Sunday, October 13, 2019

No Paul Newman

Disbarment has been imposed by the New Jersey Supreme Court for misconduct described by the Disciplinary Review Board

For the reasons set forth below, we recommend respondent’s disbarment. In our view, respondent is a serial self-dealer who preys on and exploits the bereaved. Moreover, it is clear that he is unwilling to learn from prior mistakes and, thus, refuses to conform his conduct to that required of a member of the New Jersey bar.

He had previously been censured

This case arises from respondent’s attempt to continue engaging in the unethical conduct for which he received a censure in La Russo I. In short, respondent, who performed collection work for several New Jersey funeral homes, perpetrated a scheme whereby the beneficiaries of deceased members of the State-administered Public Employees Retirement Plan (PERS) paid respondent to ensure that his funeral home clients received payment for undertaking the funeral arrangements of the deceased PERS members.

The arrangement created a conflict of interest

his representation of the PERS beneficiaries was materially limited by his responsibilities to the funeral homes, as well as by his own interests - the collection of a legal fee.

Sanction

Here, although the record does not establish that the beneficiaries in this case were either frail and elderly or of limited cognitive ability or competency, they were highly vulnerable. They were required to make funeral arrangements for their loved ones immediately, without the opportunity to mentally and emotionally process their deaths. Respondent swooped in, took advantage of their emotionally-weakened states of mind, and picked their pockets. In most cases, the beneficiaries had no idea that they were beholden to respondent and simply acceded to his demands for payment, undoubtedly to avoid further stress in their time of sorrow.

Respondent’s predatory behavior was exacerbated by his multiple lies to the beneficiaries, the Division, and, in particular, the OAE...

Respondent’s conduct in the Funeral Home matters demonstrates the pathological nature of his insistence in entangling himself in conflicts of interest, without concern for those who may be harmed, as well as a disturbing degree of venality. He persisted in his outlandish conduct, despite the prior declaration that his practices were unethical. In addition, respondent’s arrangement of a loan from his girlfriend to his client, after he had been censured in La Russo I and while he was under investigation in La Russo II, demonstrate a lack of good judgment, good character, and willingness to learn from prior mistakes.

(Mike Frisch)

October 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Once More With Feeling

An attorney who accepted a partially-stayed suspension for frivolous litigation has had that stay revoked by the Nevada Supreme Court

On February 23, 2018, this court approved Lopez's conditional guilty plea agreement and suspended him for two years, with all but the first six months and one day stayed, for violating RPC 3.1 (meritorious claims and contentions), RPC 3.4 (fairness to opposing counsel), RPC 4.4 (respect for rights of third persons), and RPC 8.4(d) (misconduct—conduct prejudicial to the administration of justice). The stayed suspension was conditioned on Lopez's compliance with certain conditions, which included the condition that he "not be found . . . to have abused the legal process." In re Discipline of Lopez, Docket No. 73894 (Order Approving Conditional Guilty Plea Agreement, Feb. 23, 2018). After this court approved the conditional guilty plea, Lopez filed an amended complaint against the same parties and based on the same set of facts that Lopez agreed were frivolous
in the conditional guilty plea agreement, and that had already been dismissed in other cases. Thus, substantial evidence supports the panel's finding that Lopez violated the terms of his stayed suspension by abusing the legal process. Because the stay of the remainder of Lopez's two-year suspension was subject to his compliance with certain conditions, we revoke the stay of the remaining portion of Lopez's suspension, and suspend him for two years commencing from February 23, 2018, the date this court approved the conditional guilty plea agreement.

The case is In the Matter of Discipline of Jason Lopez. (Mike Frisch)

October 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 11, 2019

A Hope Is Not A Promise

A Louisiana Hearing Committee has concluded that a prosecutor did not violate his disclosure obligations in a murder case with respect to deals offered to a jailhouse snitch.

The committee recommends dismissal of the ethics charges

The parties and the Committee agreed early on that the principal fact issue was whether Mr. Greene had an expectation that he would receive a change in his place incarceration, a reduced sentence, or a reward in exchange for his testimony, or he simply had a hope for such consideration. The only evidence supporting the contention that he had such an expectation was a statement in the hand-written letter to Respondent dated March 15, 2010 and introduced as ODC Exhibit 37A. In the letter, after reciting indications by other representatives of the Orleans Parish District Attorney’s office to the effect that he had not been promised anything in return for his testimony, Mr. Greene states, “You, Mr. Phillips guaranteed me that I would be transferred from here and I have not.” The letter goes on to describe the danger of Greene’s being incarcerated in the same institution as Mr. Tucker. Mr. Greene’s other statements, in his correspondence and criminal court testimony, belie his March 15, 2010 statement that Respondent guaranteed him a transfer, and the Committee finds that the statement respecting the alleged guarantee was not credible.

Respondent forcefully and credibly denied making any such statement to Mr. Greene. He testified that he never would have made such a statement to Mr. Greene in view of the use to which the defense could put it in cross-examining Mr. Greene.

The committee noted that the trial judge in the murder case had concluded that there was no Brady violation after an in camera inspection of materials. 

The Committee further finds that the evidence allegedly withheld was not material and that its withholding, therefore, would not have violated Brady.

(Mike Frisch)

October 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 10, 2019

Mental Health And Fitness To Practice

The Illinois Review Board recommends that an attorney be suspended for six months and until further order for criminal conduct

This matter arose from an incident in which Respondent broke windows of several businesses, for which he pled guilty to criminal damage to property. He was placed on supervision, which he successfully completed. Thereafter, the Administrator charged him in a one-count complaint with committing a criminal act that reflected adversely on his fitness as a lawyer, in violation of Illinois Rule of Professional Conduct 8.4(b) (2010).

The Hearing Board found Respondent committed the charged misconduct. Based upon evidence of mental health issues, the Hearing Board recommended he be suspended for six months and until further order of the Court.

Respondent appealed, challenging the Hearing Board's recommendation of a suspension until further order and alleging that the Administrator withheld evidence from the Inquiry Board and allowed the Administrator's psychiatric expert to provide false testimony, which the Hearing Board improperly relied upon to find that Respondent suffers from mental health conditions that render him currently unable to practice law.

The Review Board affirmed all of the Hearing Board's findings of fact. Based upon substantial evidence regarding Respondent's mental health conditions, the Review Board agreed with the Hearing Board's finding that Respondent is currently unfit to practice law, and with its recommendation that Respondent be suspended for six months and until further order.

The incident

The facts relating to that incident are fully set forth in the Hearing Board's report. In summary, around 3 a.m. on August 11, 2015, Respondent threw bricks through the windows of several businesses, including a Wendy's restaurant, in Tinley Park, Illinois.

The police officers who arrived at the scene reported that Respondent was yelling, frantically walking toward them, and talking erratically, and was paranoid that people were trying to kill him. They called an ambulance, which took Respondent to a local hospital. In the ambulance, Respondent reported that he had taken Adderall, cocaine, and other pills. At the hospital, police arrested Respondent. After the arrest, Respondent told police he had taken cocaine and Adderall and had thrown bricks through windows.

The explanation

At his disciplinary hearing, Respondent testified that he had no recollection of breaking any windows on August 11, 2015, but that, on that date, he recalled being assaulted and/or choked by police officers, who threatened him and told him to say that he was under the influence of cocaine. He testified that he told the ambulance driver and hospital nurse that he was under the influence of drugs because of his "agreement" with the police officers, but that a drug test showed that he had not ingested cocaine. He testified that the police officers used his cell phone to take a photo of him, which was then published as part of a defamatory article on the internet. He also testified that he received a photo of him with several police officers, and that he was being lynched in the photo. These things made him frightened to be in Illinois.

A forensic evaluation was performed

Dr. Henry diagnosed Respondent with bipolar disorder, probable cocaine use disorder, probable cannabis use disorder, and attention deficit disorder. He concluded that Respondent is incapacitated from the practice of law and would not be able to consistently adhere to the Rules of Professional Responsibility. He opined that Respondent would benefit from treatment from a psychiatrist and a therapist, including medication and psychotherapy, in addition to an intensive outpatient chemical dependency program followed by participation in a 12-step program. Dr. Henry opined that, after Respondent attains a period of sustained stability, he should undergo another assessment for fitness to practice law. He testified that he would want a person with bipolar disorder to have six months to one year of consistent compliance with treatment conditions, corroborated by collateral sources, and to be well-engaged in treatment, before he determined that the person has bipolar disorder in remission or sustained remission.

And objected to

Following Dr. Henry's psychiatric evaluation of him, Respondent filed a motion seeking to exclude Dr. Henry's testimony and a motion to dismiss the Administrator's complaint against him, both of which the hearing panel chair denied. In his motion to exclude, Respondent claimed that Dr. Henry had sexually harassed him; discounted his versions of events; knowingly submitted a false report to the Administrator; received test results for blood, urine, and hair samples that Respondent had provided and which were negative for drug use; and did not try to contact Respondent's treating physicians.

In his motion to dismiss, Respondent made some of these same claims, and also alleged that Dr. Henry delayed the start of Respondent's interview by two hours and took breaks during the interview, which resulted in Respondent missing his return flight; that Dr. Henry had committed malpractice and that Quest Diagnostics recommended that Dr. Henry's conduct be reported to the Illinois Department of Financial and Professional Regulation; and that Dr. Henry should have recused himself from the matter because Dr. Henry had previously testified in the interest of police officers.

During his testimony at Respondent's hearing, Dr. Henry denied these allegations.

The board agreed with the hearing committee that the mental health issues required a fitness requirement for reinstatement. (Mike Frisch)

October 10, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Poor Judgment

The Oklahoma Supreme Court imposed an interim suspension for a criminal conviction

On September 11, 2019, Shelley Lynne Levisay entered the plea of no contest to a felony charge of Harboring a Fugitive From Justice in violation of 21 O.S. 2011 §440, which occurred from December 29, 2017 through January 24, 2018. Levisay was convicted of felony Harboring a Fugitive and sentenced to a two year suspended sentence, 100 hours of community service and a fine of $5,000.

Next step

Rule 7.2 of the RGDP provides that a certified copy of a plea of guilty, an order deferring judgment and sentence, or information and judgment and sentence of conviction "shall constitute the charge and be conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline in accordance with these rules." Pursuant to Rule 7.4 of the RGDP, Shelley Lynne Levisay has until November 19, 2019, to show cause in writing why a final order of discipline should not be imposed, to request a hearing, or to file a brief and any evidence tending to mitigate the severity of discipline. The OBA has until December 4, 2019, to respond.

Oklahoma's News 4 reported

An attorney who prosecutors say harbored her fugitive boyfriend entered a blind plea in front of a Cleveland County judge Wednesday.

34-year-old Shelley Levisay sat in court as investigators testified for hours about their search for her former boyfriend and client, Adrian "David" Gerdon.

Gerdon was wanted at the time in a string of violent crimes.

Prosecutors say she helped hide him in a travel trailer in Cleveland County showing surveillance video from January 2018 of Levisay bringing him food and money.

A tip led authorities to the trailer last year where they found Gerdon and a number of firearms.

Gerdon is known to law enforcement as extremely violent, according to testimony Wednesday.

Prosecutors pointed to one text message where Levisay asked Gerdon if he was okay when she heard about an officer-involved shooting in the area.

Investigators also obtained jail phone calls between Gerdon and Levisay.

In one, Levisay said, "I went to college for seven years. I'm a good attorney."

Prosecutors say she used her law license to hide a violent criminal and put law enforcement, along with a woman he assaulted during his hideout, in harm's way.

Levisay took the stand saying she had poor judgment and that she was abused by Gerdon.

But she also testified that she just broke up with Gerdon six weeks ago and mirrors her relationship with him in a book she wrote last year.

​Her attorney asked the judge to give her a deferred sentence to keep her from becoming a convicted felon, but ultimately Judge Thad Balkman said Levisay took an oath when she became an attorney to uphold the law, and he handed down a conviction.

Levisay was also sentenced to 100 hours of community service.

She has 10 days to withdraw her plea.

The bar association has its own disciplinary procedure.

Because this is a felony conviction, Levisay's license is in jeopardy.

In an unrelated matter, the court imposed a two-year suspension for a manslaughter conviction

On July 31, 2018, the Oklahoma Bar Association (Bar Association), filed Notice of Judgment and Sentence regarding the respondent, Emma Barlie Arnett, notifying the Court of her criminal conviction of manslaughter. Subsequently, on September 10, 2018, we issued an Order of Immediate Suspension. The Professional Responsibility Tribunal (PRT) held a disciplinary proceeding on April 22, 2019, to consider a recommendation of final discipline and gather mitigating evidence.

Tulsaworld reported

A local attorney was sentenced to four years in prison Monday after pleading guilty to first-degree manslaughter in a 2017 drunken driving auto-pedestrian crash.

Emma Barlie Arnett, a 43-year-old attorney who worked for the Department of Human Services, did not have a plea recommendation from the state when she pleaded guilty to killing 26-year-old Christopher Brown while driving under the influence near 51st Street and Delaware Avenue early Aug. 27.

Court records indicate that she had a 0.142 blood alcohol concentration at the time blood was drawn for testing and that although she declined to take a breath test, she failed a field sobriety test.

District Judge Doug Drummond ruled at the conclusion of a sentencing hearing Monday that Arnett should spend four years in prison with another eight years suspended, as well as pay a $1,000 fine. She will have a judicial review July 1, which could result in a modification of her sentence.

In deciding the sentence, Drummond said he took into account that Brown could have been hit by anyone because he was walking in a lane of traffic on 51st Street, but he said Arnett — given her level of intoxication — should not have been driving at all.

“I’m very sorry that all of this has happened,” Arnett, speaking through tears, told the court. She thanked her family and friends for their support, as well as thanked members of Brown’s family, who she said gave her a “great gift of grace and compassion” through their victim impact statements.

Brown’s brother, Lawrence, said Arnett’s choices “fundamentally changed our family,” and he expressed frustration that she, despite being a longtime attorney, broke the law. However, he and his father said they wanted to see Arnett grow from the experience and told her they would be at peace with whatever the court believed was appropriate.

Assistant District Attorney Kevin Gray, in his request for prison time, said the situation was “doubly tragic” because Arnett by all counts led a productive life and had significant support from her loved ones before she caused Brown’s death. Gray said Brown’s life, despite any struggles he may have had, had value and that Arnett should face legal consequences for her actions.

Arnett’s attorney, Ben Fu, said his client will live with what took place for the rest of her life, and he said the facts of the case did not merit a lengthy period of incarceration.

(Mike Frisch)

October 10, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Harassment And Other Misconduct Draw Indefinite Suspension

The Ohio Supreme Court has sanctioned a former judge as described by Dan Trevas

The Ohio Supreme Court today indefinitely suspended former Tenth District Court of Appeals Judge Timothy S. Horton from practicing law, rejecting his claims that he should receive a more lenient sanction for his misconduct.

In a unanimous decision, the Court found Horton of New Albany violated multiple rules governing the conduct of Ohio judges and the rules governing the conduct of Ohio attorneys. Writing for the Court, Chief Justice Maureen O’Connor stated that Horton’s actions “impaired the public’s faith in an impartial judiciary,” and were particularly harmful to his judicial staff.

“His actions — abusing his staff, allowing his staff to use county time and materials to work on his campaign, filing false campaign-finance reports, and apparently attempting to use his role as a judge, including his previous rulings, to win endorsements and campaign contributions — undermined the public’s faith in the judiciary,” the opinion stated

Judge Cited for Campaign and Sexual Misconduct
Horton served as a Franklin County Common Pleas Court judge from 2006 until his 2014 election to the Tenth District. The Office of the Disciplinary Counsel filed a complaint against Horton in January 2018, and Horton resigned from the bench in February 2019.

The disciplinary counsel’s charges of rule violations stemmed from three separate circumstances, which included Horton’s guilty plea to misdemeanor charges for failing to file accurate campaign finance statements, misusing county resources and staff for campaign work, and sexually harassing his legal intern and his secretary.

The panel conducted a five-day hearing where 16 witnesses testified. The panel concluded Horton violated the Code of Judicial Conduct and the Rules of Professional Conduct, and recommended he be suspended for two years with one year stayed. The full board adopted the panel’s findings, but recommended to the Supreme Court that Horton be indefinitely suspended and required to meet certain conditions to return to the practice of law.

Judge Directs Sexual Misconduct Toward Staff
The disciplinary complaint charged that Horton directed inappropriate sexual comments and conduct to members of his judicial staff in 2013 and 2014. His actions violated the rules that judges cannot abuse the prestige of their office to advance their personal or economic interest, or engage in sexual harassment. The Court’s opinion noted that, in 2009, the judicial code of conduct was updated to add a specific prohibition against sexual harassment and Horton’s case appears to be the first time in Ohio that a judge was found to have violated the rule.

Horton made inappropriate comments to his secretary, Elise Wyant, who was 25 years old at the time of the incidents, and to a 23-year-old legal intern, identified as M.B. in court documents. Horton would tell members of the staff they were “sexy” during work hours and commented on the attractiveness of other employees. Staff members stated they felt uncomfortable turning down Horton’s invitations to attend after-work happy hours, and Horton admitted that his behavior at happy hours and when he was intoxicated was “rude” and “obnoxious.”

M.B. testified she consented to engage in sexual conduct with Horton after her internship ended, and that Horton encouraged his friends to grope her. She testified she felt like she had to agree to Horton’s demands because of his power over her as a judge. Wyant admitted to engaging in sexual conversations with Horton, but she worried that it would affect her job if she told him she felt uncomfortable.

Horton argued the sexual activities were consensual. The Court’s opinion stated the judicial code is concerned with the actions of judges, not with the behavior of judicial staff or whether his employees acquiesced to the culture he created or consented to his advances.

“Horton engaged in sexual harassment in the performance of his judicial duties, abused the prestige of his office for his own personal interests, and acted in a manner that brings disrepute to the judiciary,” the opinion stated.

The Court agreed with the panel’s conclusion that Horton’s conduct was “predatory.”

Campaign Misconduct Violated Rules
Horton pleaded guilty to three counts of failing to file complete and accurate campaign statements during his run for judge on the Tenth District. In March 2014, he learned he would be unopposed for the seat and celebrated with a private dinner at a Columbus restaurant, which cost $1,014. Horton used campaign funds to pay for the dinner, which constituted an unreasonable and excessive campaign expense. He also spent $978 on a campaign fundraising event which only one person outside of his court and campaign staff attended. And he spent $173 on cigars to be available to campaign supporters. Those two expenditures also were found to be unreasonable and excessive.

Horton also was charged with rule violations because his staff worked on his campaign during work hours and with county resources. Horton argued that he told the staff they could “volunteer” on his campaign, and that it would be appreciated. Horton testified that he understood campaign work could not be conducted on county time and with county equipment, but that he expected his staff to be responsible for following the rules and accurately accounting for their time.

However, the panel found “overwhelming evidence” that Horton assigned Wyant campaign work during county work hours, even if he did not specifically direct her to do it while at work, and that she missed several days of work to attend campaign-related golf outings. Wyant also accepted two campaign contributions from attorneys in the judge’s chambers.

The Court rejected Horton’s arguments that he did not violate the rules because his employees chose not to follow rules regarding time-keeping and equipment use.

“If a sitting judge chooses to allow public employees to volunteer to work on his or her campaign, it is incumbent upon the judge to uphold the integrity of the judiciary by imposing clear rules prohibiting campaign work on county time or using county resources and strictly enforcing those rules,” the opinion stated.

Sanction Reflects Misconduct
The opinion noted the court takes seriously its responsibility in setting precedent concerning the sanction for a judge who violates the rules against sexual harassment. The Court stated that an indefinite suspension may not be appropriate in all cases of sexual misconduct or harassment, but it is the appropriate sanction in Horton’s case given the number of other violations, the harm to individual victims, and the harm to the public trust.

“We will protect the public by sending a strong message to members of the judiciary that abusing the trust of public employees and the public at large will result in significant consequences,” the opinion stated.

The Court conditioned Horton’s reinstatement to the practice of law on his continued participation in Alcoholics Anonymous. He also must submit to an Ohio Lawyers’ Assistance Program evaluation and comply with the recommendations arising from the evaluation; avoid contact with the former employees or interns who testified in the disciplinary proceedings; and pay for the costs of the proceedings.

2018-1746. Disciplinary Counsel v. Horton, Slip Opinion No. 2019-Ohio-4139.

Video camera icon View oral argument video of this case.

(Mike Frisch)

 

October 10, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 9, 2019

Fiduciary Not Friend

The New York Appellate Division for the Second Judicial Department found violations of the rules prohibiting commingling and misappropriation notwithstanding the referee's contrary conclusions.

Setting

In or about March 2008, the respondent provided legal assistance to Theresa A. Schneider in connection with her negotiation of a lease with Coruscant LLC for office space for a start-up school. In or about the end of March 2008, the respondent assisted Schneider with the actual execution of the lease, which took place in the respondent’s office in Hampton Bays.

Thereafter, Schneider requested the respondent’s assistance in obtaining a loan from Schneider’s father, John Gannon, to help finance the start-up school. By letter dated May 22, 2008, from the respondent to Gannon, the respondent, on behalf of Schneider, requested a loan of $40,000 from Gannon for the business venture. In the letter the respondent assured Gannon that the respondent would “use my attorney escrow account for the purpose of distributing and monitoring this money. I am the only person with access to this account, and I will have full control over the funds.” The letter provided Gannon with the name of the bank where the respondent’s escrow account was located, Capital One Bank, with the account number ending in 0965, and the routing number ending in 912.

He received $25,000

The respondent’s principal defense to the charges rested on the contention that he bore no fiduciary obligation to Schneider because the assistance he provided her was as a friend, not as her attorney. He argued that, as a consequence, he was not subject to the rules prohibiting commingling and misappropriation because he did not come into possession of Schneider’s funds “incident to the practice of law.” While the evidence showed that the respondent’s prime motive in assisting Schneider was as a friend, the evidence also showed that the respondent negotiated a lease on Schneider’s behalf, identified her as a “client” on a statement of charges, and used letterhead identifying himself as “Kevin J. Gilvary, Esq.” when he wrote to Gannon asking for a loan on Schneider’s behalf. We find that the evidence was sufficient to establish that Schneider was a client, albeit not the typical paying client. In any event, at the hearing, the respondent admitted that, in retrospect, he was a fiduciary with respect to Schneider’s funds, although he did not think so at the time. He admitted that if he could do it over he would deposit the funds into a separate account. He admitted that the funds belonged to Schneider and that he did not have permission to use them at the time, yet he did use them.

On the plus side

In mitigation, the respondent asks the Court to consider the following circumstances: the events complained of occurred a decade ago; the invasions all took place during a single month; the respondent believed that money from other sources would soon be deposited into his account, and were deposited; the respondent’s wife had suffered two serious accidents leaving her with significant physical injuries that resulted in the respondent shouldering many if not most of the childcare and household responsibilities, including caring for his wife; the misconduct occurred during a period of financial stress due to the respondent’s wife’s injuries which caused her to stop working as a lawyer, and the wife’s failing business venture; the respondent has an excellent reputation as a hardworking and competent attorney; the respondent was involved in various pro bono and volunteer activities; the respondent is remorseful; the events are not likely to be repeated because “if faced with a similar situation now, [he] would undoubtedly recognize both his fiduciary duties and the need to deposit the funds of another into an escrow account”; and, lastly, Schneider suffered no harm as her expenses were timely paid for by the respondent.

Thus

In view of the substantial mitigating factors in this case, we conclude that a suspension from the practice of law for a period of six months is warranted.

(Mike Frisch)

October 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

"Which Wife Beater [Is] Next?" Workplace Behavior Draws Suspension

An attorney's abuse of co-workers and others drew 30-day suspension from the Law Society of Saskatchewan.

Saskatoon StarPhoenix  reported on the bar matter and notes that he is no longer Director of Legal Services. 

A former Legal Aid Saskatchewan director has been suspended from practising law for 30 days and ordered to pay $22,000 in costs after pleading guilty to 10 professional misconduct charges, including one count of personal harassment and eight of offensive conduct.

As to his Legal Services clients, the panel described the behavior

When the Member entered the waiting room he asked clients involved in cases of domestic violence "which wife beater was next". This comment was made in front of other clients and employees in the workplace.

During the interview with domestic violence accused clients, the Member did ask a client 1) "Are they a keeper or a good fuck" in reference to the victim; 2) would ask a male client whether the female victim was fat; 3) would ask the male client whether the female victim is ugly and if the accused responded that they were not, the Member indicated that he would see them in Court and decide if they were ugly.

The Member states that he used such language in order to ease his relationship with the clients. He accepts that these comments were inappropriate and unprofessional. He also recognizes that the clients were in a vulnerable position in that they were requiring Legal Aid services and that there was a power imbalance in his relationship with them; however, the Member provided adequate and effective representation of his clients despite language that was unprofessional.

Many of the victims were his co-workers

 Member was the Director of Legal Services for Saskatoon Criminal Office of the Saskatchewan Legal Aid Commission. His duties, in that position, included managing the unionized staff of the office in assigning work and office structural units. The Member was not responsible for hiring or dismissing the unionized staff as those functions fell under the purview of Legal Aid's General Office. At all material times, he was in a position of leadership and control over the employees referred to in these charges.

 L.S. was a unionized employee in the Saskatoon Criminal Office working under the direction, control and management of the Member.

The Member entered into a consensual sexual relationship with L.S. in March 2013. Despite the ending of the relationship, LS. agreed to be friends with the Member. She felt pressured into this friendship given that she remained under the control, direction and management of the Member.

Despite the fact that L.S. felt pressured by the situation those feeling were never communicated to the member. The Member admits he should not have entered into the relationship with L.S because of the power imbalance between them and how that imbalance was perceived by L.S. after other employees became aware of the prior sexual relationship. Nevertheless the Member did not convey the impression or communicate, in any manner, that L.S.'s work situation, assignments, hours of work, leave granted, or any other aspect of her work would be affected by not maintaining the friendship.

 L.S. observed the Member referring to herself and other employees as "dumber than a sack of hammers", "a bunch of idiots" and "lazy" in front of other employees.

The friendship with the Member was ended by L.S. in December 2013 when other employees became aware of the previous sexual relationship.

Subsequent to the breakup, the Member continued to invite L.S. to the theatre. She felt she had no option but to attend. Despite L.S. believing she had no option but to attend the Member did not pressure her, compel her or make any threats to her concerning her employment and the Member in his communications left the option to her to attend.

After the friendship ended with the Member, L.S. found herself powerless and isolated in the workplace. She felt she was unable to seek the support of her coworkers; however, the member did not say or do anything other than having been in a relationship with L.S., which would have affected L.S.'s relationship with her coworkers.

As a consequence of the personal relationship with the Member, L.S. took stress leave from work and found her relationship with her coworkers to be detrimentally affected by her relationship with the Member on an ongoing basis.

The "sack of hammers" remark is a recurring theme.

Another complainant

 The Member entered a consensual non-intimate relationship with K.Z., a part-time unionized employee in the Saskatoon Criminal Office who was under the direction, control and management of the Member. The relationship began gradually with meals and progressed on a consensual basis. The relationship was non-intimate in nature and involved a trip with each other paid for by the Member.

During the relationship the Member talked in a rude and derogatory manner about some of K.Z.'s coworkers.

K.Z. ended the relationship after a weekend out of country, but continued to remain friends, to the Members' knowledge until at least October 2013. K.Z. felt uncomfortable due to the power imbalance in the office with the Member given her status as a part-time employee. Despite K.Z.'s feelings, the Member did not convey or communicate, in any manner, that K.Z.'s work situation, assignments, hours of work, leave granted, or any other aspect of her work would be affected by the ending of the relationship.

K.Z. heard the Member refer to other employees as "dumber than a sack of hammers" and "stupid".

The Member admits he should not have entered into the relationship with K.Z. because of the power imbalance between them and how that imbalance was perceived by K.Z. and other staff which resulted in an unprofessional and stressful work environment.

More non-intimate bad behavior in the workplace

J.K. was a unionized term contract employee in the Saskatoon Criminal Office under the direction, control and management of the Member. The retention of J.K. as an employee of the Saskatoon Criminal Office was the responsibility of the Head Office.

J.K. felt uncomfortable with the Member because she held a contract position and was under probationary review by the Member. However, the Member did not have the authority to release or renew the contract of J.K.

 J.K. found the Member to be rude and insulting to her and her coworkers. The Member admits that he made inappropriate comments about her appearance, choice of apparel and physical characteristics. He also made rude and inappropriate comments on her intelligence. More specifically, he referred to her as "stupid" in front of other employees.

The Member, when asked by the Head Office to speak to J.K. about excessive work hours recorded, spoke to her in a rude, condescending and insulting manner.

J.K. never heard the Member speak to male members of the office in the same manner.

The Member admits such conduct was offensive and unprofessional.

And

C.H. was a unionized Member in the Saskatoon office and witnessed the Member say to her, "What did you fuck up today?" Some paralegal staff took such comments, as intended by the Member, to be a joke and lodged no complaint. However, C.H. took those comments as offensive and derogatory.

The Member admits that his conduct towards C.H. and the other paralegal staff was inappropriate and has reconciled himself to the fact that his comments hurt C.H. and caused her to question her effectiveness and intelligence.

 C.H. heard the Member refer to employees as "dumber than a sack of hammers" in front of other employees.

The Member admits his conduct toward C.H. also caused her to question her advancement in the office and caused a strained work environment.

 The Member admits such conduct was offensive and unprofessional.

And

 C.B. was a unionized Member in the Saskatoon office. At all times material hereto, the Member was in a position of leadership and control over C.B. as she directly reported to him.

The Member referred to C.B. as a "witch" and asked her "Where is your broom?". These comments were made between 2012 and 2014.

C.B. heard the Member refer to employees as “’dumber than a sack of hammers". These comments were characterized to one of the coworkers who was very vulnerable and had been struggling with personal health issues. The Member criticized C.B. about her work hours, office attendance, and unprofessional conduct but did so in a manner which was dictatorial and authoritative.

And

The Member admits he made comments on the appearance of M.L.R. in front of coworkers and clients. He referred to her as a "church lady" and "dumber than a sack of hammers". M.L.R. confronted the Member on his comments and informed him that his comments on her appearance were affecting her self-esteem. The Member apologized and the comments decreased. The Member admits that his attempts at humour were wrong and furthermore were derogatory and offensive...

  The Member called L.R. "psycho" in front of students. The Member admits that his attempted joke was inappropriate and unprofessional in front of students. The Member claims that he apologized but L.R. has no recollection of such occurring.

L.R. states the Member repeated the "psycho" statement before L.R.'s mother — he does not recall the event but apologizes for any embarrassment it may have caused L.R. whether in jest or not. The Member acknowledges his behavior regarding this incident was unprofessional and uncalled for.

L.H. heard the Member refer to other employees as "dumber than a sack of hammers" in front of other employees.

Similarly to J.K., the Member commented on the appearance of L.R. and again admits that such behavior was offensive and unprofessional.

Sanction

The oral submissions of counsel also touched on the circumstances related to the complaints in this case. In particular, counsel for the Member outlined the personal circumstances that might help to explain, although not to justify, the somewhat authoritarian and disrespectful conduct that the Member had conceded was inappropriate.

(Mike Frisch)

October 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Restricted Not Suspended

The Tribunal Hearing Division of the Ontario Law Society concludes that an interim suspension is not appropriate but that the attorney should be subject to practice restrictions

Barbara J. Murchie (for the panel):– The Law Society brings a motion for an interlocutory suspension of Mr. Borak’s licence to practise law because it believes there are reasonable grounds to believe there is a significant risk of harm to the public or the public interest in the administration of justice if he continues to practise. It says the risk arises from particular actions he took and billing practices he employed: (a) he submitted immigration applications for clients pursuant to a government program that did not exist; (b) he withdrew money from trust without remitting invoices to clients; (c) he misapplied and inappropriately used client fees for lobbying efforts; and (d) he failed to serve three individual clients in different ways.

Mr. Boraks vigorously resists the motion. He presents an entirely different perspective on all of the allegations except trust fund improprieties. He testified that the applications he submitted were requested by government representatives pursuant to a legitimate government program that was promised and in development. He agrees that he didn’t send invoices to clients before taking money from trust, but testified, and the Law Society does not dispute, that he prepared those invoices internally and did the work. Mr. Boraks explained that he charges clients flat fees for all services and disbursements. The services he provides include general lobbying, but clients are not charged for lobbying – he pays for that out of his general account. He has explanations for the three individual allegations.

For the reasons that follow, we have concluded that there are reasonable grounds to believe that Mr. Boraks’ trust improprieties present a significant risk of harm to the public and the public interest in the administration of justice unless his licence to practise law is subject to restrictions pending the hearing of these allegations on the merits. We find that a full interlocutory suspension is not necessary to protect the public.

The panel discussed the allegations. 

The restriction

 Commencing immediately, the respondent’s licence is subject to the following practice restrictions on an interlocutory basis.

2.      Subject to paragraph 3, the respondent shall practise only:

a.      as an employee of another licensee (the employer) approved in writing by the Executive Director, Professional Regulation or her designate (the Executive Director); or

b.      under the supervision of another licensee (the supervisor) pursuant to a plan of supervision approved in writing by the Executive Director.

3.      The respondent may continue to practise law under the practice restrictions imposed June 4, 2019, pending approval by the Executive Director of the proposed employer or proposed supervisor and plan of supervision (the proposal), provided that he notifies the Executive Director in writing of the proposal within 14 days of this order. If no proposal has been approved within 60 days of the date of this order, the parties may seek further directions from this panel.

(Mike Frisch)

October 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

"Unsalvageable"

The Pennsylvania Supreme Court imposed reciprocal disbarment of an attorney so sanctioned in New Jersey.

NJ.com reported

Peter Cresci, the city’s former business administrator, was disbarred by the state Supreme Court after an ethics board stated he had been “engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.”

In a decision submitted to the state’s highest court, the nine-member Disciplinary Review Board voted to disbar Cresci after detailing cases where he “knowingly misappropriated clients funds” in three separate matters.

The totality of Cresci’s conduct, the board said in its 86-page decision “has demonstrated, clearly and convincingly, that he is unsalvageable.”

Cresci could not be reached for comment.

The decision, made public on Friday, cites three cases: one involving a wrongful termination, another involving a property sale and another in an estate administration where Cresci "commingled personal and client funds."

In each of the cases, Cresci avoided or outright lied to his clients and ethics officials about his misuse of funds, the report said, and often refused to cooperate with authorities.

"The extent and degree of respondent's pathological dishonesty alone warrant a two- to three-year suspension," the board said.

In the wrongful termination affair, Cresci was indicted for allegedly forging a signature on a settlement agreement and unlawfully taking $25,000 without informing his client. He later pleaded guilty to a fourth-degree crime stemming from the initial charges.

The two other cases, meanwhile, saw Cresci misuse or mishandle thousands of dollars, according to the board.

Cresci was suspended from practicing law in November 2016 for his involvement in handling his attorney trust account.

The review board also pointed out that Cresci continued to practice law despite his suspension. Even after warnings from state officials reminding him of his status, Cresci’s law firm continued to use his name in its letterhead, in violation of New Jersey State Bar Association statutes.

But the decision states Cresci continued operating his office through intermediaries and neglected to tell his clients about his status.

During this time, he became an active critic of City Hall, representing a number of plaintiffs in lawsuits against the city.

In 2017, he filed a civil complaint against the city that asserted several city employees were in violation of a residency requirement ordinance. The city maneuvered to avoid the requirement, but residents petitioned for the ordinance to be established.

A Hudson County judge later ruled that the city must enforce the referendum petition, thus solidifying the residency requirement.

Many of his other open cases — against New Jersey City University, the Bayonne and Jersey City Boards of Education and Hudson County, among other entities — are now in limbo.

The cases have either been closed by attorneys from Cresci’s firm, or clients have been ordered to find new counsel.

One case in particular, filed by city resident Stacie Percella against Bayonne Mayor Jimmy Davis alleging he sexually harassed her, has been shuffling through different attorneys after having been originally taken on by Cresci and his associates, court documents show.

Cresci was once a prominent figure in City Hall. He was hired as an assistant city attorney in 2001, was appointed city business administrator in 2007 and later represented the Bayonne Parking Authority as its attorney and interim director.

But he was ousted in 2009, and arrested in 2011 after city officials said he had illegally taken $150,000 as his salary as acting director of the Bayonne Parking Authority.

A grand jury declined to indict him and, after suing the city for wrongful arrest, he settled in 2016 for $25,000.

(Mike Frisch)

October 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Monday, October 7, 2019

Trailblazer Honored with Posthumous Bar Admission

An announcement from the New York Appellate Division for the Fourth Judicial Department

Hon. Gerald J. Whalen, Presiding Justice of the Appellate Division, Fourth Department, has announced that the Court has scheduled a special and historic posthumous admission ceremony for William Herbert Johnson, the first graduate of African descent from the Syracuse University College of Law.  The ceremony will be held on Friday, October 18th, 2019 at 10:00 a.m. in the S.F. Hancock Ceremonial Courtroom at the Onondaga County Courthouse in Syracuse.

Born in Syracuse in 1875, William Herbert Johnson received his undergraduate degree from Boston University, served in the Army in the Spanish-American war of 1898, and then returned to his hometown and enrolled in law school at the Syracuse University College of Law.  After his graduation from law school in 1903, Mr. Johnson was unable to gain admission to the New York bar.  Notwithstanding the fact that he was not admitted to practice law, Mr. Johnson became a pillar of the Syracuse community, hosting such luminaries as Harriet Tubman and George Washington Carver, and opened doors of opportunities for others in the African-American community that had been denied to him.  Mr. Johnson died in 1965 at the age of 90.  Despite the fact that Mr. Johnson was not a lawyer, the minority bar association of Central New York was thereafter named the William Herbert Johnson Bar Association in his honor, and an award in his name is given annually by the College of Law.

In announcing the special admission ceremony, Presiding Justice Whalen said that "more than 116 years after William Herbert Johnson graduated from the Syracuse University College of Law, the admission of Mr. Johnson on October 18 will correct a historic wrong, and provide Mr. Johnson’s family with an official acknowledgment that Mr. Johnson, who was a central figure in the African-American community in Syracuse for decades, had the moral character and intellectual fitness to practice law in this State, and should have been admitted over a century ago.  While in this case the just result may have been delayed, justice was not, in the end, denied.  The Fourth Department is proud to be a part of this historic occasion."

Speakers at the bar admission ceremony will include representatives of the William H. Johnson Bar Association, the Syracuse University College of Law, the Syracuse Black Law Alumni Collective, the Johnson family, and the City of Syracuse, along with Presiding Justice Whalen and Hon. Shirley Troutman, Associate Justice of the Appellate Division, Fourth Department and Co-Chair of the Franklin H. Williams Judicial Commission on Minorities.

(Mike Frisch)

October 7, 2019 | Permalink | Comments (0)

Georgia, Guns And The Garden

The Georgia Supreme Court has apparently upheld the right to carry a firearm in the Atlanta Botanical Garden.

A firearms ban is only effective on private property

Contrary to the rulings below, we determine that for purposes of OCGA § 16-11-127 (c), property may be considered “private” only if the holder of the present estate in the property is a private person or entity. In this case, because the City is a public entity, if it is the holder of the present estate, then the leased premises is not private property within the meaning of the statute because property owned by a municipality is not “private property.” If the City thus owns the property, then the Garden has no right to exclude the carrying of firearms on the leased premises because it is not “in legal control of private property through a lease.” If, on the other hand, by the terms of the 50-year lease with the City, the Garden holds the present estate in the property, then the property is “private property,” the Garden is a “private property owner,” and it had the right to exclude Evans from carrying a firearm on the premises. However, because the lease is not in the record on appeal and because this determination requires an examination of its provisions to determine whether it granted an estate to the Garden, summary judgment should not have been granted in favor of the Garden under the theory it asserted in its motion for summary judgment. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings.

(mike Frisch)

October 7, 2019 in Current Affairs | Permalink | Comments (0)

Georgia Disbars Attorney For Conduct Toward Former Client

The Georgia Supreme Court has disbarred an attorney whose assertion of a 5th Amendment privilege led to a bar proceeding default.

The misconduct

In summary, the facts as found by the special master based on Jefferson’s default show the following. Jefferson represented an individual from 2008 to 2010 in a custody modification action; during the representation, Jefferson and that individual were romantically involved. This relationship led to the filing of a disciplinary matter against Jefferson, but the matter was subsequently dismissed by this Court in 2014. During the pendency of that disciplinary matter, Jefferson’s former client began dating another woman and, following the dismissal of that matter, Jefferson hired a private investigator to conduct an investigation including surreptitious surveillance of the former client, his son, and the other woman. Additionally, Jefferson falsely disparaged the other woman to the woman’s employer, including making false and misleading statements about the custody proceeding.

Jefferson’s actions led the former client and the other woman to file applications for criminal warrants against Jefferson on charges of stalking and defamation. During the warrant proceedings initiated by the former client, Jefferson made false statements to the Magistrate Court of Houston County that she was bound to continue having contact with her former client due to being his attorney in a pending court case; that a visit to her former client in December 2014 was for legal purposes only; that the other woman was not supposed to have contact with the former client’s son; and that the former client’s and the other woman’s alcohol consumption was in violation of the final order granting the former client custody. During the warrant proceedings initiated by the other woman in the Magistrate Court of Fulton County, Jefferson submitted writings in response, some of them sworn, including baseless and disparaging statements about the former client and the other woman and false statements about her communications with them and others. Jefferson also filed two verified complaints against the Georgia Governor and Attorney General in the United States District Court for the Northern District of Georgia challenging the constitutionality of the Georgia statutes authorizing the warrants described above. In the first complaint, she alleged that, as an attorney, she had conducted a child custody investigation involving the other woman, and that the other woman had filed a falsified police report seeking a warrant. The allegations were false, except for Jefferson being an attorney, and Jefferson knew they were false. After the first complaint was dismissed, Jefferson made similar false allegations in a second complaint. Jefferson also communicated directly with the other woman concerning the disputes between them, despite Jefferson’s knowledge that the woman was represented by counsel in connection with the warrant application as well as the bar grievance that she had made against Jefferson.

The court rejected her exceptions and challenges

We agree with the Review Board that these admitted facts support a finding that Jefferson violated Rules 3.3 (a) (1), 4.2 (a), and 8.4 (a) (4), a violation of any one of which is sufficient to support disbarment. Having reviewed the record, we agree with the Review Board that disbarment is the appropriate sanction.

(Mike Frisch)

October 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, October 5, 2019

Without Explanation

I regularly express concern about the sorry state of attorney discipline in New Jersey.

Often the object of my disaffection is the Disciplinary Review Board .

Not today. 

The New Jersey Supreme Court rejected a Disciplinary Review Board finding of knowing misappropriation meriting disbarment and reduced the sanction to public censure.

The court concludes - without  a word of discussion or analysis - that there was not clear and convincing evidence of knowing misappropriation and that a censure is sufficient "to ensure public safety."

The board had (and explains why) it unanimously reached a contrary conclusion

The knowing misappropriation case against respondent is straightforward. In April 2015, a "computer glitch" led to a shortage on the Lessman ledger, which respondent discovered the following month when he performed a threeway reconciliation. Although respondent immediately reported the shortage to Lessman, and requested that he replace the funds, Lessman failed to do so, and respondent took no further steps to replenish the trust account, until years later and shortly before the disciplinary hearing.

...to establish knowing misappropriation, the evidence must be clear and convincing that the attorney took client funds, knowing that he or she was not authorized to do so, and used them. Here, by respondent’s admission, he knew that there was a $7,414 shortage in the trust account, which he failed to replenish. He then continued to disburse trust account monies, including more than $15,000 each to Lessman and to himself, knowing that the trust account continued to have a shortage.

Attorneys, such as respondent, who become aware of shortages in their trust accounts and fail to replenish the funds commit knowing misappropriation and are, thus, disbarred.

Not today. 

At a minimum, if this court wants to invoke its obligation to protect public safety, it needs to explain to that public and the Bar why it rejected the findings and conclusions of its board. (Mike Frisch)

October 5, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 4, 2019

142 Out Of 142

An attorney who had defaulted on bar charges before an Illinois Hearing Board but sought a lesser sanction from the Review Board should be suspended for six months and required to prove fitness for reinstatement per the Review Board report.

The Review Board rejected the Administrator's call for a fixed sanction in such cases

The crucial point is that, in this matter as well as in Moriarty, Wisniewski, Maye, and every other default proceeding, the respondents failed to appear before the Hearing Board and therefore deprived the Hearing Board of an opportunity to see and hear them testify and assess whether they presented a risk to the public if allowed to practice law. Unlike the Hearing Board, this Board is an appellate body and does not take evidence or make findings of fact regarding an attorney's fitness to practice law. Thus, when a respondent fails to appear before the Hearing Board but later appears before this Board, he still deprives the trier of fact of the ability to determine whether he is fit to practice law. That is why suspensions until further order were imposed in the foregoing cases, and that is why a suspension until further order is warranted here.

Indeed, as the Administrator has pointed out, of 142 disciplinary cases that were decided between January 1, 2009 and June 27, 2019 and designated as default proceedings, the Hearing Board recommended either disbarment or a suspension until further order in all 142 cases. In two of those cases, the respondent appealed to the Review Board, and the Review Board agreed with the Hearing Board's recommendation in both cases. See In re Beal, 2010PR00088 (Review Bd., May 3, 2012), approved and confirmed, M.R. 25422 (Sept. 17, 2012) (suspension of two years and until further order for neglecting five cases and settling two cases without client approval); In re Coyle, 2015PR00041 (Review Bd., Feb. 16, 2017), petition for leave to file exceptions denied, M.R. 28670 (May 18, 2017) (disbarment for dishonest conversion of over $100,000). Respondent is therefore incorrect that his appearance before this Board distinguishes his case from all other default proceedings.

However, we reject the Administrator's blanket assertion that this Board has no discretion to recommend a sanction other than disbarment or suspension until further order where a respondent has failed to participate in disciplinary proceedings before the Hearing Board. The Court has instructed us to consider the unique circumstances of each case in recommending a sanction, see Witt, 145 Ill. 2d at 398, and the Administrator's suggested bright-line rule would deprive this Board of discretion to examine and weigh the particular circumstances of each case in recommending a sanction that achieves the purposes of attorney discipline. That said, we struggle to envision a set of circumstances that would lead us to recommend anything other than a suspension until further order or disbarment where, as here, the respondent wholly failed to participate in the proceedings against him or appear before the Hearing Board, and therefore prevented the Hearing Board from being able to determine his fitness to practice law.

Member Pinkston would impose a slightly lesser sanction

I concur with my colleagues that Respondent's complete failure to participate in his disciplinary proceedings prior to filing exceptions with the Review Board warrants a suspension until further order. However, I believe his underlying misconduct was relatively minor, and that the most egregious aspect of it - his failure to participate in the disciplinary process - harmed only himself and not any client. Had he appeared for his hearing, it is hard to imagine that he would have been suspended for more than four months for his misconduct. See, e.g., In re Murray, 09 CH 36 (Hearing Bd., Nov. 8, 2010), approved and confirmed, M.R. 24330 (March 21, 2011) (suspension of three months and until further order where attorney neglected a matter and failed to respond to the Administrator's requests for information after the client reported his conduct to the Administrator); In re Carr, 2017PR00096 (Hearing Bd., Sept. 10, 2018), approved and confirmed, M.R. 29562 (Jan. 29, 2019) (suspension of three months and until further order where attorney practiced law during a time when he was removed from the master roll of attorneys for failing to register, and failed to respond to the Administrator's requests for information about the matter).

(Mike Frisch)

October 4, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Idaho Prosecutor Reprimanded For Brady Violation

A Brady violation drew a public reprimand from a hearing committee of the Professional Conduct Board of the Idaho State Bar. 

The Statesman reported on the criminal case

Idaho’s highest court on Monday stood by its decision to order a retrial of one of two brothers accused in a double murder 34 years ago in north-central Idaho.

The Idaho Supreme Court overturned the murder conviction of Mark Henry Lankford, accused of brutally killing a Texas couple while they were camping in Idaho County in 1983. The court originally ordered a new trial on July 25, 2016. Monday’s decision came after the state asked for a new hearing.

In a 3-2 decision, the justices ruled that prosecutors committed misconduct when they failed to disclose damaging evidence against a critical witness in the state’s case against Lankford. The justices ruled that Lankford, now 61 and serving a life sentence for two counts of first-degree murder, must receive a new trial.

Here’s what went wrong in the first trial:

Lane Thomas, who had shared a jail cell with Lankford, testified that Lankford confessed to him that he killed U.S. Marine Capt. Robert Bravence, 27, and his wife, Cheryl, 25, while camping in the Sheep Creek area. Thomas told the jury that in exchange for his testimony, prosecutors said they would write a letter to state corrections officials at the state prison at Cottonwood, where Thomas was then incarcerated.

But Thomas didn’t disclose that a prosecutor had offered to help him get out of prison and placed on probation. The prosecutor had not shared that information with defense attorneys and did not correct the omission in Thomas’ testimony at trial.

“Affirmative personal intervention with the Latah County prosecutor to assist Thomas in getting out of prison and placed on probation is materially different than offering to write a letter to correctional authorities,” Justice Joel Horton wrote in the 39-page decision. “Thomas’ testimony to the jury that he was only getting a letter of cooperation was false and misleading.”

The Supreme Court said Thomas’ credibility as a witness was “essential” to Lankford’s conviction. Without Thomas’ testimony corroborating another witness’s testimony, “the state had little to no hope of securing Lankford’s conviction,” Horton wrote.

The high court concluded that there was a “reasonable likelihood” that Thomas’ false testimony about his motive for testifying “could have affected the judgment of the jury.”

The court concluded that Lankford’s right to a fair trial was violated.

Justices Daniel Eismann and Warren Jones concurred with Horton. Chief Justice Roger Burdick and Justice Robyn Brody dissented, saying they did not believe the prosecutor violated rules of evidence by not disclosing “every minute detail” about promises made to Thomas.

Authorities said the Bravences were beaten to death and their bodies hidden. The brothers stole the couple’s vehicles and credit cards and fled to California. They were arrested after they returned to their home state, Texas. The bodies were not discovered until three months after the Bravences were killed.

In 1984, Lankford and his brother, Bryan, now 56, were convicted of first-degree murder and sentenced to death.

The 9th U.S. Circuit Court of Appeals overturned Mark Lankford’s original conviction when it ruled the trial judge failed to inform jurors that they needed more than Bryan Lankford’s testimony to find his brother guilty. In 2008, Mark Lankford was convicted a second time for two counts of first-degree murder and sentenced to life in prison without the possibility of parole.

Bryan Lankford’s death sentence was reversed when the U.S. Supreme Court found that the state failed to notify him that a death sentence could be imposed if he was found guilty. Bryan Lankford was given a life sentence with the possibility of parole. He is scheduled for a parole hearing in October 2018.

The Idaho Supreme Court opinion finding prosecutorial misconduct is linked here. (Mike Frisch)

October 4, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 3, 2019

Conference Behavior Draws Reprimand

The Pennsylvania Supreme Court has imposed a public reprimand for criminal conduct that took place at the 2017 Dauphin County Bench-Bar conference at the  Omni Bedford Springs Resort.

Personal note: my family used to vacation there in the mid-1950s. Some of my earliest memories. 

On the first evening of the conference he went to the resort bar and was seated near female attendees.

As the evening progressed, Respondent consumed numerous alcoholic beverages and became increasing intoxicated.

He made "unwanted and inappropriate advances" toward the female attorneys, "touched two of the female attorneys on sensitive areas of their bodies," and began similar behavior toward a third victim.

He was escorted back to his room after the bar (not the Bar) declined to continue serving him alcoholic beverages.

He resigned from his firm (where he had been for 32 years and was managing partner) and was dismissed from the county bar association.

He pled guilty to harassment and disorderly conduct.

The parties jointly sought the public reprimand. (Mike Frisch)

October 3, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 2, 2019

Suspension For Facilitating Unauthorized Practice

A three-month suspension by the New York Appellate Division for the First Judicial Department

The Attorney Grievance Committee commenced this proceeding by petition containing three charges (Judiciary Law § 90[2], Rules for Attorney Disciplinary Matters [22 NYCRR], § 1240.8), alleging that respondent was guilty of misconduct in violation of the Rules of Professional Conduct by, inter alia, aiding a nonlawyer in the unauthorized practice of law. Respondent permitted an unlicensed law school graduate employed by his office to, inter alia, attend various preliminary conferences and to sign preliminary conference orders and stipulations as "attorney for plaintiff," and to appear for a client at a deposition. Respondent has no disciplinary history during his over 25 years of practicing law and has fully cooperated with the Committee.

(Mike Frisch)

October 2, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Hail Ohio

From the Ohio Supreme Court - the most transparent bar discipline jurisdiction in the United States - is the list of hearings scheduled this month

October 3
Disciplinary Counsel v. Edward Paul Brueggeman
Case No. 2019-022
Respondent’s counsel: George D. Jonson, Cincinnati
Hearing location:  Thomas J. Moyer Ohio Judicial Center, Moyer, 65 S. Front St., West Hearing Room 104, Columbus

Disciplinary Counsel v. Scott Atway
Case No. 2019-023
Respondent’s counsel: Lynn A. Maro, Boardman
Hearing location: 1 p.m.; Moyer Judicial Center, North Hearing Room 106

October 9
Disciplinary Counsel v. Jared Lee Wilson

Case No. 2019-009
Respondent’s counsel: Tracey A. Laslo, Alliance
Hearing location: Moyer Judicial Center, North Hearing Room 106

October 16
Disciplinary Counsel v. James Louis Reinheimer

Case No. 2019-021
Respondent’s counsel: Jonathan E. Coughlan, Columbus
Hearing location: Moyer Judicial Center, North Hearing Room 106

October 22
Disciplinary Counsel v. Hon. Rebecca L. Doherty

Case No. 2019-024
Respondent’s counsel: Peter T. Cahoon, Akron
Hearing location: Moyer Judicial Center, North Hearing Room 106

October 28
Disciplinary Counsel v. Harold McClure Schwarz III

Case No. 2019-033
Respondent’s counsel: Larry H. James, Columbus
Hearing location: Moyer Judicial Center, North Hearing Room 106

The links take you to every single pleading in every case.

James Bond step aside - nobody does it better. (Mike Frisch)

October 2, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Well Deserved Disbarment

Former Luzerne County Judge Mark Ciavarella Jr. has consented to disbarment by the Pennsylvania Supreme Court.

NPR reported on his horrific crimes

A Pennsylvania judge was sentenced to 28 years in prison in connection to a bribery scandal that roiled the state's juvenile justice system. Former Luzerne County Judge Mark Ciavarella Jr. was convicted of taking $1 million in bribes from developers of juvenile detention centers. The judge then presided over cases that would send juveniles to those same centers. The case came to be known as "kids-for-cash."

The AP adds:

The Pennsylvania Supreme Court tossed about 4,000 convictions issued by Ciavarella between 2003 and 2008, saying he violated the constitutional rights of the juveniles, including the right to legal counsel and the right to intelligently enter a plea.

Ciavarella, 61, was tried and convicted of racketeering charges earlier this year. His attorneys had asked for a "reasonable" sentence in court papers, saying, in effect, that he's already been punished enough.

"The media attention to this matter has exceeded coverage given to many and almost all capital murders, and despite protestation, he will forever be unjustly branded as the 'Kids for Cash' judge," their sentencing memo said.

The Times Leader, of Wilkes-Barre, Pa., reports that the court house in Scranton was overflowing this morning. More than a dozen people who said they had been affected by the judge's decision stood outside, awaiting the sentencing.

Jeff Pollins was in that crowd. His stepson was convicted by Ciavarella.

"These kids are still affected by it. It's like post traumatic stress disorder," Pollins told the Times Leader. "Our life is ruined. It's never going to be the same... I'd like to see that happen to him," he said.

In an unrelated matter, a former Pennsylvania judge was suspended for five years as a result of a false statement conviction. (Mike Frisch)

October 2, 2019 in Bar Discipline & Process | Permalink | Comments (0)