Thursday, January 23, 2025
Former Judge Disbarred For Marijuana Selling Conspiracy Conviction
A recent decision of the Tennessee Supreme Court is reported on the web page of the Board of Professional Responsibility
Effective January 17, 2025, the Supreme Court of Tennessee disbarred Perry Lee Stout from the practice of law.
Mr. Stout was temporarily suspended by the Supreme Court of Tennessee on February 28, 2024, after pleading guilty to a serious crime. The Court ordered the Board of Professional Responsibility to institute formal proceedings to determine the extent of final discipline to be imposed on Mr. Stout.
On January 17, 2024, Mr. Stout signed a plea agreement in Johnson County Circuit Court admitting to the commission of two (2) felonies: (1) Conspiracy to Possess with Intent to Sell not less than ten (10) or more than seventy (70) pounds of marijuana, a Schedule VI controlled substance, and (2) Money Laundering. Mr. Stout entered guilty pleas to these offenses two days later and was sentenced to an effective eight (8) year sentence for these crimes on May 2, 2024.
Mr. Stout entered into a conspiracy in 2022 to sell illegal drugs in a tri-state region, which included Johnson County. While an attorney and later as an elected General Sessions Judge, Mr. Stout invested in the purchase of illegal drugs and participated in illegal drug trafficking with the intent to sell or deliver the drugs in the Johnson County region.
The Hearing Panel found that Mr. Stout knowingly violated the Tennessee Rules of Professional Conduct, to wit: 8.4 (a), (b), (c), and (d) (misconduct).
WJHL 11 reported
In its disbarment order, the court noted that as a judge, Stout was able to learn investigative information about crime and prospective criminals when law enforcement officers sought warrants or otherwise interacted with him.
“As part of the marijuana purchase and sale process, Mr. Stout had identified a code word which would be used to warn his accomplice of when law enforcement might be taking action of which the accomplice would benefit from being aware,” the order states.
Evidence presented during the hearing indicated Stout’s actions “had an adverse effect upon the Johnson County community as a whole, including a loss of confidence in the legal process within Johnson County.”
The order also mentioned the fact that as a juvenile judge who was also dealing marijuana, “Mr. Stout’s trafficking of a controlled substance could easily have resulted in juveniles appearing before him on matters which included possession, use, or further distribution of the same controlled substance which Mr. Stout’s illegal business venture brought into the State of Tennessee and Johnson County.”
(Mike Frisch)
January 23, 2025 in Bar Discipline & Process | Permalink | Comments (0)
One Star Review Draws Retort
A Hearing Committee Report of the Massachusetts Board of Bar Overseers recommends a two-and-a-half year suspension for misconduct in four matters.
One matter involved responses to a negative online review.
That client had retained Respondent for a divorce but things went south
After terminating the attorney-client relationship, Dr. Nah wrote an online Google review of the respondent’s law firm, Johnson Law & Mediation Services, in which she gave the respondent one star and made negative comments. Her Google review showed her username as “Y N.” Ans. ¶ 4. Dr. Nah’s initials are “YN.” See Tr. II:5 (Nah).
The client’s Google review read as follows: “Michael Johnson will tell you as if he knows [sic] ins and outs of the law and he emphasizes how strong he is in negotiation to reach the agreement. However, he is very passive when you need him for the representation. Poor quality.”
Respondent was able to figure out the client's identity
Shortly thereafter, the respondent posted an online response to the client’s Google review. Ans. ¶ 4. He wrote:
Thank you for your input. As I told you from the outset, I am a negotiator. One must choose when to fight carefully. You wished to fight in [sic] the issue of parenting time, whicH [sic] you have denied the father of a child you had together. In the end, he will have parenting time and if you are not careful, custody too. You have your expertise and I have mine. All that being said, good luck as you proceed.
The client emailed Respondent that she was "flabbergasted" by the reply and filed a bar complaint.
In or about January 2021, after receiving correspondence from bar counsel about the client’s bar complaint, the respondent edited his online response to the client’s Google review. Ans. ¶ 6. He posted: “Unfortunately, this client did not agree with my strategy and the requirement that she provide the other party parenting time absent good cause. I regret that I had to terminate our relationship.” Id. As discussed supra, we find that Dr. Nah terminated the attorney-client relationship with the respondent. Therefore, the respondent’s edited online response to Dr. Nah’s Google review was knowingly false.
We find that the respondent did not obtain Dr. Nah’s informed consent to post the information he disclosed in his edited online response.
Finding
By posting the information in his edited online response, in which he portrayed his client as unreasonably contesting her husband’s parenting time against the legal advice of her lawyer, the respondent violated Rules 1.9(c)(2) and 1.6(a) again...
Bar counsel charged that, by stating false information about the representation in his edited online response, the respondent violated Mass. R. Prof. C. 8.4(c) (do not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The respondent falsely claimed that he terminated the attorney-client relationship, when it was Dr. Nah who did so. We conclude that bar counsel has proved this charge.
The hearing committee found misconduct in three unrelated matters.
He had claimed COVID-related mitigation
We take administrative notice that, in mid-March 2020, the pandemic began in earnest in Massachusetts and severely impacted public health for a period of time. Yet, the respondent has the burden of proving mitigation and he has provided scant evidence of COVID diagnoses and zero evidence of either his suffering from “long COVID” or of how COVID caused his misconduct. Rules of the Board of Bar Overseers (“BBO Rules”) § 3.28; see also Matter of Ablitt, 486 Mass. 1011, 1018, 37 Mass. Att’y Disc. R. 1 (2021) (requiring causal connection between claimed mitigating factor and misconduct) (internal citations omitted). We conclude that the respondent failed to prove this mitigating factor.
Aggravating factors included a prior three-month suspension
The respondent lacked candor at the disciplinary hearing. He testified falsely under oath before us on multiple occasions. We find that the respondent intended to deceive us with his testimony. Lack of candor before the hearing committee is an aggravating factor.
Proposed sanction
Bar counsel recommends that the respondent be suspended from the practice of law for three years. The respondent recommends a suspension of no more than three months. We recommend a suspension from the practice of law for two-and-one-half-years...
The core of the instant disciplinary proceeding is that the respondent repeatedly neglected three of the four client matters at issue (including SQ’s case), failed to keep his clients reasonably informed about the status of their matters, and made multiple misrepresentations to them to conceal his neglect. See Counts II-IV. Under the standards set forth in Matter of Kane, a “suspension is generally appropriate for misconduct involving repeated failures to act with reasonable diligence, or when a lawyer has engaged in a pattern of neglect, and the lawyer’s conduct causes serious injury or potentially serious injury to a client.” Matter of Kane, 13 Mass. Att’y Disc. R. 321, 328 (1997). Here, we find that the respondent’s conduct risked potentially serious injury to his clients because they could have lost the opportunity to pursue their claims due to his neglect and misrepresentations. For example, in Ms. Albano’s matter, the respondent did not file a petition for appointment of guardian of a minor as he claimed he did. Fortunately, Ms. Albano terminated the respondent and accomplished the filing herself, pro se. If she had not, Ms. Albano could have lost the opportunity to petition for guardianship. The fact that she was ultimately denied guardianship does not absolve the respondent since even the loss of a weak claim constitutes harm.
And
The respondent’s desire and willingness to lie to cover up his shortcomings is stunning and incredibly troubling. The respondent made many misrepresentations over multiple cases; he made misrepresentations to each of the four clients at issue, to a court, to bar counsel during the investigation, and to this committee when he testified before us. He claimed in two separate cases that three different courts failed to docket something that he filed. Tr. I:96-97 (respondent). He has shown a clear willingness to lie when it suits him. He lacked credibility, integrity, and candor before us. Finally, he carelessly revealed his client’s confidential information online not once, but twice. His conduct is dangerous for the public and for the integrity of the legal system. We are mindful of the consequences of such behavior on the public’s trust in, and perception of, lawyers and the legal profession. As expressed above, we consider the totality of these violations in determining our sanction recommendation.
(Mike Frisch)
January 23, 2025 in Bar Discipline & Process | Permalink | Comments (0)
Roman Holiday
The Illinois Administrator has filed a complaint based on a conviction for multiple counts of wire fraud
On January 10, 2025, Judge Gettleman entered a judgment of conviction on Counts One-through-Five and Count Seven of the indictment, and sentenced Respondent to a concurrent term of imprisonment of 36 months on all counts. In addition, Judge Gettleman sentenced Respondent to two years of supervised release upon his release from prison and ordered Respondent to pay restitution in the amount of $5,868,744.92 to five of the individuals or entities Respondent defrauded.
Allegations in the indictment
The indictment alleged that beginning in or about July 2015 and continuing through August of 2019, Respondent caused several investors to invest over $5,000,000 towards the purchase and development of real estate in Italy based on false representations regarding the intended use of the funds, Respondent’s compensation, his personal investment in the properties, and the status of the real estate transactions. The indictment further alleged that Respondent also represented to investors and caused others to falsely represent to investors that he intended to use their investments to purchase and develop real estate in Italy, when Respondent actually intended to use a significant portion of the investors’ funds for other purposes, including for personal purposes such as paying for jewelry, family vacations and for his own personal healthcare.
The indictment further alleged that Respondent falsely represented to investors, and caused others to falsely represent to investors, that Respondent would not receive any compensation for purchasing or developing the real estate until the transactions closed or until profits were generated by the sale or rental of the properties when, in fact, Respondent used investor funds for his own personal purposes and expenses before any closings took place and any profits were generated.
The indictment further alleged that Respondent falsely represented to investors that he had contributed specific amounts of his own funds towards the purchase and development of properties in Italy, including using his own money to pay off a corporate credit card when, in fact, Respondent had not contributed such amounts. The indictment alleged that Respondent also provided false information to investors about the status of certain real estate transactions in Italy, including the amounts purportedly paid for certain properties and the status of such transactions.
January 23, 2025 in Associates, Bar Discipline & Process | Permalink | Comments (0)
Jurisdiction Challenge Rejected
A District of Columbia Hearing Committee recommends disbarment of an attorney and rejection of the jurisdictional challenge to the allegations
Respondent contends that the District of Columbia Court of Appeals, the District of Columbia Board of Professional Responsibility and this Hearing Committee have no jurisdiction over his conduct before the Courts of the State of Maryland and that the Maryland Grievance Committee s decision not to pursue a complaint against him for his handling of the Goode Estate is dispositive of charges against him regarding that Estate (Count III); he therefore seeks dismissal of all counts relating to his conduct before the Courts of Maryland. Respondent further argues that he has the right to spend client funds once they are earned and that the clients who testified did not prove that he misappropriated or commingled their funds. He also contends that their testimony does not prove any of the charges against him by clear and convincing evidence. As to the charges that he took payment for Estate work without court approval, Respondent argues that Disciplinary Counsel failed to prove that court approval was required for the estates in question because, he asserts, under Maryland law court approval is not required for payment from estates classified as unsupervised. Finally, he argues that in the event there is to be any discipline he is entitled to disability mitigation under In re Kersey, 520 A.2d 321 (D.C. 1987) due to medical issues described in his expert s report.
As set forth below, the Hearing Committee finds that Respondent as a member of the Bar of the Court of Appeals of the District of Columbia is subject to jurisdiction of the Court of Appeals of the District of Columbia for his conduct before courts in the State of Maryland and that Disciplinary Counsel has proven by clear and convincing evidence that Respondent engaged in a lengthy pattern of intentionally misappropriating and commingling client funds, of intentionally failing to keep and maintain required records, of intentionally taking disbursements from estate accounts without court approval, of collecting unreasonable fees, and of failing to keep clients properly informed of their matters and that he engaged in dishonesty in certain of his filings with courts, in filings under oath with FINRA and by his failure to update such filings. We therefore recommend that Respondent be disbarred.
As to disability mitigation, the hearing committee considered evidence offered by Disciplinary Counsel and Respondent
We accept much of [Respondent's expert] Dr. Tellefsen s testimony regarding the devastating emotional effects of the early suggestion that Respondent was suffering cancer, the long-period of time waiting for confirmation of a diagnosis, the diagnosis itself and the cancer treatments. She ably described the whole compendium of effects that accompany these conditions, including worry, sickness, fatigue, distraction, lack of focus and, indeed, anxiety in the layman s sense of anxiety, that which causes many if not most humans to lie awake some or even many nights. Tr. 1056-1057. [Disciplinary Counsel's expert] Dr. Candilis, too, readily acknowledged these devastating effects, using the very same adjective, and later referring to the outsized psychological effect a cancer diagnosis has on anybody. Tr. 1138, 1172-1173.
What Respondent failed to prove, is that these devastating effects caused him to suffer a disability or that they substantially affected his misconduct, two essential elements of a Kersey mitigation. Dr. Tellefsen failed to persuade us that there was any connection between the effects of his cancer diagnosis and the extensive wrongful conduct we set forth in the foregoing findings of fact.
This finding begins with the absence of any proof of a mental health condition. As Dr. Tellefsen admitted on cross-examination, Respondent had never been diagnosed with any mental health impairment before her examination; there were no records of Respondent complaining about anxiety, mental health issues or inability to work; he had no physical manifestations of mental health issues; he had never been prescribed any medications for anxiety; during this time, he was able to function at a high degree professionally; there was never a report of Respondent making a financial or bookkeeping mistake in favor of the client rather than to the client s detriment; anxiety disorder does not typically impact one s ability to be honest, and anxiety does not usually result in acts of commission rather than the customary acts of omission.
Dr. Candilis added to this litany of reasons why Respondent was not impaired: Respondent discussed no symptoms of depression; his radiologist, did not see any behavior or cognitive problems; Respondent made no indication of mental health issues; Respondent was able to navigate through a bankruptcy and rebuild a law practice; Respondent had no history of depressive symptoms, homicidal or suicidal ideation, anxiety, psychotic symptoms, paranoia, fixed false beliefs, imagined thought readings, or auditory or visual hallucinations; Respondent ran a complicated business that included gold trading; and Respondent was fully capable and treated by everyone as being fully capable of making important complex decisions including international travel and medical choices regarding eye surgery and cancer treatments and all the releases and related decisions they entail.
We also base our findings that Respondent did not suffer a disability on the lack of a single area in which he has claimed to be impaired other than in managing an escrow. Indeed, he readily admitted to Dr. Candilis that he was never good at these financial portions of his business, that in his first career they were done for him, and that he probably should have taken a course on them earlier. In fact, he did not blame his conduct on any disability. Instead, he said it was a result of the rules regarding escrows being less clear than traffic regulations. For all of these reasons, we find that Respondent has failed to prove by clear and convincing evidence he suffered a disability as required for a Kersey mitigation.
For many of the same reasons, we find that the condition Respondent cites as a disability did not cause the conduct of which he has been accused and has herein been found to have committed. We note the similarity between the Kersey causation necessary for mitigation and what Dr. Candilis so ably described as the connection necessary to prove a disabling impairment. We find credible his opinion s reliance on the absence of any outside evidence of impairment, the failure to show impairment anywhere other than one specific narrow area, and the absence of general dysfunction or any noticeable manifestations of impairment. We are especially persuaded in our finding of no causation by Respondent s admission that he did not know his escrow obligations well and that he should have taken a class in them sooner; by the wholly one-way nature of his transfer of funds; by the fact that he usually committed the misappropriations when he needed money, and by Dr. Tellefsen s own admission that there was no impairment before 2018.
(Mike Frisch)
January 23, 2025 in Bar Discipline & Process | Permalink | Comments (0)
Can't Skip The Trip
The United States Court of Appeals for the Fourth Circuit affirmed a decision denying remote access to records made by Courthouse News
The Circuit Court for Prince William County, Virginia, makes civil court records available to the public at the courthouse. Courthouse News Service would like to skip the trip to the courthouse and view civil court records remotely on the internet, like Virginia attorneys can. But Virginia law prohibits the clerk of court from granting Courthouse News the same remote access given to attorneys. So Courthouse News sued, alleging that the Virginia law violates its First Amendment and Equal Protection rights. The district court ruled in favor of the Commonwealth. We agree with that conclusion.
No First Amendment violation
Having identified the asserted right, we can see that the Access Restriction, and the clerk’s application of it, resembles a time, place, and manner regulation. Courthouse News undisputedly has access to all the civil court records it seeks, including the records the First Amendment entitles it to view. The clerk’s rejection of its OCRA application does not deny Courthouse News access to those documents. Rather, the denial of OCRA access limits when, where, and how Courthouse News may access those court records: during business hours at the courthouse using public access terminals instead of all hours of every day, remotely, using a personal computer with internet access. Cf. Schaefer, 2 F.4th at 328 (reasoning that clerks’ practices of delaying public access to newly filed civil complaints for days after filing “resemble[d] time, place, and manner restrictions”).
GREGORY, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion. As the United States Court of Appeals for the Ninth Circuit observed, “[t]he free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Courthouse News Serv. v. Planet, 947 F.3d 581, 589–90 (9th Cir. 2020) (citation omitted). In this case, the press invokes our promise of protection and, I fear, the majority has failed to provide it.
I would find that both the Access and Dissemination Restrictions are subject to First Amendment strict scrutiny. And, because this case could be resolved on purely First Amendment grounds, I would decline to consider Courthouse News’ equal protection challenge. I would, therefore, reverse the district court’s grant of summary judgment to the government and remand for reconsideration of both restrictions under the strict scrutiny standard.
(Mike Frisch)
January 23, 2025 in Current Affairs | Permalink | Comments (0)
Wednesday, January 22, 2025
Patient To A Default
A letter opinion of the Delaware Court of Chancery grants a default judgment for litigation misconduct
This has been a high-touch case. Defendants 4301 Operations, LLC, and Brian Conners (“Defendants”) strung plaintiff Scarabee Holdings, LLC (“Plaintiff”) along in discovery, and Plaintiff sought help from this Court; I was patient, perhaps to a fault, and I gave Defendants the benefit of the doubt on multiple occasions. My tune changed when Defendants’ former Delaware counsel took the difficult and commendable step of notifying the Court that their clients had repeatedly lied in sworn and represented filings about fundamental facts supporting their defense. Defendants also falsified evidence in furtherance of their lies. The falsity of those statements was borne out in a deposition. Defendants’ misconduct presents the rare occasion when a default judgment is the only appropriate sanction.
The case
Plaintiff filed this action seeking a “Class B Preferred Return” payable annually under 4301 Operations’ LLC agreement “to the extent that the Board determines there are sufficient operating funds.” In discovery, Defendants told Plaintiff that 4301 Operations’ board (the “Board”) had never evaluated whether to pay the Class B Preferred Return, and indeed had never met.
Findings
Defendants submitted multiple filings governed by Rule 11 containing blatant and material lies. The filings stated the Class B Preferred Return was not owed because Conners had annually evaluated the Class B Preferred Return and concluded 4301 Operations lacked the funds to pay it. That was the crux of Defendants’ defense. It was plainly material, and false. “To mislead the court and [Scarabee] about so fundamental a question . . . through plainly false pleadings is a clear violation of Rule 11.”
And Defendants violated Rule 37. Under Rule 37, “[i]f a party or an officer, director, or managing agent of a party . . . fails to obey an order to provide or permit discovery,” this Court “may make such orders in regard to the failure as are just.” On June 5, I entered an order accepting Defendants’ offer of discovery into Defendants’ ratification defense, and postponing trial. But Defendants did nothing but continue to lie in their written responses. When they made that offer, they had no intention of looking for more discovery. Now the full truth has come out: there was never a ratification, or any determination to ratify.
The next question is what to do about these violations. Under Rule 11, the “sanction imposed . . . must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” And if a party “fails to obey an order to provide or permit discovery,” Rule 37 says the Court may implement sanctions “as are just.” Possible sanctions include “dismissing the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party.” “Discovery abuse has no place in our courts, and the protection of litigants, the public, and the bar demands nothing less than that our trial courts be diligent in promptly and effectively taking corrective action to ‘secure the just, speedy and inexpensive determination of every proceeding’ before them.”
Sanction
Defendants argue they are owed a trial on the merits. But Defendants planned to deprive Plaintiff of the same. Having affirmatively lied in multiple court filings and ignored Court orders, the rare sanction of default judgment is appropriate here under Rules 11 and 37.
(Mike Frisch)
January 22, 2025 | Permalink | Comments (0)
Mississippi Removes Judge With A "Resounding" Dissent
The Mississippi Supreme Court removed a judge over social media posts and comments on the Kelly Clarkson Show
The Mississippi Commission on Judicial Performance (the Commission) brings this case against Municipal Court Judge Carlos Moore relating to social media posts and public comments by Moore that they allege violated Article 6, Section 177A, of the Mississippi Constitution, the Code of Judicial Conduct and a Memorandum of Understanding (MOU) between the Commission and Judge Moore. This Court finds that Judge Moore’s actions are in violation of the Mississippi Constitution, the judicial-conduct canons and the MOU. Judge Moore is hereby removed from the bench and assessed a $3,000 fine plus costs.
Judge Moore had Facebook and twitter accounts
On November 20, 2021, Judge Moore posted on social media the following comment: If anyone still believes justice is blind in America after the Kyle Rittenhouse acquittals yesterday, you just refuse to accept an ugly truth. I can almost guarantee you that if Kyle had been black and killed two white men in the same manner Kyle did, he most certainly would have been convicted. There has never been a greater need for black lawyers and judges in America to keep decrying the blatant inequities that exist in our criminal justice system and to keep pushing for a color blind and more equitable judicial system. The account name on the post was “Judge Carlos Moore,” and the subtitle stated “President at National Bar Association.”
On June 22, 2022, Judge Moore appeared on The Kelly Clarkson Show to discuss his DO Better ASAP alternative sentencing program. On the show, when asked why his DO Better ASAP program was so important to him, Judge Moore stated:
You know, I always felt that if I got in a position of power I would try to make a difference. So many times African Americans get the short end of the stick. There are many judges that don’t look like me and the people that appear before them. They cannot be empathetic because they don’t look like the people that go before them. But I preside over two jurisdictions where there are African Americans, 85 to 90% of people look like me, and I want to give them a second chance if they qualify. The Kelly Clarkson Show: Mississippi Judge Gives Young Offenders Second Chances Thru Do Better ASAP Program (NBC television broadcast June 22, 2022),
https://www.nbc.com/the-kelly-clarkson-show/video/mississippi-judge-gives-young-offenders-second-chances-thru-do-better-asap-program/ACCN563397925.
Ensuing proceedings included allegations that the judge had made "racially divisive" remarks
On October 20, 2023, the appointed Committee met to review and determine its recommendation. On December 8, 2023, the Commission voted to approve the committee recommendation with unanimous vote, said recommendation being a public reprimand, removal from office, suspension for six years and a $5,000 fine, plus costs. The Commission brings this recommendation before the Court by way of motion.
The court
Judge Moore’s actions constituted willful misconduct that was prejudicial to the administration of justice. He has failed to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Miss. Code of Jud. Conduct Canon 2A. Judge Moore has admitted his actions but continues to argue that he has done no wrong. A great likelihood exists that Judge Moore would continue to repeat his actions. See Miss. Comm’n on Jud. Performance v. Thompson, 169 So. 3d 857, 874 (Miss. 2015). Accordingly, a harsh sanction is warranted. Id.
Judge Moore has on multiple occasions been publicly reprimanded, he has once been suspended from office for sixty days and he has been fined $1500. Moore, 356 So. 3d at 133. The Commission requests Judge Moore’s removal from the bench and a suspension for six years in addition to a $5,000 fine and public reprimand.
Judge Moore’s words were aimed at creating public distrust in the judiciary and its ability to be impartial. Judge Moore, after being warned and agreeing through an MOU to comply with the judicial-conduct canons, willfully continued in his actions that were prejudicial to the administration of justice.
We find removal from the bench to be the appropriate sanction for Moore’s actions. Because this Court has found Judge Moore violated Article 6, Section 177A, removal from the bench is permanent.
KING, PRESIDING JUSTICE, DISSENTING:
Judge Carlos Moore’s statements at issue are discussions of broad public importance at best and ambiguous at worst. Therefore, I would find that Judge Moore’s statements were protected by the First Amendment and that the Commission failed to meet the high burden of demonstrating that its interests in protecting the impartiality of the judicial system outweighed Judge Moore’s First Amendment rights. Further, because this Court alone decides what conduct of a judge is sanctionable, I would find that this Court is not bound by a memorandum created by the Commission on Judicial Performance. Accordingly, I resoundingly dissent and would dismiss the Commission’s complaint.
The dissent contends that the judge spoke on matters of public concern and is protected speech.
As to Kelly Clarkson
The majority first discusses Judge Moore’s comments on the Kelly Clarkson show. It takes issues with Judge Moore’s comment that many judges “do not look like” him and “the people that appear before them.” Judge Moore expressed concern that those judges could not be empathetic toward people of color because they do not look like those people. The majority states that “[d]iscussions about racial disparity in the legal system or the desire for greater diversity in the judiciary and legal profession are certainly matters of public concern.” Maj. Op. ¶ 30. The majority then asserts that “blatantly attacking an entire race’s ability to exhibit a core, not just judicial but human, ability is not.” Maj. Op. ¶ 30.
But the majority reads into Judge Moore’s comments and takes those comments out of context. I strongly disagree with the majority’s assertion that Judge Moore’s comments on the Kelly Clarkson Show are an attack, much less a blatant one. In fact, Judge Moore’s comments are ambiguous at worst. What is clear is that Judge Moore was invited on the Kelly Clarkson Show to discuss his Do Better ASAP (Alternative Sentencing Accountability Program), which was aimed at giving nonviolent first-time offenders a second chance to avoid entering the criminal justice system and having a criminal record.
And
A full reading of the Kelly Clarkson transcript also shows no statement of Judge Moore’s indicating that he would not treat people of other races impartially. Judge Moore stated, “[b]ut I preside over two jurisdictions where there are African Americans, 85 to 90% of people look like me, and I want to give them a second chance if they qualify.” Judge Moore did not say that he would only give second chances to African Americans. A review of the entire transcript makes clear that Judge Moore was on the Kelly Clarkson Show to discuss his Do Better ASAP program, which gives second chances not solely to black offenders but to any nonviolent, first-time offender that qualifies for the program.
The dissent recounts a number of statements of judicial officers decrying disparate justice in our legal system
But protecting an impartial judiciary does not negate Judge Moore’s right to speak about matters of legitimate public concern, including his opinions on the lack of racial diversity in the judicial and legal system. Further, the Commission has failed to explain how Judge Moore’s ability to empathize with fellow African Americans affects the impartiality of the judicial system. This is not the rare case in which the state has demonstrated its narrowly tailored restriction. The Commission’s conclusory statements fail to establish its “very difficult burden” to show that its interest in protecting the impartiality of the judicial system outweighs Judge Moore’s First Amendment rights.
And noted disparate treatment of another Mississippi judge
Moreover, this Court previously has dismissed with prejudice judicial performance proceedings involving Judge Gay Polk-Payton, a justice court judge, who had maintained a social media presence employing the username “JudgeCutie.” En Banc Order, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (Miss. June 15, 2017). The Commission alleged that Judge Polk-Payton had violated Canon 2A by posting numerous times in her judicial robe, and while using the username “JudgeCutie.” There, the Commission alleged that Judge Polk-Payton
maintained four Facebook pages, a Youtube account, a Twitter account, and an Instagram account. [Her] username on Instagram and Twitter was ‘Judge Cutie’. While posting on these numerous sites, [Judge Polk-Payton] posed half-robed in promotional materials, published posts about sitting on the bench with unclear hair after going to the gym, and posted a photograph wearing her robe which she titled #myuniform, to cite a few examples. Brief on Behalf of the Mississippi Commission on Judicial Performance, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (filed Mar. 6, 2017).
The Commission additionally alleged that Judge Polk-Payton had “written inflammatory and controversial political posts[,]” namely:
I became a judge so that I could do my part [to] restore some integrity to the criminal justice system. I work hard so that by ALWAYS following the law . . . whether I agree with the law or not. We will never have a fair system of justice until private citizens stand up and honor their duty by serving as jurors for their fellow citizens AND following the law once they are sworn in as part of a petit jury. In Florida, the guilty go free but in Mississippi, those that are not guilty are convicted. Jurors and judges are the gatekeepers to the Constitution. If you can’t trust us to follow the law, there can be no justice and where there is no justice, there will be no peace. #wholeftthegateopen[10]
Following oral argument, this Court found that “no violation of the Mississippi Code of Judicial Conduct . . . has been proven by clear and convincing evidence ” and dismissed the proceedings with prejudice. En Banc Order, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (Miss. June 15, 2017). Accordingly, based on this Court’s prior action, I would find that Judge Moore did not commit misconduct by failing to comply with MOU 1.
Oral argument linked here.
I strongly encourage interested readers to watch the oral argument and form their own opinion about what drives the result.
It appears that the dissenting justice is the only African American member of the court. (Mike Frisch)
January 22, 2025 in Judicial Ethics and the Courts | Permalink | Comments (0)
"A Complicated Series Of Transactions"
An attorney who had been suspended for 42 months has been reinstated to practice by the Arkansas Supreme Court.
The Arkansas Democrat Gazette reported on the suspension
North Little Rock attorney Stephen Morley, a former traffic judge, has been suspended from practicing law for four years as a result of a consent order he signed Nov. 15 to resolve misconduct allegations by state ethics officials.
According to a 41-page order filed Nov. 15 by a panel of the Arkansas Supreme Court Committee on Professional Conduct, the committee's finding of misconduct stems from Morley's representation of a Dermott liquor store and its owners over 12 years. The order says an investigation began after the state Department of Finance and Administration shared information with the committee in 2015.
During the department's investigation of Royal Liquor Store's 2014 challenge of an audit, "it became clear" to the department that a longtime manager of the store and possibly other family members, "working through or with Morley, had created and carried out a scheme and sham transfer of ownership" of the store "to very cheaply resolve" a previous contested audit, the document states.
The document details a complicated series of transactions undertaken over several years by numerous people and includes "matters in which Morley asserts he did not personally participate."
However, it alleges that Morley "prepared, had prepared, or was aware of, and provided to the department" a 2007 offer letter that falsely represented details of a sale of the property and furnishings for $40,623 to an outside party. It included a 2007 appraisal estimating the property's market value at $16,750, and an estimate that the furnishings were worth $19,373.
The letter was purportedly from Shaun Perry, who testified before the committee that he didn't prepare, sign or even know of the letter to the department until 11 years later, and that his first name was even spelled incorrectly on the documents, according to the filing.
But based on the representations in the letter, the department accepted less than 20% ($40,623) to resolve an outstanding audit debt of $244,201, including tax, penalty and interest, and allowed the transfer of the property "free and clear of tax debt."
The department "wrote off" about $203,000, allowing Perry to obtain the necessary permits to operate the store, according to the document. But, it says, two days later, Edna Lee, who had owned the store, deeded the property on which the liquor store was located to her son, Dennis Lee, rather than to Perry.
The document describes many more detailed transactions over the years and alleges that Morley gave false information to thwart a department investigation.
The consent agreement was signed by Morley, defense attorney Jeff Rosenzweig and Stark Ligon, the committee's executive director.
(Mike Frisch)
January 22, 2025 in Bar Discipline & Process | Permalink | Comments (0)
No Duty To Report Client Fraud
The Ethics Advisory Panel of the Rhode Island Supreme Court opines on an attorney's ethical obligations when learning of client fraud in a matter where the attorney did not represent the client
The inquiring attorney represented a client with a potential Social Security Disability (“SSDI”) claim pursuant to a referral from the client’s workers’ compensation attorney. During the representation, the inquiring attorney filed an application for SSDI benefits on the client’s behalf in February 2024. The application was denied in April 2024, at which time the inquiring attorney requested reconsideration of the denial. The request for reconsideration was denied in August 2024. On September 9, 2024, the inquiring attorney filed a request for hearing, which remains pending.
The inquiring attorney reports that during this time his or her client was receiving workers’ compensation benefits. The inquiring attorney did not represent the client in the workers’ compensation matter. On November 14, 2024, the inquiring attorney learned that the client had settled the workers’ compensation matter pursuant to a settlement agreement signed in October 2024 in which the client affirmed that he or she had not applied for SSDI benefits and did not intend to become Medicare eligible within the next thirty (30) months. In response, the inquiring attorney terminated his or her representation of the client on November 15, 2024, and has not communicated with the client since.
Is there a duty to report?
The Panel’s inquiry now turns to whether Rule 3.3 imposes such a duty of disclosure on the inquiring attorney here. By its plain language, Rule 3.3 “governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal” or who is “representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.” Rule 3.3, Comment [1]. Thus, the existence of a proceeding is a condition precedent for the applicability of Rule 3.3. This requirement attaches even in cases where “[a] lawyer . . . knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding . . . .” Rule 3.3(b). In this case, the inquiring attorney asks whether he or she must report the false attestation the client made in the affidavit settling his or her workers’ compensation matter; however, the inquiring attorney does not now, and never did, represent the client in that case. Accordingly, the duty of candor under Rule 3.3 does not attach here.
This conclusion is supported by the Panel’s past precedents. In Rhode Island Supreme Court Ethics Advisory Panel Op. 94-19, the inquiring attorney was retained by an insurance company to file suit to suspend workers’ compensation payments to a recipient who was allegedly operating a home business. The inquiring attorney confirmed the allegation following an investigation. The inquiring attorney also learned, however, that his or her law firm provided legal services to the recipient’s home business. On this basis, the inquiring attorney sought to withdraw from both matters. He or she asked the Panel whether he or she was nonetheless obligated to inform the Workers’ Compensation Court of the fraud.
As an initial matter, the Panel agreed with the inquiring attorney’s decision to withdraw from both matters due to the evident conflict of interest. With regard to the question of the inquiring attorney’s duty of candor, the Panel determined that the inquiring attorney was under no such obligation because he or she did not represent the recipient before the Workers’ Compensation Court. The Panel noted, however, that “[t]he attorney’s obligation would be different if the attorney were representing the recipient in the Workers’ Compensation proceeding.”
(Mike Frisch)
January 22, 2025 | Permalink | Comments (0)
Trust Accounting Takes No Holidays
A reprimand from the Massachusetts Board of Bar Overseers
The respondent, Nicholas H. Babanikas, received a public reprimand for violating Mass. R. Prof. C. 1.15. The respondent maintains a practice focused on personal injury, worker’s compensation, and civil litigation and managed his law firm’s IOLTA account. On December 23, 2022, the respondent’s law firm deposited a settlement check received in a personal injury matter to the firm’s IOLTA account. On the same day, the firm issued a check to the client for the client’s portion of the settlement. Due to holiday bank closures, the funds did not become available until the day after the client negotiated the check, which caused the bank to send an insufficient funds notice to bar counsel.
From at least January 1, 2023, through December 31, 2023, the respondent failed to reconcile his law firm’s IOLTA account at least every sixty days and failed to maintain compliant records as required by Mass. R. Prof. C. 1.15(f), including (1) individual client ledgers with every transaction listed and a running balance after each transaction, (2) a bank fees and charges ledger for personal or firm funds to cover anticipated bank fees, and (3) three-way reconciliation reports at least every sixty days. From at least January 1, 2020, through May 1, 2023, the respondent failed to remove earned fees relating to at least one client matter at the earliest reasonable time after the law firm’s portion became fixed.
Due to the inadequate recordkeeping, it was discovered the respondent’s law firm’s IOLTA account had been short by $22,000 for more than ten years. The respondent deposited firm funds to cover the shortage, and, pursuant to bar counsel’s suggestion, stopped using the existing IOLTA account, and opened a new IOLTA account to become compliant with the recordkeeping rules. The respondent worked to reconcile the old IOLTA account and disbursed all funds except for a nominal amount that did not belong to a client or third party.
(Mike Frisch)
January 22, 2025 in Bar Discipline & Process | Permalink | Comments (0)
Sanctions In Facebook Litigation
The Delaware Court of Chancery considered sanctions for the failure to preserve ESI in litigation involving data harvesting from Facebook
The plaintiffs moved for sanctions against two individual defendants who failed to preserve electronically stored information (“ESI”). The plaintiffs succeeded against the defendant who was a C-suite officer and director. The plaintiffs failed against the defendant who was an outside director. As a sanction, the officer defendant will only be able to prevail on any issue where she bears the burden of proof if she can carry her burden by clear and convincing evidence. The officer defendant also must pay the expenses plaintiffs incurred pursuing sanctions.
The case
In March 2018, The New York Times reported that Cambridge Analytica, a British data analytics firm, had harvested the private information of more than 50 million Facebook users without their permission. The article reported that Cambridge Analytica paid the Company for information that included users’ identities, personal identifying information, friends, and “likes.”10 The Consent Order prohibited those practices.
Shortly after the Cambridge Analytica scandal broke, the Company issued a legal hold...
The legal hold instructed custodians to make certain that they “do not delete or destroy” documents and explained that if custodians were “unsure whether a document is relevant to matters, save it.” The legal hold told recipients, “If you create a document in the future that is relevant to the matters, save it.”
Sheryl Sandberg, a member of the Company’s senior leadership team, received the legal hold. At the time, she served as the Company’s Chief Operating Officer, a role she held until August 2022. She also served as a member of the Company’s board of directors (the “Board”), a position she held until May 2024.
Ensuing litigation
This litigation began on April 25, 2018. As it progressed, the Company reminded the custodians about the legal hold. After Jeffrey Zients joined the Board in 2018, the Company sent him the legal hold. Zients served on a special committee tasked with evaluating and recommending a potential settlement with the FTC.
On July 31, 2018, outside counsel contacted Sandberg and Zients “to discuss document preservation and collection in connection with the Cambridge Analytica-related derivative cases.” In November 2018, outside counsel contacted Zients to discuss his preservation obligations.
Request for sanctions
Here, the motion rests on undisputed facts regarding the failure to preserve ESI. The motion does not turn on disputed facts that would warrant an evidentiary hearing or post-trial adjudication. Moreover, the plaintiffs seek remedies that would affect how the balance of discovery and pre-trial proceedings unfold. The plaintiffs seek sanctions including (i) preventing Sandberg and Zients from moving for summary judgment, (ii) raising the burden of proof for their affirmative defenses, and (iii) precluding certain testimony at trial. Whether the court grants those sanctions will affect how the parties prepare for trial and present their evidence. The proper time to consider the plaintiff’s motion is now.
The court discussed the duty to preserve and found
Sandberg failed to take reasonable steps to preserve ESI. Starting on March 22, 2018, Sandberg had a legal duty to preserve evidence, including ESI, relating to the topics identified in the legal hold. Sandberg is a highly sophisticated individual who served as the Company’s Chief Operating Officer and as a director during the events in question. She knew what was required, and she could have consulted with Company counsel if she had any doubts.
Sandberg did not take reasonable steps to identify likely sources of ESI. The legal hold told Sandberg to preserve “any pertinent evidence in our possession that could be relevant to the matter.” The legal hold specifically referenced “all correspondence (such as email, instant messages, Skype messages, WhatsApp messages, FB Messages, text messages, FB Group posts, and letters).”
Nor did Sandberg’s counsel provide transparency when plaintiffs’ counsel raised the issue.
Preservation
Sandberg failed to make a convincing case against a finding of prejudice. She argued that no relevant ESI was lost—and hence there could be no prejudice—because she did not use her Gmail account to conduct Company business in a significant way. To justify that claim, Sandberg cites discovery statistics about emails that were preserved and collected from thirty-two custodians and dozens of unique custodial sources. In that collection, there were only fifty-seven emails sent to or from Sandberg’s Gmail account. There were 11,576 emails from her Company account. The defendants also reviewed approximately 3,800 emails from Sandberg’s Gmail account that were preserved and that hit on the negotiated search terms. The defendants represent that none were responsive.
It does not follow from those statistics that Sandberg did not use her Gmail account for Company business. The defendants admit she did, and the contents of the fifty-seven emails that were preserved shows that she did.
Conclusion
The motion for sanctions is granted in part. Sandberg must prove her affirmative defenses by clear and convincing evidence and plaintiffs are awarded their expenses as set forth in the rulings in this decision. The motion is denied with respect to the sanctions requested against Zients.
(Mike Frisch)
January 22, 2025 in Current Affairs | Permalink | Comments (0)
Tuesday, January 21, 2025
"Have You Ever Met Sal?"
The New Jersey Supreme Court has reprimanded a conditionally admitted attorney and extended the period of conditional admission.
From the Disciplinary Review Board letter decision
On May 9, 2023, just before midnight, a Clark Police Department police officer observed respondent asleep in his vehicle, with the car engine running, at a complete stop in a merging lane. According to the police report, respondent’s speech was slurred and he appeared confused. After he stumbled out of the car, officers detected the odor of alcohol on his breath. Respondent admitted to the officers that he had consumed alcoholic beverages prior to operating his vehicle. Given these observations, and respondent’s poor performance on standardized sobriety tests, the police officers arrested him for suspicion of driving while intoxicated.
Although respondent initially cooperated with the police, he became combative after transport to the police station. He refused to sign forms indicating that he was advised of his constitutional rights and which personal belonging were inventoried. He also refused to provide breath samples for the Alcotest instrument because officers could not tell him “when the machine was last calibrated.” Moreover, referring to the mayor of Clark, respondent asked the officers, “Do you know who Sal Bonaccorso is? . . . Have you ever met Sal? . . . [and] How many times have you met him?” Respondent even demanded that the officers call the mayor to pick him up.
Respondent informed the officers he was “being held against his constitutional rights,” and demanded to be released. When the officers explained to him that he would have to remain at headquarters for at least twelve hours if no one came to retrieve him, he became “irate” and demanded to speak with a judge. Once he was placed in a holding cell, after using his cellular telephone despite the officer’s directive that he not do so, he began banging, kicking, and running into the door. He also yelled profanities and threatened to take legal action against the police department.
Sanction
In mitigation, respondent admitted his wrongdoing and accepted responsibility for his actions. Moreover, he promptly reported his misconduct, and he entered into this disciplinary stipulation. Additionally, he expressed sincere remorse and emphasized his commitment to reforming his conduct and remaining an upstanding member of the New Jersey bar.
In aggravation, respondent’s conduct toward the police officers following his arrest reflected a lack of the personal and professional characteristics demanded of an attorney. He failed to cooperate, became irate, made threats of legal action, and shouted at the officers.
Moreover, respondent repeatedly asked the police officers if they knew the town’s mayor, even demanding that they call him, thereby implying his ability to influence the outcome of the arrest by virtue of his relationship with the mayor.
Thus
On balance, the Board determined that a reprimand is the appropriate quantum of discipline to protect the public and preserve confidence in the bar. The Board further recommended that, as a condition, respondent’s conditional admission should be extended for an additional two years before he can petition for the termination of those conditions.
Knowing Sal the Mayor has a reduced cachet, according to the New Jersey Attorney General
Attorney General Matthew J. Platkin and the Office of Public Integrity and Accountability (OPIA) announced that Salvatore Bonaccorso, the longtime mayor of Clark Township, pleaded guilty today in connection with his use of Clark employees for his private business, a landscaping and underground oil storage tank removal company. As part of his agreement with OPIA to plead guilty, Bonaccorso, at the time of his guilty plea, entered a consent order immediately forfeiting his office as mayor of Clark and agreeing to be permanently barred from holding any future public office or employment.
Bonaccorso, 64, of Clark, New Jersey, who has been the township’s mayor since 2001, pleaded guilty to a two-count accusation charging him with conspiring to commit official misconduct (3rd degree) and forgery (3rd degree). The second count stems from his submission of false and fraudulent permit applications to municipalities, which enabled his landscaping company to improperly and unlawfully obtain permits to remove hundreds of underground tanks.
Bonaccorso entered the plea during a hearing on January 10, 2025, before New Jersey Superior Court Judge Lisa Miralles Walsh, presiding in Union County.
“Today’s guilty plea secured by OPIA ends a long and sad betrayal of the community by someone who had been in a position of power and trust for a long time,” said Attorney General Platkin. “Anyone who betrays the public’s trust by placing their own interests ahead of their duty as a public servant to New Jersey residents will be held accountable. Let me be clear: I will never stop rooting out corruption in New Jersey, no matter how powerful the offenders may be.”
“Bonaccorso used taxpayer-funded workers for personal gain. He abused his power over municipal personnel, finances, and operations, and he submitted false documents to keep the scheme going,” said Drew Skinner, Executive Director of OPIA. “My office will investigate and prosecute anyone who illegally abuses the public’s trust.”
The mayor and his company, Bonaccorso & Son LLC, also agreed to be ineligible from bidding for any public contracts, entering into any public contracts, or conducting any business with the State or its political subdivisions for five years. Furthermore, they are barred for three years from conducting, or contracting to conduct, any storage tank removals for any private commercial or residential property owners.
Under the terms of the plea agreement, the State will recommend that the court sentence the defendant to three years of probation and impose a fine of $15,000, the maximum allowable fine for conviction of a third-degree crime.
OPIA charged Bonaccorso by complaint on November 20, 2023 after an investigation by the Corruption Bureau found that, while acting in his official capacity as the mayor, Bonaccorso operated his oil tank-removal business out of his township office utilizing municipal resources. He stored and maintained the records for the business at the mayor’s office, using township equipment including computers and fax machines, and directing or using township employees to perform duties while those employees were working for and being paid by the township, solely for the purpose of running his business.
During the course of the investigation, OPIA also discovered that the defendant and his landscaping and underground storage tank company, Bonaccorso & Son, fraudulently used an engineer’s name, license number, as well as, in many cases, forging the engineer’s signature on permit applications submitted to municipalities for tank removals — knowing the engineer was neither supervising nor in any way involved in those projects, and without any legally required tank inspections actually taking place at the job sites. Neither Bonaccorso nor his company have the necessary underground-storage-tank-removal license required to do such work.
A review of permit applications submitted by Bonaccorso and his company revealed that Bonaccorso misrepresented to municipalities that the engineer was the on-site supervisor of the removal work, as required by New Jersey Department of Environmental Protection (NJDEP) regulations, for all of the tank removals done by Bonaccorso & Son.
New Jersey law prohibits any individual from doing work on unregulated heating-oil tank systems unless the individual is certified or working under the immediate, on-site supervision of a person who is certified. NJDEP rules state that whether a tank is removed or abandoned-in-place, the job must be conducted by a contractor certified for underground storage tank closure, who is working for a closure-certified firm.
The investigation revealed Bonaccorso arranged to have the engineer obtain a storage-tank license and insurance, and Bonaccorso directly paid to maintain both. The value of the removal jobs associated with the fraudulent permits submitted by Bonaccorso between 2017 and 2023 amounted to hundreds of thousands of dollars.
The plea was handled by OPIA Corruption Bureau Co-Director Jeffrey J. Manis and Corruption Bureau Deputy Chief Frank L. Valdinoto, under the supervision of OPIA Executive Director Skinner. Attorney General Platkin also thanked the New Jersey Department of the Treasury, Division of Taxation, Office of Criminal Investigation, and the New Jersey Department of Environmental Protection for their assistance and valuable contributions to the investigation.
And from NJ.com
Bonaccorso has faced a torrent of criticism since 2022 when NJ Advance Media revealed the township had paid a $400,000 hush-money settlement to a whistleblower who secretly recorded Bonaccorso, police Chief Pedro Matos and internal affairs Sgt. Joseph Teston crudely denigrating Black people. Bonaccorso also called female police officers “f------ disasters.”
As to the criminal case
Bonaccorso, 64, had criticized the criminal case, dismissing the allegations as “garbage” and “another weaponization against a MAGA Republican.” Despite the uncertainty, he sought reelection and won 59% of the vote.
(Mike Frisch)
January 21, 2025 in Bar Discipline & Process | Permalink | Comments (0)
An All-White Jury
The District of Columbia Court of Appeals will hear oral argument en banc this Thursday reviewing a unanimous opinion rejecting a Batson challenge to an all-white jury in a case where a Black man had been charged with first degree sexual abuse of a white woman.
From the division opinion
Mr. Smith's Batson challenge relates to the first day of jury selection. After the court struck a series of jurors for cause, 37 prospective jurors remained, consisting of 31 white jurors, 4 Black jurors, one Hispanic juror, and one Asian juror. The government and the defense were each allotted ten peremptory strikes and one strike for selecting alternates. In total, defense counsel struck ten white jurors and passed on an eleventh strike. The prosecutor struck all six of the non-white jurors, including one Black juror who would have been an alternate. After the conclusion of peremptory strikes, defense counsel raised a Batson challenge, contending that the government had "eliminated every black person from the jury as well as Asian and Hispanic." Although Mr. Smith's initial Batson challenge included the Asian and Hispanic jurors, the trial court queried whether the defense's prima facie case required "group[ing] the one Hispanic and the one Asian American" with the four struck Black jurors "to come up with six" struck jurors. In response, defense counsel acceded that the Batson challenge would stand "with just the four individuals" and stated that "[t]he number is four because that ... was the number of ... black individuals in this jury pool."
The prosecutor's strike justifications
we are reticent to conclude that the trial court clearly erred in crediting the government's rationale when defense counsel made no real effort to rebut it. See Smith , 966 A.2d at 386. Because the burden of proof remained on Mr. Smith throughout the Batson inquiry, his counsel was required to "meaningfully [rebut] the prosecution's race-neutral reasons for striking" Jurors 238 and 254 by (1) "point[ing] out that the prosecutor's claims about the particular juror are false"; (2) "point[ing] out that although the prosecutor's claims about an excluded juror are true, similar claims can be made about non-excluded jurors who are not minorities, which should raise the suspicion of bad faith"; or (3) "argu[ing] that claims about the juror, although true, are so irrational as a reason for striking a juror that they might be pretexts for some undisclosed discriminatory reason." Id. at 387 (quoting Robinson , 878 A.2d at 1290 ). Mr. Smith's defense counsel did little of the foregoing. He neither defended the ability of Jurors 238 and 254 to hear scientific evidence nor sought to compare those jurors with the white nanny, to whom the government had no objection. At most, defense counsel offered a conclusory assertion that the prosecutor's reasoning was "[in]effective ... to withstand [the Batson ] challenge." See id. (holding that the defendant could not meet his burden of proof "by offering only ‘conclusory assertions’ that the prosecutor's reasons appeared to be disingenuous" (quoting Nelson v. United States , 649 A.2d 301, 311 (D.C. 1994) )). Without more from Mr. Smith's counsel to undermine the basis for the government's strikes, we cannot say that the trial court clearly erred in crediting the government's stated race-neutral reasons and thus in rejecting Mr. Smith's Batson challenge to the striking of Jurors 238 and 254.
The briefs for the argument are linked here.
From the amicus brief of the NAACP Legal Defense & Education Fund
On December 4, 2012, four Black Americans dutifully reported for jury service at the Superior Court of the District of Columbia. They were assigned to a panel in the case of a Black man named Glenn Smith, who was charged with sexually assaulting a white woman. With little information about these Black prospective jurors, and without asking any questions to learn more, the prosecutor struck them. The prosecutor also struck the only two other prospective jurors of color. The result was an all-white jury in a then-majority-Black city.
As to the purported basis to strike
Ironically, Juror 683 worked for the D.C. Government but, according to the prosecutor, lacked the intellectual capacity to serve as a juror in the D.C. courts.
When defense counsel responded, “saying that they were too unintelligent to serve on a jury [isn’t] an effective reason to withstand that challenge,” Tr. at 131, the trial court said, “that’s a race-neutral reason,” and found it “credible” because “[t]he Government [has] assured that this was not based on race.” Tr. at 132, 135. At no time during the Batson challenge did the trial court pose questions to the prosecutor about the intelligence-based justifications, partake in any analysis other than briefly citing Juror 683’s answer to the confusing compound question, evaluate the strikes in connection with each other or the context of the case, address (much less substantiate) the clothing-based justification, or express concern that the prosecutor struck 100% of the Black prospective jurors. Instead, the court admonished that it was not required “to guarantee a certain number of blacks that would be on the jury.” Tr. at 135. Thus, the trial court failed to conduct a “rigorous evaluation” and “probing inquiry” of the prosecutor’s purported race-neutral reasons, much less apply the “heightened scrutiny” that was required in a racially charged case
Associate Judge AliKhan, who authored the division opinion, is now a federal district judge. (Mike Frisch)
January 21, 2025 | Permalink | Comments (0)
By Several Noses
The United States Court of Appeals for the Fourth Circuit affirmed the conviction on multiple counts of an ear, nose and throat physician
At one time, Jackson was the leading Medicare biller in the nation for a procedure known as balloon sinuplasty surgery, which treats chronic sinusitis. The procedure consists of the doctor inserting a device through the patient’s nose into one or more of the sinuses and inflating a small balloon to widen the cavity. The device Jackson used for this procedure during the relevant timeframe was an Entellus XprESS Multi-Sinus Dilation Tool (“Entellus” or “the device”). The insertable part of this device has a small tip, an inflatable balloon, and a thin hollow metal tube. The balloon slides up and down the tube and is inflated after it is placed in the patient’s sinus cavity. The rest of the Entellus remains outside the patient’s body and consists of the slide mechanism for the balloon, a suction port, and a light fiber that runs through the hollow tube to allow the physician to see into the sinus during the procedure. The device also has small retractable parts that often come into contact with and trap bodily fluids and hair from the patient during the procedure. These parts are fragile and may break easily, particularly if the Entellus is reused. The device was, accordingly, designed for single use and is labeled by the Food and Drug Administration as being approved only for single use.
No accident
Becoming the nation’s leading Medicare biller for sinuplasty surgery was far from happenstance, as Jackson’s employees recounted how she incentivized recruiting Medicare patients to agree to the procedure. For her employees, Jackson tied work hours to surgery-marketing efforts, set surgery quotas for her offices, and paid bonuses related to how many sinuplasty procedures were performed. She encouraged employees to recruit patients throughout the community, targeting rural localities and seeking out individuals likely to have Medicare because it did not require preapproval for the procedure. Employees testified, for example, that they were told to pitch balloon sinuplasty to potential patients at locations like Wal-Mart parking lots, churches, barbershops, and doctor’s offices. In addition, Jackson offered some potential patients financial enticements such as not requiring any front payment or limiting fees to a $50 copayment rather than the higher Medicare-directed copayment amounts. By agreeing to have the sinuplasty procedure, patients could also receive free transportation to Jackson’s office and gift cards to local stores.
The United States Attorney for the Eastern District of North Carolina press release on the conviction
Anita Louise Jackson, 62, was sentenced to 300 months in prison for adulterating surgical devices used in more than 1400 nasal surgeries performed on Medicare patients between 2011 and 2018. Jackson was also ordered to serve 3 years of supervised release and ordered to forfeit 4.7 million dollars. In January of this year, Jackson was found guilty by a federal jury on 20 criminal counts, including device adulteration, fraud, conspiracy and identity theft.
“This doctor put profit over patients by reusing single-use surgical devices hundreds of times, even though those devices came into contact with blood and other bodily fluids. In doing so, she risked the contamination of one patient’s sinuses with the bodily fluids of other patients,” said U.S. Attorney Michael Easley. “Medicare auditors also found that Jackson was the top-biller for balloon sinuplasty surgeries in the country, having billed the program over $46 million. When auditors began to audit the defendant’s practice, she and her staff falsified medical records and forged patient signatures in an attempt to justify billing the surgeries.”
Evidence presented at the trial demonstrated that Jackson was an Ear, Nose and Throat doctor who operated Greater Carolina Ear, Nose, and Throat (GCENT), with offices in Raleigh, Lumberton and Rockingham. Jackson, through her employees, marketed balloon sinuplasty, an in-office procedure to treat chronic sinusitis, as a “sinus spa,” and encouraged patients to come to the office for a “free” sinus spa, which was a treatment that they may not have needed. Jackson falsified medical records to justify the billing of balloon sinuplasty surgeries to Medicare auditors.
“This case is a reminder that health care fraud is not a victimless crime. Jackson stole millions of dollars that are essential to the Medicare program and willfully endangered her patients’ health,” said Special Agent in Charge Tamala E. Miles of the U.S. Department of Health and Human Services Office of Inspector General. “Our agency, working with our law enforcement partners, will continue to ensure that those who defraud our federal health care programs and needlessly risk harm to patients are held accountable.”
Between 2011 and the end of 2017, Jackson performed 1555 balloon sinuplasty surgeries on 919 Medicare beneficiary patients, using the Food and Drug Administration (FDA)-approved Entellus XprESS device. However, instead of using the device only once and only on one patient, as required by FDA guidelines, Jackson reused the devices on multiple patients. Between 2012 and 2017, Jackson obtained, at most, 36 new Entellus devices, despite being, at times, the top-paid Medicare provider of balloon sinuplasty services in the country and providing more than 1500 surgeries. In addition, Jackson failed to inform her patients that they were receiving a procedure with an adulterated device. During the trial, Jackson admitted that she had sufficient money to buy every patient a new device but chose not to do so.
“U.S. consumers rely on FDA oversight to ensure that medical devices are safe and effective. When healthcare providers disregard safety information, including single-use and single-user designations, resulting in the adulteration of medical devices, they put patients’ health at risk,” said Acting Special Agent in Charge Patrick Whelan, FDA Office of Criminal Investigations, Miami Field Office. “We will continue to investigate and bring to justice providers who jeopardize the public health.”
Jackson billed Medicare more than $46 million dollars for the balloon sinuplasty procedures between 2014 and 2018. In that time, she netted more than $4.79 million from Medicare for these surgeries. That amount does not include any sinuplasty surgeries performed on patients with private health care insurance. The jury ordered Jackson to forfeit these profits.
The final judgment on restitution in this case will not be entered until after 90 days. During this time period, patient victims will have an opportunity to present any specific claims of loss to the Court arising from the charges.
From an earlier press release (linked above)
Jackson was an Ear Nose and Throat doctor who operated Greater Carolina Ear, Nose, and Throat (GCENT), with offices in Raleigh, Lumberton and Rockingham. Between 2011 and the end of 2017, Jackson preformed 1,555 balloon sinuplasty surgeries on 919 Medicare beneficiary patients.
(Mike Frisch)
January 21, 2025 in Comparative Professions | Permalink | Comments (0)
Married, With Fraud
The Illinois Administrator has filed a complaint alleging misconduct relating to his federal conspiracy to commit marriage fraud conviction
As part of the conspiracy, Respondent provided legal representation for fraudulently married couples when they petitioned USCIS for a “green card” for the foreign national spouse. Respondent knew these couples were in a fraudulent marriage, or “contract marriages”, for the sole purpose of obtaining a “green card” for the foreign national spouse. Respondent knowingly assisted the couples in completing necessary forms with false and fraudulent representations, gathering and manufacturing false and fraudulent documentation, submitting said false and fraudulent documentation to UCIS, coaching the couples to falsely and fraudulently hold themselves out as legitimately married and evade detection by officials at the USCIS interviews, and personally accompanying the couples to their USCIS interviews.
In support of these USCIS petitions, Respondent knowingly submitted false and fraudulent documents to USCIS on behalf of the fraudulently married couples, including, for example, Form I-130 (Petition for Alien Relative) and Form I-485 (Application to Register Permanent Resident or Adjust Status). Additionally, Respondent collected and knowingly submitted fraudulent supporting documentation to USCIS on behalf of the fraudulently married couple, including lease agreements, powers of attorney, wills, and health care proxies. Further, as part of at least one of the fraudulent USCIS packages, Respondent included the passport of the U.S. citizen spouse.
For each couple he represented, Respondent created significant legal documents for them to execute and present to USCIS as part of their petition for a “green card” for the foreign national spouse. These documents included wills, powers of attorney, and health care proxy forms. Respondent directed the couples to back date these forms to make it appear as though these were executed long before the USCIS interview in an effort to convince the USCIS adjustor that the marriage was legitimate. Further, Respondent advised the couples that these legal documents were not enforceable and were only for the purpose of presenting to USCIS. Respondent personally handed these false and fraudulent documents to the USCIS Adjudicator at the couple’s USCIS interviews.
In total, Respondent submitted at least six, but not more than 24, packages containing false and fraudulent documentation for “green cards” based on fraudulent marriages between U.S. citizens and foreign nationals seeking legal permanent resident status in the United States.
He did it his way
On September 23, 2022, Respondent’s guilty plea came before the Honorable John L. Sinatra, Jr. for hearing, and was accepted. The sentencing hearing was initially set for March 16, 2023, but was rescheduled several times. On October 16, 2024, the sentencing hearing was rescheduled for January 8, 2025.
On January 8, 2025, Respondent was sentenced to probation for a term of three years. In addition, the court imposed six months on home detention.
(Mike Frisch)
January 21, 2025 in Bar Discipline & Process | Permalink | Comments (0)
Law And Order
In what can only be considered a futile gesture, the United States Court of Appeals for the District of Columbia Circuit vacated and remanded for resentencing a defendant convicted on six counts of criminal conduct for actions on January 6
Ralph Joseph Celentano, III was convicted by a jury on six counts and acquitted on a seventh count for unlawful conduct on January 6, 2021 at the United States Capitol. He challenges his convictions on three grounds and raises a series of challenges to his sentence. He contends that the district court erred in instructing the jury first, on his defense of another to Count One, which was prejudicial also to his convictions on Counts Two, Five, and Six, and second, on the knowledge requirement of 18 U.S.C. § 1752(a) for Count Three. He further contends that his conviction on
Count Two must be vacated under the Double Jeopardy Clause of the Fifth Amendment as a lesser included offense of Count One. Finally, he contends that the district court’s errors in calculating his Sentencing Guidelines range require
resentencing. For the following reasons, the court reverses Celentano’s conviction on Count One, vacates his sentence and remands for resentencing, and remands the case, except Count Seven, to the district court for further proceedings.
Of particular relevance, Celentano forcibly shoved Officer Kenrick Ellis off a ledge causing him to fall on top of other officers about four or five feet below. Trial Tr. 1327-34 (June 9, 2023); Supp. Ex. 603. Officer Ellis testified that a protestor who was being held had another officer in a chokehold and that he was delivering “tactical blows to that individual’s arm, so they would . . . release the officer.” Trial Tr. 856 (June 7, 2023). In defense, Celentano testified that he saw “officers were holding somebody in place and Officer Ellis was hitting him . . . and he kept hitting him” around the neck. Trial Tr. 1171 (June 8, 2023); Trial Tr. 1329 (June 9, 2023). Celentano explained that he was concerned because “strikes to the back of the head kill people.” Trial Tr. 1171 (June 8, 2023). Celentano testified that he gave Officer Ellis a forceful body shove from behind in order to get him to stop. Trial Tr. 1334 (June 9, 2023). Celentano acknowledged that he was 20 to 30 feet behind Officer Ellis and could not see if the protestor being held was male or female much less see the protestor’s hands or if the protestor had a weapon. Id. at 1329-30. Celentano claimed that he did not ask an officer for help to stop the beating because “[i]t seemed like every time you walked up to a cop, he’d hit you.” Id. at 1332.
The court rejected a contention based on an erroneous defense of others jury instruction but
the court vacates Celentano’s conviction on Count One, vacates his sentence and remands for resentencing, and remands the case, except Count Seven, to the district court for further proceedings
In another matter, a case scheduled for oral argument this morning before the court was dismissed with prejudice this morning in light of a pardon issued yesterday. (Mike Frisch)
January 21, 2025 in Current Affairs | Permalink | Comments (0)
In The Driver's Seat
A Louisiana Hearing Committee rejected charges relating to the complaint of a former client but found an attorney had violated the rule mandating cooperation with the investigation of the complaint.
The Committee found the Respondent’s testimony to be credible in that he sincerely believes he earned the fee. He also admitted, albeit reluctantly, that he should have cooperated with the ODC.
In addition
On or about October 17, 2022, the ODC received information that an arrest warrant had been issued in East Baton Rouge Parish for Respondent. According to the arrest warrant, Respondent leased a vehicle by false representation then failed to return said vehicle. The police report used to obtain the arrest warrant indicates Respondent leased the vehicle from Enterprise Rental Car on Siegen Lane in Baton Rouge. The lease started on July 31, 2021, with the car being required to be returned on December 10, 2021. Respondent failed to return the car. Thereafter, Enterprise Rental Car attempted to contact Respondent numerous times regarding the return of the car to no avail. Enterprise Rental Car also sent a certified letter to Respondent demanding the return of the vehicle. When Enterprise Rental Car heard nothing from Respondent, the company representatives contacted law enforcement.
Findings
The Committee finds that the Respondent knowingly violated Rule 8.1(c) by failing to cooperate with the Office of Disciplinary Counsel in the two disciplinary investigations. The Committee concludes that the Respondent’s conduct was knowing because of the number of times the ODC tried to serve him and the communications between him and the ODC investigator indicates that the Respondent knew that he was not cooperating. The Committee further finds that the Respondent violated Rules 8.4(a) and 8.4(d) in that he knowingly violated the Rules of Professional Conduct and his doing so was prejudicial to the administration of justice with respect to these disciplinary proceedings.
The committee recommends a 60-day suspension. (Mike Frisch)
January 21, 2025 in Bar Discipline & Process | Permalink | Comments (0)
An Unusual Path
The Ontario Law Society Tribunal Hearing Division has revoked a license to practice
The path by which Mr. Saran became licensed in Ontario was somewhat unusual. While the path taken does not much matter in the end, it is useful to describe his path at the outset to avoid confusion.
After careful consideration, the majority of the panel has determined as follows:
• Mr. Saran knowingly used prohibited material in answering questions in the solicitor exam.
• Mr. Saran made false and/or misleading statements to the Law Society contrary to By-Law 4, section 8(2); and
• Mr. Saran is not and was not of good character. His use of prohibited material during his sitting of the solicitor exam on November 19, 2021, was serious misconduct. This misconduct was compounded and continued by his misrepresentations to the Law Society when he applied for licensing in 2022 and during the Law Society’s investigation of his use of the prohibited material in the examination...
First, the nature of the transgression we are concerned with is grave. It strikes at the heart of any and every lawyer’s core, his or her integrity. Mr. Saran cheated on an admission examination while attempting to gain his call to the Bar of Ontario. The duration of his dishonesty is likewise concerning. Though his cheating on the November 2021 solicitor exam is a single event, it is not isolated because when he was confronted with it, he prevaricated, choosing to mislead Law Society investigators over an extended period of time.
January 21, 2025 in Bar Discipline & Process | Permalink | Comments (0)
Sunday, January 19, 2025
Kari Lake Attorney Reciprocally Suspended
The Nevada Supreme Court imposed reciprocal discipline of a 60-day suspension based on Arizona sanction imposed on an attorney for failed candidate Kari Lake
Blehm was suspended in Arizona for 60 days beginning on July 7, 2024, followed by a one-year probation. Blehm represented defeated Arizona gubernatorial candidate, Kari Lake, in a petition for review of adverse election rulings. Blehm made false assertions to Arizona's appellate courts concerning alleged voting fraud activities at the Runbeck vote processing facility. Blehm frivolously argued that it was an undisputed fact" that 35,563 unaccounted for ballots were added to the total number of ballots at a third-party processing facility. Blehm again misrepresented that "the record indisputably reflects" at least 35,563 election day early ballots were added at Runbeck. Based on these facts, the Arizona hearing panel found Blehm violated Arizona rules of professional conduct equivalent to Nevada's RPC 3.1 (meritorious claims); RPC 3.5(d) (tribunal decorum); RPC 8.2(a) (judicial and legal officials); and RPC 8.4(d) (misconduct). The Arizona panel found five aggravating factors (dishonest or selfish motive, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, refusal to acknowledge wrongful nature of conduct, and substantial experience in the practice of law) and two mitigating factors (absence of a prior disciplinary record and imposition of other penalties or sanctions). The Arizona panel further found that Blehm acted knowingly and caused injury to his client, the public, and the legal system.
AZ Mirror reported on the Arizona action
The Arizona State Bar launched the disciplinary case against Blehm and sought a suspension of six months and one day as punishment for Blehm’s role in lying to the Arizona Supreme Court. In an appeal of Lake’s dismissed attempt to nullify her election loss, Blehm and Washington, D.C., employment attorney Kurt Olsen falsely stated that it was “undisputed fact” that 35,000 illegal ballots were included in Maricopa County’s final vote count.
No evidence of that claim was provided and the two were later ordered to pay $2,000 in sanctions by the state supreme court.
Suspensions longer than six months require a lawyer seeking to resume practicing law to undergo an evidentiary hearing and make their case for reinstatement. In a May 21 hearing, attorneys for the Bar told Presiding Disciplinary Judge Margaret Downie that the suspension length was warranted because Blehm submitted blatantly false evidence to the court and has so far failed to show any remorse for doing so.
A day before his disciplinary hearing, Blehm claimed he was found “guilty without a trial,” in a post on social media site X, formerly Twitter, and on the day of the hearing he failed to show up.
In its 12-page order, the panel acknowledged that Blehm had violated ethical rules by submitting false statements and jeopardized the reputation of the entire legal process.
“Respondent’s misrepresentations needlessly expanded the proceedings in the Arizona Supreme Court. And any time an attorney attempts to mislead a judicial tribunal, it brings disrepute to and fosters mistrust of the legal profession,” reads the order.
But the panel ultimately concluded that approving a suspension longer than six months was unfair, given that Blehm has no previous ethical violations. And, the order notes, the false statements advanced by Blehm and Olsen were easily identified by the state supreme court, minimizing the harm they caused.
“Is a long-term suspension necessary here to protect the public, maintain the integrity of the profession in the eyes of the public, and deter (Blehm) and other attorneys from engaging in similar misconduct?” asked the panel. “This is (Blehm’s) first disciplinary offense, and the misrepresentations at issue were so blatantly obvious there was little chance the Arizona Supreme Court would be misled by them.”
The order noted, however, that future ethical misconduct from Blehm may be met with harsher punishments. Blehm will also be required to reimburse the State Bar’s legal costs.
Neither the State Bar nor Blehm responded to requests for comment.
Olsen, meanwhile, still faces two separate disciplinary hearings scheduled later this month for making false statements in a lawsuit concerning electronic tabulators and in Lake’s election challenges. But, because Olsen is licensed to practice law in Maryland and not Arizona, the highest punishment the State Bar can win in either case is a formal reprimand.
The case is IN THE MATTER OF DISCIPLINE OF BRYAN J. BLEHM, BAR NO. 9975 (Mike Frisch)
January 19, 2025 in Bar Discipline & Process | Permalink | Comments (0)
Friday, January 17, 2025
Recusal Denial Affirmed: Generic Associations No Basis To Infer Bias
The North Carolina Court of Appeals affirmed the denial of a motion to recuse a trial judge
The Myers raise multiple allegations against Judge Coward. These allegations include:
• Judge Coward and opposing counsel, Sanford Steelman, went to the same undergraduate and graduate schools, and both were members of Phi Alpha Delta (though the Myers do not suggest they were members at the same time).
• Judge Coward’s professional relationships with the retired Superior Court Judge James Downs and the retired appellate court judge, Sanford Steelman, who both have acted as opposing counsel in the various cases before Judge Coward.
• Judge Coward and his staff refer to Steelman as “judge” due to Steelman’s retired appellate judge status, despite multiple objections by the Myers.
• Judge Coward has entered multiple rulings against the Myers’ counsel, Shira Hedgepeth, and multiple rulings related to the SMCC that negatively affect the Myers.
• The Myers believe Judge Coward has an interest in maintaining the outcome of the previous rulings he made that are now challenged in the Myer’s lawsuits.
• Attorney Shira Hedgepeth perceives Judge Coward “allows the constant belittling” of her by Steelman.
• Judge Coward signed Steelman’s proposed order after the hearing on the motion to quash subpoenas duces tecum despite attorney Shira Hedgepeth’s multiple objections and Judge Coward’s request at the hearing to include a statement of consent by both parties.
• Judge Coward denied the motion to recuse without referring the motion to another judge for review.
Looking to this Court’s previous explanations of what substantial evidence of “bias, prejudice, or interest” is, we determine the Myers have not carried their burden of objectively demonstrating that grounds exist for disqualification of Judge Coward. There must be “such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.” State v. Kennedy, 110 N.C. App. 302, 305 (1993) (internal quotation marks and citations omitted). This “bias, prejudice or interest which requires a trial judge to be recused from a trial has reference to the personal disposition or mental attitude of the trial judge, either favorable or unfavorable, toward a party to the action before him.” Id. (cleaned up). Another way to consider whether bias or prejudice exists, is by considering whether “a reasonable person would question whether the judge could rule impartially.”
In the present cases, the Myers’ contentions are based in large part upon generic factual allegations that would be common to many lawyers and judges in North Carolina: attending the same undergraduate and law schools, being members of a particular legal organization, and representing parties in other cases before a particular judge. The Myers have not demonstrated how these types of professional relationships have created any sort of improper bias or prejudice in this case. The remaining allegations are based upon rulings by Judge Coward that were opposed to the Myers’ position. These claims of bias are based at best upon “inferred perception[s]” and frustrations toward Judge Coward’s multiple rulings against them. Lange, 357 N.C. at 649.
There is no evidence of Judge Coward’s disposition toward either party, or evidence in the record of Judge Coward ever calling Steelman “judge.” In fact, all that is in the record is the Myers’ attorney calling Steelman “your Honor,” “Honorable Retired Judge Steelman,” “Retired Judge Steelman,” and “your Retired Honor.” Judge Coward repeatedly referred to Sanford Steelman as Mr. Steelman. Within the record, we only find one reference of his judicial assistant referring to Sanford Steelman as a Judge; but this was in an email, not open court, and was later followed by another email in which the assistant apologized for the judicial reference.
Further, Judge Coward was not required to refer the motion to recuse to another judge unless the allegations are such that findings of fact are necessary to consider the judge’s disqualification. See N.C. Nat. Bank v. Gillespie, 291 N.C. 303, 311 (1976) (“[W]hen the trial judge found sufficient force in the allegations contained in defendant’s motion to proceed to find facts, he should have either disqualified himself or referred the matter to another judge . . . .”).
Accordingly, there is no substantial evidence of bias, prejudice, or interest such that a reasonable person would be concerned Judge Coward could not rule impartially. Therefore, the trial court did not abuse its discretion and we affirm the trial court’s denial of the motion for recusal.
(Mike Frisch)
January 17, 2025 in Judicial Ethics and the Courts | Permalink | Comments (0)
