily produced to Libby’s predecessor counsel what he represented to be, save for one redacted line, the complete counseling session notes of Jamie’s therapist, Sandra Falsey. The redacted line contained highly sensitive personal information that Bennett believed would harm Jamie if Kevin obtained it.

Libby subpoenaed Falsey without notifying Bennett.2 The subpoena required Falsey to testify at a hearing scheduled for November 7, 2018, and directed Falsey to produce her “entire file regarding Jamie Pacheco from 2011 to the date of Jamie Pacheco’s most recent therapy appointment, including, but not limited to, all correspondence and emails between [Falsey] and any attorney representing Jamie Pacheco.” Though Falsey ultimately did not testify at the November 7 hearing, she turned over to Libby her complete counseling records related to Jamie, including counseling notes from four sessions not previously produced by Bennett and an unredacted copy of the counseling notes that Bennett had redacted in his original production. The unredacted notes were disclosed to Kevin when he was copied on an email that included the notes as an attachment. Jamie moved for a mistrial and to disqualify Libby in the divorce proceedings. Both motions were denied.

On July 7, 2021, after the divorce proceedings concluded, Jamie, with Bennett representing her, filed an action against Libby asserting claims of abuse of process, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED) based on Libby obtaining Falsey’s unredacted therapy notes and disclosing them to Kevin. Jamie demanded a jury trial in her action against Libby.

Disqualification was sought because of Bennett's role as a witness

The court [below]...found that Bennett is the only witness with sufficient personal knowledge of these issues to be able to testify to them and is likely to be one of a few central witnesses. In addition, the court found that Bennett’s testimony is likely to be controversial, inconsistent with other witnesses’ testimony, and emotional.

The court here

Bennett’s actions or inactions in the treatment and disclosure of Jamie’s psychotherapy records are central to Jamie’s case, and Bennett alone has this knowledge, making his testimony relevant, material, and unobtainable from other sources. See Commonwealth v. Delnegro, 75 N.E.3d 73, 80-81 (Mass. App. Ct. 2017). The measures Bennett took or did not take to preserve confidentiality of the records, and the notice Bennett gave to Libby of these measures, are also highly relevant to Jamie’s claim for abuse of process, see Advanced Const. Corp. v. Pilecki, 2006 ME 84, ¶ 23, 901 A.2d 189, and her claim for IIED, see Lyman v. Huber, 2010 ME 139, ¶ 16, 10 A.3d 707. Bennett is likely to be a central trial witness and to give testimony that may be emotionally charged and inconsistent with other testimony. Moreover, if Jamie decides to testify to the impact Libby’s actions had on her, Bennett’s testimony could corroborate or impeach Jamie’s testimony. Clearly, there are multiple sound bases for the court’s conclusion that Bennett’s continued representation of Jamie would result in an affirmative violation of Rule 3.7.

Actual prejudice

There are sound bases in the record for the court’s conclusion that there would be actual prejudice in allowing Bennett to continue representing Jamie. See Morin, 2010 ME 36, ¶ 7, 993 A.2d 1097. Libby states that he will call Bennett to testify to firsthand knowledge of the disclosure of the therapy notes, which could force Bennett to testify against Jamie’s interests. See M.R. Prof. Conduct 1.7 cmt. (1); see also Model Rules of Pro. Conduct r. 3.7 cmt. (6) (Am. Bar Ass’n 1983). Jamie has also demanded a jury trial, which creates a greater risk of confusion because a jury may be required to distinguish between Bennett’s advocacy and his testimony. Finally, we note that Bennett’s participation in this appeal has already blurred the line between advocacy and personal involvement. For all these reasons, we affirm Bennett’s disqualification.

Oral argument is linked here.

The court had earlier ruled that issue preclusion did not bar the tort suit. (Mike Frisch)

May 21, 2024 | Permalink | Comments (0)

Alcohol And Driving Leads To Discipline

A stipulation to discipline in Colorado

The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and suspended Denise M. Kay (attorney registration number 31266) for six months, all to be stayed pending her successful completion of a three-year period of probation. Kay’s probation will take effect only if and when her law license is reinstated from disability inactive status.

In March 2022, Kay backed into a parked car. Police responded and noted that Kay had bloodshot, watery, and glassy eyes, had difficulty with balance, and smelled of alcohol. Her blood alcohol content (“BAC”) measured 0.298. She was arrested for driving under the influence (“DUI”). In October 2022, Kay pleaded guilty to DUI and was sentenced to twelve months of probation with ninety days of jail, which was suspended pending her successful completion of probation, including monitored sobriety, alcohol treatment, and ten days of house arrest.

Kay struggled to comply. She reported to probation several times while under the influence of alcohol. While on probation, she was stopped by police in August 2023, as they suspected she was driving under the influence. She was instructed to pull into a nearby parking lot; she struck the patrol car while backing up. She also displayed signs of impairment and was deemed uncooperative. She was arrested for DUI and charged in Arapahoe County. Within three weeks, and hours after one of her court dates, she was again stopped by officers, who suspected she was driving under the influence after she lodged her car in a pile of landscape rocks at a grocery store parking lot. Officers observed several signs suggesting she was impaired. Via chemical test, her BAC registered as 0.297. She was arrested and charged with DUI.

While these two DUI charges were pending, Kay’s probation in the first DUI case was revoked for failing to comply with conditions. In January 2024, Kay agreed to a global disposition of all three cases, but the presiding court rejected the disposition as too lenient and expressed “grave concerns” about Kay’s conduct. After a pause in the proceeding, Kay returned to the courtroom, where the presiding judge questioned whether she was under the influence and ordered her to submit to a preliminary breath test. The test showed a breath alcohol content of 0.324. The judge held Kay in direct contempt and remanded her to county jail for three days.

In February 2024, Kay appeared in court again to resolve all three cases, pleading guilty to DUI as a second and third offense. She was sentenced to one year in jail, with forty-three days of credit served and work release authorized; twenty-four months of probation with monitored sobriety; alcohol evaluation and recommended treatment; eighty hours of public service; and a victim impact panel through Mothers Against Drunk Driving. Kay did not timely self-report her DUI convictions to regulatory authorities as she was required to do under C.R.C.P. 242.11(c)(1).

(Mike Frisch)

May 21, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Defamation Dismissed

The dismissal of a defamation claim brought by a parent who sued the private school that his child had attended has been affirmed by the New York Appellate Division for the First Judicial Department

The complaint failed to state a claim for defamation because defendant’s statements to the New York Post and Fox News were nonactionable expressions of opinion and were substantially true. The use of the words “liar” or “lying” can sometimes be deemed actionable. However, under the circumstances of the case, defendant’s assertion that plaintiff was lying was rhetorical. First, the tone of both statements, which were made in the context of a public dispute between plaintiff and defendant, indicates to the reader that the person making the statement is expressing his or her personal views, in that it reflects a degree of frustration and resentment by defendant at plaintiff’s allegations (see Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 43 [1st Dept 2011]). Second, in the context of the entire New York Post article, defendant’s remark of calling the allegations against it untrue can only be understood as a specific denial of plaintiff’s factual accusations and cannot be construed as defamatory (see Independent Living Aids v. Maxi-Aids, Inc., 981 F Supp 124, 128 [ED NY 1997]). Moreover, the documentary evidence presented by defendant in connection with the motion to dismiss demonstrated that the challenged statements were substantially truthful, if not absolutely truthful (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]).

Jewish Press reported

In late April, Harvey Goldman told “Fox & Friends First” that he decided to pull his daughter, 9, from the Abraham Joshua Heschel School on the west side of Manhattan because the school was teaching students about Black Lives Matter, a movement Goldman believes is “Marxist and destructive.”

On Tuesday, Goldman told Fox News’s Tucker Carlson that other Heschel parents are taking their children out of the school, a claim Goldman repeated on Wednesday, when he told the NY Post other parents are following his example.

“Nobody I’ve spoken to believes this is good for children,” Goldman told the Post. “I am personally hearing from a handful of parents who are also pulling their kids out of the school — and their friends are, too.”

The Heschel School released a statement saying, “We are a Jewish day school and very proud of our secular and religious curriculum, which Mr. Goldman is fundamentally misrepresenting. His family informed us last summer that they would likely relocate to Florida for financial reasons. We were surprised to read about his new explanation for the move and question his motives for making such statements at this time.”

The Heschel School defines itself as a “pluralistic, egalitarian community that includes families from a wide range of Jewish backgrounds, practices, and beliefs,” and says that “boys and girls, men and women participate equally in all aspects of the school’s religious, intellectual, and communal life.”

According to Webster’s, Woke is a “slang term that is easing into the mainstream from some varieties of a dialect called African American Vernacular English.” Stay woke became a watch word in parts of the black community for those who were self-aware, questioning the dominant paradigm and striving for something better. But stay woke and woke became part of a wider discussion in 2014, immediately following the shooting of Michael Brown in Ferguson, Missouri. The word woke became entwined with the Black Lives Matter movement; instead of just being a word that signaled awareness of injustice or racial tension, it became a word of action. Activists were woke and called on others to stay woke.

On “Fox & Friends First,” Goldman related that the Heschel School was “teaching these young children about having white privilege,” and about “the murder of George Floyd,” even though at the time it “wasn’t an established murder” yet.

Last September, Goldman sent a letter to the school, saying, “First and foremost, neither I nor my child, have ‘white privilege,’ nor do we need to apologize for it. Suggesting I do is insulting. Suggesting to my 9-year-old child she does is child abuse, not education.”

According to Goldman, a Heschel administrator said he should take his daughter out of the school, which he did, and, according to the Post, he enrolled his daughter in a public school, but not before making sure the school did not teach critical race theory (CRT) in the curriculum.

As to his claim that other angry Heschel parents are following his example, Goldman said, “My friend has a kindergartner and her child came home and asked, ‘Mommy, am I bad because I’m white?’”

According to Goldman, parents from all over flood his Facebook account with messages of support, to which he says, “I’m not a social warrior – I just think it’s wrong what they’re doing.”

In conclusion, it’s still not clear whether Harvey Goldman decided to move his daughter to Florida in response to the Heschel school’s progressive agenda, or the other way around. It’s also not clear whether there really is a movement of Jewish parents plucking their children out of their $43,000 a year school program for the progressive thing or any other reason. It’s quite likely, in fact, that Jewish parents who joined the Heschel “pluralistic, egalitarian community that includes families from a wide range of Jewish backgrounds, practices, and beliefs” were probably Woke enough to begin with.

(Mike Frisch)

May 21, 2024 in Current Affairs | Permalink | Comments (0)

Monday, May 20, 2024

Interim Suspension For Domestic Assault And Battery

An immediate interim suspension has been imposed by the Oklahoma Supreme Court

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), has forwarded to this Court certified copies of the Information, Probable Cause Affidavit, and Judgment and Sentence in the following matters in Oklahoma County, Oklahoma: State of Oklahoma v. Kelly John Barlean, case no. CF-2021-3557, and State of Oklahoma v. Kelly Barlean, case no. CM-2022-4468. Pursuant to a plea agreement, the charge of felony Domestic Assault and Battery by Strangulation in case no. CF-2021-3557 was reduced to misdemeanor Domestic Assault and Battery. Following pleas of guilty to misdemeanor domestic assault and battery in the combined cases, the court deferred sentencing for 3 years until January 4, 2026.

Rule 7.3 of the RGDP provides: "Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and the judgment and sentence, the Supreme Court may by order immediately suspend the lawyer from the practice of law until further order of the Court." Having received certified copies of these papers and orders, this Court orders that Kelly John Barlean is immediately suspended from the practice of law. Kelly John Barlean is directed to show cause, if any, no later than June 4, 2024, why this order of interim suspension should be set aside. See RGDP Rule 7.3. The OBA has until June 18, 2024, to respond.

Rule 7.2 of the RGDP provides that a certified copy of a plea of guilty, an order deferring judgment and sentence, or information and judgment and sentence of conviction "shall constitute the charge and be conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline in accordance with these rules." Pursuant to Rule 7.4 of the RGDP, Kelly John Barlean has until July 3, 2024, to show cause in writing why a final order of discipline should not be made. The written return of the lawyer shall be verified and expressly state whether a hearing is desired. The lawyer may in the interest of explaining his conduct or by way of mitigating the discipline to be imposed upon him, submit a brief and/or any evidence tending to mitigate the severity of discipline. The OBA has until July 18, 2024 to respond by submission of a brief and/or any evidence supporting the recommendation of discipline.

Footnote

Since entering the pleas in these cases, two protective orders (PO-2024-44 and PO-2024-45) have been entered against Respondent in Oklahoma County following testimony from his son and ex-wife regarding Respondent's conduct involving stalking and harassment. The protective orders are in effect until March 27, 2026.

Rowe, V.C.J. and Kauger, J., dissent. (Mike Frisch)

May 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Last Rights

The Delaware Chancery Court has determined that the majority rules in a dispute among four sibling over whether the cremate or bury their late mother.

K.G. wishes to cremate her mother’s remains, with the ashes to be distributed among the four siblings; the Majority wishes to inter the body near relatives in Middletown.

Burial 3, cremation 1.

This expedited matter is before me on a dispute arising from the New Castle County decedent’s estate of Ms. P.C. The unfortunate litigation is among four siblings (the “Siblings”), children of the decedent, concerning which of them should control the disposition of the decedent’s remains. K.G., who holds some authority over the estate under a small estate affidavit (an “SEA”) issued by the New Castle County Register of Wills, would like Ms. P.C.’s remains cremated. S.C., who also holds an SEA, issued a few days after the SEA held by K.G., wants to bury her mother’s body, without cremation. The remaining two siblings, R.P. and K.B., agree with S.C. (collectively, the “Majority”). The body is currently held at Congo Funeral Home in Wilmington; the reason for expedition is obvious.

An SEA is not empowered as is a PR

I find the receiver under an SEA to be sufficiently dissimilar to an appointed estate administrator, in both manner of appointment and duties, to not come within the ambit of Section 264(a)(3). Therefore, there is no appointed personal representative or administrator under Section 264(a)(3). In that case, Section 264(a)(4) controls; decisions as to the remains are under the control of a majority of the decedent’s adult children. Here, that decision falls to S.C., R.P., and K.B., the Majority. Those Siblings desiring burial rather than cremation form the majority, and given these facts and under our statute, their decision must prevail.

Habeas corpus

the Majority has the right to decide how Ms. P.C.’s remains will be disposed. The exceptions are granted. An order is attached, directing the Congo Funeral Home to release the remains to S.C., R.P., and K.B.

Good thing it wasn't a 2-2 tie. (Mike Frisch)

May 20, 2024 | Permalink | Comments (0)

Thy Own Treasurer

The New Mexico Supreme Court has publicly censured a magistrate court judge for campaign violations

Judge Sichler’s actions violated Rules 21-101 and 21-102 of the Code of Judicial Conduct. Judge Sichler was required to designate a treasurer to file expenditure reports pursuant to Section 1-19-29(I). The treasurer she named in the expenditure report withdrew his consent, and Judge Sichler then acted as her own treasurer. This action was contrary to statute and thus was a violation of Rule 21-101 (“A judge shall respect and comply with the law . . . .”). Acting as treasurer allowed Judge Sichler to know who contributed to her campaign and know the monetary amounts of those contributions. Judge Sichler had intimate knowledge of campaign rules, having sought the office of treasurer for Valencia County in 2020. Judge Sichler’s conduct created actual impropriety by violating Section 1-19-29(I) and is contrary to Rule 21-102 (“A judge . . . shall avoid impropriety and the appearance of impropriety.”).

Misconduct

 Judge Sichler, acting as her own campaign treasurer, violated both Rule 21-402 and Rule 21-404 of the Code of Judicial Conduct. Section 62-19-34(A) of the Campaign Reporting Act requires judicial candidates to have a treasurer who is not the candidate. Judge Sichler failed to set up a valid campaign committee. Rule 21-402(A)(1)(e) requires a judicial candidate planning on accepting donations to set up a campaign committee pursuant to Rule 21-404. “This rule restricts contributions for campaigns for judicial office to sources and amounts that do not create an appearance of impropriety.” Rule 21-402 comm. cmt. 1. Rule 21-404 requires a judicial candidate to set up a campaign committee to avoid personally soliciting or accepting contributions to the candidate’s own campaign. Judge Sichler set up a campaign committee through the Secretary of State entitled The Committee to Elect Deseri Sichler. Judge Sichler was the sole member of the Committee. She listed her personal phone number, home address, and personal email as the contact for the committee.

 Judge Sichler agrees that the violations of the rules erode the public’s confidence in her ability to follow the law. The violations also reflect negatively on the New Mexico judiciary as a whole and are prejudicial to the effective administration of justice. Pursuant to this Court’s power to discipline judges under the New Mexico Constitution Article VI, Section 32, and the Court’s power of superintending control under the New Mexico Constitution Article VI, Section 3, Judge Sichler shall receive a Public Censure. Acceptance of judicial discipline protects the public, preserves the public’s confidence in the integrity, independence, and impartiality of the judicial system, and enforces the standards of conduct established by Code of Judicial Conduct. See Rule 21-216 NMRA comm. cmt. (“Cooperation with investigations and proceedings of judicial . . . discipline agencies . . . instills confidence in judges’ commitment to the integrity of the judicial system and the protection of the public.”).

This Court has considered the admitted facts and violations of the Code of Judicial Conduct and the approved Stipulation, and we hereby publicly censure Judge Sichler for willfully violating the established rules and standards that govern every New Mexico judge’s conduct. We issue this Public Censure to strengthen the public’s confidence in the integrity, impartiality, and independence of the judiciary and to remind all judges that misconduct which erodes the public’s confidence will not be tolerated.

(Mike Frisch)

May 20, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, May 18, 2024

It Was 50 Years Ago Today

When I graduated from Georgetown Law, which by happy coincidence has been my employer for the past 23 years. 

I have been watching the livestreams of the section graduation ceremonies and have been struck in particular by the progress in race and gender diversity since my class graduated. We were maybe 10% women and 5% racial minorities in 1974. 

The faculty also reflects diversity that did not exist when I was a Georgetown Law student.

I particularly enjoyed the Section Three graduation speaker, who spoke about how the World War II internment of his Japanese ancesters had inspired him to pursue the law and attend Georgetown.

Thinking today about my classmates, in particular Tim Price and Bill Navolio. They both left us at too young an age. Gratified to have sustained 50 years of friendship with Tom Mahoney, Jim Hibey and Bob Hallock. Grateful to classmate Carol Gelfeld for her counsel and support through my wife's final illness. Sad to think that my best known first year section mate is Paul Manafort.

My return to Georgetown Law as its first Ethics Counsel in 2001 inspires my gratitude to then Dean Judy Areen, whose vision created the position, and Carol O'Neil, who suggested to Judy that I was the right person for the job. (Mike Frisch)

May 18, 2024 | Permalink | Comments (0)

Friday, May 17, 2024

A "Relentless Barrage Of Incivility"

The Ontario Law Society Tribunal Hearing Division has revoked the license of an already suspended attorney

The respondent is currently suspended from practice on the basis of three distinct provisions. First, an indefinite suspension was imposed on him as of June 28, 2022 owing to his failure to comply with a Law Society investigation. Second, upon bringing himself into compliance with the investigative requests of the Law Society, he would then be subject to a one-month definite suspension imposed as a penalty for failing to provide the documents requested by the time of the merits hearing held on June 16, 2022: Barreau de l’Ontario v. Hamza2023 ONLSTH 15

The third and final basis for his suspension is that the respondent has not paid the costs awarded to the Law Society at the conclusion of that application, and accordingly he is also serving an administrative suspension until such time as he makes payment in the amount of $14,000.

Findings here

 In essence, despite numerous admonitions from a wide range of adjudicative and judicial officers, the respondent has consistently demonstrated his inability to understand or accept that he is required to take direction from those invested with the authority to regulate his behaviour in the course of legal practice. Despite having been found to lack integrity for failing to obey a court order, the respondent continues to demonstrate his belief that the judge who issued that order is instead accountable to him: the email mentioned in para. 12 which was sent to the Tribunal Chair (and the Attorney General of Canada) less than a week prior to the penalty hearing characterized that judge as a “Trumpist”, a “Zionist”, and an “alt-right pretendian.”

Furthermore, there could be no better demonstration of ungovernability than the respondent’s relentless barrage of incivility, which did not cease even after we handed down our findings on the merits of this application. As was the case in Law Society of Ontario v. Jackman2024 ONLSTH 23, the respondent has demonstrated in the course of the hearing that he “utterly fails to comprehend the seriousness of his misconduct” (at para. 51). As he also “continued to broadcast offensive materials and disparage the Law Society staff, complainants and witnesses, and showed no inclination to follow the rules, act with integrity or respect the professional regulatory process”, the respondent’s conduct demonstrates that the first step of the ungovernability test has been met: Law Society of Ontario v. Fathi, 2021 ONLSTH 180.

Exemption sought

After his application was dismissed with prejudice and without leave to amend, the respondent filed an application that sought the remedy of being relieved of any accountability to the Law Society, and for the respondent to be exempted in perpetuity from the requirement to refer to judicial officers as Your Honour and Your Worship. This second application was dismissed on the grounds it was frivolous, vexatious, and an abuse of process.

The London Free Press reported

Hamza started practising law in Ontario in 2019 and operated a solo-practitioner office, Hamza Law, in London, according to the tribunal ruling.

Beginning in August 2020, the Law Society received several complaints about the lawyer’s messages on social media.

In response to an article by a prospective law student born in Nigeria, Hamza posted photographs of the student and his family with “thought bubbles” that suggested the lawyer was a criminal, drug dealer and slave lover.

About women he posted on social media, “women didn’t write their histories because they didn’t care to do so” and “women just don’t care about history or philosophy” because “women don’t generally consider being a philosopher or historian ‘sexy.'”

The tribunal ruled that though many of the comments may be offensive, they didn’t breach the Law Society’s code of conduct and quoted a previous ruling that it’s not the Law Society’s responsibility to police speech in these circumstances.

But Hamza’s responses to the Law Society investigations into the matter did amount to professional misconduct, the tribunal ruled.

He refused to participate in interviews with the investigator, began litigation against the Law Society and complainants, failed to obey a court order and started litigation against the judge who gave an order.

His court filings in the matter are ridden with “searing and inappropriate criticism” the tribunal found.

“The fact all the judges at the London courthouse are European colonizers who lived through the colonial era means they are ipso facto white supremacists and Islamophobes; otherwise, they would be back in Europe, and not in Canada to start,” Hamza wrote in one document.

“I have reason to believe that (a complainant’s lawyer) is a racist for talking to me the way he did, and that (the judge) is also a racist for letting (the lawyer) talk to me like that,” Hamza wrote.

Two complainants in the case “get free passes” at law schools “for being criminals,” he wrote in another document.

“Both of them reduce the law profession to a joke. They are so privileged that they even have big firm lawyers defend them. This is either because they can afford big lawyers to run their big privileged mouths, or because these lawyers are willing to work for them for free. Either way, their excess of privilege is apparent,” he wrote.

Hamza also attacked the Law Society of Ontario, the regulatory body for lawyers provincewide.

Under the auspices of the LSO, “the practice of law in Ontario is controlled by mobs. Gangs control big firms, law school admissions and the LSO,” he wrote.

The tribunal found the court filings breach rules to “to carry on the practice of law honourably and with integrity.”

Hamza could not be reached for comment. His company’s website can no longer be accessed without sign-in credentials.

A hearing to determine punishment and costs will be scheduled, the tribunal said.

The attorney has noted an appeal of the action

The complainants were thus confirmed to be Ish and his friends; viz., white nationalists Vincent Rocheleau, Mallory Greene and Jessica Soubas and Russian Zionist Yevgeniya Shlakhter. They falsely accused Hamza of being a pseudo- intellectual white supremacist based on LinkedIn posts, even though LinkedIn closed the hacked account; denied it belongs to Hamza; and denied access to Hamza Law...

The complainants (Ish & co.) are all connected to each other and have no connection to Hamza on social media (which he does not use) or in real life. They are all strangers to Hamza who live in Toronto and have no information about him except that he is a lawyer and academic with a Muslim name. All of them refused to identify themselves, testify or be cross-examined. None of Hamza’s many connections attested the truth of their claims; rather, they all attested that they are fabricated.

And

The Law Society hired Katherine Hensel as its lawyer, paying her upwards of $60,000 to accuse Hamza of “hate speech” and “discrimination based on facial features” for allegedly stating that white settlers are not “red Indians”, as they still call them (e.g., the Indian Act). Hensel–of Ipperwash Commission fame–pretends to be a leading indigenous lawyer in the country, even though she is of Ukrainian ancestry, barely ever lived in BC, could not introduce herself in Shuswap to Steve Paikin, and “none of [her] antecedents” ever held Indian Status. Jean Teillet–the Law Society’s blonde expert on indigenous law–called pretendians “the ultimate step in colonialism” (i.e., white supremacy). Hensel is an adjunct “professor” at the University of Toronto with a BA in English.

While Hamza’s accusers are all complete strangers to him who rely on the complaints of criminal friends of theirs who refused to identify themselves or testify, more than a thousand people–including a group of judges affiliated with the UN– filed complaints against the Law Society or submitted testimonies against it. However, like Heeney, Desgranges refused to receive any evidence from Hamza Law; not even the testimony of the orphans against the lawyers who falsely accused them and Hamza. Desgranges wrote the orphans entirely out of his “final decision”, even though their affidavits were process served to the Law Society on the same day that it served the Further Supplemental Affidavit of Cheryl Smith past its legal deadline.

Desgranges–the chair of the Law Society tribunal in charge of the “final decision” or judgment of Hamza–is a notorious neo-Nazi who ran for the far-right People’s Party of Canada. Desgranges denies this is a politicized trial that violates all the UN Basic Principles on the Role of Lawyers. He also denies the legitimacy of the UN in his tweets. His co-panelist Ryan Alford led the anti-human rights StopSOP slate. Both are far right judicial activists who regularly tweet racist, Islamophobic, Sinophobic, xenophobic, Arabophobic, pro-colonial, anti-indigenous, anti-science, conspiratorial, Zionist and genocidal propaganda, filling hundreds of pages. The international community of scientists and indigenous people regard them as colonial crackpots. Desgranges’s decision basically gives him license to be a genocidal racist, so long as it is off the record.

(Mike Frisch)

May 17, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Theory Of Relativity

The Indiana Supreme Court has suspended an elected judge for 45 days

"The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.” Preamble, Ind. Code of Judicial Conduct. Inherent in the judicial conduct rules are the principles that judges “must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.” Id.

Respondent, the Honorable Scott A. Norrick, Judge of the Madison Circuit Court, has fallen far short of these standards. Respondent engaged in judicial misconduct by: (1) failing to supervise his staff in the processing of orders, which resulted in him presiding over civil cases in which he or his son were the attorneys of record; (2) erroneously issuing an ex parte change-of-custody order without giving the opposing party notice or an opportunity to respond; and (3) failing to supervise his staff in the processing of criminal cases, which led to delays in issuing warrants, missing orders and chronological case summary (“CCS”) entries, and involuntarily dismissing sixteen criminal cases.

Respondent’s actions and inactions, which began the day he assumed office, damaged the administration of justice and public trust in the judiciary. They also caused individual harm to dozens of alleged victims, witnesses, and criminal defendants whose cases were dismissed or delayed because Respondent, through his staff, failed to update warrants, set trial dates, and reflect the outcome of hearings. Perhaps most alarming, these omissions were repeatedly brought to Respondent’s attention but he took no action until the Indiana Commission on Judicial Qualifications (“Commission”) began to investigate.

Family ties led to an investigation

In April 2022, the Commission received a complaint that Respondent was presiding over cases in which his son served as counsel and in which Respondent had previously served as counsel. Two months later, Respondent tendered a self-report that acknowledged presiding over the Landmark Accounts cases and admitted the measures he had undertaken to prevent that from happening had resulted in “errors by his court staff.”

From January 20, 2021, to April 13, 2022, Respondent presided over twenty-seven cases in which his son appeared as counsel and Landmark Accounts was a party. He issued sixty-six signature-stamped orders in those cases, including orders granting the withdrawal of his own appearance as Landmark Accounts’ attorney. MyCase listed Respondent as the judicial officer in multiple Landmark Accounts cases, even though a magistrate actually heard those cases. Respondent admits he failed to adequately supervise his staff in handling the Landmark Accounts cases, which led to the public perception that he was presiding over cases in which he had previously been counsel of record or his son was counsel of record.

The investigation revealed the other violations identified above

We are troubled by the extent of this misconduct, particularly given Respondent’s prior discipline on failure-to-supervise issues and his fifteen years of experience as a town court judge. Respondent has agreed to complete additional judicial education and meet with a mentor judge to support him in handling the court’s caseload and supervising court staff. We expect Respondent to take full advantage of these opportunities to improve his court management skills.

Sanction

Respondent, Scott A. Norrick, shall be suspended without pay from the office of Judge of the Madison Circuit Court for forty-five (45) days commencing at 12:01 a.m. on June 3, 2024. 

Not unanimous

All Justices concur except Slaughter, J., who would reject the conditional agreement, believing more severe discipline is warranted.

(Mike Frisch)

May 17, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Hours

A six-month suspension was imposed for a conviction by the New York Appellate Division for the Fourth Judicial Department

In November 2023, the Grievance Committee filed with this Court proof that, on August 11, 2023, respondent was convicted, upon his plea of guilty in Rochester City Court, of offering a false instrument for filing in the second degree (Penal Law § 175.30), a class A misdemeanor. The plea was entered in satisfaction of allegations that, in late 2018, respondent submitted payment claim vouchers to certain assigned counsel programs with the intent to defraud the assigned counsel programs. During the plea colloquy, respondent admitted that he submitted to the Monroe County Conflict Defender’s Office a document he knew contained false information concerning the number of hours he worked on October 9, 2018. In conjunction with the plea, respondent agreed to make restitution in favor of three assigned counsel programs, and City Court sentenced him to a one-year conditional discharge.

Sanction

we conclude that respondent should be suspended from the practice of law for a period of six months, effective January 17, 2024, and that he may file with this Court an application for reinstatement to the practice of law in accordance with the terms of the order entered herewith.

(Mike Frisch)

May 17, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Bond Payment Violates Rules

The Louisiana Attorney Disciplinary Board recommends a fully stayed suspension and probation 

The Committee found that ODC established that Respondent had violated the Rules of Professional Conduct as charged. These legal conclusions of the Committee are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the allegations. See In re Donnan, 2001-3058 (La. 1/10/03), 838 So.2d 715. The Board adopts the Committee’s findings and reasons therefor. The Board also finds that Rule 1.8(e)(5)(v) was violated by Respondent. Respondent failed to provide ODC with documentation establishing that Ms. Picard consented, in writing, to the terms and conditions under which she received financial assistance from Respondent.10 Respondent’s statement in Paragraph VI of her answer conclusively admits this infraction. Her statement reads:

Respondent admits she provided Felicia Picard financial assistance during the term of legal representation. Respondent further admits she failed to provide the ODC with documentation establishing that Felicia Picard consented, in writing, to the terms and conditions under which financial assistance was made. Respondent was unaware of this requirement . . . [.]

Respondent’s Answer to Formal Charges, Para. VI, filed July 25, 2023.

Further, Respondent violated Rule 1.8(e) by improperly securing a bond on Ms. Picard’s behalf. Louisiana Code of Criminal Procedure article 327 expressly provides that a person “shall not be released on bail for which an attorney at law . . . becomes a surety or provides money or property for bail.” In the matter of State v. Felicia Picard, 18-CR-85, 16th JDC, Parish of Iberia. Respondent is identified as Ms. Picard’s counsel of record. The criminal prosecution was “nolle prossed” on January 16, 2020. In association with this prosecution, on October 12, 2017, Respondent paid $635 to Mike’s Bail Bonding to secure a $2,500 bond for Ms. Picard. ODC Exhibit 29. This action was clearly in violation of Code of Criminal Procedure article 327.

Moreover, this action is in violation of Rule 1.8(e) as Respondent was providing improper financial assistance to a client in connection with a pending or contemplated litigation. Her paying of the $635 to the bail bondsman does not fall within any of the exceptions to this rule.

As discussed above, Respondent claims to have not been familiar with Rule 1.8. The disciplinary rules set forth the minimum level of conduct below which no lawyer may fall without being subject to disciplinary action, and ignorance of the Rules of Professional Conduct is not an excuse. In re Grevemberg, 2002-2721, pp. 7-8 (La. 1/25/03), 828 So.2d 1283, 1288. Similarly, “[n]o one may avail himself of ignorance of the law.” La. Civ. Code art. 5

Sanction

the Board adopts the Committee’s recommendation that Respondent be suspended from the practice of law for six months, fully deferred, followed by one year of probation to include attendance at the LSBA Ethics School. The Board recommends that Respondent attend Ethics School by the end of her probationary period, instead of within the first six months of the probationary period as recommended by the Committee.

(Mike Frisch)

May 17, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Judicial Campaign Ethics

The Florida Judicial Ethics Advisory Committee opines in a split decision on campaign ethics

A judicial candidate may distribute business cards and campaign literature that include the candidate’s campaign website address, where the website has an online option to make contributions to the candidate’s campaign, according to nine members of the Committee (three members would conclude the candidate may not).  A judicial candidate may not use a cover photo on the candidate’s personal Facebook page that includes the candidate’s campaign website address, where the website has an online option to make contributions to the candidate’s campaign, according to eight members of the Committee (four members would conclude the candidate may do so).

(Mike Frisch)

May 17, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Deposing Opposing Counsel

The Iowa Supreme Court articulated the test to be applied when a party in civil litigation seeks to depose opposing counsel

This case is about depositions of attorneys. We consider whether parties to civil disputes may depose attorneys who have provided legal services to an opposing party. We conclude that those depositions should not be wholly prohibited. But we adopt the Eighth Circuit’s Shelton test, which greatly limits the circumstances in which opposing counsel may be deposed. Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). We also address other protective measures that may be appropriate when attorney depositions are sought.

The case involves a civil right complaint against the plaintiff's former employer

In early 2023, Paulson subpoenaed two attorneys for deposition. The subpoenaed attorneys were Molly Weber and Jeffrey Peterzalek. Weber had previously served as an assistant attorney general, although by the time the subpoenas were served, she had moved on to other employment. Peterzalek continued to serve as an assistant attorney general, as he does today.

Both Weber and Peterzalek have represented DPS in different capacities. Weber has represented DPS in its current dispute with Paulson. More particularly, Weber assisted DPS with its response to Paulson’s civil rights
complaint before the ICRC.

Peterzalek has not represented DPS in its dispute with Paulson. But Peterzalek has represented DPS and its leaders in a variety of other matters over the course of almost twenty years. For instance, since 2013, Peterzalek has represented Paulson, who is a defendant in an employment-related suit brought by a former DPS employee, Larry Hedlund. The Hedlund litigation is currently proceeding as a separate district court case.

The district court declined to quash the subpoenas.

Here the court adopted the Shelton test

the Shelton court declined to hold that opposing counsel is “absolutely immune from being deposed.” Id. Rather, the court “recognize[d] that circumstances may arise in which the court should order the taking of opposing counsel’s deposition.” Id. “But those circumstances should be limited,” the court held, “to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. (citation omitted).

Weber

Shelton’s first prong prohibits the deposition of opposing counsel unless “no other means exist” to obtain the information sought. Id. at 1327. But Paulson has not shown that “no other means exist” to obtain information about how DPS handles civil rights complaints, including Paulson’s own complaint. Id. Rather, it appears that those topics could be adequately explored through interrogatories or depositions of other witnesses.

So we conclude that the Shelton test precludes Weber’s deposition. Paulson’s subpoena to Weber should be quashed.

Peterzaek

Based on the record before us, we agree with Paulson that Peterzalek should be subject to deposition as to at least some matters. The record shows that Peterzalek likely has nonprivileged information that is directly relevant to Paulson’s employment claims. The record shows that Paulson and Peterzalek worked together on a broad range of matters over a period of almost two decades. For instance, Paulson and Peterzalek worked together on training for DPS personnel concerning harassment and discrimination. Based on these and other experiences, Peterzalek has gained knowledge about Paulson’s education, experience, intelligence, capacity for strategic planning, leadership skills, personality, and work ethic. On at least one occasion, Peterzalek has expressed positive views about Paulson’s qualifications by writing a letter of recommendation on Paulson’s behalf. Topics like these would be fair game for a deposition of Peterzalek.

What we cannot say, though, are the appropriate boundaries for Peterzalek’s deposition. For instance, Paulson claims that Peterzalek has substantial information about other legal actions or complaints that have been brought by other DPS employees against DPS. But we cannot pass on whether Peterzalek should be deposed about those claims. The record does not show whether the information sought by Paulson could or should be obtained by other means, such as an interrogatory answer or deposition of DPS officials. Nor can we determine what privilege concerns would be implicated by deposing Peterzalek about these matters. So we leave these questions open. The parties—through counsel—should attempt to resolve these questions in the first instance. No dispute should be brought to the district court unless and until counsel have made appropriate good-faith efforts to discuss the matter and resolve it “without court action.”

(Mike Frisch)

May 17, 2024 | Permalink | Comments (0)

Thursday, May 16, 2024

Trial Seminar Defamation Claim Survives

The Nevada Supreme Court affirmed a district court order denying anti-SLAPP relief 

Respondents Sean K. Claggett and Claggett & Sykes Law Firm (collectively, Claggett) taught trial seminars operated by appellants Don C. Keenan, William Entrekin, D.C. Keenan & Associates, P.A. and Keenan's Kids Foundation, Inc. (collectively, Keenan). After the relationship deteriorated, Claggett began teaching trial seminars for a rival legal education company. In 2020, Keenan sued Claggett in Georgia federal court, generally alleging that Claggett misappropriated teaching materials.

While that litigation was pending, Entrekin (allegedly on behalf of Keenan) sent an email through a private listserv claiming that Claggett was an unreliable instructor who intentionally misappropriated educational materials. Keenan voluntarily dismissed the Georgia action.

Claggett then sued Keenan in Nevada state district court asserting claims for defamation, defamation per se, civil conspiracy, intentional interference with contractual relations and prospective economic advantage, and declaratory relief. After a hearing, the district court denied Keenans' motion to dismiss pursuant to NRS 41.660 and NRCP 12(b)(5). As relevant here, the district court determined that the listserv email did not qualify for anti-SLAPP protection under NRS 41.637(3) or (4). This appeal follows.

The court agreed with the district court

the district court correctly concluded that the statements in the listserv email failed to qualify for protection under NRS 41.637(3). Like in Patin, the statements were "not directed to any specific person or group" with an interest in the Georgia litigation. Id. at 727, 429 P.3d at 1252. Rather, the listserv recipients included numerous plaintiff lawyers across the country, including approximately 100 Nevada attorneys, who did not have a direct interest in the Georgia litigation.

Further

Keenan next argues the district court erred because the statements were made in direct connection with an issue of public interest and in a public forum under NRS 41.637(4). This challenge also fails as the district court correctly determined that the listserv did not constitute a "public forum."

Thus

Having identified two independent grounds for denying the motion to dismiss at the first prong of NRS 41.660's anti-SLAPP analysis, we need not address the second prong concerning whether Claggett demonstrated the requisite probability of prevailing on his claims.

The case is Keenan et al v. Clagett & Associates et al. (May 15, 2024).

A decision of the United States District Court for the District of Nevada remanding a related dispute over alleged interference with the representation of a client in a medical malpractice matter

Around 2013 or 2014, Defendant Don Kennan (“Mr. Kennan”) started Kennan Ball Trial College (“KBC”), which is an institute for plaintiff's side attorneys to learn trial skills...

Sean Claggett is a trial attorney and founding partner of Claggett & Sykes Law Firm in Las Vegas. (Id. ¶ 31). He began attending courses at KBC in 2014, and within the next two to three years, became an instructor at KBC. (Id. ¶ 33). Mr. Claggett and Mr. Kennan worked closely in a professional setting. Around 2016, Defendant Kennan co-counseled in Nevada on one of Claggett & Sykes's cases. (Id. ¶ 37). 

In 2018, their relationship began to deteriorate. According to Mr. Kennan, Mr. Claggett began conducting trials that did not strictly follow Kennan's teachings. (Id. ¶ 38). Mr. Kennan made clear that his instructors were not to conduct trials outside of the strict confines of what he taught. (Id.). Later that same year, Mr. Claggett informed Mr. Kennan that all attorneys at Claggett & Sykes were resigning from KBC where they had volunteered as instructors and listserv moderators. (Id. ¶ 45).

Though Mr. Claggett and other attorneys ended their relationship with the Kennan Trial Institute, they continued to attend and teach other trial courses, such as the Trojan Horse Method, Mark Lanier's Trial Academy, and Rick Friedman's Ethos. (Id. ¶ 48). In 2020, Mr. Claggett volunteered to teach a Case Analysis course on the voir dire methods he uses during trial. (Id. ¶ 50). In April 2020, Mr. Kennan filed a lawsuit against Mr. Claggett, alleging that he misappropriated Mr. Kennan's voir dire methods. (Id. ¶ 52).

On April 27, 2020, Defendant Entrekin sent an email to all attorneys on the listserv, which included Nevada-based attorneys.

(Mike Frisch)

May 16, 2024 | Permalink | Comments (0)

Revocation Draws Reciprocal Disbarment

The District of Columbia Court of Appeals has imposed reciprocal disbarment as the functional equivalent of the license revocation ordered in Virginia.

CNBC reported on criminal proceedings involving the attorney

A former high-ranking lawyer at the Federal Deposit Insurance Corporation pleaded guilty Tuesday in federal court to conspiring to sexually exploit multiple children and now faces a mandatory minimum prison sentence of 15 years.

The lawyer, Mark Black, also previously served as president of the board of the Arlington Aquatic Club, a renowned Virginia swim club that includes U.S. Olympic swimmers among its alumni. Black resides in Arlington.

Black, 50, most recently was special counsel in the general counsel’s office of the FDIC, which insures the deposits of U.S. commercial and savings banks, according to his LinkedIn page. He has worked in the legal division since April 2013, his LinkedIn page says.

The Department of Justice said Black, who is married and has teenage sons, was a member of “two online groups dedicated to exploiting children.”

“The goal of the two groups was to locate prepubescent girls online and convince them to livestream themselves engaging in sexually explicit conduct,” the DOJ said in a press release.

“Black and his co-conspirators would covertly record this conduct and share the videos with each other,” the DOJ said.

Black pleaded guilty Tuesday in U.S. District Court in Alexandria, Virginia, to one count of conspiracy to produce child pornography and one count of coercion and enticement.

He is due to be sentenced on April 30. He faces a mandatory minimum sentence of 15 years in prison and a maximum sentence of life behind bars.

The FDIC told CNBC it was “deeply shocked and disturbed about the allegations” against Black, who was suspended by the agency when it learned about the investigation of him last year.

The FDIC said Black’s criminal activity “had nothing whatsoever to do with the FDIC,” and did not involve the use of agency computers or other devices. The agency also said it had cooperated with the FBI and DOJ in the criminal probe.

CNBC has requested comment from Black’s defense attorneys and from the Arlington Aquatic Club.

On Jan. 5, Black was deemed indefinitely ineligible by the U.S. Center for SafeSport, a nonprofit group that has the authority to resolve abuse and misconduct reports in sports associated with U.S. Olympic programs.

(Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Unfortunate

The Manitoba Law Society Discipline Hearing Panel reprimanded a respected attorney who practiced without sanction for over 50 years

Mr. Matas has been a Member of the Law Society of Manitoba since 1971. His career and his professional contributions to Manitoba, to Canada, and to the international community are well documented and have been nothing if not exemplary. That he has found himself for the first time before a Disciplinary Panel of the Law Society so late in that career is indeed unfortunate.

Conduct at issue

  On February 10, 2022, Mr. Matas gave an undertaking to the Society (the “Undertaking”). Pursuant to the Undertaking, Mr. Matas agreed to restrict his practice to acting as Counsel to other lawyers (described in the Undertaking as a “responsible lawyer”). Among other things, Mr. Matas undertook not to accept retainers from any person, and not to appear in Court or provide legal services directly to clients without a responsible lawyer being present. The Undertaking also required he advise his (former) clients they need to obtain alternate Counsel and transfer their files to such Counsel within certain timeframes.

Matas did not live up to that Undertaking in several respects with respect to seven individual clients...

Significantly, all the charges in this case relate to Mr. Matas’ dealings with only one of those seven lawyers.

The evidence before us is that the lawyer in question – a former articling student of his – appeared to feel they were Counsel “in name only”, that they asked Mr. Matas to collect some of their fees for them and, on at least one occasion, left Mr. Matas to appear in Court on his own. Nonetheless, while these facts are mitigating, they do not – and Mr. Wolson emphasized this fact – excuse his failure to discharge his obligations in the Undertaking.

The Society confirmed no clients were prejudiced in any way by Mr. Matas’ actions and that he gained no personal advantage. On the contrary, the Society confirmed Mr. Matas was “doing what he felt he had to do” to serve the clients’ interests.

Sanction

The Panel accepts the joint recommendation and orders Mr. Matas be given a formal reprimand and pay costs of $1,500 as a partial reimbursement of the costs the Society has incurred in investigating and prosecuting this matter.

(Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Hundred Year Old Conviction Vacated

The Washington State Supreme Court has vacated a 1924 conviction of a member of the Yakama Nation for killing a deer on tribal land

More than a century ago, the United States government signed treaties with many of the tribal nations living in what would become Washington State. The treaty between the United States and the Confederated Tribes and Bands of the Yakama Nation explicitly enumerates many rights reserved by the Yakama people, including the right to fish in their usual and accustomed places and to hunt on open and unclaimed lands. Nevertheless, in 1924, Jim Wallahee, a Yakama citizen, was convicted of illegal hunting when he killed a deer on ceded Yakama land. Relying on precedent that has since been overturned, this court affirmed his conviction. Today we reject the harmful logic that underpins his wrongful conviction and recognize that Mr. Wallahee had a clear and enforceable treaty right to hunt that deer. Accordingly, we withdraw our previous mandate and vacate Mr. Wallahee’s conviction.

Error in 1927

Our 1927 opinion was incorrect on the law. That opinion asserted that the treaty between the United States and the Yakama Nation was terminated at statehood. Wallahee, 143 Wash. at 118-19. But treaties between the United States and Native Tribes are “the supreme law of the land and [are] binding on the State” no less than on the federal government. State v. Buchanan, 138 Wn.2d 186, 201, 978 P.2d 1070 (1999) (citing U.S. CONST. art. VI); accord Herrera, 139 S. Ct. at 1691-92. Our holding further suggested that treaty rights are a privilege granted bynthe United States government, when they are in fact fundamental rights reserved by sovereign tribes.

...Removal, allotment, and Jim Wallahee’s conviction all stem from the belief that Native Americans lack basic human and equal rights and therefore treaties with them may be disregarded. We have a duty to explicitly repudiate that belief and to disavow our opinions that reflected that belief. We do so today.

Holding

Our decision in Wallahee was incorrect about the nature of treaties and treaty-protected rights, relied on precedent that has since been abrogated, and advanced justifications for violence against Native people. Mr. Wallahee’s conviction was incorrect on the law, harmful, and an injustice.

Our nation’s history is rife with such injustices. It is no victory to sanitize the past, but there is a difference between erasing history and redressing harm. This court’s wrongful decision can be characterized as an instructive feature of the past only by those who do not feel its sting in the present. The Doctrine of Discovery and its use in law to justify state-sponsored violence are a stain on this nation. Today we take a step toward reconciliation: we grant the motion to intervene, grant the motion to recall the mandate, and grant the motion to vacate Mr. Wallahee’s conviction.

MADSEN, J. (dissenting)

While the arc of the moral universe may bend toward justice, it does not do so on its own but through the persistent work of soberly confronting our history and learning from it. Despite 200 years of national life, we have barely begun this work. The simple act of recognizing our past—its freedom and oppression, justice and violence of the majority against the minority—remains a daunting challenge. Yet, while it is important to acknowledge injustice, it is also important to consider what tools we use to address it.

In my view, whether and how—the process by which we reach back in time to review a case is equally as important as the result because it affects the integrity of the judicial system and the public’s trust in the institution. As the highest court in Washington, we must balance our duty to the individual litigant and to the collective citizens.

Standing

Adherence to precedent and our judicial process compels the result here. The Estate, the descendants of Jim Wallahee, who was convicted of illegally hunting deer, does not have standing and thus we cannot reach the merits of the Estate’s claims. By summarily recalling the mandate and vacating Wallahee’s conviction, the majority does not follow the procedure that binds all other litigants. I agree that this court’s decision in Wallahee is no longer good law, nor is Wallahee’s underlying conviction. But ignoring binding precedent and erasing the case from our history is not the way we review and overrule past cases. I respectfully dissent.

Erasing the past

I also respectfully disagree that overturning and removing Wallahee is the best solution. Doing so risks destroying physical evidence that this court has discriminated against Native people, easing the way for future generations to look back and conclude that it never existed at all. See In re That Portion of Lots 1 & 2, 199 Wn.2d 389, 401, 506 P.3d 1230 (2022). “‘A policy of whitewashing public records and erasing historical evidence of racism would be dangerous. It would risk forgetting and ultimately denying the ugly truths of racism,’” which “‘cannot be squared with the antidiscrimination’” work of those fighting to bend the moral arc of history. Id. (quoting In re That Portion of Lots 1 & 2, 16 Wn. App. 2d 505, 515, 481 P.3d 1098 (2021)); see Letter from the Wash. State Sup. Ct., supra.

Removing all trace of the offensive language and tropes in Wallahee salves the shame of discrimination by erasing that shame. It does not eradicate it. See Portions of Lots 1 & 2, 199 Wn.2d at 401. Rather than wiping away the discomfort and shame of  past decisions, allowing the case to exist (disavowed and without authority) helps ensure that future generations can see the documented history of discrimination and disenfranchisement of a people. Id. It is our history. We cannot forget it.

The 1927 opinion is linked here. (Mike Frisch)

May 16, 2024 | Permalink | Comments (0)

Continued Practice Draws Sanction

A six-month suspension with terms was imposed by stipulation by the Virginia State Bar Disciplinary Board for misconduct that took place after the attorney began public employment

As a condition of employment with the Prince William County OCA, Respondent was prohibited from remaining m private practice and representing individuals. Respondent did not alert the Prince William Commonwealth Attorney's office that he continued in private practice during his employment.

Notwithstanding his employment with the Prince William OCA, Respondent did not remove the Prime Law website. In fact, on February 10, 2022, nearly two years after joining the Prince William County OCA, the Prime Law website was auto renewed.

Prior to February 18,2020, the date which Respondent began working as an ACA with the Prince William County Office of the Commonwealth Attorney, three individuals retained Respondent to represent them in immigration matters.

The misconduct involved both the continuing representation and ethics violations in the matters. (Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Fitness Requirement Imposed

The District of Columbia Court of Appeals imposed a 30-day suspension with fitness based on findings of failure to maintain records, commingling and serious interference with the administration of justice.

The court noted with respect to proceedings below

On the issue of sanction, the Hearing Committee found that Mr. Doman did not knowingly misrepresent any fact in his testimony. Based on the sole violation it viewed as having been established, the Hearing Committee recommended that Mr. Doman be reprimanded.

In a concurring opinion, two members of the Hearing Committee were very critical of the Office of Disciplinary Counsel in general and the Office’s handling of this case in particular.

And

On the issue of sanction, the Board found as an aggravating factor that Mr. Doman gave intentionally false testimony to the Hearing Committee when he claimed that the transaction spreadsheet was created by TD Bank. Considering all of the circumstances, the Board recommended that Mr. Doman be suspended from the practice of law for thirty days.

Finally, the Board expressed the view that the concurring opinion of the Hearing Committee was “gratuitous,” “improper[,] and wholly unhelpful.”

The court rejected Respondent's various claims

Mr. Doman raises an extensive array of challenges to Disciplinary Counsel’s handling of the investigation that led to the disciplinary charges against him. Among many other things, Mr. Doman argues that Disciplinary Counsel (1) lacked authority to further investigate an overdraft that was the bank’s error; (2) “illegally” subpoenaed trust account records from the bank; (3) impermissibly directed interrogatories to Mr. Doman during the investigation; (4) made unreasonable demands for “privileged and confidential” documents; (5) retaliated against Mr. Doman when Mr. Doman refused to comply with unreasonable demands for documents and information; and (6) lacked probable cause to bring any charges against Mr. Doman, instead bringing charges that were “not supported by any evidence.” We see no adequate basis for those arguments.

Ultimately

given that we uphold a number of the charges brought by Disciplinary Counsel, we obviously do not agree with Mr. Doman that all of the charges were “not supported by any evidence.”

False testimony

As the Board explained, Mr. Doman repeatedly testified that the bank had created the spreadsheet, so Mr. Doman’s testimony on that point was not a temporary memory lapse or an inadvertent slip of the tongue. Moreover, Mr. Doman was in a position to know whether he or the bank created the document, and there is no suggestion that he had any reason to be confused on the point or to have suffered a memory lapse. Under the circumstances, we conclude that there was substantial support in the record for the Board’s finding by clear and convincing evidence that Mr. Doman’s testimony to the Hearing Committee about the spreadsheet was intentionally false.

Fitness requirement (not sought by Disciplinary Counsel or recommended by the Board)

Three considerations, taken together, lead us to conclude that a fitness requirement is warranted in this case. First, as the Board noted, Mr. Doman has not shown any appreciation for the wrongfulness of his conduct. Mr. Doman’s lack of appreciation for the wrongfulness of the conduct has continued before this court. Although we view some of Mr. Doman’s arguments before this court as reasonable, many other of Mr. Doman’s arguments before this court do not seem reasonable. See generally, e.g., In re Lattimer, 223 A.3d 437, 453 (D.C. 2020) (per curiam) (stating that respondent’s “failure to acknowledge wrongdoing and accept responsibility pervades his arguments to this court”). Mr. Doman’s “adamant refusal to accept responsibility” is an important factor providing support for imposing a fitness requirement. Id.; see also Bailey, 283 A.3d at 1211 (stating that whether attorney recognizes seriousness of misconduct is factor to be considered in determining whether to impose fitness requirement).

Second, we have upheld the Board’s finding that Mr. Doman gave intentionally false testimony before the Hearing Committee. As we have emphasized, “an attorney who presents false testimony during disciplinary proceedings clearly does not appreciate the impropriety of his or her conduct.” Cleaver-Bascombe, 892 A.2d at 412 (brackets and internal quotation marks omitted). That conduct too provides substantial support for imposition of a fitness requirement. See, e.g., In re Bradley, 70 A.3d 1189, 1196 (D.C. 2013) (per curiam) (imposing fitness requirement where respondent gave intentionally false testimony to Hearing Committee; “[T]his court has been especially supportive of fitness requirements when a respondent’s conduct evinces indifference (or worse) toward the disciplinary procedures by which the Bar regulates itself, such as intentionally misleading Bar Counsel during its investigation.”) (brackets and internal quotation marks omitted).

Third, we have upheld the Board’s determination that Mr. Doman seriously interfered with the administration of justice by unreasonably refusing to provide documents and information in response to Disciplinary Counsel’s subpoenas and written questions. That conduct also provides substantial support for imposition of a fitness requirement. See, e.g., Naegele, 225 A.3d at 995 (“In the District of Columbia, the failure to cooperate with Disciplinary Counsel is its own form of misconduct, because of the deleterious effect of withholding potentially important evidence and the failure to respect the investigatory and fact-finding authority vested in the Board on Professional Responsibility. . . . [W]hen an attorney fails to respond to a request for information from Disciplinary Counsel without asserting in writing the grounds for such refusal . . . that attorney has violated Rule 8.4(d) of the D.C. Rules of Professional Conduct . . . . Typically, the sanction for such misconduct is a 30-day suspension, with a fitness requirement for reinstatement.”).

Associate Judges McLeese, Shanker and Howard were on the per curiam opinion.

Notably - or regrettably - the bar investigation involved two docketed matters that were commenced in 2010 and 2012.

Postscript on the set-to below

The Board report is linked here.

While we find no bias reflected in the Hearing Committee’s report and recommendation, the concurring opinion’s discussion of personal views and extrajudicial facts is improper and wholly unhelpful. Discussion of facts outside of the record cannot be allowed to affect decisions in a disciplinary proceeding. Here, we do not find that the concurring opinion’s discussion of personal views and extrajudicial facts affected the Hearing Committee’s findings. But even such gratuitous discussion risks the perception and, as demonstrated here, invites express allegations of bias in favor of one party or another that can undermine confidence in the disciplinary system.

The Hearing Committee report's concurring opinion observation

While it may be presumptuous to say this, I know it to be a widely held view of members of our Bar that Disciplinary Counsel is difficult to deal with and overzealous in pursuit of minor transgressions and mere mistakes. The disciplinary system, in the opinion of this longtime member of the Bar and the Hearing Committee, should be designed to find the truth and to protect the public, but also to be respectful of the members of the Bar who come into its processes. In this regard I would hold Office of Disciplinary Counsel with its fuller understanding and experience with the system, to a higher standard of conduct in disciplinary proceedings, than Respondents who are at a disadvantage in navigating through the difficulties of defending themselves while conducting a separate workload on behalf of clients.

(Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)