Saturday, February 24, 2024

Conflicts Draw Suspension

The British Columbia Law Society Tribunal Hearing Division has ordered an eight-month suspension for conflicts of interest

The Panel acknowledges that there are and will be instances when determining potential conflicts of interest before agreeing to act as counsel may be difficult, but that cannot be said to apply to the Respondent’s four acts of professional misconduct when acting for both parties in the loan transactions.  In the Panel’s view, the potential and real conflicts of interest with respect to these loan transactions were, objectively, plain and obvious and should have been such to the Respondent before he agreed to act for the clients.  With respect to the three noted instances of the Respondent acting for both lender and borrower when he had an interest in the lender company, one can simply ask the question: “What if the borrower defaulted in its loan obligations?”  The potential conflict was obvious from the outset. 

The Panel found the Respondent committed professional misconduct when he borrowed a significant sum, being $366,545 from a corporate client.  The Respondent’s submission that the loans were forgivable and not repayable was rejected by the Panel. The Panel found the Respondent’s acts were clear contraventions of rule 3.4-31 of the Code because, in part, the lender client was not an entity from which a lawyer may borrow money.  There was no evidence in the facts and determination hearing (the “F & D Hearing”) that the loan was repaid.

February 24, 2024 in Associates | Permalink | Comments (0)

Doctors From Nepal

The United States District Court for the District of Columbia (Judge Cooper) has denied a motion for  a prelinary injunction and class certification

This case is about the National Board of Medical Examiners’ (“NBME” or “the Board”) efforts to uphold the integrity of medical licensing examinations in the face of allegations of organized cheating. In early 2023, NBME received multiple tips concerning a cheating ring centered in Nepal. After an investigation verified these allegations, NBME performed a statistical analysis of recent test results from individuals who either graduated from a Nepali medical school, sat for an examination at a test center in Nepal, or self-reported as a citizen of Nepal. Based on that analysis, in early 2024, NBME invalidated scores of 832 examinees (or nearly forty percent of the sample group) whose test results were highly irregular, suggesting the test-takers may have had prior access to exam questions.

One of the individuals whose exam results were invalidated, Dr. Latika Giri, filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, alleging that NBME unlawfully discriminated against examinees of Nepali ethnicity and national origin by targeting them for special treatment.


Weighing the four relevant factors, the Court concludes that such extraordinary relief is not warranted. Dr. Giri has not shown that she is likely to succeed on the merits of her claims because the current record demonstrates that NBME took action against the putative class because of credible reports of cheating, not discriminatory animus against Nepalis. The balance of equities and public interest also weigh against permitting potentially unqualified doctors from matriculating to residency programs and administering care to patients. The Court will, accordingly, deny Dr. Giri’s motion for a preliminary injunction and deny the corresponding motion for class certification without prejudice to renewal at an appropriate time should the case proceed in this Court.

(Mike Frisch)

February 24, 2024 in Comparative Professions | Permalink | Comments (0)

Friday, February 23, 2024

Power Of Attorney

The Indiana Supreme Court imposed a 45-day suspension

Married “Clients” hired Respondent in July 2018 to represent them in a personal injury suit and worker’s compensation claim arising from an accident the husband suffered at work. Respondent’s contingent fee agreement included provisions that (1) expressly gave Respondent “power of attorney… to settle the matter in attorney’s best discretion,” and (2) required Clients to pay Respondent all expenses and fees due at $425 per hour in the event Clients discharged Respondent.

Clients retained successor counsel in October 2019, and those counsel filed appearances for Clients in the personal injury case. Over several days, both Clients and successor counsel requested several times that Respondent terminate his representation, but Respondent did not do so. At a telephonic case management conference on November 15 that Respondent did not attend, the court ordered Respondent to provide Clients’ case file to successor counsel and to withdraw his appearance within 14 days. Respondent then sent a letter to successor counsel accusing them of having obtained an ex parte order during the November 15 hearing and asserting Clients owed Respondent $386,743.67 in legal fees. The following day, Respondent moved to set aside or stay the trial court’s November 15 order, filed a retaining lien, and sought to have the lien reduced to a judgment against Clients. At this point in time, Respondent still had not withdrawn as Clients’ counsel (although he would do so in early December).

On December 18, Respondent filed a motion to correct a “scrivener’s error” in a proposed order he had submitted, indicating his request for relief was for a retaining lien and not a personal judgment against Clients; but Respondent did not seek to correct the motion itself. On December 26, Respondent sent a settlement letter to successor counsel, proposing that if Clients agreed to a judgment against them in the amount of $386,743.67, Respondent would withhold execution of judgment until the personal injury case was resolved. In early 2020, Clients abandoned their request for Respondent to turn over their case file, and the trial court largely denied Respondent’s pending motions as moot.

In November 2020, Respondent sent a letter to successor counsel asserting that, with interest, he was now owed $552,850.80. In December 2020, Respondent filed a collections lawsuit against Clients and successor counsel that sought an award of these legal fees and interest as well as an award of attorney fees associated with the collections suit. During this time, Clients’ personal injury case was still pending. In March 2021, Respondent moved to intervene in Clients’ lawsuit and to have that case consolidated with Respondent’s collections lawsuit. However, in April 2021, Respondent filed a notice of charging lien based on quantum meruit on any recovery Clients might make; he withdrew his motions for intervention and consolidation; and the parties filed a joint motion to dismiss the collections case.

(Mike Frisch)

February 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Clark Appeal Heard

Oral argument was held today before the District of Columbia Court of Appeals (Associate Judges Deahl and Howard and Senior Judge Glickman) concerning Jeffrey Clark's assertion of his Fifth Amendment rights and claim that the court lacks jurisdiction to discipline him.

Argument linked here. (Mike Frisch)

February 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

From Dean To Disbarred

The Manitoba Law Society Discipline Hearing Panel has disbarred the former Dean of the Manitoba Law School

In our case, we have numerous acts of fraud over an extended period of time based on a consistent dishonest scheme, during which the Member told his subordinate staff to "stop asking questions and just pay it". We also have no evidence in mitigation, no extenuating circumstances whatsoever. Rather, we have a person who abused trust in an esteemed position (Dean of Law) in our profession.

February 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Comments In Quebec

The Quebec Bar Disciplinary Council made a Decision on Guilt for conduct during a client's interrogation

As part of this interrogation conducted by Mr. Riahi , Mr. M was asked questions relating to the contract entered into with the Company. Following objections he made, the respondent announced that his client would no longer answer certain questions.

Mr. Riahi asks the respondent if he is stopping him from asking questions on this subject. The latter responds, using a falsetto voice: “Poor you. You are prevented from making a full defense”, and that his client has already responded. Mr. Riahi asks him if he called her “poor you”  . The respondent retorts: “So, poor you. Poor you. You're prevented. » Nevertheless, after an exchange between lawyers, the interrogation continues. A little later, the respondent announced that the interrogation would continue before a judge. He then mentions to M e  Riahi: “And we'll see how smart you are then”. During the interrogation, the respondent often reacted to Mr. Riahi's questions with a little laugh. After other exchanges, Mr. Riahi asked that a conversation be held “off-record”. During this discussion, according to Mr. Riahi, the respondent uses the terms “Fucking stupid questions”. During the hearing, the respondent rather stated that he had said: “your questions are nonsense”. These exchanges as well as the tone and attitude that the respondent adopted during the interrogation constitute the basis of the complaint.


By addressing his colleague in this way, in the opinion of the Council, the respondent behaves in a way that is not that expected of a lawyer. By adopting a falsetto voice, he makes fun of his colleague. Then, by continuing with a much lower voice, he underlines this exaggerated attitude. Let us not forget that the respondent is present at an interrogation. He is in the presence of clients and a representative of the stenography firm as well as a young lawyer who comes to assist him. His conduct seriously tarnishes the image of the profession.


If the respondent then experienced frustration with the way in which Mr. Riahi  conducted the interrogation outside of court, he should avoid getting carried away by words that he would later regret. Moreover, the respondent recognizes that he should not have said “poor you” or the “F” word. As already mentioned, when we take into account all of the respondent's conduct previously exposed, in particular the tone used and the manner in which the words aimed at his colleague are pronounced, and this in the context of an interrogation outside court in the presence of clients, there is a loss of control on his part, and his behavior is then below acceptable behavior.

February 23, 2024 | Permalink | Comments (0)

Unlucky Winner

The Iowa Supreme Court has reinstated a criminal conviction for gambling, false claim of winnings that had been overturned by the Court of Appeals

Anthony McNeese and Sydney Slaughter arrived together at the Isle of Capri Casino early in the morning on November 29, 2020. McNeese entered the casino at approximately 3:20 a.m., and Slaughter entered at approximately 3:45 a.m. Surveillance video showed Slaughter and McNeese together on the casino floor several times throughout the morning. Sometimes they were leaning against one another or hugging, and occasionally, they were sitting in the same chair or Slaughter was sitting on McNeese’s lap.

McNeese hit a $4,000 jackpot and Slaughter assumed his seat

When a single winning of over $1,200 is won, casino employees are alerted, and the machine “freezes up” and becomes unusable until reset by an employee. Slot machine attendant Danielle Rademaker arrived at the machine and asked, “[W]ho’s my lucky winner? Who hit the button to initiate the spins or the jackpot?” Slaughter replied that she had pushed the button and won the money. Rademaker then began to fill out the slot request form that logs information about the machine the jackpot was won on, including, but not limited to, where on the floor the machine was located, the specific machine itself, and how many credits were played. Further, the winner of the jackpot is required to provide casino employees with their social security number to be included on the document, and they must also sign the slot request form.

The court found sufficient evidence of an intent to defraud

Here, McNeese and Slaughter arrived at the casino together. Whether they were affiliated with each other prior to the evening in question, it is clear from the video footage that they were affiliated with one another that day, as the video footage showed them hugging and sitting with one another several times throughout the early morning. When McNeese began using the slot machine, Slaughter was not by his side. It was not until later that Slaughter joined McNeese at the slot machine. Once the $4,000 jackpot was won, McNeese moved to a seat two chairs down from the original machine, and Slaughter quickly took McNeese’s spot. When asked by casino employees who had won the jackpot, Slaughter immediately stated she had and provided the employees with her social security number and signed the slot request form in order to claim the prize.

Because she had won a jackpot the prior day and paid the winnings toward her outstanding financial obligations, Slaughter was aware that any jackpot winnings may be applied to an offset. While no direct evidence was entered to show that Slaughter knew McNeese owed an offset or that Slaughter was specifically intending to defraud McNeese’s creditors, that is not necessary. All that is necessary is that Slaughter intended to cause an injury or loss of something with value, either to a person or organization, through deceit or trick, or aided McNeese in doing so.

Identity of victim not required

The fact that Slaughter intended to deprive someone, whether it was McNeese, McNeese’s creditors, the casino, or another individual or entity, of the $4,000 jackpot or was aware of McNeese’s intention to deprive someone of the jackpot is a reasonable inference that can be fairly drawn from the circumstantial evidence presented. Otherwise, what was the purpose of Slaughter taking McNeese’s place and attempting to claim the jackpot? Her demeanor when claiming the jackpot and the fact that she later retracted her statement upon finding out it was a crime to falsely claim the jackpot provide further support that she had an intent to defraud or aided and abetted McNeese, who had an intent to defraud.

Expert testimony on the meaning of "wager"

Here, Special Agent Bergman provided his opinion on when a “wager” is placed based on the specialized knowledge he has gained through his twenty-two years of experience working in the gaming bureau. His opinion was that in the context of a slot machine, a “wager” occurs when the button is pushed that sends the machine into play, not when the coin or token is inserted into the machine.

Dissent on error to admit that testimony

Legal interpretation under the guise of expert testimony is bad enough. Worse yet when the purported expert is a DCI agent—not a specialist on gaming law or even an attorney. I accept that Agent Bergman has spent a lot of time in casinos. But so have thousands of Iowans whom we wouldn’t allow to offer legal opinions on gaming law. And at least those other individuals, if they had testified, wouldn’t have the same aura or mystique for the jury.

(Mike Frisch)

February 23, 2024 | Permalink | Comments (0)

No Longer A Judge

A former judge has been disbarred by a Michigan Hearing Panel

the panel found, by default, that respondent failed to follow the requirements of the panel’s previous order; committed professional misconduct while serving as the assigned judge in a case titled State of Michigan v Kala McDonald, 26th Circuit Court Case No. 2017-8132-FH; sent numerous explicit sexual text messages to a client requesting suggestive photos and sexual favors, and encouraging the on-probation client to drink alcohol; practiced while his license was suspended; and failed to respond to a Grievance Administrator’s Request for Investigation.

WBKB 11 reported in April 2022

 A former Alpena judge was sentenced for drunk driving this week.

Michael Mack pleaded guilty to the charge on Monday. Police say during April and may of last year, Mack drove with a blood alcohol level that was more than twice the legal limit. He was not jailed after either incident. Mack ultimately went to jail after he failed to appear in court in December.  Judge Lynne Buday sentenced mack to 180 days in jail. The Michigan State Police and the Attorney General are continuing to investigate the incidents.

(Mike Frisch)

February 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Bramblett Bush

The Nebraska Supreme Court has publicly reprimanded an attorney based on a conditional admission

The formal charges generally allege violations relating to competence, communications with persons represented by counsel, respect for rights of third person, and misconduct. The violations arose from a conversation the respondent had with a represented person in which he spoke in a disrespectful and aggressive manner.

The respondent represented the plaintiff, D.A., in the district court for Douglas County, Nebraska, in a dissolution of marriage case. The defendant in that case, A.A., was represented by counsel at all relevant times. On August 20, 2022, the district court entered a temporary order granting the parties joint legal custody of their children, but granting A.A. primary physical custody subject to a parenting time schedule. On September 1, D.A. attempted to pick up the children from school, but fell into a disagreement with A.A. over whether or not he was entitled to parenting time. A.A. made a video and audio recording of a portion of the disagreement using her cell phone. During the disagreement, D.A. called the respondent on his cell phone. While D.A. spoke with the respondent, he asked A.A. whether or not she wanted to speak with the respondent directly on speakerphone. A.A. initially declined, but thereafter agreed to speak directly with the respondent. A verbal exchange took place between A.A. and the respondent. Although the respondent knew that A.A. was represented by counsel, he nevertheless spoke to A.A. in a disrespectful and aggressive manner.

The case is STATE EX REL. COUNSEL FOR DIS. V. BRAMBLETT Cite as 316 Neb. 24 (Mike Frisch)

February 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 22, 2024

Threats And Privilege At Issue In En Banc Argument

The District of Columbia Court of Appeals will hear argument en banc of a panel decision on February 29.

The panel had reversed a conviction because the defendant's attorney had testified about threats made by his client.

Attorney John Harvey was appointed by the trial court to represent Brian Moore in a contempt proceeding after Mr. Moore allegedly violated an order prohibiting him from contacting his then-wife. But Mr. Harvey subsequently became a witness against Mr. Moore: Mr. Harvey was called by the United States government in a separate criminal case to testify about two private in-the-hallway-outside-the-courtroom mid-trial conversations during which Mr. Moore made hostile remarks about the District of Columbia Assistant Attorney General (AAG) who had been assigned to prosecute his contempt case. Based on Mr. Harvey’s inculpatory testimony, Mr. Moore was sentenced to an aggregate of eight years in federal prison for threatening a public official and obstructing justice (two counts each).

Senior Judge Thompson had dissented.

From appellant's brief

In the grand jury proceeding, Harvey testified that the bench trial (Honorable Judith Smith, Associate Judge) in 2017-CCC-000057 started February 21, 2018, then was carried over to April 12, 2018. (Apx. 88-89) On April 12, 2018, Moore allegedly became agitated about Guest and with Harvey. According to Harvey, Moore said “I can’t stand this bitch. I hate this bitch. Fuck this bitch.” Harvey defended Guest as a prosecutor just doing her job. Moore said “What, are you trying to have sex with her or something?” Harvey repeated that Guest was just doing her job. Moore said, “She keep fucking with me I’m going to shoot this bitch. I’ll fuck this bitch up.” (Apx. 91) Moore added, “Yeah, Harvey. I will fuck this bitch up. I will shoot her ass.” Harvey testified that Moore said he had “guns and this and that. He started talking this nonsense.” (91) Harvey testified that he told Moore he was taking Moore seriously. Moore said, “You goddamn right I’m serious.” (91)

Harvey testified that he then called Bar Counsel and afterward asked Judge Smith to allow him to withdraw from the case. Judge Smith would not allow Harvey to withdraw unless he revealed Moore’s statements, which Harvey declined to do at that point. (Apx. 92-93) Harvey testified that he called Bar Counsel again about his options, but Moore approached Harvey and told him “Man I was just bullshitting. So, you know, let’s just leave it alone. Let’s just go on for the trial.” (93) Harvey told Moore that if Moore ever did anything like that again, he would believe Moore and disclose it to the court. (93)

The trial was continued

On the late afternoon of Friday, June 29, 2018, the trial court ordered Moore to have an ankle GPS monitor but it was too late to accomplish that day so Moore would have to return to court on Monday, July 2. (Apx. 95) Harvey and Moore spoke in the hallway. Harvey described Moore as “out of control” and testified that Moore said “Harvey, I’m telling you right now, if I lose my job I’m going to bust a cap in that bitch [Guest].” (100) Moore continued, “Fuck that bitch. Fuck that bitch. I’m going to shoot that bitch.” (96) Harvey said “Man, what did I tell you about you making that kind of comment to me?” (96) Moore responded, “Fuck that bitch and fuck you, Harvey. I will fucking kill that bitch.” (96) Harvey responded with comparably coarse language. (100-1). Harvey told Moore that he was going to tell the judge, and according to Harvey, Moore said “Fuck that. Let’s go in there right now.” (101)

Harvey then went into the courtroom and approached the bench [and disclosed the threat].


Should be interesting. (Mike Frisch)

February 22, 2024 in Privilege | Permalink | Comments (0)

A Short Career

The North Dakota Supreme Court has disbarred an attorney

Pilch was admitted to practice law in North Dakota on April 29, 2019. Pilch’s license was suspended October 31, 2022, for failing to comply with continuing education reporting requirements. He did not pay a license fee for 2023, and is not licensed at this time. Pilch has been either suspended or disbarred in five separate matters. See Disciplinary Bd v. Pilch, 2023 ND 161, 994 N.W.2d 417; Disciplinary Bd. v. Pilch, 2023 ND 162, 994 N.W.2d 390; Disciplinary Bd. v. Pilch, 2023 ND 186, 996 N.W.2d 325; and Disciplinary Bd. v. Pilch, 2023 ND 187, 996 N.W.2d 302. Pilch practiced law at Pilch Law Firm in Fargo, North Dakota.


On January 16, 2024, the hearing panel filed default findings of fact, conclusions of law, and recommendations for discipline. Pilch was retained in June 2022 to represent a client in a divorce involving parenting responsibility. The client was not informed of Pilch’s hourly rate and was not provided invoices for services. It is unknown whether Pilch earned the entire retainer. The client informed Pilch the situation was urgent and needed Pilch to move quickly to initiate the divorce. These communications occurred throughout June and July 2022. Pilch did not comply with the client’s wishes. As a result, the client was served first and listed as the defendant rather than the plaintiff in the divorce proceeding. Pilch did not attempt to achieve the client’s objectives regarding parenting arrangements. This failure inhibited the client’s ability to have visitation with the child. Pilch did not make the client aware of motions, and failed to respond to the same. Specifically, Pilch failed to respond to a motion to compel discovery and a motion for contempt, fees, and sanctions. Pilch failed to inform the client of hearings and failed to appear on the client’s behalf. Specifically, Pilch failed to inform the client of or appear at an ex parte emergency order hearing held on November 18, 2022. The client failed to attend the hearing, and as a result, was negatively affected. Pilch did not complete the representation. Pilch has neither refunded any unearned portion of the retainer nor provided the client a copy of the file. The client was required to retain new counsel due to Pilch’s conduct.

(Mike Frisch)

February 22, 2024 in Bar Discipline & Process | Permalink | Comments (0)


The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to dismiss a legal malpractice and breach of contract claim

In this case, plaintiff alleges that on or about February 28, 2012, she was terminated from Chanel after nineteen years of employment. She was not satisfied with the severance package offered and believed that her employment was terminated on the basis of discrimination. Plaintiff thus consulted with defendant to negotiate a more favorable separation and release agreement (the Agreement) from Chanel that would still permit her to retain her legal right to move forward on her discrimination claims.

After a few weeks of negotiation, defendant received the final draft of the Agreement from Chanel which contained language that included a release from any discrimination claims. Unbeknownst to plaintiff at the time, defendant unilaterally and without plaintiff's consent, changed one word in the Agreement so that plaintiff would be released from all of her rights as part of the settlement, except for any right arising under Title VII, the New York State Human Rights Law and the New York City Human Rights Law, thereby allowing plaintiff to still file a lawsuit under these statutes. Plaintiff was instructed by defendant to initial each page of the release and sign it, which she did.

On or about April 15, 2012, plaintiff received her first severance check. Subsequently, on or about September 6, 2012, defendant filed a discrimination lawsuit on plaintiff's behalf in the United States District Court for the Southern District of New York (Allen v Chanel, Inc., et al., 12-cv-6758 (LAP). Chanel's motion to dismiss was denied on the grounds that plaintiff had not knowingly or voluntarily waived any of her rights to file a discrimination lawsuit against Chanel.

On or about December 3, 2012, defendant emailed to plaintiff an affidavit that he had prepared and instructed plaintiff to sign, that stated that plaintiff herself, not defendant was responsible for modifying the Agreement.

On or about June 18, 2013, Chanel filed a counterclaim in the Federal action alleging that plaintiff knowingly and fraudulently misrepresented the severance agreement to Chanel and demanded that they be reimbursed the amount already paid in severance to plaintiff as well as for the costs of defending the discrimination lawsuit. Chanel then filed a motion for summary judgment on its counterclaim as well as on the discrimination claims, which was granted on or about November 13, 2014, and Chanel was awarded damages.

Plaintiff further alleges that she expressed to defendant the importance of having the discrimination suit sealed upon completion, as it would harm her job and career opportunities. She was continuously assured by defendant that he would make sure it was sealed and there was nothing to worry about. However, this was never done.

On or about November 30, 2020, plaintiff filed the instant action.

The first judge who handled defendants' motion to dismiss issued an Interim Order setting the matter down for a traverse hearing to determine whether the summons and complaint were properly served. After the testimony of the process server, the defendant conceded that service was proper, and the motion court determined that the "traverse [was] overruled." The balance of the grounds upon which the motion to dismiss was made were never addressed by the first motion court.

The defendant then moved for an order to reargue the original decision to the extent it did not consider those portions of his motion seeking dismissal pursuant to CPLR 3211 (a)(1), (5) and (7) dismissing plaintiff's first cause of action for legal malpractice, second cause of action for breach of fiduciary duty, third cause of action for breach of contract, or alternatively, extending defendant's time to respond to the complaint. Since none of these issues were decided the first time around, it was not error for Justice Kraus to decide the motion to dismiss on the other grounds raised by defendant on the merits as well as to determine that so doing rendered the motion to reargue moot (Poland v B. & N. Cab Corp., 51 AD2d 692 [1st Dept 1976]).

On the merits, the complaint sufficiently states a claim for legal malpractice. Defendant fails to offer a reasonable explanation as to how changing a word in the release entered into between his client and her former employer, which substantially changed the meaning of the contractual provisionsor suborning his client's perjury in the related Federal discrimination action, constitute reasonable strategic choices (cf. Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d 686, 687 [2d Dept 2014]). Plaintiff also sufficiently pleaded causation by asserting that defendant's failure to seal the file in the federal action damaged her job-hunting efforts for new employment. While plaintiff did not identify specific lost employment opportunities on this basis, she did allege specifically that she was told this was the case by recruiters. At the pleading stage, this is sufficient (see Gotay v Breitbart, 14 AD3d 452, 454 [1st Dept 2005]).

Moreover, the claims were not barred by the statute of limitations, which was tolled by both executive order (9 NYCRR 8.202.8), as extended, and the continuous representation doctrine (Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022])

(Mike Frisch)

February 22, 2024 in Clients | Permalink | Comments (0)

"A Scurrilous Claim"

District of Columbia Disciplinary Counsel has filed its response to the latest screed of Jeffrey Clark's defense counsel, noting that the objections to the testimony it seeks from former Department of Justice officials have already been waived, that Clark himself has indicated he will invoke the 5th Amendment and that Clark and other DOJ attorneys do not have an attorney-client relationship with the former President.


There are many other statements and arguments in Mr. Clark’s motion with which Disciplinary Counsel takes issue, but which do not deserve much attention here. For example, Mr. Clark claims that it is undisputed that he was acting within the scope of his duties when attempting to coerce his superiors at the Justice Department to send the draft letter. Mot. at 2-3. But that is not the case. To the contrary, in his attempt to remove the criminal case against him in Georgia, the court concluded that Mr. Clark failed to show “that he was acting within the scope of his federal office” regarding the letter. See Order at 22, Georgia v. Clark, No. 1:23-cv-03721 (N.D. Ga. Sept. 29, 2023). Mr. Clark repeatedly asserts, without citation, that the disciplinary proceedings were brought for political purposes. Mot. at 3, 7. If he has evidence to support that claim, then he should bring it forward. If he does not, then he should withdraw it. He also implies that Disciplinary Counsel is somehow acting on behalf of the District Attorney’s office in Fulton County, Georgia, to weaken his defenses in the criminal case brought against him there. Mot. at 6, 13 n. 6. Disciplinary Counsel has previously represented that it has had no contact with the Fulton County authorities. Pre-Hearing Conference Tr. 157-58 (Oct. 19, 2023). If Mr. Clark has any contrary evidence, then he should bring it forth; otherwise, he should stop making this baseless assertion. Finally, the suggestion that President Biden’s waiver of executive privilege is somehow invalid because he lacked the “cognitive capacity” to do it and that there is a possibility he may be removed under the 25th Amendment, Mot. at 20-21, is a scurrilous claim that has no place in a pleading signed by lawyers. See Rule 3.1.

Access here. (Mike Frisch)

February 22, 2024 in Bar Discipline & Process | Permalink | Comments (0)

No Foul

A Louisiana Hearing Committee has found that an attorney did not violate the rules charged in a disciplinary matter

The Committee found that Gloria Dileo and Kenneth Floyd retained Jason Asbill in 2021 to handle a succession of the clients’ relative in the 24th Judicial District Court. The representation was for an hourly amount with a certain upfront payment amount required at the time of engagement. Once Jason Asbill became involved, he determined that the two clients were not in agreement as to how to manage the primary property of the estate which was a house in Jefferson Parish. The house was subject to ongoing administrative hearings and penalties due to the condition of the property. Some hearings occurred during the timeframe of Mr. Asbill’s representation.

On March 22, 2022, Mr. Asbill informed both clients that he must withdraw his representation because he could not simultaneously represent both clients because the interests of the clients were not in agreement. Mr. Asbill subsequently withdrew from the Succession in the 24th JDC. Mr. Asbill and the two clients agreed upon a refund for the clients in the amount of $1,315.00.

The Committee considered numerous factors in making a determination that no Rules of Professional Conduct were violated. There are two primary elements of the complaints against the Respondent. The first grievance of the Complainants is that Joseph Dileo made repeated attempts to notify Mr. Asbill that there were impending administrative hearings pertaining to the property of the succession and that Mr. Asbill did not respond and did not attend these hearings. The second element is that Mr. Asbill delayed several months before providing the clients with the agreed upon refund for services not yet rendered.

Regarding the first element, the ODC did not introduce documentary evidence such as missed calls or emails to establish that the Complainants attempted to reach Mr. Asbill ahead of the hearings. There was no evidence introduced that the Complainants informed Mr. Asbill that there were ongoing administrative hearings and penalties on the property when the Complainants retained Mr. Asbill. The engagement letter does not include the administrative hearings and penalties pertaining to the property in the scope of representation by Mr. Asbill. The Committee therefore determined that there was insufficient evidence to establish neglect on the part of Mr. Asbill for failing to attend the administrative hearings for the property during the representation.

Regarding the second element, there was indeed a time lapse of several months from when the parties mutually agreed upon a refund amount and when Mr. Asbill finally provided the refund payment. While the Committee feels that the Complainant should have provided the payment sooner, the Committee also finds there were reasonable grounds for the delay. The primary reasonable justification is that the two clients had conflicting interests and Mr. Asbill wanted to ensure that neither client would be dissatisfied with the refund payment which might prolong the conflict between attorney and clients.

A dissent would find violations and recommend a public reprimand. (Mike Frisch)

February 22, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Did Not Switch Sides After Learning Signals

The Tennessee Court of Criminal Appeals holds that a prosecutor's prior representation of the defendant did not require disqualification of either the individual prosecutor or his office.

Defendant was aware of the prior representation but did not raise it until sentencing

During the first setting of the sentencing hearing, counsel for Defendant learned that Assistant District Attorney General (“ADA”) Jack Bare, who was the State’s lead counsel at trial, had represented Defendant on prior charges. The State sought in part to use convictions on which ADA Bare had represented Defendant to enhance Defendant’s sentence in the present case. The trial court continued the hearing upon defense request.

The hearing resumed two weeks later with another prosecutor handling the case. Defense counsel requested that the trial court grant a mistrial, arguing that ADA Bare’s previous representation of Defendant created an actual conflict of interest. Defense counsel noted that ADA Bare had represented Defendant on an aggravated assault charge in 2008 and told the trial court that the fact patterns were “very similar.” Defense counsel further requested that the entire District Attorney General’s Office be barred from handling this case.


We conclude that ADA Bare’s previous representation of Defendant did not require disqualification here. ADA Bare did not “switch[] teams after learning the signals” here. Clinard v. Blackwood, 46 S.W.3d 177, 188 (Tenn. 2001), abrogation recognized by Eady,___ S.W.3d ____, 2024 WL 442279, at *12; State v. Dixon, No. M2010-02382-CCA-R3- CD, 2012 WL 2356523, at *14 (Tenn. Crim. App. June 21, 2012), perm. app. denied (Tenn. Nov. 26, 2012). Rather, ADA Bare represented Defendant on completely unrelated cases more than a decade before this matter came to trial. Nor were the matters on which ADA Bare represented Defendant “substantially related” to his prosecution in this case, despite Defendant’s assertions. That ADA Bare previously represented Defendant on an aggravated assault conviction and Defendant was charged with aggravated assault here does not mean that the matters are substantially related. As the trial court pointed out, ADA Bare did not disclose any confidential information he received from representing Defendant, and because Defendant did not testify, there was no way to use any confidential information against him. The only information used against Defendant was public record: the convictions themselves, with ADA Bare’s name listed on the judgment forms.


The trial court did not abuse its discretion in denying Defendant’s requests to disqualify ADA Bare and grant a new trial on this basis. Defendant is not entitled to relief on this issue.

(Mike Frisch)

February 22, 2024 | Permalink | Comments (0)

Wednesday, February 21, 2024

Conflict Not Imputed

The New Jersey Appellate Court has held that a personal disqualifying conflict is not imputed to the rest of a prosecutor's office

In this appeal we address whether an entire county prosecutor's office must be recused from a criminal prosecution when the county prosecutor has a personal, disqualifying conflict. We hold that so long as the prosecutor has been completely screened from and has no oversight of the matter, the prosecutor's office should not be disqualified. Accordingly, we affirm the trial court's order denying defendant's motion to disqualify the entire Monmouth County Prosecutor's Office (MCPO) from continuing to prosecute defendant and multiple co-defendants in this criminal matter.

The case

In February 2020, an MCPO task force began investigating gang-related activities in Monmouth and other New Jersey counties. That task force was ledby an MCPO detective, included several other MCPO detectives, and coordinated some of its investigations with other law enforcement agencies.

Ultimately, the task force came to believe that various street gangs were coordinating an array of criminal activities into a "systematic criminal enterprise," referred to as "Golden State." The task force developed evidence that Golden State members acted in concert to distribute illegal drugs, use and transfer firearms, recruit and discipline members, and expand their criminal activities.

Beginning in October 2020, defendant Daishon I. Smith was charged with multiple criminal offenses, the majority of which were based on evidence developed by the task force. Initially, on October 4, 2020, defendant was charged with several drug-related offenses. Later that month, defendant and more than thirty co-defendants were charged with numerous first- and seconddegree offenses, including racketeering, drug offenses, and weapons offenses.

The conflict

For approximately seven months, from October 30, 2020, to May 21, 2021, defendant was represented by Raymond S. Santiago, who was then engaged in the private practice of law. During that time, Santiago represented defendant at a detention hearing and filed two applications related to defendant's pretrial detention. Santiago also received initial discovery related to the charges filed against defendant in October 2020.

In May 2021, Santiago filed a motion to be relieved as defendant's counsel. In support of that motion, Santiago certified that in late April 2021, he had some disagreements with defendant and defendant directed him to cease working on his case. Santiago also conferred with defendant's family before filing his motion to be relieved as counsel. On May 21, 2021, the trial court granted Santiago's motion to be relieved as defendant's counsel. Since then, defendant has been represented by other counsel. His current counsel began to represent defendant on September 8, 2021.

Over a year later, on October 7, 2022, Santiago was sworn in as Acting Monmouth County Prosecutor.

Ethics rules

RPC 1.11 and RPC 1.9 clearly prohibit Santiago from having any involvement in the prosecution of defendant. RPC 1.10 addresses imputing conflicts among lawyers in a private law firm. It does not expressly address government lawyers, such as prosecutors. The question then becomes whether the imputation in RPC 1.10 should be applied to a prosecutor, and in particular to a county prosecutor who oversees the county prosecutor's office.

No New Jersey case has expressly addressed whether the personal conflict of a county prosecutor should be imputed to the entire county prosecutor's office. Existing New Jersey caselaw makes clear that requests for disqualification of an entire prosecutor's office should be scrutinized and have rarely been granted.

The court surveyed other jurisdictions and rejected a per se rule

We believe that the majority rule is the better rule and is more consistent with New Jersey caselaw. The RPCs treat lawyers in private practice differently than lawyers in government service. See RPC 1.10; RPC 1.11; see also State v. Bell, 90 N.J. 163, 168 (1982). There are sound public policy reasons for that distinction. Moreover, our Supreme Court has reasoned that disqualifying an attorney or an office of attorneys based on a conflict "must have some reasonable basis" grounded in an actual conflict. Harvey, 176 N.J. at 529 (quoting In re Op. No. 653 of the Advisory Comm. on Pro. Ethics, 132 N.J. 124, 132 (1992)).

In that regard, in 2006, our Supreme Court decided that New Jersey would not consider the appearance of impropriety in determining whether a lawyer has a disqualifying conflict. See In re Sup. Ct. Advisory Comm. on Pro. Ethics Op. No. 697, 188 N.J. 549, 568 (2006). The Court explained that the concept of the appearance of impropriety should not be considered in determining whether a conflict of interest exists under RPC 1.9 as its use "injects an unneeded element of confusion." Id. at 562 n.5.

We, therefore, adopt the majority rule and conclude automatic disqualification of the entire prosecutor's office is not required. Instead, this rule requires disqualification of the entire prosecutor's office only where the prosecutor was not effectively screened or has shared confidential information he or she learned while representing the defendant. In short, our analysis of the law on conflicts and our consideration of the policies embodied in the RPCs support a rule where individual, personal conflicts of county prosecutors are not imputed to the entire office.

(Mike Frisch)

February 21, 2024 | Permalink | Comments (0)

No Thanks For Sharing

A juror's outside research amounted to misconduct and warrants a new trial, according to a decision of the Tennessee Court of Appeals

A major issue at trial was whether Dr. Roussis fell below the standard of care by failing to administer epinephrine to Plaintiff when she had an anaphylactic reaction during labor. The jury found for Defendants. However, it emerged that a juror had gone home and looked at the warning on an epipen which said that epinephrine should only be used when the potential benefit justifies the potential risk to the fetus. The juror shared this information with the rest of the jury. Plaintiff filed a motion for a new trial, which the Trial Court first granted and then denied. Plaintiff appeals.

The case

In June 2009, Plaintiff was admitted to the Hospital in connection with her pregnancy. Plaintiff tested positive for Strep B and was given ampicillin. Plaintiff had a major anaphylactic reaction. Dr. Roussis arrived and documented his observations, writing in part:

Called to see patient because of SOB [shortness of breath]. . . . She is cyanotic with difficulty breathing. . . . BP [blood pressure] 140/95. P [pulse]:150-155 in severe distress. . . . Patient was on O2. In view of this [reaction] patient given Benadryl and solu-medrol IV and SQ brethine[.] No epi pen on floor at that time. . . . By 10:55, patient was doing better. . . .

Plaintiff later gave birth to Chayce, who suffered from brain damage. In October 2012, Plaintiff sued Defendants in the Trial Court alleging health care liability in Chayce’s delivery. The case was tried by jury.

(Mike Frisch)

February 21, 2024 | Permalink | Comments (0)

Tuesday, February 20, 2024

Employment Practices Draw Proposed Suspension

I have closely monitered the proceedings against two Respondents in the District of Columbia and was thus surprised that a November 2023 Hearing Committee report finding misconduct was only recently posted on the Bar's web page

The Hearing Committee concludes that each Respondent has committed multiple violations of each Rule cited by Disciplinary Counsel other than Rules 5.1(a) and 5.3(a)—twenty-eight by Mr. Tully and thirty-four by Mr. Rinckey—and recommends a ninety-day suspension for each Respondent.

I had previously blogged on the "cutting edge" charges.

Respondents refer to themselves as the “Founding Partners” or “Managing Partners” of Tully Rinckey. Until 2020 and at all relevant times, they were the only lawyers with an equity interest in the Firm. Respondents actively managed the Firm. All other lawyers reported to them either directly or indirectly. Respondents established, delegated, approved, and enforced Firm policies, practices, and procedures, many of which were set forth in the Firm’s Standard Operating Procedures (SOPs). Respondents also approved and enforced the provisions of certain document templates, including engagement agreements (aka retainer agreements), employment agreements, confidentiality agreements, and separation agreements.


The Respondents were well aware of—and indeed, directed and ratified—repeated conduct of their lawyer and non-lawyer subordinates that violated the D.C. Rules of Professional Conduct. This conduct included the provisions in employment agreements and separation agreements that levied liquidated damages, mandated referral fees, prohibited client contact, and prohibited post-employment association with other Firm alumni. Indeed, the Respondents have not claimed that their subordinates acted without their knowledge, and the record amply demonstrates that during the period in question, micromanagement by whichever Respondent was serving as the Firm’s overall managing partner was the order of the day at Tully Rinckey. This course of conduct by the Respondents violated Rules 5.1(b), 5.1(c)(1), 5.1(c)(2), and 5.3(b).

The Firm had a practice of transferring the clients of departing lawyers to other Firm lawyers, barring the departing lawyers from contacting those clients in connection with their departures, and advising those clients—sometimes unilaterally and sometimes by a joint letter—that their matters had been transferred to other lawyers in the Firm. E.g., FF 58-60, 68, 71, 73, 80-81, 88. Numerous separation agreements implementing this policy were signed for the Firm by each Respondent. FF 60, 73, 81, 88; see FF 101; DCX 45 at 1. When it excluded the departing lawyer from any role in formulating or sending a communication to the clients about their right to choose who would represent them going forward, the latter aspect of this practice arguably violated Rules 1.4 and 5.6(a) because it removed the departing lawyer from the notification process. D.C. Bar Ethics Op. 221 (Oct. 1991). Because the exclusion of departing lawyers was episodic and the Firm’s SOPs contemplated the sending of a joint letter (Tr. 148-49 (discussing RX 21)), however, we do not find a violation of Rule 5.1(a) or Rule 5.3(a).

Similarly, although the Firm’s SOPs did not expressly direct that clients be told where their departing lawyers were going, Mr. Rinckey testified credibly that the Firm’s staff members were instructed to provide that information. FF 112. There was testimony about failures to advise clients of Mr. Watkins and Ms. D’Agostino where their lawyers had gone, FF 21, 112, as well as Ms. Gregerson’s testimony that someone who was not identified told her not to disclose such information even if asked by a client, FF 65, but not clear and convincing evidence that these were systemic. Accordingly, we do not find a violation of Rule 5.1(a) or 5.3(a) in these three failures to advise clients where their lawyers were bound.

A rare "failure to report" violation

Rule 8.3 does not require the reporting of every violation of the Rules. D.C. Rule 8.3 cmt. [3]. Instead, it “limits the reporting obligation to those offenses that aself-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of [the] rule.” Id. As then-Bar Counsel Leonard Becker put it, Rule 8.3(a) “ultimately accords a wide degree of judgment to a reporting lawyer. Except in truly egregious cases, Bar Counsel would be hard-pressed to second-guess . . . judgments [not to report] or to seek discipline by asserting the requisite ‘clear and convincing’ evidence of misconduct in failing to report.” Leonard Becker, “Early Experience Under the ‘Snitch’ Rule,” Wash. Lawyer, Nov.-Dec. 1992, at 8 (emphasis added). Thus, there are violations of the Rules of Professional Conduct whose reporting is not mandatory. The non-cooperation provisions of the various agreements under consideration here prohibited lawyers in the Firm from reporting such violations and this charge accordingly is sustained.


The record in this matter reflects dozens of violations—by each of the Respondents and, at their direction, by lawyer and non-lawyer subordinates whom they closely supervised. That their actions were violations of the D.C. Rules of Professional Conduct was—or should have been—apparent well before the issuance of LEO 368. Moreover, some violations occurred even after the issuance of that opinion.

We have carefully considered the Respondents’ Rule violations in light of the sanction factors enumerated above. As the Court recently reiterated, the appropriate sanction must aim “not only to maintain the integrity of the profession and to protect the public and the courts, but also to deter other attorneys from engaging in similar misconduct.” In re Blackwell, 299 A.3d 561, 572 (D.C. 2023) (quoting Martin, 67 A.3d at 1053). On the facts of this case, we cannot conclude that a Board reprimand is a sanction sufficient to meet that standard. On the other hand, we are not persuaded that the Respondents’ misconduct merits a six-month suspension, particularly in light of the factors in mitigation.

For the foregoing reasons, the Committee finds that each Respondent violated the Rules specified in the Appendix and recommends that each should receive the sanction of a ninety-day suspension.  We further recommend that the Respondents’ attention be directed to the requirements of D.C. Bar R. XI, § 14, and their effect on eligibility for reinstatement. See D.C. Bar R. XI, § 16(c).

Channeling Captain Queeg

The Respondents had established video surveillance whereby they could observe the public areas of the D.C. Office from Albany. Tr. 459. In one instance Mr. Tully, who was not physically in the D.C. Office, phoned a lawyer in the D.C. Office to complain that the lawyer’s shirt was not tucked in. Tr. 414-15

Question: Why was a November 2023 decision (a public document) just recently posted on the Bar's web page?

My speculation on the answer is that the concerns that motivated a protective order entered by the Board on Professional Responsibility (described here) trumped any commitment to transparency. ( Mike Frisch)

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

Green Bay Swept

The United States District Court for the District of Columbia (Judge Kollar-Kotelly)  has ordered Peter Navarro to show cause why he should not be held in contempt for failure to produce records to the proper owner the United States.

In sum, based on the Court’s review of Defendant’s random sampling, it is clear that Defendant continues to possess Presidential records that have not been produced to their rightful owner, the United States. It is likewise clear that Defendant’s error rate is not minimal or negligible, and is likely “unacceptably high.” Given Plaintiff’s difficulty in obtaining its Presidential records, additional supervision of Defendant’s compliance with this Court’s judgment is warranted. To accomplish this goal, the Court shall refer this matter to a magistrate judge to ensure that Defendant provides all Presidential records to Plaintiff, including but not limited to the twelve records already identified by this Court.

Accordingly, Plaintiff’s [30] Motion to Enforce is GRANTED. Defendant is ordered to SHOW CAUSE why he should not be held in contempt of the Court’s judgment, on or before March 21, 2024. Upon receipt of Defendant’s response to the Court’s Show Cause Order, theCourt shall refer this matter to a magistrate judge for supervision, with the aim of bringing this litigation to its final resolution. The magistrate judge shall also review the sixteen records in Defendant’s random sampling to determine whether those records are Presidential records or personal records. Meanwhile, the Court directs Defendant to reprocess the remaining records in his possession on or before March 20, 2024, which appears to be approximately 600 records, see ECF No. 31 at 3, in accordance with this Memorandum Opinion and Order to determine whether additional records are identified as responsive and can be produced to Plaintiff prior to this matter being assigned to a magistrate judge. Defendant’s production to Plaintiff shall include the twelve
records (the emails and any corresponding attachments) identified by this Court to be Presidential records: DCD Review 2; DCD Review 6; DCD Review 137; DCD Review 251; DCD Review 389; DCD Review 434; DCD Review 438; DCD Review 452; DCD Review 483; DCD Review 480; DCD Review 519; and DCD Review 526.

(Mike Frisch)

February 20, 2024 in Current Affairs | Permalink | Comments (0)

Not Admitted But Reprimanded

A Tennessee attorney - not licensed in Virginia - has been publicly reprimanded without terms by the Virginia State Bar Disciplinary Board.

A jail inmate had contacted Respondent via his website concerning representation for a sexual assault she allegedly had suffered while incarcerated in Augusta County, Virginia.

The scope of the representation was for "investigative purposes only" but did not disclose that Respondent was not admitted in Virginia or the need for local counsel.

Respondent would testiftythat they had online chats on his website, which indicated his admission was limited to Tennessee.

After some communication issues, Respondent provided a draft complaint to the complainant, which she filed pro se.

After a motion to dismiss was filed, Complainant retained counsel who amended the complaint.

Respondent was sanctioned in Tennessee for trust account issues.

Effective April 20, 2023, the Supreme Court of Tennessee, pursuant to Tennessee Supreme Court Rule 9, Sections 12.2 and 14.1, suspended Troy Lee Bowlin from the practice of law for three (3) years with thirty (30) days served as an active suspension and remainder served on probation with conditions, including completion of the Board Trust Account Workshop, an immediate independent audit and reconciliation of all trust accounts by a certified public accountant, monthly reconciliation of trust account by Mr. Bowlin, with review of the trust account by a certified public accountant every six months, and completion of five additional continuing legal education ethics hours each suspension year.

A Petition for Discipline containing one (1) complaint was filed by the Board on March 1, 2022. Mr. Bowlin failed to properly maintain client and third-party funds in the law firm’s trust account, failed to audit and reconcile the firm’s trust account on a reasonable basis, and failed to make reasonable efforts to ensure his firm had effective measures in place to properly oversee that nonlawyer staff conduct was compatible with his professional obligations.

Mr. Bowlin executed a conditional guilty plea acknowledging his conduct violated Tennessee Rules of Professional Conduct 1.15 (safekeeping property and funds) and 5.3 (responsibilities regarding nonlawyer assistants).

(Mike Frisch)

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