Friday, August 14, 2020
The Maryland Court of Appeals has held that a defense attorney's conflict of interest entitled a petitioner to post-conviction relief.
From the court's headnote
In this case, where defense counsel is personally involved in litigation, and a witness to that proceeding is also the arresting officer in counsel’s client’s unrelated criminal case, a conflict of interest exists. Under Cuyler v. Sullivan, 446 U.S. 335 (1980), an actual conflict of interest that adversely affects the representation is presumptively prejudicial. In Taylor v. State, 428 Md. 386 (2012), we adopted the three-prong test from Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001), to determine when a conflict of interest satisfies the Sullivan rule. To satisfy the Mickens test, a petitioner must prove: (1) that there was a plausible alternative defense strategy that defense counsel might have pursued; (2) which was objectively reasonable under the facts of the case known to defense counsel; and (3) that defense counsel’s failure to pursue the strategy was linked to the conflict of interest. As a matter of first impression, the Court holds that to determine when a link exists under the third prong of Mickens, a petitioner must demonstrate that the alternative defense strategy was inherently in conflict with counsel’s other loyalties or interests or that the alternative defense was forgone due to those other loyalties or interests. The Court holds that Petitioner satisfied his burden under Mickens and demonstrated that his defense counsel labored under an actual conflict of interest that adversely affected the representation.
Three cases form the foundation of the petition for post-conviction relief. Two are interrelated criminal cases stemming from a traffic stop of Petitioner and a subsequent search of his girlfriend’s residence. The third is a civil suit against Petitioner’s defense counsel that was related to a divorce proceeding involving the police officer who initiated the traffic stop.
The divorce case
Deputy Ensor and his then-wife, Ms. Ensor, divorced in 2012. Mr. Discavage jointly represented the Ensors in their divorce proceedings and handled their settlement agreement. Ms. Ensor filed a lawsuit against Mr. Discavage in March 2015 for negligence, breach of fiduciary duty, intentional misrepresentation, and negligent misrepresentation related to Mr. Discavage’s handling of their divorce. The complaint alleged that Mr. Discavage favored Deputy Ensor in the divorce proceedings by understating Deputy Ensor’s income or failing to verify his income. Ms. Ensor sought approximately $75,000 in damages.
This was not disclosed to the defendant but came to light post-conviction.
In describing the nature of the relationship, Mr. Discavage explained that he represented Deputy Ensor in a divorce case several years prior to his representation of Petitioner. Although the divorce was finalized, “there was still potential litigation with the parties to that case” at the time Petitioner hired Mr. Discavage.
The post-conviction court granted relief
Based on the foregoing, the post-conviction court found that an actual conflict of interest existed. The court emphasized that the ongoing relationship between Mr. Discavage and Deputy Ensor formed the foundation of the conflict of interest: Deputy Ensor was subpoenaed to produce documents and give a deposition in the civil suit and likely would have been a fact witness. The court found that “during the time Mr. Discavage was representing Petitioner, Mr. Discavage was engaged in litigation where maintaining a positive [rapport] with Deputy Ensor was in Mr. Discavage’s best interest.” The court further found that because of that conflict, Mr. Discavage did not inform Petitioner about his connection to Deputy Ensor, nor did he present Petitioner with the opportunity to waive the conflict.
In an unreported opinion, the Court of Special Appeals reversed the decision of the post-conviction court and held that the conflict of interest was merely potential, not actual.
The court here found an actual conflict
A conflict of interest arises when counsel is embroiled as a defendant in on-going litigation and one of the witnesses in that litigation is also the arresting officer in an unrelated criminal case involving counsel’s client. This Court has repeatedly made clear that ineffective assistance of counsel claims are not exclusive to conflicts of interest stemming from the representation of multiple clients...
Ms. Ensor’s civil suit alleging that Mr. Discavage favored Deputy Ensor in their divorce commenced in March 2015. Mr. Discavage noted his appearance in the traffic stop case—in which Deputy Ensor was the arresting officer—in circuit court in May 2015 following a jury trial prayer. Petitioner entered his conditional plea in the traffic stop case in November 2015, and his global plea in the search warrant case in January 2016. Ms. Ensor’s civil suit against Mr. Discavage did not end until March 2016. Mr. Discavage never informed Petitioner about the civil suit and Deputy Ensor’s involvement as a witness in it even though the civil suit and criminal cases occurred simultaneously.
If Mr. Discavage’s relationship with Deputy Ensor had been grounded exclusively in the 2012 divorce proceedings, no conflict of interest rising to the level of ineffective assistance of counsel would likely exist. Mr. Discavage labored under a conflict of interest not because of his successive representation of Deputy Ensor followed by Petitioner, but because of the concurrent nature of Ms. Ensor’s civil suit and Petitioner’s criminal cases—both of which significantly involved Deputy Ensor. Mr. Discavage had a personal stake in the outcome of the civil suit, and as such, had his loyalties divided between himself and Petitioner...
In juxtaposition, Deputy Ensor would likely have been a fact witness in the civil case, the very subject of which related to the allegation that Mr. Discavage improperly favored Deputy Ensor in his divorce from Ms. Ensor. Mr. Discavage would undoubtedly be better served by a friendly witness—one who was at the center of the controversy—than one that is hostile or ornery. In the criminal cases, Mr. Discavage would impugn Deputy Ensor; in the civil case, Mr. Discavage would rely on Deputy Ensor to absolve Mr. Discavage of wrongdoing. Maintaining a positive rapport with Deputy Ensor for the sake of a positive outcome in the civil case was inherently in conflict with cross-examining Deputy Ensor in Petitioner’s criminal cases.
In the course of some research I encountered a truly fascinating bar discipline decision from the United States District Court for Maryland in 1934.
The accused attorney was a Communist who had represented a defendant charged with murder of a family of four on the Maryland Eastern shore.
Bernard Ades, a member of the bar of the state and federal courts in Maryland, was ordered by this court on November 29, 1933, to show cause why he should not be disbarred from further practice as a member of its bar, because of alleged misconduct on his part in connection with certain cases in the courts of the state.
His counsel in the bar case were Charles Hamilton Houston and Thurgood Marshall.
The court's opinion drips with the casual racism of the times
The present charges relate to three cases, in each of which a colored man was indicted for the commission of a crime of violence against a white person in one of the counties of the state, to wit, Euel Lee, alias Orphan Jones, charged with the murder of Green Davis on October 10, 1931, in Worcester county; George Davis, charged with assault with intent to rape Elizabeth Lusby on November 21, 1931, in Kent county; and Page Jupiter, charged with the murder of Evelyn Reifsnyder on July 8, 1933, in Charles county. Prior to the preferment of the formal charges against Ades, the final judgment of the court in each of these cases had been executed. Lee and Jupiter had been hung, and Davis had been committed to the Maryland penitentiary to serve a sentence of sixteen years.
The principal ethics allegations came in the Euel Lee case, described here by The Dispatch in a 2007 story.
Seventy-five years ago this week, a transient African-American worker brutally murdered a Berlin farmer, his wife and their two teenage daughters in their beds, touching off one of the most protracted, most expensive trials in the history of Maryland with a controversial Communist lawyer representing the defendant who was ultimately convicted and hanged.
Ades provided a vigorous defense and secured a change of venue to Baltimore County (again from The Dispatch)
On Monday, Jan. 18, 1932, Lee’s trial began in Towson with the contingent from Worcester County at the prosecution table and Ades and his assistants at the defense table. Even the matter of jury selection was a point of contention as Ades argued Lee could not get a fair trial because black men were not allowed to serve on a jury.
However, the judges- sustained Ades’ objections [sic] and the trial resumed. With the preponderance of evidence against Lee, the prosecution rolled through its case in short order and the defense took little more time to present its own case, which was founded on the supposition that Lee was framed. The jury was given the case at 2:40 in the afternoon and returned with its verdict in just over half an hour. Lee was found guilty of murder in the first degree and sentenced to death by hanging.
Ades was not finished battling for his condemned client and quickly filed an appeal based on eight so-called irregularities, the centerpiece of which was his original objection about the black men not being allowed to serve on the jury. The Communist lawyer who had argued from one end of the state to the other for his client appealed to the U.S. Supreme Court and even President Franklin Delano Roosevelt to intercede for Lee, but in the end, he could not save his client.
Finally, on Oct. 27, 1933, over three years since the murders in Taylorville, Lee was dropped from the gallows and pronounced dead.
As to Ades' soliciting the case, the district court noted the Canons generally condemned the practice but
Notwithstanding these salutary rules, it cannot be laid down as an inflexible maxim that a lawyer may never volunteer his services to a litigant, where the litigant is in need of assistance, or where important issues are involved in the case; and this may be so even though questions of a controversial or political character are at stake.
As to other allegations
The evidence fails to sustain the first charge that the respondent improperly injected himself in the Lee case, with knowledge of his guilt and contrary to Lee's desire...
There is no substance in the third charge in the Lee case that before the trial, Ades falsely represented himself as the sole attorney for Lee, although he knew that the circuit court for Worcester county had appointed able counsel to represent Lee.
But some conduct was deemed "reprehensible" by the standards of 1934
The respondent, however, has gone to such extremes of action and statement in some respects as to merit the condemnation of the court. After all of his efforts on behalf of Euel Lee had failed, he brought an action in the Baltimore City court against the warden of the Maryland penitentiary on the day after the execution had taken place in order to require the delivery of Lee's body to him. He filed with the papers in the case a will of the deceased, executed the day before his death, in which the deceased bequeathed his body to Ades. The latter testified that the idea of such a will had originated with him, and that it was his purpose to take the body to New York City for a memorial service to be held in Harlem under the auspices of the International Labor Defense so as to show that Euel Lee was in fact innocent and that in his case there had been a "legal lynching" by the officials of Maryland; that the purpose was not to stir up race prejudice, but to show that the state of Maryland oppresses the colored race and does not recognize their legal rights. It was also brought out that Ades did not tell Lee of the intended disposition of his body, and that after signing the will, Lee also signed a statement requesting that the chaplain of the penitentiary have charge of his body after death and had expressed a desire that there be no spectacle made either of his death or of his funeral. The petition in this case was dismissed after hearing, and Ades himself was enjoined from interfering with the body, the judge holding that the will was void since Ades had abused the confidential relationship between him and his client by making himself the beneficiary, without disclosing the purpose which he had in mind. It follows that this charge against the respondent has been substantially proved. His conduct was not merely offensive to every instinct of good taste. It was to a high degree reprehensible in that he withheld from Lee the real purpose that he had in mind in obtaining the body, and that he proposed to stigmatize as unfair, a judicial proceeding in which a formal conviction had been sustained only after the case had been thrice reviewed by the highest court of the state. He was saved from carrying this purpose into effect only by the decisive action of Judge O'Dunne.
The above reference to the disposition of the body after the hanging comes from Wikipedia
A fight ensued over the body where Ades demanded the right to bury Euel Lee in New York as he was granted the right to his client's body in Lee's last will and testament. Fearing riots and further racial unrest, Ades was denied the right to bury the body in New York and is currently interred in an unmarked grave in Brooklyn, Maryland.
The district court on sanction
Reviewing the whole case, it may not be said that the respondent's conduct throughout was wholly wrong. He has to his credit that actions of the trial court detrimental to the defendant in the Lee case were corrected, because they were regarded as improper, not merely by him or by the organization which employed him, but by the Court of Appeals of Maryland. This phase of his activities led one of the counsel opposed to him in the pending matter to say frankly in argument that the respondent had rendered a public service which, without him, would have been left undone. Still he is not free from serious breach of the standards which a lawyer must maintain. He made himself deliberately offensive to counsel appointed by the circuit court for Worcester county to serve with him in the Lee case, and to that court itself in the manner in which he spoke of it in his letter to Mr. Wailes. The bitterness and unfairness of his attack upon the other courts concerned in the Lee and Jupiter cases have just been described. He has seemed to be incapable of the very tolerance and sense of fair dealing which he declares is sometimes lacking in the institutions he attacks. The proper disciplinary action must be determined in view of the whole case. It does not seem to the court that the extreme punishment of disbarment should be inflicted. Much that is blameworthy in the respondent's conduct carries its own antidote, for no one can succeed at the bar who comports himself as he has done. Taking into consideration the unquestioned service rendered in the Lee case, the injuries which the respondent suffered at the hands of lawless men while acting as counsel in that case, and the fact that he has already suffered a suspension from the bar of this court for approximately five months, it is believed that a public reprimand will suffice. This will be the judgment of the court.
Perhaps the "bitterness and unfairness of his attacks" on "justice" in the Jim Crow era was indicative of great and under appreciated courage.
I suspect that is why Ades was able to secure the services of the two greatest civil rights attorneys in our country's history. (Mike Frisch)
Thursday, August 13, 2020
The Mississippi Supreme Court affirmed a Court of Chancery decision to reform a trust
This appeal arises from the DeSoto County Chancery Court’s reformation of a trust based on the court’s finding that a scrivener’s error had occurred in drafting the trust instrument, which rendered the trust’s language ambiguous and thwarted the grantor’s intent.
Ironically, the grantor
Barry Christopher Blackburn, Sr. (Barry), an estate-planning attorney, died on March 21, 2014, from cancer. Ten days before he died, Barry executed “The Barry C. Blackburn, Sr. Revocable Living Trust” to provide income and principal to himself during his lifetime and then income to his only son, Barry Christopher Blackburn, Jr. (Christopher), during Christopher’s lifetime.
The reformed trust corrected an alleged drafting error that in effect disinherited the testator's blood family when Christopher died.
Evidence at trial
[Paralegal] Archer testified that she was the primary person to draft estate-planning documents for Barry. She “pulled forms from other existing wills and trusts” and utilized a “cut and paste” system from a “forms” folder comprised of existing estate-planning documents. Archer said that Barry did not “personally prepare a will or a trust” for anyone, and he did not pay close attention to the language and did not “read documents word for word.”
Davis, one of Barry’s best friends from law school, who often worked with Barry, testified that Archer drafted all of the documents for Barry. He said that Barry reviewed his documents “quickly” and “sloppily.” Davis said it would not surprise him “if there was a drafting mistake in one of [Barry’s] own estate planning documents.” He said Barry would just do a quick review when he was reading and “just flip through them.”
The Tennessean reported on the dispute
A dispute over an estate passed down through generations in one Tennessee family is pitting two Nashville Christian institutions in a bitter legal battle against three young children.
Nashville Christian School and Harpeth Presbyterian Church say they are two of the rightful beneficiaries to hundreds of acres of farmland and properties across Alabama, Mississippi and Tennessee, some of which have been in the Blackburn family since the War of 1812.
Joined by the University of Mississippi and a dog rescue organization, the four nonprofits are fighting to wrest the estate away from three children, ages 3, 8 and 13, who would be the sixth generation to inherit the family lands.
Much of the property, now worth millions, has been inherited by each succeeding generation since a Blackburn was granted the land by President Andrew Jackson in the 19th century. Gideon Blackburn, a preacher, founded Harpeth Presbyterian Church in 1811.
Barry Blackburn Sr., the last to inherit the land, died in 2014 at age 48. In his will, the properties were to be held in a lifetime trust for his son, Christopher, then pass to Christopher's children.
But in 2015, Christopher Blackburn died, childless, at age 21.
That's when the estate got complicated.
What Barry Blackburn's will said
The will, written during Barry Blackburn's dying days, said should his son die before him, the trust would pass to Barry Blackburn's sister's three children.
The will also said if there were no surviving beneficiaries of the estate, then it would be equally divided among Nashville Christian School, Harpeth Presbyterian Church, the University of Mississippi law school and Boykin Spaniel Rescue.
The charities were included only as part of a "failure of beneficiary" clause common in many wills to designate inheritors in rare instances when there are no living beneficiaries, the trustees of the estate said.
The nonprofits, however, have argued that the will, read literally, gives the family's property to them.
Had Barry Blackburn's son died before he did, the estate would have gone to the nieces and nephew, they said.
But since Blackburn's son died after him, the estate belongs to the nonprofits, not the children, they argued.
A Mississippi judge disagreed, siding with the children.
Last year the judge ruled that the estate rightfully belonged to the surviving nieces and nephew. He concluded there had been a "scrivener's error," a simple and accidental clerical error that omitted two words from the will.
Barry Blackburn's intent, the court ruled, was to say if Christopher predeceased his father, "or died," the entirety of his estate would go to his nieces and nephew. He ordered the two words to be incorporated in the will.
The order cited testimony from two of Barry Blackburn's assistants, who helped draft the will and took responsibility for the error. The assistants introduced notes they wrote from conversations with Barry Blackburn that reflected he wanted the properties to remain with family. Two financial consultants testified Barry Blackburn told them he wished to keep the money in the "bloodline" and that the charities were included only as a "catastrophic or catchall clause."
Another friend testified that Barry Blackburn's philosophy was to leave assets to "heirs in the bloodline and all humans had to be dead before the charities received anything."
Also complicating the dispute is the estate being contested by Christopher Blackburn's family. Barry Blackburn and Christopher Blackburn's mother divorced. But Christopher Blackburn's surviving relatives, including his aunt and mother, are now party to the dispute. An appeal of the judge's ruling has been filed by Christopher Blackburn's estate.
The nonprofits have joined the appeal of the ruling to the Mississippi Court of Appeals.
"I understand the motivation of the other parties, but from an emotional perspective it's surprising," said Rebecca Lowry, Blackburn's sister and mother to the three children who stand to inherit the estate.
"It's surprising on a human level. When I think about the fact these organizations that have been meaningful to our family are now fighting our family — they're fighting three young children — it doesn't feel fair."
Connie Jo Shelton, president of Nashville Christian School, did not respond to a request for comment.
George Nolan, a member of Harpeth Presbyterian Church, referred questions to Cal Mayo, an attorney for the University of Mississippi who also is representing the other three organizations. Mayo declined comment, saying he did not have sufficient time to confer with his clients in order to provide it.
Thus far, only the attorneys and trustees have benefited from the estate, which has paid their legal fees. Those lawyers also have petitioned the court to order Blackburn's estate to pay their fees as they pursue an appeal against the ruling in favor of Lowry's children.
Lowry said the dispute is particularly tough because of the family's longstanding ties to the institutions vying for the estate.
Lowry and her late brother attended Nashville Christian School. Barry Blackburn was schoolmates with Shelton, the school's president. Shelton's father was the late Blackburn's football coach.
Lowry and Blackburn were baptized at Harpeth Presbyterian, the church founded by their 19th-century ancestor. It was the church where Lowry married her husband.
And Blackburn is an alumnus and donor to the University of Mississippi.
Experts say such disputes involving charitable organizations are not uncommon, particularly when there is ambiguity involved.
"In the case of those organizations it's very much seen as a sort of obligation on behalf of the cause they are supporting to make sure they are receiving their legal claim," said Hannah Smith, an attorney specializing in estates with the Sherrard Roe Voigt & Harbison law firm. Smith is not involved in the dispute.
Smith also said that in estate disputes, courts "really look to the intention of the person signing the will or trust. That is the paramount thing."
Although Blackburn lived in Mississippi at the time of his death and Lowry and her children now live in Michigan, the family has deep roots in Tennessee.
The family includes Henry Hudson, one of the early developers in Nashville.
Lowry's uncle, Bill Barkley, is a prominent Nashville real estate developer who has been instrumental in the development of the Gulch.
And Lowry and Blackburn's late father, Stephen Blackburn, served as an assistant commissioner for the state Department of Health.
The properties include working farms in Mississippi and Alabama and acres of property along Pickwick Lake along Tennessee's southern border.
Lowry said the dispute holds a sense of irony to her because her late brother was a professional estate planner.
"If it comes down to winning at all costs when someone dies, isn't that a motivation to make sure we all have tight final plans?" she said.
Tennessee Encyclopedia recounts the story of Gideon Blackburn. (Mike Frisch)
The New Jersey Appellate Division concludes that a lawsuit must be dismissed
Because the timeline is everything in this case, we start there. In the course of picking up her son-in-law after surgery in September 2016, the decedent, Carolyn Repko, fell on the front steps at Lourdes, fracturing her nose and receiving a cut over her eye, as well as several other injuries. Three days later, she retained counsel to file suit on her behalf.
Repko died from unrelated causes in December 2017, fifteen months after her fall. Repko's counsel filed suit in her name in September 2018, shortly before the running of the statute of limitations, not knowing she had died nine months earlier. After Repko's counsel granted Lourdes an extension, it filed an answer in November 2018 and promptly served discovery. When Repko did not respond to her counsel's letters, counsel searched public records in February 2019, and discovered Repko had died over a year before.
Counsel wrote to Repko's son in March and April 2019, eventually securing his agreement to continue the case. In September 2019, three years after the accident and twenty-one months after Repko's death, her son sent counsel a death certificate and Letters Testamentary. Repko's will had been admitted to probate in March 2018 and Letters Testamentary issued to her son at that time.
Counsel advised Lourdes of Repko's death in September 2019 and sought consent to amend the complaint. Lourdes refused, maintaining the complaint was a nullity because Repko was already many months dead when it was filed.
Repko's counsel, now representing her estate, moved to amend the complaint in October 2019. Lourdes cross-moved to dismiss the action. The judge acknowledged that a dead person has no legal standing to bring a lawsuit, but ruled the decedent's estate was entitled to "an equitable tolling of the statute until the plaintiff's counsel finds out about the death and moves to amend the complaint." The judge noted that if Repko had died "an hour after filing," Rule 4:9-3 would permit the amendment to relate back, yet "if death occurs an hour before filing," not allowing the amended pleading to relate back would mean "that's the end of the case." Ruling the result should not "depend upon those types of fortuities," the judge granted the estate's motion to amend the complaint and denied Lourdes' motion to dismiss the action.
That was error
Because plaintiff's death prevented her from suing in her own behalf, the complaint filed in her name by her counsel was a nullity. As we have explained elsewhere, the existence of a juridical entity capable of suit is not merely a matter of form. "In any suit, . . . the plaintiff must subject itself to orders enforceable against itself, as well as availing itself of favorable orders. Without the presence of a plaintiff capable of both suing and being sued, relief cannot be afforded." Options v. Lawson, 287 N.J. Super. 209, 221 (App. Div. 1996).
Given the complaint Repko's counsel filed nine months after her death was ineffective "to set [the] judicial machinery in motion," Eder Bros., 880 A.2d at 143, there was nothing for the estate's complaint to "relate back" to...
Because the complaint filed in Repko's name by her counsel nine months after her death was ineffective to invoke the court's authority to resolve the claim, leaving nothing for the amended complaint proposed by her estate three years after the accident and twenty-one months after Repko's death to "relate back" to under Rule 4:9-3, we reverse the denial of Lourdes' motion to dismiss the complaint as barred by the statute of limitations and remand for entry of an order dismissing the complaint with prejudice.
Although not addressed by the parties, we question counsel's ability to file suit on Repko's behalf following her death. The attorney-client relationship ordinarily terminates on the client's death. Counsel claims Repko signed a retainer agreement, but he has not made it a part of the record. He has not asserted it empowered him to institute suit after Repko's death (citations omitted).
The District of Columbia Court of Appeals applied absolute immunity under the judicial proceedings privilege to affirm the dismissal of a defamation action.
Appellant Shinok Park worked under appellee Milan Brahmbhatt at the World Bank (the Bank). Ms. Park reported Mr. Brahmbhatt to the Bank’s Office of Ethics and Business Conduct (the EBC), alleging that he sexually assaulted and harassed her. The EBC investigated her allegations and, when doing so, afforded Mr. Brahmbhatt multiple opportunities to respond. Mr. Brahmbhatt retained appellee Peter Hansen as counsel during the Bank’s investigation. Through counsel, Mr. Brahmbhatt submitted two memoranda to the EBC, in which he claimed he had a consensual sexual relationship with Ms. Park and accused her of blackmailing and extorting him for employment opportunities at the Bank. According to Ms. Park, the memoranda also implied that she was a prostitute. The EBC sent a report to the Bank’s Vice President of Human Resources, attaching the two memoranda. In the report, the EBC recommended that the Vice President sanction Mr. Brahmbhatt for violating Bank rules by failing to resolve a de facto conflict of interest, but not to sanction him for sexual assault or harassment. The Vice President adopted the EBC’s recommendation. Mr. Brahmbhatt appealed his sanction to the World Bank Administrative Tribunal (the WBAT), which affirmed the Vice President’s decision.
Ms. Park later was terminated from her employment at the Bank. She sued Mr. Brahmbhatt and Mr. Hansen in Superior Court for defamation, claiming the two memoranda they submitted to the EBC defamed her and resulted in her termination.
The memoranda were uncovered through discovery in a parallel proceeding.
The privilege on these facts
we have applied the judicial-proceedings privilege to statements made preliminary to judicial proceedings so long as “an attorney [made the statements] while performing his function as such,” there is “a reasonable nexus between the publication in question and the litigation under consideration,” and the statements had a genuine “relationship to potential litigation” and were not made as a “mere afterthought or [with a] sham rationale.” These requirements have been met in instances where an attorney solicited shareholders of a corporation to participate in a class action lawsuit against the corporation; an attorney questioned an adversary’s competency in the English language while waiting in a hearing room of the Rental Accommodations Office prior to commencement of a proceeding; and an attorney responded to a threat of a lawsuit against the attorney’s client.
In this case, Mr. Hansen submitted the memoranda to the EBC on behalf of Mr. Brahmbhatt as preliminary submissions to the WBAT. First, Mr. Hansen submitted the memoranda is his capacity as an attorney. Both memoranda bore his law firm’s letterhead in the top center, “LAW OFFICES OF PETER C. HANSEN, LLC,” and specified that he was “[c]ounsel to Mr. Brahmbhatt.” Second, the memoranda had a “reasonable nexus” to future WBAT proceedings. Both memoranda contested facts and cited WBAT case law to argue that Ms. Park’s allegations did not meet the requisite standard of proof because other evidence indicated she was lying, and that the EBC’s findings of fact and conclusions of “law” in its draft report were erroneous based on WBAT precedent. Third, Mr. Hansen’s submissions indicate that he intended, in part, to establish a record for future WBAT proceedings; those proceedings, in other words, were not a mere afterthought. It was crucial that Mr. Hansen establish a record early on, as the WBAT historically has not heard oral arguments or held evidentiary hearings.
The allegedly defamatory statements in this case were relevant to future WBAT proceedings. Ms. Park claimed Mr. Brahmbhatt sexually harassed and assaulted her, and Mr. Brahmbhatt defended himself on factual grounds, specifically, that he was the victim, not Ms. Park, something that if true would certainly have aided Mr. Brahmbhatt’s defense. The question is not whether Mr. Hansen executed a sound or sensible argument, but whether a reasonable person might construe the statements he made as relevant.
Other safeguards exist
And although the specific requirements of the privilege have been met here, “the consequent immunity from a defamation suit does not mean that the attorney may not be sanctioned for misconduct." An overly “bumptious and unrestrained” attorney who makes defamatory statements without regard for their truth or relevance, we predict, will render service counterproductive to his client’s interests and may be liable for malpractice in a given case. That attorney, too, may be subject to professional discipline.
It is worth noting that the Bank seeks to account for the interests of the complainant—here, Ms. Park—by imposing a duty on the EBC, witnesses, and staff members to keep confidential all information related to an investigation of a complaint. The WBAT, as well, sought to protect Ms. Park’s identity by referring to her as “Ms. R.” Although Ms. Park claims that the statements in the memoranda were somehow leaked and led to her termination, she has offered us no evidence that leaks are a general problem at the Bank. And we presume that the Bank does its best to honor its rules regarding confidentiality, a presumption Ms. Park has not rebutted.
Associate Judge Glickman authored the opinion joined by Associate Judges Fisher and Thompson. (Mike Frisch)
The Virginia State Bar Disciplinary Board accepted a consent license revocation of an attorney
...on 19 June 2020 Respondent pled guilty in the United States District Court for the Western District of Virginia, Charlottesville Division, to one count of Transmission of Interstate Communications With Intent to Extort in violation of Title 18 U.S.C., Section 875 (d).
From the Department of Justice is a press release on the plea
Two licensed Virginia attorneys pleaded guilty today to federal extortion charges, admitting their roles in a scheme to extort a multinational chemicals company by threatening to inflict substantial financial and reputational harm on the company if their demands for a $200 million payment disguised as a purported “consulting agreement” were not met.
Timothy Litzenburg, 38, of Charlottesville, Virginia, and Daniel Kincheloe, 41, of Glen Allen, Virginia, each pleaded guilty today to one count of transmitting interstate communications with the intent to extort, before U.S. Magistrate Judge Joel C. Hoppe of the Western District of Virginia. Litzenburg and Kincheloe will be sentenced on Sept. 18, 2020, before U.S. District Court Judge Norman K. Moon.
“This is a case where two attorneys blew well past the line of aggressive advocacy and crossed deep into the territory of illegal extortion, in a brazen attempt to enrich themselves by extracting millions of dollars from a multinational company,” said Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division. “Today’s pleas underscore that when crimes are committed, members of the bar, like all members of the public, will be held accountable for their actions.”
“The consequences of extortion are far reaching, affecting not only individuals, but also the economy in the United States and the world’s financial markets,” said Inspector in Charge Delany De Leon-Colon of the U.S. Postal Inspection Service (USPIS). “Those who engage in this type of abuse of power while in positions of authority should know they cannot escape detection. They will be found and they will be held accountable for their actions.”
As part of their guilty pleas, Litzenburg and Kincheloe admitted that in approximately October 2019, Litzenburg approached a company (Company 1) and threatened to make public statements alleging that Company 1 had significant civil liability for manufacturing a purportedly harmful chemical used in a common household product used to kill weeds. Litzenburg and Kincheloe also admitted that after describing the possibility of damaging lawsuits against Company 1, Litzenburg proposed, in sum and substance, that he and Kincheloe enter into a “consulting arrangement” with Company 1 that would create a purported conflict-of-interest that would effectively stop them from representing their clients as plaintiffs in litigation against Company 1. Thereafter, Litzenburg and Kincheloe admitted that Litzenburg, with Kincheloe’s knowledge and agreement, demanded that Company 1 pay Litzenburg, Kincheloe, and others, a total of $200 million in purported “consulting fees.”
Litzenburg and Kincheloe also admitted that after making their demand for $200 million from Company 1, they registered a Virginia corporation for the purpose of receiving monies from Company 1, and that they agreed to split the funds from Company 1 amongst themselves and their associates, and to not distribute any of the monies Company 1 paid them as purported “consulting fees” to their existing clients. Litzenburg and Kincheloe admitted that after making their demand for $200 million, Litzenburg threatened Company 1 that they and others would commence litigation that would become “an ongoing and exponentially growing problem for [Company 1], particularly when the media inevitably takes notice[,]” and that such litigation would cost Company 1 and its publicly-traded parent company “billions, setting aside the associated drop in stock price and reputation damage.”
Litzenburg and Kincheloe also admitted that in an email written by Litzenburg, they threatened Company 1 that unless they were paid $200 million, Company 1 would have “thousands of future plaintiffs against [Company 1,]” and that “in the absence of a so-called ‘global’ or final deal with me, this will certainly balloon into an existential threat to [Company 1].”
Litzenburg and Kincheloe also admitted that they met in person with attorneys representing Company 1 at a conference center in Charlottesville, Virginia, and during that meeting Litzenburg again threatened to injure the property and reputation of Company 1 and its parent company unless they were paid $200 million pursuant to purported “consulting arrangements,” and that without such a deal there was no way Company 1 “gets out of it for less” than “[a] billion. Yeah. No, I mean, nuisance value, uh, defense lawyer fees, a hit in the stock when this gets filed and served, maybe the press conference, whatever.” Later in the same meeting, Litzenburg and Kincheloe admitted that Litzenburg again stated, in sum and in part, that if they commenced litigation it would have adverse effects on Company 1’s parent’s stock price, which Litzenburg described as “a 40 percent stock loss coming off the top.”
Litzenburg also admitted that, during other communications with Company 1, he told Company 1 that if he received the $200 million in “consulting fees” he would not discuss Company 1 or its parent company with his current clients, and that he was willing to “take a dive” during a deposition of a toxicology expert to deter potential future claims related to litigation against Company 1.
The Ohio Supreme Court has imposed a fully-stayed one year suspension for an attorney's practice of not placing retainer advances in an escrow account.
In addition to two specific matters
between February 2017 and November 2019, Turner was attorney of record in 19 domestic-relations cases, which she admitted required the handling of client funds. Turner, however, deposited those client funds into her operating account rather than her client trust account. She also admitted that she did not regularly use her client trust account during that time period. Based on that conduct, Turner stipulated and the board found that she committed another violation of Prof.Cond.R. 1.15(a).
Given that Turner failed to properly deposit retainers into her client trust account—or to even use the account—for almost two years, we agree that a one-year suspension, stayed in its entirety on conditions, including monitored probation, is appropriate. That sanction is consistent with the sanctions we have imposed on other attorneys who similarly failed to comply with the requirements of Prof.Cond.R. 1.15 over an extended period of time.
Wednesday, August 12, 2020
An attorney who practiced as an assistant states attorney while suspended administratively for non-compliance with continuing education requirements should be suspended for 30 days, according to a recommendation of the Illinois Review Board
As of April 19, Respondent still had not reported compliance to the MCLE Board, and consequently was removed from the master roll on that date. The ARDC sent him a removal notice informing him of that fact. He testified that he did not receive the notices of impending removal or removal.
Between April 19 and November 21, 2017, Respondent routinely appeared in court on behalf of the State. He estimated that he appeared as an assistant state's attorney in approximately 300 cases during that time. He therefore practiced law for a seven-month period when he was not authorized to do so.
On November 21, 2017, the McLean County State's Attorney told Respondent that he had learned that Respondent was not authorized to practice law in Illinois. On November 22, Respondent called the MCLE Board and spoke with an employee who suggested that he speak with Pusemp, who was away for the Thanksgiving holiday. On November 27, Respondent spoke with Pusemp and sent her the March 10, 2017 email and his CLE certificates. She noted that the email had been sent to an incorrect email address and that Respondent had not satisfied his MCLE requirements because he had not taken the Basic Skills Course.
That night, he completed an online Basic Skills Course and submitted information to the MCLE Board to support his request for a fee waiver. The Board approved the request and Respondent was reinstated to the master roll on November 29, 2017. That same day, the McLean County State's Attorney terminated his employment.
The hearing board had proposed a 60-day suspension
we believe a short suspension is warranted. However, we also believe that the 60-day suspension recommended by the Hearing Board is longer than necessary and is not supported by authority. Instead, we would recommend a 30-day suspension, which we believe is more commensurate with Respondent's conduct and consistent with precedent.
One of the primary reasons for the Hearing Board's recommendation of a 60-day suspension is the large number of cases that Respondent handled during the time that he was removed from the master roll. But, a high volume of cases is part and parcel of an assistant state's attorney's practice. We have already taken into account Respondent's role as an assistant state's attorney in determining that suspension rather than censure is necessary to protect the integrity of the legal system. To further increase sanction simply because of the inherent nature of Respondent's practice seems akin to punishing him for choosing a career in public service as a prosecutor, rather than in civil practice.
In addition, we note that, once Respondent's supervisor raised the issue of his unauthorized practice, Respondent got into compliance almost immediately, presumably because he realized the gravity of his situation. This demonstrates some acceptance of responsibility for his actions. It also leads us to believe that he committed his missteps, at least in part, because he was a new lawyer who did not fully understand the importance of adhering to all of the requirements of law practice in Illinois. This does not in any way excuse his misconduct, of course, which is why we recommend suspension rather than the reprimand or censure that Respondent seeks. We hope that a suspension will "impress upon Respondent the seriousness of his misconduct and the importance of fully complying with his duties as an attorney." (Hearing Bd. Report at 13.)
The South Carolina Supreme Court has disbarred an attorney on consent after a series of sex-related criminal offenses
On June 5, 2018, Respondent was arrested and charged with indecent exposure, in violation of S.C. Code Ann. § 16-15-130, after he was observed exposing his genitals and masturbating. Respondent self-reported the arrest to ODC on June 19, 2018. On December 9, 2019, Respondent entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and was sentenced to three years' imprisonment, suspended to twelve months' probation and payment of $168.75 in court costs.
Respondent's previous disciplinary history includes two matters involving similar behavior. In 1997, Respondent received a four-month suspension citing the equivalent of Rules 8.4(b) (committing a criminal act that reflects adversely on an attorney's honesty, trustworthiness, or fitness as a lawyer in other respects) and 8.4(c) (committing a criminal act involving moral turpitude), RPC, Rule 407, SCACR. In re Parrott, 325 S.C. 162, 480 S.E.2d 722 (1997). This four-month suspension followed Respondent's entry of an Alford plea to a charge of simple assault and battery he received after pulling down a woman's bathing suit while she was sunbathing at Surfside Beach in May 1994. Id. at 163, 480 S.E.2d at 723 (noting Respondent tried to pull off another woman's bikini bottom while she was sunbathing at North Myrtle Beach in October 1989, but was not prosecuted for this offense; and Respondent had no prior connection with either woman, covered his face during both incidents, and retreated when the women "put up a struggle").
That suspension order is linked here.
In 2017, the Court suspended Respondent, then fifty-six years old, for nine months after he was arrested and charged with voyeurism for using a cell phone to take photos up a woman's skirt in a grocery store and failed to inform ODC of his arrest within the required fifteen-day period. In re Parrott, 421 S.C. 105, 107, 804 S.E.2d 852, 853 (2017). In its 2017 order, the Court found Respondent's conduct violated Rules 8.3(a) (requiring an attorney to provide notice to ODC in writing within fifteen days of being arrested or charged by way of indictment, information, or complaint with a serious crime), and 8.4(b) (committing a criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects), RPC, Rule 407, SCACR. In re Parrott, 421 S.C. at 109, 804 S.E.2d at 854.
Myrtle Beach online reported on the upskirt photo arrest
Jacob Parrot, 56, is charged with voyeurism, according to Myrtle Beach Jail records, and he may have been involved in a similar incident during the spring, police said.
Officers were called about 11:30 a.m. Aug. 9 to the Bi-Lo at 1241 38th Avenue North in reference to a person taking photos up a 45-year-old woman’s skirt with a cellphone, according to a report.
The victim told police she heard what sounded like photos being taken with a cellphone. She turned around and saw Parrot bent down next to her just after taking pictures up her skort, which is skirt combined with shorts, police said.
The victim asked him what he was doing, and he quickly walked away. She followed him out to his gray Ford Explorer, authorities said.
The victim snapped a photo of the license plate and police used the information to find Parrot, according to the report.
Dan Trevas has a summary of a discipline matter on the web page of the Ohio Supreme Court
The Ohio Supreme Court today publicly reprimanded a Franklin County judge whose blood alcohol level was more than twice the legal limit when she was arrested for drunken driving.
In a unanimous per curiam opinion, the Supreme Court reprimanded Judge Monica E. Hawkins, whose arrest came shortly after taking office as a newly elected member of the domestic relations and juvenile branch of the Franklin County Common Pleas Court. The Supreme Court found Judge Hawkins violated the rules requiring judges to comply with the law and act at all times in a manner that promotes public confidence in the judiciary.
Judge Gets Lost Going Home
Judge Hawkins won election to the bench in 2018 and assumed the role in early 2019. On Jan. 31, 2019, a Pickerington police officer responded to a 911 call around 8:30 p.m. alerting them to a suspected intoxicated driver. When stopped by the officer, Judge Hawkins told her she had gotten lost while driving home.
The officer smelled alcohol emanating from the vehicle and asked Judge Hawkins if she had been drinking. She replied, “No.” When the officer stated she smelled alcohol, Judge Hawkins replied, “No, I’m a judge and I was trying to get home but I just got lost.”
The officer noted a large knot on the judge’s forehead, which appeared to be bleeding. She asked the judge about the head injury, and she denied having an injury. When asked for her identification and proof of insurance, Judge Hawkins produced a driver’s license and a health-insurance card. The officer observed vomit on her coat and a large amount of vomit on the driver’s side floor of the vehicle.
A police sergeant arrived on the scene and approached the vehicle. Judge Hawkins handed her cell phone to the sergeant. Judge Hawkins’ bailiff was on the phone and was inquiring about the location of the incident so she could go to the scene.
Judge Hawkins was removed from her vehicle and failed several field sobriety tests. She was arrested for operating a vehicle while under the influence (OVI).
Judge Resists Intoxication Tests
At the police station, Judge Hawkins refused to provide a breath sample, and the arresting officer informed her she would seek a warrant to draw blood. The judge was transported to a hospital to obtain a blood sample, but refused to submit to a blood draw. She was informed by police that they obtained a warrant and she could not refuse. Eventually, four hospital security officers held her down until blood was drawn.
She was then charged with OVI and a marked-lanes violation. A report would later confirm her blood alcohol level was 0.199, more than twice the legal limit of .08 percent.
In Fairfield Municipal Court, Judge Hawkins pleaded guilty to OVI, and the remaining charges were dismissed . She was sentenced to 90 days in jail, with 87 days suspended, and the opportunity to complete a 72-hour driver-intervention program in lieu of the three days in jail. She also paid a $375 fine, had her driver’s license suspended for one year, and was placed on one year of probation.
Conviction Leads to Rule Violation
Based on the conviction , the Office of Disciplinary Counsel filed a complaint in August 2019 with the Board of Professional Conduct alleging Judge Hawkins violated two rules governing the conduct of Ohio judges.
The disciplinary counsel and Judge Hawkins suggested a public reprimand, and the board recommended that sanction to the Supreme Court.
“Operating a vehicle while intoxicated imperils public safety and public confidence in the integrity of the judiciary,” the Court’s opinion stated.
The opinion noted other jurists have been reprimanded for driving under the influence, and judges have been reprimanded when, like Judge Hawkins, they invoked their status as a judge during their OVI arrests.
Along with the reprimand, Judge Hawkins was ordered to pay the costs of the disciplinary proceedings.
The Georgia Supreme Court decided two bar discipline matters on Monday.
The court accepted the voluntary license revocation based on a no contest plea
After initially being indicted on one count of forgery in the first degree based on her act of knowingly signing a judge’s initials to a clarifying order without having obtained his express permission, Rogan entered a negotiated plea of nolo contendere to obstruction of officers in violation of OCGA § 16-10-24, pursuant to the First Offender Act, OCGA § 42-8-60. Rogan admits that by virtue of her plea, she violated Rules 4.1 (a), 8.4 (a) (3), 8.4 (a) (4), and 8.4 (a) (8), of the Georgia Rules of Professional Conduct found in Bar Rule 4- 102 (d).
The second matter also involved voluntary revocation
Otuonye was convicted in the Superior Court of Mitchell County on one felony count of Criminal Attempt to Furnish Prohibited Items (tobacco) to Inmates in violation of OCGA § 42-5-18, and sentenced to five years, serve two. Thereafter, this Court accepted his petition for voluntary suspension of license pending appeal. See In the Matter of Otuonye, 302 Ga. 374 (806 SE2d 524) (2017). The Court of Appeals ultimately affirmed his criminal convictions in an unpublished opinion. See Otuonye v. State, A19A0437 (Ga. App. May 30, 2019), cert. denied, S19C1443 (Jan. 13, 2020).
Revocation is "tantamount to disbarment. (Mike Frisch)
Monday, August 10, 2020
A criminal conviction for harassment (and the failure to notify the Bar) has resulted in a one year suspension by the Pennsylvania Supreme Court.
The story is told in the Disciplinary Board report.
The attorney was admitted in 1978 and has no prior discipline.
He represented a defendant in a "drug related" criminal case.
A.M. was admitted in 2015.
She represented a co-defendant in "one of her first" criminal cases. She sought and received help from the attorney on a motion to quash.
He was "interested in pursuing a romantic relationship" with A.M. He invited her to his boat at the Camden Marina to discuss the motion.
Once inside the cabin, he took her cell phone and locked the door (which she did not see as a "red flag" because of the "high profile" of the drug case).
told her that a prosecutor would claim she traded sex for drugs because "a tall blond criminal defense attorney [would be] perfect for the front page of the Inquirer,"
offered to get her out of the scandal, and
told her he was "hierarchy in Sierra Leone" and if she would "give herself to him 'mind, body and soul' and travel with him to Africa where they would dive into 'black mud'/oil, he would make sure this matter would never come-to-light."
She told him she had brought her boyfriend with her. He touched and kissed her without her consent and she "believed he was trying to rape her."
She got her cell phone back and departed. She was traumatized and considered leaving the legal profession as a result.
A.M. filed a both a criminal and a bar complaint.
Respondent stood trial and was convicted of harassment. He was sentenced to a $100 fine and neither appealed or reported the conviction.
His reason? His attorney told him it was like a "traffic ticket" or a "parking ticket."
The Disciplinary Board:
A one year period of suspension will make clear to the bar that intentional nonconsensual touching of another, in this case a fellow member of the bar, will not be tolerated .
In a matter involving a question of first impression, the New Jersey Supreme Court has held that forcing a defendant to reveal iPhone passwords for properly seized phones does not run afoul of the state or United States Constitutions.
From the court's syllabus
The Court considers whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination.
The target of a State narcotics investigation, Quincy Lowery, advised detectives that defendant Robert Andrews, a former Essex County Sheriff’s Officer, had provided him with information about the investigation and advice to avoid criminal exposure. The State obtained an arrest warrant for defendant, who was later released, and search warrants for defendant’s iPhones, which were seized.
The State moved to compel disclosure of the passwords to two iPhones
The trial court rejected Andrews’s arguments but limited access to Andrews’s cellphones “to that which is contained within (1) the ‘Phone’ icon and application on Andrews’s two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by Andrews during his communications with Lowery.” The court also ordered that the search “be performed by the State, in camera, in the presence of Andrews’s defense counsel and the [c]ourt,” with the court “review[ing] the PIN or passcode prior to its disclosure to the State.” The Appellate Division affirmed. 457 N.J. Super. 14, 18 (App. Div. 2018). The Court granted leave to appeal. 237 N.J. 572 (2019).
The court agreed
Here, the State correctly asserts that the lawfully issued search warrants -- the sufficiency of which Andrews does not challenge -- give it the right to the cellphones’ purportedly incriminating contents as specified in the trial court’s order. And neither those contents -- which are voluntary, not compelled, communications -- nor the phones themselves -- which are physical objects, not testimonial communications -- are protected by the privilege against self-incrimination. Therefore, production of the cellphones and their contents is not barred. But access to the cellphones’ contents depends here upon entry of their passcodes. Communicating or entering a passcode requires facts contained within the holder’s mind. It is a testimonial act of production...
Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones’ contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination. This was no fishing expedition.
The court majority reaches the same result under state law.
Justice LaVecchia, dissented (quoting from the opinion)
In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts -- the contents of our minds -- from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.
We are at a crossroads in our law. Will we allow law enforcement -- and our courts as their collaborators -- to compel a defendant to disgorge undisclosed private thoughts -- presumably memorized numbers or letters -- so that the government can obtain access to encrypted smartphones? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.
The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology. Respectfully, I dissent from the course the Court now takes.
...This Court has never before permitted law enforcement to compel from a defendant’s lips inner thoughts to assist in his own prosecution. I cannot join in taking our state law in that direction. Therefore, for the same reasons that I would not extend federal law to require what the Supreme Court has not expressly held, so too I would not turn our jurisprudence from the guiding principles it has followed to date.
This intrusive use of compelled cooperation forcing self-incrimination through disclosure of the contents of one’s mind is not consistent with our law. It should be rejected as a step backwards from the storied history in this State of protective law concerning personal autonomy and the privacy of one’s inner thoughts with respect to the privilege against self-incrimination.
The oral arguments can be accessed on the court's opinions page. (Mike Frisch)
Friday, August 7, 2020
The Nebraska Supreme Court has overturned a garnishment order against an attorney's personal bank account.
Meister, an attorney in Scottsbluff, Nebraska, represented Alejandra Garza (Alejandra), a minor, in a personal injury matter. During the course of that representation, it was determined that Alejandra needed surgery. The doctor treating Alejandra recommended that the surgery be performed by Gem City in Laramie, Wyoming. Alejandra’s father signed an authorization for treatment and an assignment from any potential settlement proceeds to ensure payment of Alejandra’s surgery.
Following the surgery, but before settlement occurred, Alejandra’s father passed away and Alejandra obtained the age of majority. Upon settlement, Gem City requested the full amount billed for the treatment, $15,337. Meister disputed this billing, claiming that Gem City should have billed Medicaid and that Nebraska law did not permit Gem City to charge above the Medicaid reimbursement rate of $5,112.33.
A settlement was not reached, and Gem City pursued, in Wyoming, a breach of contract action against Meister and his professional corporation to recover the portion of the settlement assigned to them.
The attorney moved to dismiss the Wyoming action on jurisdictional grounds
There was a hearing on the jurisdiction issue in Wyoming, but the record does not show that any evidence was produced. The district court in Wyoming denied Meister and his professional corporation’s motion and proceeded to trial. Neither Meister nor his professional corporation appeared, and the Wyoming court entered default judgment against Meister and his professional corporation, jointly and severally. The Wyoming judgment was not appealed.
The medical provider sought to enforce the judgment in Nebraska
the district court rejected Meister and his professional corporation’s argument and found that they had failed to rebut the presumption that the Wyoming court had personal jurisdiction.
Before the court
We find that Meister is not barred from litigating in this appeal the question of whether the Wyoming judgment is void for lack of jurisdiction.
On the record before us, we are unable to identify any actions in the pleadings or at subsequent hearings that can be attributed to Meister as an individual, which would lead us to find that the Wyoming court had jurisdiction over Meister as an individual. All of the actions by Meister identified by the pleadings constitute actions by Meister’s professional corporation in the course of representing Alejandra. Neither Gem City nor the Wyoming court provides any precedent that imputes actions done in a professional capacity to an individual personally for jurisdictional purposes..
Without any actions taken by Meister as an individual that can satisfy the minimum contacts requirements for jurisdiction, we must conclude that the Wyoming court improperly exercised personal jurisdiction over Meister as an individual. Without jurisdiction, the Wyoming order is void as to Meister as an individual.
The only order properly before us on appeal is the August 21, 2019, order, which garnishes Meister’s personal bank account. On the facts presented, we find that the Wyoming court incorrectly determined that it had jurisdiction of Meister as an individual. We make no finding as to whether there was personal jurisdiction over Meister’s professional corporation. Because we are vacating the Nebraska order garnishing Meister’s personal bank account, we need not address Meister’s second assignment of error.
The case is GEM CITY BONE & JOINT v. MEISTER, decided today. (Mike Frisch)
Thursday, August 6, 2020
The New Jersey Supreme Court rejected the proposed removal of a judge made by the Advisory Committee on Judicial Conduct in favor of the three-month suspension.
The allegations involved harboring a fugitive.
The case began when the judge reported that her car was missing.
The investigating officers of Woodbridge Township found two warrants against her live-in boyfriend.
The majority conclusions on the misconduct
In short, clear and convincing evidence supports the Presenter’s contention that respondent disclosed very little of what she knew about Prontnicki’s location, activities, and plans to the police. The evidence supports the inference that respondent acted not at the direction of the police or because she feared harm, but in the hope that she could assist Prontnicki and preserve their relationship while maintaining her judicial career...
Relying only on clear and convincing evidence, we view respondent’s communications with the WTPD on June 10 and 11, 2013 to fall short of the high standards imposed by the Code. Respondent clearly understood that the charges against Prontnicki were serious and that the police viewed public safety to be at risk while he remained at large. Yet she disclosed only minimal information about her extensive contacts with Prontnicki. Based on her conversations with Prontnicki, her texts to her friends, and her communications with the WTPD, it is apparent that respondent’s priorities were her personal concerns -- particularly her relationship with Prontnicki -- not her duty to the public.
Respondent was undoubtedly in a difficult situation during the two days at issue here. Alarmed by the disappearance of her car and exhausted from searching for it, and believing that she might be pregnant with a child fathered by Prontnicki, she was shocked by the officers’ revelation of his outstanding warrants and suspended driver’s license. It is understandable that respondent was upset as those disturbing events unfolded.
As a judge, however, respondent was not at liberty to address her circumstances with only herself and her personal relationships in mind. The WTPD was searching for an individual who allegedly robbed a pharmacy by threatening a pharmacist with a crowbar. A judge had found probable cause and issued a warrant for his arrest, and WTPD officers were charged to execute that warrant in the interest of public safety. It was incumbent on respondent to fully cooperate with law enforcement in their search for Prontnicki, notwithstanding her distressing personal circumstances.
As the evidence makes clear, respondent did not do so.
Dissenting Justice Albin concludes that
a fair reading of the record reveals that Judge Brady was the victim of a police investigation run amok -- an investigation that was built on an unfounded assumption and that cast aside inconvenient facts...
Judge Brady was a judicial officer, not a deputized member of the Woodbridge Township Police Department. She did not harbor a criminal, and she did not obstruct an investigation. She did not have the reporting duties of a law enforcement official. That is a line blurred in the majority opinion.
From the court's headnote
Respondent was sworn in as a Judge on April 5, 2013. On June 11, 2013, officers of the Woodbridge Township Police Department (WTPD) arrested respondent at her home for “knowingly harboring Jason Prontnicki, a known fugitive,” in her residence. The Court suspended respondent from her judicial duties without pay and referred the matter to the ACJC. The three criminal charges against respondent were eventually dropped, and the Court reinstated respondent to her judicial duties in March 2018.
In May 2018, the ACJC issued a Complaint charging respondent with conduct that violated Canon 1, Rule 1.1; Canon 2, Rules 2.1 and 2.3(A); and Canon 5, Rule 5.1(A) of the Code. At the ACJC hearing, the following facts emerged.
On June 10, 2013, respondent had been a Superior Court judge for approximately two months. She and Prontnicki had been involved in a romantic relationship for about six months, and Prontnicki was living in respondent’s home.
On that morning, respondent appeared at WTPD headquarters to report her car missing. She met with two police sergeants and Officer Robert Bartko. Respondent told the officers that Prontnicki, her boyfriend, had taken one of her cars without permission. The officers explained the procedure to file a criminal complaint against Prontnicki, but respondent declined to do so. While respondent was at the station, officers learned there were two open warrants for Prontnicki’s arrest, one for a violent crime, and that his driver’s license had been suspended. The officers told respondent about Prontnicki’s open warrants and suspended license. The police report reflects that the officers told respondent that as “an officer of the court,” she was required to report to them “if and when” Prontnicki returned with the car, so they could arrest him.
Shortly after respondent returned home, Prontnicki called her. Respondent testified that Prontnicki told her he would return her car, that he denied knowing of any warrants or a suspended license, and that she told him that he needed to “go to the police and take care of it right away.” It is undisputed that -- after speaking with Prontnicki -- respondent did not call the police to advise them Prontnicki would be at her home.
Respondent testified that, when Prontnicki arrived, he walked past her father into the house. Respondent said she was “a little surprised and shocked and then fearful,” and that she told Prontnicki to leave. Nonetheless, she and Prontnicki talked in her garage for about an hour, joined by her father for the final fifteen minutes of their conversation.
Approximately fifteen minutes after Prontnicki left her home, respondent called the WTPD, asked to speak with Bartko, and left a message on Bartko’s voicemail. Respondent notified police that her car had been returned, but other contents of that message are disputed. Respondent contended before the ACJC and the Court that the WTPD tampered with the voicemail to delete part of her message.
The next morning, on June 11, 2013, Prontnicki called respondent, and they spoke for more than two and a half hours. Respondent testified that during that call, Prontnicki confirmed he would be staying with his brother and said he needed to retrieve belongings from her home. They made an appointment for that afternoon, and Prontnicki called later to confirm their appointment. Respondent did not notify the police after either call.
Respondent left a second message for Officer Bartko later that afternoon, confirming that her car had been returned. Respondent contends that the WTPD also tampered with and intentionally deleted parts of her second voicemail. Bartko did not retrieve either of respondent’s messages until after respondent was arrested.
Meanwhile, WTPD officers conducted surveillance of respondent’s residence during the afternoon of June 11, 2013. When Prontnicki left her house, a WTPD officer arrested Prontnicki. Shortly after his arrest, members of the WTPD went to respondent’s home and arrested her for hindering Prontnicki’s apprehension. One testified that when respondent was arrested, she said, “I’ve been vetted, take the cuffs off.” According to the police report, respondent directed officers to take the handcuffs off of her, then asked to be handcuffed with her hands in front of her rather than behind her. The officers refused.
Later that evening, officers and an assistant prosecutor presented a Superior Court judge a complaint warrant alleging that respondent had “harbor[ed]” Prontnicki in her residence “for approximately 1 hour and never ma[de] any attempt to contact law enforcement.” Although one officer was aware that respondent had left voicemails for Bartko, he did not disclose those voicemails to the judge. The judge signed the complaint warrant. Before the ACJC, an officer conceded that the statement in the complaint warrant that respondent never tried to contact law enforcement was inaccurate.
At the ACJC hearing, both respondent and the Presenter offered expert testimony by psychologists and audio engineering experts. The ACJC found by clear and convincing evidence that respondent violated the Code. With respect to contested facts and the two issues that the parties’ experts disputed, the ACJC made findings in the Presenter’s favor. The ACJC recommended respondent’s removal from judicial office.
Respondent moved before the Court to dismiss the Presentment, or, in the alternative, to modify the ACJC’s recommendation that she be removed from office. After oral argument on that motion, the Court entered an Order to Show Cause denying the motion to dismiss and requiring respondent to show cause “why she should not be publicly disciplined through the imposition of an appropriate sanction that is less than removal, the Court having determined on its review of the matter that the appropriate quantum of discipline shall not include removal.”
HELD: The Court concurs in substantial part with the ACJC’s factual findings and holds that clear and convincing evidence supports the ACJC’s determination that respondent committed the Code violations charged. The Court modifies the ACJC’s recommendation that respondent be removed from judicial office, however, and instead imposes on respondent a three-month suspension from judicial duties...
JUSTICE ALBIN, dissenting, is of the view that, based on the record, Judge Brady did not harbor a fugitive or obstruct a police investigation. Nor did her conduct demean the judiciary. Justice Albin stresses that Judge Brady’s conduct should not be viewed from the sterile, twenty/twenty perspective of hindsight, but rather from that of a vulnerable human being, fatigued and frightened, in the grip of overwhelming stress, who, in the moment, made decisions that, even if flawed, do not rise to a level that warrants discipline. In Justice Albin’s view, Judge Brady is the victim of a misguided and failed criminal prosecution that has left her career as a judge in ruins and of a disciplinary review that has overlooked police malfeasance, her good-faith efforts, and the human element. Because he does not believe that the charges against Judge Brady have been sustained by clear and convincing evidence, Justice Albin finds that the imposition of discipline is not justified.
JUSTICE LaVECCHIA, dissenting, is not persuaded there is clear and convincing evidence in this record to sustain disciplinary charges.
I would dissent from the majority’s determination that Carlia M. Brady’s conduct warrants only a three-month suspension. I agree with the ACJC’s well reasoned Presentment recommending removal from the bench.
I also find that the majority’s analysis today equally supports removal from the bench beyond a reasonable doubt. Since removal from the bench is not available as a sanction, I concur with the majority’s decision.
From the dissent of Justice Albin
Today’s majority decision is a sad epilogue to Judge Carlia Brady’s seven-year nightmare journey through the criminal justice system and the judicial disciplinary process. Seven years ago, Judge Brady was the quintessential American success story -- a Filipino-American immigrant, who became an accomplished lawyer and rose from the ranks of the Bar to become a Superior Court judge. Just several months after her judicial appointment, her career, her reputation, her health -- her life -- would be in ruins, the victim of overzealous Woodbridge Township police officers, who filed criminal charges that could not be sustained in court.
Those dismissed criminal charges and the current judicial disciplinary charges stem from a tumultuous, thirty-six-hour period in Judge Brady’s life. During that period, while reporting to the police the theft of her car, she learned that her live-in boyfriend, the father of her unborn child -- the man with whom she had planned a future -- was a potentially dangerous criminal and wanted for the robbery of a drugstore. In a state of shock -- with her reality shattered and her trust betrayed -- fatigued by twenty-four sleepless hours, and stressed about her pregnancy, Judge Brady should have been the object of at least a modicum of police solicitude. Instead, she became the target of a hapless police investigation designed to make the case that she was harboring a criminal.
Justice Albin tells the judge's story and the facts of the situation in exacting detail.
Northjersey.com profiled Justice Albin. (Mike Frisch)
The Ohio Supreme Court dismissed a disciplinary matter on notice grounds
The Board of Professional Conduct recommends that we publicly reprimand him for violations of two divisions of an ethical rule that were not charged in the disciplinary complaint against him. For the reasons explained below, we conclude that Reinheimer did not have fair notice of those charges, and we therefore dismiss this case.
The attorney had been charged with three violations, two of which were dismissed for lack of evidence
During closing arguments, relator suggested that the panel was not limited to finding a violation of Prof.Cond.R. 1.4(a)(3)—the sole remaining charge—and that the panel could find a violation of any division of Prof.Cond.R. 1.4.1 Relator, however, mentioned only one other division—Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to inform a client of any decision or circumstance requiring the client’s informed consent)...
Upon consideration of the parties’ briefs, the panel unanimously dismissed the charged violation of Prof.Cond.R. 1.4(a (3) for lack of sufficient evidence. The panel, however, granted relator’s purported motion to amend the complaint, found that Reinheimer violated Prof.Cond.R. 1.4(a)(1) and 1.4(b), and recommended that he be publicly reprimanded for those violations. The board issued a report adopting the panel’s findings of misconduct and recommended sanction.
Although all divisions of Prof.Cond.R. 1.4 relate to an attorney’s communications with his or her client, each division is distinct and requires or prohibits certain conduct. Alleging that Reinheimer violated one division based on specifically alleged facts failed to place him on fair notice that he may have violated other divisions of Prof.Cond.R. 1.4 based on slightly different facts, especially when the uncharged divisions were raised after the close of the evidence and the parties had not consented to a hearing on those uncharged violations and unalleged facts. Although there may be circumstances when the allegations in a complaint put a respondent on fair notice of uncharged violations of Prof.Cond.R. 1.4, this is not one of those cases.
Justice Kennedy concurred
I write separately to emphasize that imposing discipline for violations of ethics rules that were not alleged in the complaint deprives the disciplined attorney of due process...
Due process precluded the board from amending the complaint to add new charges of professional misconduct after Reinheimer testified. To go beyond that narrow holding even though it is unnecessary to do so contravenes the “ ‘cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more,’ ” State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51, quoting PDK Laboratories, Inc. v. United States Drug Enforcement Administration, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in judgment).
As did Justice Fischer
Although I agree with the court’s disposition of the case, I wish to note the possibility that if violations of Prof.Cond.R. 1.4(a)(1) and 1.4(b) were not properly alleged—and thus never properly at issue and not able to have been litigated—those possible claims may still exist. And given that there is also no statute of limitations on disciplinary actions, see Cincinnati Bar Assn. v. Young, 89 Ohio St.3d 306, 315, 731 N.E.2d 631 (2000), citing Columbus Bar Assn. v. Teaford, 6 Ohio St.2d 253, 255, 217 N.E.2d 872 (1966), it is possible that because the violations were never alleged, with proper notice, they may still be charged.
Taking no position, I ask rhetorically: may relator consider whether he wishes to charge the violations that this court today concludes were improperly found by the board? Relator might or might not succeed in “retrying” those counts, after giving proper notice to Reinheimer. Given our duty to protect the public, I think it is appropriate to consider all available options, within constitutional limits, for ensuring that attorneys who have engaged in misconduct answer for that misconduct in the disciplinary process.
Wednesday, August 5, 2020
The New Jersey Supreme Court has ordered a three-month suspension of an attorney for ethical violations relating to his false testimony that he was a victim of domestic violence.
From the recommendation of the Disciplinary Review Board
After respondent informed the court that his cousin had an audio-visual recording of the incident, Judge Velazquez asked to view it. Respondent admitted that the recording showed the entirety of the alleged domestic violence incident. Judge Velazquez reviewed the video and found that A.B. had not engaged in threatening conduct and that there was no evidence of the existence of a knife. Although respondent claimed that A.B. was blocking the camera, the judge remarked that the video showed respondent and his family members screaming at A.B. and attempting to illegally evict her from the house. Judge Velazquez dismissed the domestic violence complaint, admonished respondent on the record, and informed him that a referral to the OAE would follow.
Respondent initially denied to the OAE that he had testified before the hearing officer and the judge that A.B. had knives. However, after respondent reviewed the transcript of his testimony, he admitted that he had testified to the presence of the alleged knives.
Respondent then admitted to the OAE that he had not seen A.B. with knives during the January 13, 2019 incident. He insisted that his accompanying family members told him that they thought she had knives, although they did not see them. Respondent further admitted that he had wanted A.B. to move from the home, as their relationship had broken down, and that he was trying to evict A.B. by means of a TRO. He contended that A.B. was bullying and taking advantage of him, that his family had intervened to help him eject her from the residence, and that his family had encouraged him to file the TRO. Finally, respondent admitted that he should have filed an ejectment action, not a TR.
In aggravation, respondent failed to withdraw his false testimony, even after Judge Velazquez gave him the opportunity to review the evidence, and respondent failed to admit to the OAE that he had testified about the presence of knives until he was presented with the transcript. In mitigation, the stipulation noted that respondent had an unblemished disciplinary history; he eventually expressed regret for filing the TRO; his family members influenced his actions; respondent’s relatives, not respondent, were the aggressors toward A.B. during the January 13 incident; and respondent ultimately admitted his wrongdoing and agreed to file the motion for discipline by consent.
A public censure has been imposed by the New York Appellate Division for the Second Judicial Department
By virtue of the stipulation presented with the joint affirmation, the parties have agreed that the following factual specifications are not in dispute: Between January 1, 2015, and August 2016, the respondent, who practices in the area of collection law, used the services of credit card servicing companies. The respondent permitted one or more of the credit card servicing companies to directly debit their fee from his trust account. The respondent would thereafter transfer funds from his operating account to the trust account to cover the fees of the credit card servicing companies. Inasmuch as there was a delay before the respondent replenished the funds removed by the credit card servicing companies, shortages occurred in the respondent’s trust account. On January 1, 2016, there was a $2,713.11 shortfall in the respondent’s attorney trust account, which he discovered after a check issued from that account was returned. During the period investigated, shortages occurred in the respondent’s trust account for periods ranging between days and months, and resulted in the misappropriation of funds being held for third parties.
we find that the respondent’s failure to provide proper oversight and his poor record-keeping practices resulted in the misappropriation of client funds. In view of the respondent’s admitted misconduct as well as the aggravating and mitigating factors presented herein, we conclude that the joint motion for discipline on consent pursuant to 22 NYCRR 1240.8(a)(5) should be granted, and that a public censure is warranted.
The Minnesota Supreme Court rejected an unfavorable recommendation and reinstated an attorney to the practice of law.
Trombley was admitted to practice law in Minnesota in 2000. She mainly worked as an in-house attorney, most recently at a Minnesota healthcare company. While suspended, Trombley has remained employed at that company in the non-legal role of project manager.
On August 8, 2018, we indefinitely suspended Trombley, with no right to petition for reinstatement for a minimum of 6 months, for dishonestly converting her stepfather’s money.
The court found she was remorseful and had changed
Here, Trombley testified about a change in conduct. She testified that she continues to meet with a therapist twice a month to discuss personal issues because she realizes the importance of a third party’s perspective. Her husband testified that, since her suspension, Trombley has exhibited more empathy and compassion toward their children. Trombley also testified about her new state of mind, explaining that she would “have much more insight now into recognizing” this type of situation in the future, that she no longer demonizes her stepsister, and that she recognizes that she acted “terribly wrong.” On the whole, clear and convincing evidence exists that Trombley has changed her conduct and state of mind to correct the underlying misconduct.
And can be trusted to ethically practice law
The misconduct in this case occurred outside the practice of law and involved Trombley dishonestly converting her stepfather’s money and spending it on herself. Trombley testified that if she is reinstated, she would like to return to her role as in-house counsel. Compellingly, Trombley’s employer has remained committed to her: The company transferred her to a new role during her suspension and her supervisor stated he will consider returning Trombley to a legal position after her reinstatement. This support from Trombley’s employer provides strong evidence that Trombley is trusted to ethically practice law. Moreover, Trombley wants to avoid similar situations in the future, testifying that she “would not agree to handle somebody’s will” or “be somebody’s power of attorney” in the future. And as explained above, she continues to meet with a therapist twice a month. We conclude that Trombley has demonstrated a renewed commitment to the ethical practice of law.
We reinstate Trombley to the practice of law, subject to a permanent prohibition from acting as a fiduciary for any family member (other than her husband and children), require her to make payment of her annual registration fee within 30 days of the date of this opinion, and place her on probation for a period of 2 years [subject to conditions]
Committee on Professional Conduct Panel A of the Arkansas Supreme Court imposed reciprocal discipline based on a sanction imposed in Missouri.
Missouri had imposed discipline as a result of a guilty plea to criminal charges in Alabama that were later dismissed after the attorney completed a pretrial program.
The sanction was a stayed suspension and probation as agreed to by the parties .
Arkansas Democrat & Gazette reported on a series of arrests in this May 2019 artlice
After being arrested on charges of drunken driving again last week, William Asa Hutchinson III, the governor's son, filed a motion to dismiss his appeal of a previous DWI charge, court documents show.
Hutchinson, 43, pleaded guilty and was sentenced in December to 365 days in jail for a DWI from May 27, when he was found driving a 2017 GMC Yukon SUV southbound on Interstate 49 near West Fork, according to previous reports.
He received credit for the one day he served in jail, and 364 days were suspended. Hutchinson also was ordered to pay a $1,000 fine and $340 in court costs.
Hutchinson's representatives filed an appeal in Washington County Circuit Court in April, stating his charges should be dismissed because there were two separate "charging documents" in the case.
Washington County deputy prosecutor Charles M. Duell later said the 2018 charging documents were proper and that the cases varied greatly.
Hutchinson was arrested last Saturday in Rogers on suspicion of DWI.
On Friday, Hutchinson's attorney William Horton filed a motion to dismiss the circuit court appeal of Hutchinson's DWI charges from May 2018, meaning the case would return to district court if Circuit Judge Mark Lindsay approves the motion.
Duell said on Friday that if the motion is approved, Hutchinson's conviction would be reinstated and he would be considered convicted.
Hutchinson, a lawyer in Rogers, was charged with DWI first offense in the 2018 traffic stop, but he has faced multiple charges -- including drunken driving -- in recent years. If a person has no DWI conviction on his record for the previous five years, it's considered a first-offense DWI.
According to arrest reports, Hutchinson was first charged with DWI in 1996 and again in 2001.
He had another DWI charge arising from a car accident Jan. 24, 2016, on Interstate 49 near Fayetteville, where he reportedly crashed his pickup into a guardrail just before 4 a.m. State police responding to the crash described Hutchinson's eyes as "bloodshot and watery," according to police reports. Hutchinson pleaded innocent.
In November 2017, a Fayetteville judge convicted Hutchinson for driving while intoxicated, careless and prohibited driving, and refusing to submit to a chemical test, but those charges were dismissed because of errors in citations.
In May 2016, after receiving the DWI arrest, Hutchinson was arrested on drug charges in Alabama that accused him of trying to sneak a psychoactive drug into a music festival. He was given a pretrial diversion in that case, according to previous reports.