Legal Profession Blog

Unsettled

The Wyoming Supreme Court remanded a legal malpractice case that the district court concluded had been settled

Patricia Kappes filed a legal malpractice lawsuit against Diana Rhodes after Ms. Rhodes failed to timely file an application with the Wyoming Medical Review Panel and a wrongful death lawsuit pertaining to the death of Ms. Kappes’ mother. Ms. Rhodes counterclaimed for breach of contract, alleging she and Ms. Kappes had entered into a valid and enforceable agreement to settle the legal malpractice claim for $100,000 which Ms. Kappes breached by filing suit. The district court granted summary judgment in favor of Ms. Rhodes on her counterclaim. Because there is a genuine issue of material fact as to whether the parties entered into a lawfully enforceable settlement agreement, we reverse and remand.

The defendant agreed to investigate the claim but

Ms. Rhodes discovered she had mis-calendared the statute of limitations as February 15, 2017, rather than February 5, 2017. She contacted ALPS Property & Casualty Company (ALPS), her legal malpractice carrier, and spoke with Christopher Fagan, a claims adjuster and licensed attorney, about a potential legal malpractice claim against her for mishandling Ms. Kappes’ claim. According to Ms. Rhodes, Mr. Fagan told her to send him her file and to tell Ms. Kappes ALPS would be contacting her. Thereafter, Ms. Rhodes held a telephone conference with Ms. Kappes and Dr. Bonnie Randolph, Ms. Kappes’ niece and Ms. Tanner’s granddaughter, and informed them her legal malpractice carrier would be contacting them. Ms. Kappes “figured it out right then and there [Ms. Rhodes committed] malpractice when she missed the deadline.” After she did not hear from the insurance carrier for over a week, Ms. Kappes called Ms. Rhodes’ office and obtained Mr. Fagan’s contact information.

Fagan offered $25,000

On May 1, 2017, she called Mr. Fagan and told him she believed the case was worth $100,000. Mr. Fagan informed Ms. Kappes he believed $100,000 was reasonable. He told her he would confirm the amount with other attorneys at ALPS and send her release forms for “all [her] relatives.” He also reminded her she could contact an attorney.

Rather than effectuate the settlement, Kappes hired counsel and sued.

No enforceable settlement agreement on this record

Viewing the facts in the light most favorable to Ms. Kappes, we conclude a genuine issue of material fact exists regarding whether the parties entered into a lawfully enforceable settlement agreement.

(Mike Frisch)

"Where's MY CA$H?"

The District of Columbia Office of Disciplinary Counsel has filed a specification of charges alleging that a (deleted ) Twitter post violated a sealing order in a United States District Court civil matter.

The attorney had been awarded a fee

In a sealed order entered on July 12, 2019, the court approved a settlement in Ms. Cobb’s case. WMATA agreed as part of the settlement to pay $5,000 directly to Respondent as attorney’s fees. Respondent did not request this payment, but Mr. Regan negotiated it with WMATA to ensure that Respondent was compensated for the work she performed. The $5,000 was not deducted from the settlement amount.

The alleged tweet

On or about July 30, 2019, Respondent, using the handle @DJacksonNBRC (with the associated name “Darlene Jackson, GOP”), publicly posted the following on Twitter in a single, since-deleted tweet:

a. Excerpts from the court’s sealed order,
b. Emails from WMATA’s attorney,
c. A picture of WMATA’s attorney,
d. A news article regarding Ms. Cobb’s death, and
e. The words “Where’s MY CA$H [sic]”.
The tweet tagged the Twitter accounts of several high-profile personalities, including then-President Donald Trump, then-First Lady Melania Trump, and U.S. Senator Marsha Blackburn, as well as several major news outlets, including ABC, NBC, CBS, CNN, The Washington Post, and The Hill.

WMATA’s attorney learned of Respondent’s Twitter post and informed chambers.

The district court ordered a show cause hearing

At the show cause hearing, Respondent conceded publicly posting portions of the sealed order on her Twitter account. Respondent referenced WMATA’s alleged delay in paying her the $5,000 when the court asked why she posted the tweet. Respondent also represented that she had removed the Twitter post. The court decided not to institute criminal contempt proceedings.

The District Court's grievance committee referred the matter to ODC, which has now charged the attorney with knowing disobedience of a court order and failure to cooperate in the ODC investigation. (Mike Frisch)

Out In Pioneer Land

The Utah Supreme Court characterized an attorney's opposition to reciprocal discipline from Indiana as a "rambling diatribe" in imposing a one-year suspension

Bernacchi’s briefing repeatedly stoops to name-calling and motive-questioning. See, e.g., Brief of Appellant at 40 (calling OPC staff “Nazis”); Reply Brief of Appellant at 22 (“[T]he leadership of the Utah State Bar and the OPC . . . can’t see or shoot straight out there in pioneer land.”); Brief of Appellant at 16 (characterizing the OPC’s efforts as “gaslighting the third district court judge, this Court, and [Bernacchi]”); id. at 26–27 (asserting that the Indiana disciplinary commission “tricked” and “entrapped” him and engaged in racial bias against him); id. at 28 (characterizing the December 2020 summary judgment hearing as a “sham”); id. at 29 (calling this disciplinary action “pure harassment”); id. at 30 (asserting that OPC “lied” to Judge Corum and engaged in “actual fraud”); id. at 32 (stating that Judge Corum “retaliated” against him for leaving the summary judgment hearing by entering default judgment); id. at 45 (asserting that Judge Corum was “over-focused on his agenda-driven, rigged-justice ‘performance art’”); id. at 53 (stating that Judge Corum “acted[] above the law” and “had been improperly influenced by [OPC]”).

The court here affirmed the district court

We can assume (without deciding) that the district court may have erred in entering a default judgment on this record. That still would not be a basis for reversal. Any such error is harmless given that the district court proceeded to provide an independent, adequate basis for imposition of a reciprocal sanction against Bernacchi on the merits. For that reason, we affirm despite our misgivings with the manner in which the district court arrived at its alternative assertion that it was treating Bernacchi’s misconduct as a basis for a default judgment.

(Mike Frisch)

Strike Two

The California State Bar Court Review Department denied a second reinstatement attempt to an attorney who leaked grand jury transcripts in a high profile criminal matter

On February 27, the prosecution agreed to provide the defendants with a copy of the grand jury testimony of various professional and amateur athletes, including Tim Montgomery, Jason Giambi, Barry Bonds, and Gary Sheffield. Ellerman agreed during a court hearing that production of the grand jury transcripts would be subject to a stipulated protective order.

He signed the protective order but

In June 2004, Ellerman willfully disobeyed Judge Illston’s protective order by allowing Mark Fainaru-Wada, a reporter for the San Francisco Chronicle (Chronicle), to take verbatim notes of Tim Montgomery’s grand jury testimony.

He denied in court pleadings that he was the leaker

In November 2004, while the motion to dismiss was pending, Ellerman again willfully disobeyed the protective order. This time he allowed Fainaru-Wada to take verbatim notes of the grand jury testimony of Jason Giambi, Barry Bonds, and Gary Sheffield, which the reporter published in the Chronicle. Ellerman also gave the reporter a copy of Barry Bonds’s testimony.

He denied it to the FBI and was convicted of a contempt, false declaration and obstruction of justice

On July 12, 2007, United States District Court Judge Jeffrey S. White sentenced Ellerman to 30 months of incarceration and three years of supervised release with conditions, including that he undertake 10 law school presentations on ethics.

An issue

Also in 2010, Ellerman wrote a book titled Forging Iron, which was published in 2011. Ellerman authored the book as a memoir, in which he stated his motivations for violating the protective order and releasing the grand jury transcripts. In Forging Iron, he claimed that he chose to break the law for the sake of exposing the truth about performing enhancement drug use in professional baseball and the federal government’s inconsistent claim that it was cleaning up professional sports while not going after the athletes using those drugs. Ellerman justified his criminal conduct as a solution to injustices in professional baseball.

Not ready to return to practice

We must view Ellerman’s rehabilitation in light of the moral shortcomings that preceded his resignation. Ellerman’s numerous and egregious acts involved significant deceit. He violated a court order by disseminating confidential grand jury transcripts and spent two years engaging in multiple lies to cover up his acts. He tried to leverage his lies to his advantage by misleading a federal judge and filing multiple pleadings that falsely blamed the government for the leaks. Ellerman also attempted to shift blame to Conte and remained silent while Chronicle reporters faced contempt charges due to Ellerman’s misconduct. He lied to FBI agents on multiple occasions, and it was only after he was confronted with the recording that exposed his lies that he admitted guilt. Ellerman’s actions struck a terrible blow to the integrity of the judicial system and the credibility of the legal profession—in sum, Ellerman’s past misconduct was reprehensible.

(Mike Frisch)

Under The Banner Of Hope

The Iowa Supreme Court has affirmed  and reversed in part and remanded a fee fight among attorneys but split 4-3 on whether the firm that received the funds had converted them by violating the ethical rule on safekeeping disputed funds

The Hope Law Firm agreed to represent a client in a contingent-fee case. Lawyer James Larew had an of-counsel arrangement with the Hope Law Firm and agreed to work on the client’s case in exchange for a portion of the firm’s fee. But during the course of the case, Larew’s relationship with Andrew Hope (the Hope Law Firm’s owner) soured, and Larew and the firm ended the of-counsel arrangement. Larew nonetheless continued to work on the case, ultimately winning a large judgment at trial. Litigation ensued over the disposition of the fee. In this appeal, we address a bevy of claims in “the lawsuit after the lawsuit” between dueling lawyers.

The complicated history of the fee situation is set forth at length

We recognize, as an initial matter, that this appeal presents a civil action and not an attorney disciplinary case, and for that reason our analysis concentrates on the legal issues that the parties have brought before us. But we would be remiss in failing to note—indeed, to underscore—that Iowa Rule of Professional Conduct 32:1.4(b) imposes an unequivocal duty on lawyers to explain matters to their clients “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Both Larew and Hope failed to inform Anderson of Larew’s separation from the Hope Law Firm, either when it happened or in the many months after and through the trial. Had Larew or Hope actually fulfilled this ethical duty, the client would have been permitted to decide with whom and on what terms it would continue the representation—consistent with the client’s role and right. The clarification in responsibilities and compensation that likely would have flowed from that required disclosure (lawyer ethics rules operating, as they often do, to the benefit of both lawyer and client) almost certainly would have avoided many of the disputed issues over which they’ve battled in this case.

The court upheld the lower court's fee calculation but reversed the finding that the Hope firm successor is not liable

We...reverse the district court’s ruling and hold that Hope Law Firm & Associates, P.C., is a successor entity to Hope Law Firm, P.L.C., and liable for the judgment entered in this case.

Larew claimed conversion, relying on Rule 1.15, a contention the court majority rejected

Assuming (without deciding) that an argument creating a property interest based on rule 32:1.15 has been preserved, consideration of a different ethics rule, rule 32:1.5, supports the district court’s rejection of Larew’s conversion claim. That rule restricts lawyers’ ability to divide fees on a case when they are not in the same firm. Iowa R. Prof’l Conduct 32:1.5(e). Fees divided among lawyers in different firms must be split “in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation,” and the client must “agree[] to the arrangement, including the share each lawyer will receive” with that agreement “confirmed in writing.” Id. Larew unquestionably operated as of-counsel within the Hope Law Firm while the of-counsel agreement remained in effect, thus making a separate fee agreement between Larew and the client unnecessary under the rule. Larew and Hope, in other words, were not serving under the banners of separate firms but were working on the case as members of one firm: the Hope Law Firm. Plenty of evidence in the record supports this, including the of-counsel agreement itself, Larew’s inclusion on the Hope Law Firm’s letterhead and website, and the agreement to split fees untied to the actual amount of work that each lawyer would actually perform on the case (e.g., Larew would be doing the lion’s share but receiving less than half (40%) of any recovery).

When Larew and Hope ended the of-counsel arrangement, neither one contacted the client to set up a new arrangement that would split their fee between two different firms. We must construe an attorney’s conduct as consistent (not inconsistent) with the requirements of our ethics rules unless proved otherwise.

Dissent in part by Justice Waterman

I join the majority opinion except as to part IV and on the issue of the availability of punitive damages. In my view, Iowa Rule of Professional Conduct 32:1.15 required Andrew Hope and his law firm not to take into income—but instead to disburse—funds that were indisputably owed to a separate law firm, James Larew’s firm. The breach of that duty could support a conversion claim for which punitive damages are allowed. The district court erred by failing to apply that rule. I would reverse the district court ruling on Larew’s conversion and punitive damages claims and remand the case to apply the proper standard.

Application of Rule 1.15

Every court to reach the issue has held this rule applies to fee disputes between co-counsel in separate firms.

...Hope can’t avoid rule 32:1.15 by arguing Larew was like an associate in the Hope Law Firm. For one thing, by the time the funds were paid to Hope, the parties had already terminated the of-counsel agreement and clearly were in separate firms. Even while the of-counsel agreement was in effect, Larew was never an employee of Hope Law Firm, and his compensation was specific to each case on which the parties worked together and based only on the receipts for that case. Moreover, the majority can’t consistently say that Hope and Larew had an ethical duty to inform the client of their fee-splitting arrangement and then maintain elsewhere in the opinion that Hope and Larew were part of the same firm.

Hope offered no valid reason for failing to keep the disputed funds separate as required by the rule. Hope admitted Larew was entitled to $130,000 to $150,000. Instead of promptly paying Larew what he owed as required by rule 32:1.15(d), or escrowing the disputed funds until the dispute was resolved as required under rule 32:1.15(e), Hope wrongfully diverted and then retained Larew’s share in the firm’s general account.

Rule 32:1.15 effectively provides Larew with a security interest in his share of the funds recovered in the lawsuit. Hope can’t avoid conversion liability by commingling the lawsuit proceeds in his general account to argue the money is no longer identifiable. We can follow the money to which Larew’s interest attached under rule 32:1.15.

Chief Justice Christensen and Justice Mansfield  joined the concurrence in part and dissent in part. (Mike Frisch)

Gender Bias Claims Do Not Warrant Judge's Disqualification

The Ohio Supreme Court (C.J. O'Connor)  denied an application of judicial disqualification in a divorce matter .

One allegation

Ms. Ansbro alleges that Judge Leach’s actions in two prior cases demonstrate his disdain for her and female litigants. Regarding the first of those matters, she argues, the judge exhibited bias in several different ways, including by scheduling trial immediately after her return from parental leave, which required her to prepare for trial during her leave time, and by denying her and her female client’s requests to continue certain days of the trial due to family and medical issues. Ms. Ansbro further alleges that during one day of the trial, Judge Leach berated her regarding her presentation of certain evidence and demanded that she create a spreadsheet summarizing the evidence for him by the following day. Ms. Ansbro says that at the time, she was breastfeeding every two hours and that Judge Leach nonetheless denied her requests for additional time to create the summary for him. Regarding the second matter, Ms. Ansbro alleges that the judge attempted to proceed without the presence of an interpreter for a female litigant who did not speak English and that Judge Leach again berated Ms. Ansbro during that proceeding.

The judge's response

Judge Leach asserts that in the first matter, he scheduled trial for after Ms. Ansbro’s parental leave had ended and for a date agreed to by counsel. He also says that he made several accommodations for Ms. Ansbro and her client during trial, and he has explained why he initially denied their requests for continuances before he ultimately granted them. The judge acknowledges that in an attempt to move the case forward, he admonished Ms. Ansbro—outside the presence of her client—for poor organization of her trial notebooks and suggested that she prepare summary pages for the court. Regarding the second matter, Judge Leach says that without a transcript, he cannot recall the exact details of the case, but he believes he would not force any party to go forward without an interpreter.

The court

Here, Ms. Ansbro has offered her affidavit and a few emails to support her claims of gender bias, even though many of them, if true, could have been substantiated by transcripts or other evidence—including her allegations that the judge had berated her in two prior cases. For his part, Judge Leach has thoroughly addressed each allegation and denied that he acted improperly or in a biased manner. A “presumption of impartiality” is accorded all judges in affidavit-of- disqualification proceedings.

Justice O'Connor reached the same result in an unrelated pending murder case

A judge’s isolated comments made during or at the end of a lengthy trial are generally insufficient to prove that the judge is biased or prejudiced. A trial judge will often conduct proceedings with an eye toward preserving a complete record for appeal, and nothing here suggests that Judge Holbrook’s comments in this regard demonstrate bias or prejudice or give the appearance thereof. Likewise, the judge’s use of the terms “victims” and “murder,” while unfortunate, does not warrant his disqualification. Judge Holbrook says that these terms were spoken in error, and nothing in the record undermines that assertion or the judge’s ability to ensure that the parties receive a fair trial. See In re Disqualification of Ambrose, 110 Ohio St.3d 1220, 2005-Ohio-7154, 850 N.E.2d 722, ¶ 5.

There is, however, the allegation that Judge Holbrook referred to the defendant as “the killer.” Judge Holbrook admits that during an in-chambers meeting with counsel, he “sarcastically” referred to the defendant as “The killer, Dr. Husel.” The judge maintains that he immediately regretted the comment and advised those present of his regret. Before this court, Judge Holbrook states that he recognizes that his comment was in poor taste and incredibly insensitive, but he assures the court that notwithstanding that comment, his words and conduct do not reflect a manifestation of a preconceived notion of the defendant’s guilt or innocence, which, as he notes, are within the jury’s purview.

Judge Holbrook’s attempt at humor was ill-advised, and his comment was undignified and improper. The Ohio Code of Judicial Conduct requires that a judge be dignified and courteous to litigants and others that the judge deals within an official capacity. Jud.Cond.R. 2.8(B). That said, improper comments alone do not always reflect judicial bias or preclude a judge from fairly and impartially presiding over a case.

The opinion was issued on April 7 and released today.

WBNS 10 reported on the acquittal two weeks later

Former Mount Carmel Dr. William Husel was found not guilty on all 14 counts of murder after nearly two months of trial. 

Prosecutors alleged Husel's doses of fentanyl and other drugs hastened the deaths of the patients. Initially, on Monday, the jury told the judge they were at an impasse.

(Mike Frisch)

wifelovers.com

A three-year suspension by consent has been accepted by the Pennsylvania Supreme Court.

The attorney had registered accounts on a website called wifelovers.com on which he had posted approximately 44 items including approximately 24 posts of "either totally naked or partially clothed" photographs of his then-wife that had been taken without her knowledge and consent.

He included on one posting sexually graphic written comments, fantasies and "an invitation for others to engage in sexual acts with his then-wife." He denied that he intended these posts "to be acted upon."

The posts included information that "conceivably" could have led to her whereabouts. 

One post in which face was visible noted that she travels to California and Florida concluded "Hope you get a crack at her."

That post "elicited several responses from other users of the site..."

The then-wife discovered and was traumatized by the posts. She was placed in great fear for her safety as a result.

Respondent pleaded no contest to a misdemeanor unlawful dissemination of intimate images, was placed on probation and reported the conviction to the bar authorities. (Mike Frisch)

E-Filing Errors No Basis To Disqualify Counsel

The Arkansas Supreme Court reversed an order disqualifying an insurer's out-of-state defense counsel in COVID coverage litigation brought by the University of Arkansas

the [circuit] court ruled that Goldman’s pro hac vice admission was revoked because several of the exhibits filed in support of Travelers’ motion contained external hyperlinks to websites in violation of Arkansas Supreme Court Administrative Order No. 21, Section 9. The circuit court stated that these violations had “the ability to affect the integrity of the entire Arkansas judicial electronic filing system” and were “substantial and material violations of the Administrative Orders of the Arkansas Supreme Court.” Remaining local counsel were ordered to immediately remove all offending materials from their electronic filing and were given leave to file replacement exhibits, which Travelers did.

Too thin a reed

We agree that the circuit court abused its discretion by revoking Goldman’s pro hac vice admission. The circuit court did not find that Goldman had committed any violation of the Arkansas Rules of Professional Conduct. Instead, the circuit court, without giving notice to appellants or an opportunity for them to be heard, summarily concluded that the failure to comply with an electronic-filing provision warranted the disqualification of Goldman simply because he was listed as one of the signors of the motion. This ruling was a drastic measure that does not comport with the provisions in Rule XIV(g) regarding revocation of a nonresident attorney’s admission. Thus, we reverse the circuit court’s ruling disqualifying Goldman from representing Travelers and remand.

The court declined to consider issues relating to the exclusion of unvaccinated jurors. (Mike Frisch)

Slave Descendants Have Claim Against Harvard Reinstated

The Massachusetts Supreme Judicial Court has remanded the dismissal of a claim brought by a descendant of slaves against Harvard for use of photographic depictions of her ancestors.

The oral argument is linked here from Suffolk Law's web page. 

Editor's note: Benjamin Crump's pro hac vice argument is nothing short of brilliant. A model of effective appellate advocacy.

The court

In 1850, the Harvard professor Louis Agassiz arranged to have daguerreotypes made of Renty Taylor and Delia Taylor, who were enslaved on a plantation in South Carolina. Renty was ordered to disrobe. His daughter, Delia, was stripped naked to the waist. Their images were then captured in four daguerreotypes. These daguerreotypes were later used by Agassiz in an academic publication to support polygenism, a pseudoscientific racist theory for which Agassiz, a prominent scientist, was a vocal proponent.

Identifying herself as a descendant of Renty and Delia Taylor, the plaintiff, Tamara Lanier, contacted Harvard University seeking recognition of her ancestral connection to Renty and Delia and requesting information regarding Harvard's past and intended use of the daguerreotypes. When the university dismissed Lanier's claim of descent from Renty and Delia and ignored her requests, continuing to use and display images of Renty without informing her, she brought this action against the defendants, the President and Fellows of Harvard College, the Harvard Board of Overseers, Harvard University, and the Peabody Museum of Archaeology and Ethnology (collectively, Harvard), seeking relief for emotional distress and other injuries, as well as restitution of the daguerreotypes to her.

A judge of the Superior Court granted Harvard's motion to dismiss, determining that each of the claims Lanier raised failed as a matter of law and that the facts as alleged in her second amended complaint did not plausibly suggest an entitlement to relief.

Because we conclude that the alleged facts, taken as true, plausibly support claims for negligent and indeed reckless infliction of emotional distress, we vacate the dismissal of the plaintiff's claim for negligent infliction of emotional distress and remand the case to the Superior Court to allow the plaintiff to amend her complaint to incorporate allegations of reckless infliction of emotional distress. The dismissal of Lanier's other claims, however, we affirm.

When the daguerreotypes were re-discovered

In 1976, the daguerreotypes were discovered in a wooden cabinet in a corner of the Peabody Museum's attic by a museum researcher. Although the researcher who made the discovery expressed concern for the families of the men and women depicted in the daguerreotypes, Harvard did not act on the researcher's concerns. Rather, it simply claimed the daguerreotypes as its property. The discovery itself attracted national media attention, as the daguerreotypes were believed to be the "earliest known photographs of American slaves."

The family connection was discovered fulfilling a dying wish of the plaintiff's mother as in the story of "Roots"

The plaintiff's mother, Mattye Thompson, often told the story of their family, which began with a man named Renty Taylor, also known as Papa Renty or "the Black African." Papa Renty was an indomitable man who defied slavery's tyranny by teaching himself and others to read and by conducting secret Bible readings and study on the plantation where he was enslaved. As a reminder to never forget the family history that began with Renty Taylor, Mattye Thompson repeatedly told her children and grandchildren, "Always remember we're Taylors, not Thompsons."

She brought her concern to the attention of then-President Drew Gilpin Faust ("a distinguished historian of the antebellum South and the Confederacy"), who advised her that the daguerreotypes were part of an "ongoing project" and that Harvard "agreed to be in touch..."

A broken promise.

Then

In 2017, Renty Taylor's image from one of the daguerreotypes at issue was used on the cover of the thirtieth anniversary edition of "From Site to Sight," a volume on anthropology and photography published and marketed by Harvard University Press. Harvard also used the image at a national academic conference it hosted on universities' historical connections with slavery in March of that year. At the conference, which the plaintiff attended with her own daughters, Renty's image was projected on a large screen onstage and was also featured on the front cover of the conference program, where it was accompanied by the following caption:

"The man you see on the program's front cover, Renty, lived and worked as a slave in South Carolina in 1850, when his photograph was taken for the Harvard professor Louis Agassiz as a part of Agassiz's scientific research. While Agassiz earned acclaim, Renty returned to invisibility."

According to the plaintiff's complaint, this description "took [her] breath away," not only because it omitted the "racist and dehumanizing" nature of Agassiz's work, but also because it "relegate[d] Renty to 'invisibility,'" in "flagrant disregard for [her] repeated attempts to share Renty's story and restore a measure of the humanity that Agassiz [had] stripped from him."

She then demanded that the daguerreotypes be "immediately relinquished" to her and sued when rebuffed.

Justice Cypher concurred and would keep an order to return the property on the table

The making of the daguerreotypes was a horrific harm to Renty and Delia, inflicted by their enslavers and by Louis Agassiz, a Harvard professor who ordered that the daguerreotypes be created. I agree with the court that the judge properly dismissed the specific property causes of action pleaded in the plaintiff's complaint based on our existing jurisprudence. However, if the plaintiff ultimately prevails on the surviving tort causes of action articulated by the court, the trial court will not be able to award the plaintiff with possession of the daguerreotypes, which was the plaintiff's primary reason for bringing suit...

Failing to recognize that the plaintiff, as a descendant of Renty and Delia, may have a claim to the daguerreotypes superior to Harvard's is precisely the sort of miscarriage of justice that the late Chief Justice Gants warned us against perpetuating. We are faced with an aggrieved plaintiff who has pleaded facts that, if proved, demand a full remedy and nothing less. It is within this court's authority to provide such remedy by recognizing the cause of action I have articulated today.

Notably, an amicus brief on behalf of the descendants of Louis Agassiz supports Ms. Lanier

We, the descendants of Louis Agassiz urge the Court to side with Ms. Lanier and we implore Harvard University, an institution with which our family has been intertwined for hundreds of years, to release the daguerreotypes to Ms. Lanier and provide the restitution she requests. We also call on the University to publicly apologize for the damage Agassiz and Harvard have done, not only to Ms. Lanier, but to generations of African-Americans. This gesture would begin an honest accounting of what is owed for Harvard’s historical support for slavery and elevation of Agassiz, who used his reputation and position at the university to enshrine the racist myth of white superiority...

As Ms. Lanier has said many times, it is because she grew up hearing stories about an enslaved ancestor, Papa Renty, or Congo Renty, that she began to uncover her relation to the man in the daguerreotype. Papa Renty’s efforts — and the oral history lovingly passed down through the generations to Ms. Lanier — have prevailed in heroic defiance of the legacy of chattel slavery, an institution that functioned to sever family ties and erase lines of ancestry for enslaved Africans. The history of our family, and that of Harvard, will forever be linked to that same odious institution. We do not choose our ancestry, but we can choose to learn from a history that has given us prestige, privilege and wealth at the expense of others. 

(Mike Frisch)

Driving While Naked Draws Ohio Indefinite Suspension

The Ohio Supreme Court has indefinitely suspended an attorney with a history of exposing himself, as explained by Dan Trevas

The Supreme Court of Ohio today indefinitely suspended a Hamilton, Ohio, attorney for repeatedly driving naked and exposing himself to other motorists.

In a per curiam opinion, the Supreme Court noted that Scott Blauvelt is in treatment for a bipolar disorder and has expressed remorse for his behavior. But the Court also noted that he still struggles with the urge to engage in his illicit behavior. To be reinstated to the practice of law in Ohio, Blauvelt will have to meet several conditions, including proving that he is in full compliance with his mental-health treatment plan and orders from the Butler County Area III Court.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the opinion. Justice Sharon L. Kennedy did not participate in the case.

Repeat Suspensions Issued for Public Indecency
During an October 2018 traffic stop, Blauvelt was charged with public indecency and reckless operation of a vehicle when it was discovered that he was driving nude. Blauvelt pleaded guilty to the charges. Based on the incident, the Supreme Court in June 2020 imposed a two-year, fully stayed, suspension. In that opinion, the Court noted Blauvelt has a history of public nudity. In 2006, when he was the Hamilton city prosecutor, security cameras recorded him naked after hours in the government building housing the prosecutor’s office. The city fired him.

Three months after his 2020 suspension, the Butler County Bar Association requested an interim remedial suspension on the grounds that Blauvelt was twice again arrested for nude driving and exposing himself, and that he posed a substantial threat of serious harm to the public. The Court issued an interim suspension, barring him from practicing law, which remains in effect.

Today’s suspension is based on a subsequent complaint filed by the Butler County Bar Association in June 2021, which alleged that Blauvelt had been convicted of three additional counts of public indecency since he was first suspended. Blauvelt pleaded guilty or no contest to all the charges. His sentences included fines, a total of 14 days in jail, and probation terms ranging from two to five years.

Blauvelt also admitted that he has engaged in other similar acts of public indecency for which he was not arrested.

Attorney Participates in Treatment, Counseling
The opinion noted that since his most recent conviction, Blauvelt has participated in the Butler County Area III Court’s mental-health court, and began a two-year outpatient treatment program for compulsive-sexual behavior. He continues to see a psychiatrist to treat his bipolar disorder.

Blauvelt previously testified before a panel of the Board of Professional Conduct that although he has mostly managed his bipolar disorder, alcohol abuse — more specifically, binge drinking — has at times diminished his ability to moderate his behavior. Blauvelt stated he had abstained from
alcohol since June 2019 and started attending Alcoholics Anonymous meetings.

At his most recent disciplinary hearing, Blauvelt testified that he does not want to engage in acts of public indecency, but wrestles with the urge to do so. He said he intended to complete his outpatient treatment program but acknowledged that his mental-health issues will likely persist throughout his life, and he may need to remain in treatment indefinitely.

The board found Blauvelt engaged in conduct that adversely reflects on his fitness to practice law. The board’s report to the Court indicated it was troubled by Blauvelt’s continued misconduct despite his previous discipline, and his knowledge that his conduct was causing harm to others.

The Court agreed with the board’s recommendation to indefinitely suspend Blauvelt “to protect the public and ensure that Blauvelt cannot resume the practice of law until he is able to conform his conduct to the ethical and professional standards incumbent on lawyers in this state.”

To be reinstated, Blauvelt not only must demonstrate proof of compliance with his treatment plan, but also must continue to abstain from consuming alcohol, and meet all the conditions imposed under his June 2020 suspension. If he is reinstated, he must serve a period of monitored probation. The Court also ordered Blauvelt to pay for the costs of the disciplinary proceedings.

2022-0149. Butler Cty. Bar Assn. v. Blauvelt, Slip Opinion No. 2022-Ohio-2108.

(Mike Frisch)

The Mask Of Disbarment

The Colorado Presiding Disciplinary Judge has approved a stipulated disbarment as set forth in this summary

In January 2021, a court entered default judgment against Bachar’s business, Empowerment Health LLC, in a civil case that included claims for breach of contract, negligent misrepresentation, and unjust enrichment. The plaintiff brought the claims after Empowerment failed to honor a purchase order with the plaintiff for N95 masks and thereafter refused to return the plaintiff’s initial payment for the masks. The court awarded the plaintiff damages of $700,000.00, plus interest and attorney’s fees. Bachar has not yet paid the awarded amount.

In another civil case involving other plaintiffs, Bachar and Empowerment defaulted on claims that included conversion and civil theft of more than $1,000,000.00 in Federal Emergency Management Agency-reimbursable funds paid to Empowerment by the State of Wisconsin. Bachar and Empowerment had agreed to transfer the funds to the plaintiffs as reimbursement for personal protective equipment that the plaintiffs had procured for and delivered to Wisconsin under an emergency purchase order during the COVID-19 pandemic. The funds were also meant to finance the acquisition and delivery of additional equipment to complete the emergency purchase order. In May 2021, the court entered a default judgment against Empowerment and against Bachar personally, resulting in their liability for nearly $4,000,000.00, which Bachar has not paid.

The conduct violated Rule 8.4(c). (Mike Frisch)

Litigation Financier Disbarred

A federal conviction drew disbarment from the New York Appellate Division for the First Judicial Department

Here, respondent's convictions under 15 USC §§ 78j(b) and 78ff were sufficient to trigger Judiciary Law § 90(4)(a)'s automatic disbarment provision.

This press release from the United States Attorney for the Southern District of New York described the offense

U.S. Attorney Audrey Strauss said: “Jaeson Birnbaum conned investors through a series of lies about his litigation finance business, Cash4Cases.  He used Cash4Cases to steal cash for himself and then tried to cover up his scheme by directing a subordinate to falsify books and records.  Now Birnbaum awaits sentencing for his fraudulent conduct.”

USPIS Inspector-in-Charge Philip R. Bartlett said: “Everything Mr. Birnbaum told his investors was a lie framed around the idea of a good investment.  Postal Inspectors see these cases all the time and remind investors to thoroughly check the fine print on any investment offer, and if the return seems too lucrative or unreal, pass it by to make sure your money goes to fund your lifestyle and not the criminal’s.”

According to the Information and statements made in Court:

From at least in or about 2017 through in or about 2019, BIRNBUAM obtained more than $3 million in investments for Cash4Cases based on fraudulent misrepresentations.  These investments were in the form of promissory notes, titled “Investor Security Agreements” (“ISAs”), which purported to provide the relevant investors with a security interest in the recoveries associated with certain specified lawsuits that were ostensibly purchased by Cash4Cases.  In fact, in some instances, the lawsuits that were either never funded by Cash4Cases or BIRNBAUM had previously pledged their recoveries to other parties.

To help carry out his fraud, BIRNBAUM directed an employee to falsify his company’s books and records to make it appear that the recoveries from lawsuits that had already been paid out were still available to be pledged as collateral to new investors.

BIRNBAUM also misappropriated a substantial portion of investors’ funds for his personal use and to make promised payments to earlier investors.  As one example, BIRNBAUM obtained a $1 million investment for Cash4Cases in September 2019.  Prior to this investment, BIRNBAUM told the investor that Cash4Cases would use the money exclusively for advances to litigants.  However, contrary to this representation, on the same date that Cash4Cases received the $1 million investment, BIRNBAUM used the money to send a $530,000 wire toward the purchase of a house in New Jersey.

(Mike Frisch)

The Bondsman's Toil

The Georgia Supreme Court has publicly reprimanded a circuit court judge

On July 5, 2019, the Athens Banner-Herald published an article about a defendant who had an outstanding bench warrant for failing to appear in court for the retrial of his rape charges. Judge Norris had presided over the first trial, which resulted in a mistrial, and released the defendant on his own recognizance. On that same day, Nathan Owens, a bail bondsman who works in Clarke and Oconee counties, reposted the story to his personal Facebook page and to a large Facebook group called “Overheard at UGA”; Owens included his thoughts of Judge Norris’s handling of the case and his opinion that the defendant should not have been released on his own recognizance. Owens’s post gained a lot of attention, eventually prompting Judge Norris to contact another bondsman, John Elliott, in an effort to get in contact with Owens. On July 9, at the suggestion of Elliott, Owens texted Judge Norris, and Judge Norris told Owens to meet him in his office at 9:00 a.m. the following morning.

On the morning of July 10, Owens went to the courthouse with Elliott and another bondsman, Scott Hall. When the trio arrived at Judge Norris’s chambers, an armed deputy took their cell phones. Judge Norris then arrived, visibly upset, and instructed Elliott and Hall to remain in the lobby while Owens went into Judge Norris’s office. A deputy stood in the only apparent doorway. With his lip quivering and hands shaking, Judge Norris instructed Owens to “sit down and listen to what I have to say.” In a raised voice, Judge Norris began reading from the statutory bondsman code of conduct, which he had printed out in preparation for the meeting. Becoming nervous, Owens requested to have his lawyer present, but Judge Norris ignored this request. Instead, Judge Norris allowed Elliott and Hall to come into his office, and Owens asked them to witness that he wanted to leave or have his attorney present. Owens felt that he was not free to leave, sat quietly, and did not respond to Judge Norris’s berating. Ultimately, Judge Norris went on for about 30 minutes, chastising and lecturing Owens, implying that Owens did not have “good moral character,” insinuating that Judge Norris had the power to affect Owens’s livelihood as a bondsman, and reprimanding Owens for attacking him online and spreading “fake news” about the rape case.

Owens filed a judicial complaint.

Sanction

While we are also unable to find a Georgia case where a respondent like Judge Norris exhibited planning or pre-meditation before his or her intemperate behavior, courts in other jurisdictions have imposed a range of sanctions against judges for acts of intemperance where the conduct required some planning, including public reprimand, censure, and suspension...

Here, Judge Norris’s violations were based on non-habitual conduct, with no evidence that he used vulgar language or engaged in any sort of physical altercation on the occasion in question. But Judge Norris’s deliberate and conscious planning of this confrontation is particularly problematic, as his misconduct was not the result of a sudden or brief loss of temper. In fact, Owens’s Facebook post was posted a full five days before the meeting with Judge Norris, Judge Norris had to reach out to another bondsman to get in contact with Owens, Owens and Judge Norris exchanged multiple texts to arrange the meeting, Judge Norris set the meeting in his chambers, during business hours, Judge Norris printed out the statutory bondsman code of conduct, and then Judge Norris delivered an angry 30-minute monologue in a raised voice while
Owens was required to sit and listen with an armed deputy standing in the doorway. Judge Norris also denied Owens’s request to leave or have an attorney present and intimated that Judge Norris could harm Owens’s position as a bail bondsman. Moreover, Judge Norris “offered various justifications for his meeting with Owens,” but the Panel found the testimony “inconsistent and contradicted by other evidence.” Panel Report at 10. Thus, unlike the judge in Hays, Judge Norris has not fully accepted responsibility for this incident.

The court declined to order the judge to apologize

Judge Norris’s failure to apologize to Owens on his own initiative suggests that a public apology compelled by this Court, even if permissible, would be insincere at best.

The worst, most intense chambers tongue-lashing I ever received was for being late for a chambers conference by District Judge C. Stanley Blair.

Still smarting after 47 years! (Mike Frisch)

Information Please

There are two bar discipline matters currently being live- streamed before District of Columbia Hearing Committees.

One case apparently involves alleged mishandling of a bankruptcy matter; the other apparently involves allegations of unauthorized communications with a represented person.

I say "apparently" because when one googles the names of the Respondents in both matters, the web page says as follows

"0 results"

The Specification of Charges in both matters are public records that should be readily available to any interested observer.

Transparency fails when a bar web page has significant gaps in posting information concerning matters of public interest.

My many years of pointing out this issue to the responsible persons have made me the Cassandra of the D.C. Bar.

Update: The charges are now posted in both matters. (Mike Frisch)

Difficult Duty

The Oklahoma Supreme Court has disbarred an attorney

Priors

The respondent was admitted to the practice of law in Oklahoma in 1997. He is a solo practitioner in Sapulpa, Oklahoma. In 2005, the Court suspended the respondent for one year from the practice of law for:

1) having a sexual relationship with a client during a divorce representation;
2) sending a threatening letter to the husband's divorce counsel;
3) threatening counsel with litigation for filing a grievance against him;
4) commingling and converting a client's retainer; and
5) failing to respond to the Bar regarding a grievance.

Although it is not clear precisely how many, the record reflects that the respondent has had other informal complaints previously filed which resulted in diversionary classes relating to client neglect, communication, and law office management, along with at least two letters of admonition. On May 24, 2022, the Court suspended the respondent for noncompliance with mandatory continuing legal education requirements for the year 2021.

The opinion in the 2005 matter is linked here.

There were three counts in the present matter

The first grievance concerns loan and business transactions with a client. In November of 2008, the respondent borrowed $130,000.00 from his client, Ken Robertson, for the purchase and remodeling of an office building in Sapulpa. The respondent did not make timely payments on the loan. On March 5, 2009, the respondent received a settlement check on Robertson's behalf from the sale of land in Texas, deposited the check in his IOLTA account, and without the client's knowledge, "borrowed" another $80,000.00 from the settlement funds.

Subsequently, the respondent confessed to the client that he had taken the funds, and in November of 2009, the respondent executed a new loan agreement for $95,000.00 to memorialize the promise to repay the funds taken without permission. The combined amount of funds which the respondent owed the client was now $205,726.96. The respondent again failed to make the required, regular payments.

The client hired new counsel to collect and filed a bar complaint; the client died in 2020.

A second grievance involved a client seeking to expunge a criminal record.

And

Ronald Gilmore hired the respondent in May of 2012 to file a probate after Gilmore's daughter and son-in-law were killed in a car crash. The decedents left behind Gilmore's five-year-old granddaughter. Respondent filed the probate in Payne County on April 3, 2012, but, according to Gilmore, the respondent failed to timely resolve the matter, and failed to communicate with him thereafter. The respondent admitted that the case took too long, but blamed part of the delay on strategy of allowing a foreclosure of the decedent's real property first to protect the assets of the estate. After years of unexplained and unreasonable delay, Gilmore fired the respondent in July of 2019, and hired another lawyer. The matter was then resolved in about a year.

The court cited its "difficult duty to withdraw the license to practice law" when required to protect the public and uphold the integrity of the profession. (Mike Frisch)

Forum Shopping Claim Rejected In Defamation Action

The United States District Court for the District of Columbia denied efforts of OAN to dismiss the defamation claims of Smartmatic and the remove the case to a California federal court

In November 2021, Smartmatic filed this lawsuit, claiming that OAN made numerous statements actionable as defamation about Smartmatic and the company’s role or lack thereof in the election.

Venue

OAN also notes that Smartmatic appears to be engaged in forum-shopping, striving to avoid a jurisdiction with an anti-SLAPP provision. See OAN’s Reply at 8; see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made A Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 YALE L.J. FORUM 708, 712 (2021) (discussing the advent and evolution of anti-SLAPP provisions). The Court’s exercise of specific personal jurisdiction over OAN comports with the requirements of the Due Process Clause. Indeed, if § 13-423(a)(1) has been satisfied then any added requirement emanating from the Due Process Clause has been satisfied, too. See GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). And although forum-shopping is not a trivial concern, a plaintiff may pick the forum and venue so long as the law allows it.

District Judge Nichols authored the opinion. (Mike Frisch)

"I Had No Role"

An attorney who used a Morris Bart LLP colleague's name and bar number in an Illinois proceeding should be suspended for six months with five months stayed, according to a recent recommendation of the Louisiana Attorney Disciplinary Board.

Respondent and Mr. Lubecki are not social acquaintances, and they have not worked together on any cases at Morris Bart, LLC.

Respondent is licensed to practice law only in Louisiana. Mr. Lubecki is licensed to practice law both in Louisiana and Illinois.

Respondent named Mr. Lubecki as counsel in state court litigation against Abbott Labs without permission or authority.

Communication between them ensued after Mr. Lubecki got notice of a proposed removal of the case to federal court.

Eventually

Mr. Lubecki...responded to Respondent's January 24, 2019 email: "Rick, My role? I had no role. There was no discussion. You forged my signature and filed a lawsuit in my name without my knowledge or consent." During his sworn testimony, Mr. Lubecki explained why he responded this way: "[Respondent] admits to certain things in this email, but sort of the big elephant that's missing from this is the fact that he never had permission to do any of this .... [Respondent] never mentions the crux of what this is about, which is his fraud filing of this petition without permission. And so that angered me, so I just responded as I did."

Morris Bart, LLC hired its own counsel to review Respondent's conduct regarding the Litigation. That counsel prepared a draft recommended self-report for Respondent to submit to the ODC. Respondent thereafter chose not to self-report his misconduct to the ODC.

Mr. Lubecki made the ODC report.

Sanction

Mr. Root is charged with a single instance of false representation to the court and the other parties in the Illinois litigation. His conduct did not cause harm to a particular client, rather he caused potential harm to the legal system and the profession. Given the above case law, and considering the totality of the circumstances of this matter including his lack of a disciplinary history, the Board concludes that a six-month suspension, with five months deferred is the appropriate sanction for Respondent’s misconduct.

(Mike Frisch)

Marital Criming Was Protected

The New Jersey Supreme Court has held that the marital communications privilege was not (as is the attorney-client privilege) subject to the crime-fraud exception prior to a legislative enactment

In this appeal of defendant Ashley D. Bailey’s conviction of two counts of second-degree official misconduct, we determine whether the crime-fraud exception to the marital communications privilege governed text messages that defendant exchanged with her husband on September 16, 2014 -- after the Court proposed the exception, but before the Legislature enacted it into law.

The trial court held that the crime-fraud exception properly applied to the text messages without raising ex post facto concerns and admitted the messages into evidence at defendant’s trial. The Appellate Division affirmed.

We disagree that the crime-fraud exception can be properly applied to marital communications that preceded the Legislature’s amendment of N.J.R.E. 509. We find no evidence that the Legislature intended that amendment to retroactively apply to otherwise privileged marital communications that occurred prior to that amendment. We therefore hold that the trial court’s admission of the text messages constituted error. However, we view that error to be harmless given the extensive evidence presented by the State in support of defendant’s official misconduct convictions.

Accordingly, we modify and affirm the Appellate Division’s judgment.

(Mike Frisch)

"Cases Of Public Interest"

The District of Columbia Bar has a new link on its discipline web page to "Cases of Public Interest"

First and only case listed is In re Rudolph Giuliani.

Respondent is represented by Barry Kamins and John Leventhal of Aidala, Bertuna and Kamins.

An order entered by the Ad Hoc Hearing Committee on June 13 extends the time for Respondent's answer to the charges to July 15, 2022.

The order is signed by Committee Chair Robert Bernius, a former Chair of the Board on Professional Responsibility. (Mike Frisch)

Mental Health Question May Be Axed In Ohio

An announcement on the web page of the Ohio Supreme Court

Two proposed changes to the rules governing the process of assessing the character and fitness of candidates for admission to the practice of law in Ohio are now open for public comment.

The Supreme Court of Ohio is accepting comments until July 25 on the standards used by admission committees conducting character investigations into those who have applied to be members of the Ohio bar. The changes contain two modifications of the Supreme Court Rules for the Government of the Bard of Ohio, Rule I, Section 13.

Under Section 13(D)(3), an applicant may be approved for admission if the applicant’s record of conduct justifies the trust in clients, adversaries, courts, and others with respect to the professional duties owed to them. Admission committees consider several factors before making a recommendation about the applicant’s character, fitness, and moral qualifications.

The proposed rule amendment eliminates one of those factors: “Evidence of mental or psychological disorder that in any way affects or, if untreated, could affect the applicant’s ability to practice law in a competent and professional manner.”

The change reflects reports that  law students across the nation are not seeking mental health assistance in law school due to concerns regarding the ramification of disclosure during the character and fitness process.

The Conference of Chief Justices has passed Resolution 5, urging jurisdictions to eliminate of questions about mental health diagnosis and focus solely on conduct or behavior that calls into question the applicant’s character and fitness to practice law. The prosed rule amendment does not mean that mental or psychological disorders are never relevant to the process, just that the applicant must have engaged in conduct or behavior that calls into question the applicant’s ability.

The Court also proposes to modify Section 13(D)(6), which includes a list of factors admission committees shall not consider because they “do not directly bear on a reasonable relationship to the practice of law. The proposed list removes the factor of “sex,” and adds “gender, sexual orientation, and marital status,” to the list that includes age, race, color, national origin, and religion.

Comments on the proposed amendments should be submitted in writing no later than July 25, 2022. Comments made by mail or emailed to:

Gina Palmer, Attorney Services Division Director
Supreme Court of Ohio
65 South Front Street, 5th Floor
Columbus, Ohio 43215-3431
or
Gina.Palmer@sc.ohio.gov

Email submissions should include your full name and mailing address.