Legal Profession Blog

Dog Poop And Defamation

The dismissal of a defamation claim brought against a person who commented on a blog post was affirmed by the Iowa Supreme Court.

Background

Plaintiff Richard Bauer (Bauer) resides in Sloan, Iowa, where he manages Bauer Apartments. The apartments are owned by the Kendall R. Bauer Trust for which he is the trustee. On September 22, 2015, Kathy Lynch (Kathy) began the construction of Pet Perfect LLC, a dog care facility, directly next to Bauer Apartments. Bauer became concerned issues were going to arise from the dogs and their feces due to the outdoor area being constructed. He contacted the Sloan City Council and asked for the city’s zoning ordinances. Bauer also contacted Kathy about his concerns and offered to buy the parcel of land where she was building the facility. She refused. He ultimately filed suit against the City of Sloan and the city council members claiming they failed to enforce a zoning ordinance.

No defamation

Here, the context of the speech begins with a Facebook post by Gabbie Lynch on her personal page. The post criticized [plaintiff] Bauer for expressing concerns about dog feces outside at Pet Perfect LLC. Several people commented on her post expressing their own opinions about Bauer. Bauer concedes in his briefing that none of the comments on the thread discussed the condition of the apartments or his managerial abilities. It would be more reasonable for a reader to understand Brinkman’s use of “slumlord” as a serious factual assertion if the Facebook thread related specifically to Bauer’s occupation and Bauer Apartments. However, the Facebook post and comments were individual’s emotionally charged responses to how they perceived Bauer’s actions in relation to Kathy’s business. As an example of the tone of the comments on the thread, the comment directly above Brinkman’s states, “Dear Mr. Bauer” followed by a photo with enlarged text stating, “Good morning. Don’t forget to drink your water and mind your own fucking business.” This context of an ongoing heated discussion on matters separate from Bauer’s role as a rental property manager lends support to the conclusion that Brinkman’s speech was name-calling and an insult rather than an assertion of fact. See Greenbelt, 398 U.S. at 13–14, 90 S. Ct. at 1541–42 (noting context of a heated public debate showed statement was rhetorical hyperbole rather than factual); Feld v. Conway, 16 F. Supp. 3d 1, 4 (D. Mass. 2014) (determining that a tweet calling the plaintiff crazy was a protected opinion when viewed in the context of an ongoing heated debate on the internet about the disappearance of the plaintiff’s horse).

An examination of the specific context of Brinkman’s Facebook comment additionally shows his statements were rhetorical hyperbole rather than assertions of facts. He states “It is because of shit like this that I need to run for mayor!” followed by a grinning emoji, and that Bauer is a “PIECE OF SHIT!!!” before calling him a slumlord. The tone “is pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” thus alerting readers that the statements are expressions of personal judgment. Milkovich, 497 U.S. at 32, 110 S. Ct. at 2712 (Brennan, J., dissenting); see also Wahrendorf v. City of Oswego, 899 N.Y.S. 502, 503–04 (App. Div. 2010) (determining statements made on the internet that the plaintiffs were slumlords and sociopaths and their property was a garbage heap and pigpen was name-calling and general insults because the tone was intended to be humorous and sarcastic).

Furthermore, Brinkman did not attempt to provide any support for the statement that Bauer is a slumlord; therefore, a reader is alerted it is an insult and a “single, excited reference” rather than a factual assertion.

(Mike Frisch)

Remand In Fee Dispute Between Attorneys

The Washington State Court of Appeals Division One remanded a fee dispute between two attorneys

Two attorneys, Harish Bharti and Stephen Teller, associated to represent Ruhul Kayshel on a discrimination case and a wage and contract class action case against Kayshel’s employer. Bharti and Teller entered into a one-page, handwritten fee division agreement. Teller withdrew prior to the class case reaching settlement. After the class case settled, Bharti and Teller disputed how to share their portion of the court-approved contingency fees in the class case. The trial court disagreed with Bharti that Teller should receive nothing and awarded Teller a percentage of the fees based on the fee division agreement and Bharti’s promises to Teller that Bharti would honor that agreement. Because the fee division agreement fails to satisfy the requirements of the Rules of Professional Conduct (RPC) 1.5(e)(1)(ii), we reverse and remand.

The court

As the Preamble to the RPCs states, one of the purposes of the RPCs is to regulate attorney conduct in order to protect public interest. And, the purpose of RPC 1.5(e)(1)(ii)’s requirement that the client confirm the agreement in writing is to ensure “the client received a reasonable and fair disclosure of material elements of the fee agreement.” RPC 1.5(11). Nothing in the record supports a finding that Kayshel agreed in writing to the Bharti/Teller Agreement despite Bharti’s assurances that he would obtain Kayshel’s agreement in writing. Thus, the Bharti/Teller Agreement violates public policy, is unenforceable as a matter of law, and cannot be the trial court’s basis for determining what fees to award Teller.

However, unlike in Belli where Tonkoff, Goldstein, and the client entered into a new contingency fee agreement completely excluding Belli, here, Kayshel approved in writing the Bharti/Friedman Rubin Agreement that would award Teller fees out of Bharti’s 35 percent of the contingency award. 98 Wn.2d at 571- 72. It is for the trial court to determine what that provision of the Bharti/Friedman Rubin Agreement allows.

We reverse and remand to the trial court to consider the parties’ legal theories and evidence in determining an equitable resolution in light of our ruling.

(Mike Frisch)

CLE Diversity Quotas Prohibited In Florida

The Florida Supreme Court amended its CLE rules to add the last sentence

Course approval is set forth in policies adopted pursuant to this rule. Special policies will be adopted for courses sponsored by governmental agencies for employee lawyers that exempt these courses from any course approval fee and may exempt these courses from other requirements as determined by the board of legal specialization and education. The board of legal specialization and education may not approve any course submitted by a sponsor, including a section of The Florida Bar, that uses quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants.

Per curiam

The Business Law Section of The Florida Bar recently adopted a policy regulating the composition of faculty at section-sponsored continuing legal education programs. Subject to certain exceptions, the policy imposes quotas requiring a minimum number of “diverse faculty, depending on the number of faculty teaching the course. The policy defines diversity in terms of membership in “groups based upon race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism.” The stated goals of the policy are “eliminating bias, increasing diversity and implementing tactics aimed at recruiting and retaining diverse attorneys.”

The Court recognizes and is grateful for the Bar sections’ important contributions to the legal profession in our state. And the Court understands the objectives underlying the policy at issue here. Nonetheless, certain means are out of bounds. Quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination.

Result

The Court expects that The Florida Bar will amend its policies as necessary to ensure compliance. Because the amendments were not published for comment previously, interested persons shall have seventy-five days from the date of this opinion in which to file comments with the Court.

Justice Lawson concurred

I write separately to further express my support for what I view as the well-intended motivation underlying the decision of The Florida Bar’s Business Law Section to adopt a policy aimed at meaningfully broadening participation in the instructor pool for its educational offerings.

At this Court’s direction, both the Bar and the State Court System have for many years worked diligently to assure a system of justice that is fair for all and that treats all individuals as equal under the law. This Court is steadfast in its firm commitment to these ideals. I believe that these ideals are best advanced when individuals with very different backgrounds and experiences work together. This is because our experiential differences often result in starkly different modes of thought and perception—including deeply divided perceptions surrounding concepts as facially straightforward as “fairness” and “justice.”

It is when those who perceive and think differently come together in an environment of mutual respect and genuine concern for the well-being of others that we can best gain the understanding necessary to fully advance the ideals underpinning our judicial system. It is essential that we continue this work, and I am grateful to the Bar and its sections for their continued pursuit of these core ideals that are central to further advancing the cause of freedom for all, secured for all through the rule of law.

Justice LaBarga dissented and would have dealt with the matter by letter rather than a rule. (Mike Frisch)

In Beachwood

A stayed one-year suspension has been imposed by the Ohio Supreme Court

On March 2, 2018, at approximately 2:00 a.m., Strauss was driving southbound on I-271 in snowy conditions when he rear-ended a Beachwood police cruiser parked on the side of the road near the scene of another accident. Although the impact caused substantial damage to Strauss’s car and the cruiser, Strauss left the scene without stopping. He continued driving southbound on I271 until he crashed into the median; he then abandoned his vehicle and fled on foot. Police officers found Strauss walking in the middle of a nearby road. He did not obey their orders to stop and continued walking. The police officers arrested Strauss and took him to the Beachwood Police Department, where an officer read him his rights and administered field sobriety tests. An Intoxilyzer breath-alcohol test performed at approximately 2:47 a.m. showed that Strauss’s blood-alcohol content was 0.148.

On January 7, 2019, Strauss pleaded no contest to two counts of operating a vehicle without reasonable control and single counts of resisting arrest, leaving the scene of an accident, unsafe operation of a vehicle in the vicinity of an emergency vehicle, and operating a vehicle while intoxicated (“OVI”).

The parties agreed as to the violations and sanction

In this case, the board expressed some concern that Strauss was reluctant to submit to an assessment conducted by the Ohio Lawyers Assistance Program. It noted, however, that that concern was diminished by the facts that (1) an assessment completed as part of Strauss’s criminal sanction found that he had no substance-use disorder and (2) relator never sought an order to compel any further assessment. Ultimately, the board determined that a one-year suspension, stayed in its entirety on the conditions that Strauss commit no further misconduct and comply with the terms of his inactive probation—which requires him to refrain from using nonprescriptive drugs and submit to random drug testing—is the appropriate sanction for his misconduct.

Having thoroughly reviewed the board’s findings of fact and conclusions of law, the applicable mitigating factors, and the sanctions we have imposed for comparable misconduct, we agree.

(Mike Frisch)

Affidavit with Nude Photos Draws Reprimand

A reprimand has been ordered by the Alberta Law Society Hearing Committee for what the panel called a "novel situation" involving an attorney retained by the husband in an action involving his common law partner

The Husband later expressed concern to Ms. Herrington that the Wife was planning to leave the Province of Alberta with the children. All communication had broken down between the parties. Ms. Herrington contacted the police who indicated that without a Court Order they would not prevent the Wife from leaving the jurisdiction. 

Herrington drafted an emergency application and affidavit (the “Affidavit”). The Affidavit included texts that the Husband and Wife had sent back and forth but no pictures. Ms. Herrington sent the draft affidavit for signing with a lawyer in [W] where the Husband was located.

 The Husband added additional exhibits to the Affidavit without consulting Ms. Herrington. Some of the additional exhibits included explicit and nude pictures of the Wife. 

Ms. Herrington was out of the office for the next two days at continuing education courses. Ms. Herrington received the sworn Affidavit late in the afternoon of March 8 with Court scheduled for the morning of March 9. 

 Upon reviewing the Affidavit and seeing the additional exhibits Ms. Herrington sought the advice of lawyers in her office and eventually decided to proceed using the Affidavit. It was thought by Ms. Herrington that the pictures showed a pattern of behaviour from the Wife and that she needed the Affidavit for the emergency application the next morning. Ms. Herrington did not want to alter the Affidavit by removing the exhibits as it would not be appropriate to alter a sworn Affidavit.

Herrington attended Court and received an ex-parte order using the sworn but unfiled Affidavit of the Husband. Ms. Herrington later filed the Affidavit after the Order was granted and served it on the Wife’s counsel.

The Wife’s counsel asked Ms. Herrington to remove the explicit photos from the Affidavit. After further communications between Ms. Herrington and the Wife’s lawyer the parties agreed to black out the nude photographs.  The Wife’s lawyer brought an application to remove the Affidavit and the Court ordered that the Affidavit be expunged, the Wife be awarded $250 in costs and that the Affidavit be refiled with redacted photographs.

Sanction

 Ms. Herrington has admitted that she should have dealt with this matter differently but being provided an Affidavit that had been altered by her client for an emergency application on short notice put her in a difficult position. She consulted other lawyers in her office for their advice and made this decision to proceed. This does not leave Ms. Herrington blameless but goes to show this was not a simple situation.

This Committee therefore sanctions Ms. Herrington to a reprimand (attached as Schedule 2), which reprimand was given in person at the time of the Hearing.

Is this is what it means to file a bare-bones affidavit? (Mike Frisch)

Get Mad Not Even

An attorney's response to an unfavorable on-line google review drew a public censure from the Tennessee Board of Professional Responsibility.

The former client had included his name in the review.

The response

details about the former client, including health and medical conditions of the former client and the case in which [he] represented the client. [The attorney] also stated that the former client asked him to make false representations to the court.

The comments, which were posted on a publicly-available web site, violated the attorneys duties to the former client. (Mike Frisch)

 

The Taint Remains

The New Jersey Appellate Division affirmed a disqualification where the prospective client had consulted with the lawyer many years ago

The parties never married, but shared a long-term, romantic relationship from approximately June 2000 to March 2013. During this time, the parties purchased a home, cohabitated, and raised their daughter together. Defendant did not want to marry but promised to financially support plaintiff, who quit her job to raise their daughter.

During the parties' relationship, defendant allegedly made threats to leave plaintiff. For this reason, in 2005, plaintiff sought legal advice from attorney Vincent Celli of Celli, Schlossberg, De Meo, & Guisti, P.C. (the Celli firm) about her right to financial support from defendant if the parties ever ended their relationship without marrying. Plaintiff expressed concerns about defendant threatening to leave her, resisting marriage, and potentially misrepresenting his income and assets. Plaintiff also disclosed to Mr. Celli the parties' financial arrangements, lifestyles, assets, and income. Specifically, plaintiff disclosed the parties' acquisition of their home and handling of finances. Given this information, Mr. Celli explained to plaintiff the concept of palimony and her right to support, estimated plaintiff's potential relief, and advised plaintiff not to marry defendant; if the parties married and divorced, a court would exclude the pre-marriage years in calculating plaintiff's relief.

She retained other counsel to file the palimony case, which resulted in a settlement agreement.

Thereafter, defendant retained the services of Mr. Celli. On September 3, 2019, Mr. Celli filed a motion for defendant to vacate the final judgement pursuant to Rule 4:50-1, re-open discovery, and set aside the settlement agreement. Defendant alleged he discovered, after entry of the final judgment, that plaintiff intentionally misrepresented and concealed her income and assets during settlement negotiations.

Disqualification was granted

the court found a disqualifying conflict based upon plaintiff disclosing to Mr. Celli "significantly harmful" information, specifically about the parties' finances and defendant's continued promises of support, "substantially related" to the issues involved in Mr. Celli's representation of defendant in challenging the final judgment. The court gave particular weight to the 2013 email wherein plaintiff confirmed she relied upon Mr. Celli's advice in her relationship with defendant.

The court here agreed

Defendant contends the motion court erroneously disqualified the Celli firm because plaintiff failed to provide the information disclosed to Mr. Celli with specificity and any disclosed information would be discoverable. We disagree.

The court explains the principles of obligations to a prospective client

Applying these principles, we conclude the motion court correctly determined that plaintiff disclosed to Mr. Celli significantly harmful information substantially related to this litigation. Plaintiff disclosed to Mr. Celli her views and concerns about the parties' relationship, financial arrangements, lifestyles, assets, and income. This information was, and remains, substantially related to this litigation; the disclosed information was material to plaintiff's claim for palimony, the same issue at the heart of this litigation. Palimony centers on promises of continued support and the relationship between the parties, Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div. 2006), and plaintiff disclosed such information to Mr. Celli. Though disclosed nine years before the plaintiff's alleged misrepresentation, the information is nonetheless substantially related, covering the parties' finances for the first four years of their relationship that would form the basis for their settlement agreement.

Moreover, the disclosed information could be used against plaintiff in this litigation. Specifically, plaintiff disclosed information and personal concerns about the parties' relationship and financial arrangements. This information informed Mr. Celli's advice and provides, at least in part, insight into plaintiff's motivations in her relationship with defendant, relevant for years after the disclosure. Defendant, who would not otherwise have access to plaintiff's personal thoughts, could use this information against plaintiff in challenging her palimony award or in future settlement negotiations. We find no basis to disturb the motion court's determination that the disclosed information is, therefore substantially related to this litigation and significantly harmful to plaintiff, creating a disqualifying conflict.

(Mike Frisch(

White-Out

The New Hampshire Supreme Court has ordered the interim suspension of an attorney charged with felony falsification of physical evidence and misdemeanor tampering with public records or information.

From a press  release of the state Department of Justice

Deputy Attorney General Jane E. Young announces the arrest today of Circuit Court Judge Julie A. Introcaso, age 56, of Bedford, New Hampshire on several felony and misdemeanor charges. Those charges consist of:

• Two class B felony counts of falsifying physical evidence (RSA 641:6) charging Judge Introcaso with, on or between January 6, 2020 and January 9, 2020, having been notified that an official proceeding was pending, that is, a Judicial Conduct Committee (JCC) report had been filed against her and the JCC had elevated that report to a formal complaint on November 18, 2019, did alter two of her original handwritten orders issued on March 12, 2019—referred to as the Apple Pay Order and the Fee Cap Order—in the matter of Robin Partello v. David Campbell in the 9th Circuit Court – Family Division – Nashua, docket no. DN 659-2818-DM-0072, by apply white-out to the entirety of the original handwritten orders, and did so with the purpose to impair their verity or availability in the JCC matter.
• Two class A misdemeanor counts of tampering with public records or information (RSA 641:7) charging Judge Introcaso with, on or between January 6, 2020 and January 9, 2020 with knowingly making a false alteration to two of her original handwritten orders issued on March 12, 2019—referred to as the Apple Pay Order and the Fee Cap Order— in the matter of Robin Partello v. David Campbell in the 9th Circuit Court – Family Division – Nashua, docket no. DN 659-2818-DM-0072, by applying white-out to the entirety of the original handwritten orders, said orders being documents kept by the government for information or record.
• One class A misdemeanor count of unsworn falsification (RSA 641:3) charging Judge Introcaso with while acting a purpose to deceive a public servant in the performance of his or her official function, did make a written false statement which she did not believe to be true, when on or about April 3, 2020, Judge Introcaso sent a letter to the Judicial Conduct Committee (JCC) in response to the JCC's inquiry opened pursuant to Supreme Court Rule 40(6) in which the JCC had asked Judge Introcaso whether she had altered and/or removed documents from the case file in the matter of Robin Partello v. David Campbell in the 9th Circuit Court – Family Division – Nashua, docket no. DN 659-2818-DM-0072, and in her response Judge Introcaso denied having obscured two court orders she had written on March 12, 2019—referred to as the Apple Pay Order and the Fee Cap Order—when in fact Judge Introcaso had applied white-out to the entirety of her original handwritten Apple Pay Order and Fee Cap Order in the Robin Partello v. David Campbell matter.

Judge Introcaso will be arraigned on a date and time to be determined by the Court.

The charges and allegations are merely accusations, and Judge Introcaso is presumed innocent unless and until proven guilty.

The New Hampshire Union Leader reported that she resigned from the bench.

The former judge did not object to the interim suspension. (Mike Frisch)

Car Trouble

The Ohio Supreme Court has imposed an indefinite suspension of an attorney for two criminal incidents.

From the report of  the Board of Commissioners on Grievances and Discipline

On February 17, 2005, Respondent and a male companion were en route from Cleveland to Oxford, Ohio, traveling in a vehicle owned by Respondent but driven by the male companion. Respondent had previously represented the male companion on a felony drug case. She admitted that he was a known drug dealer who she had asked to drive her to Oxford, Ohio, for a hearing on a completely unrelated matter.

 As they approached the City of Oxford, Respondent and her companion became lost and stopped to ask a police officer for directions to the courthouse where Respondent was scheduled to appear.

The police officer advised Respondent and her companion that he also was scheduled to appear in court and that the two could follow him.

Unfortunately the car ran out of gas on the way. The situation eventually led to a search of the car

During the search, police discovered a Louis Vuitton change purse in the unlocked glove box compartment. Inside the change purse was a glossy page containing a folded advertisement for legal services typically found in legal publications. Inside that paper was a white powdery substance along with a straw with white residue inside it. The court noted in its decision that the change purse was one that would typically be carried by a woman.

The search also revealed a makeup bag behind the driver's sear which contained a small baggie containing white cocaine residue.

Subsequently, Respondent was charged and convicted of cocaine possession, a 5th degree felony.

Respondent, while admitting to recreational use of cocaine, steadfastly maintained her innocence at the hearing.

In 2007, she reported that her car had been stolen

Thereafter, Respondent was charged with Disrupting Public Service in Bedford Municipal Court. There was no evidence presented to the panel regarding Respondent's specific conduct that led to the criminal charges. However, at a video appearance before the Bedford Municipal Court, the judge presiding over the matter became concerned about Respondent's behavior in court, and remanded Respondent for a mental competency examination conducted at the Northcoast Behavioral Center. Respondent was held there for approximately sixty (60) days.

On January 22, 2007, the Cuyahoga County Grand Jury indicted Respondent on nine counts of disrupting public service in violation of R.C. 2909.04, a 5th degree felony, and one count of resisting arrest in violation of R.C. 2921.33, a 2"d degree misdemeanor.

Subsequently, Respondent entered a plea of guilty, and was found guilty of one count of disrupting public service and a charge of resisting arrest in the Cuyahoga County Court of Common Pleas.

The board on sanction

Relator requested that Respondent be disbarred. The panel does not agree that the facts in this case warrant such a severe sanction. It is clear that the felony conviction for disrupting public service was influenced by a mental and/or chemically induced episode as evidenced by her hospitalization for a competency evaluation by the court conducting her initial appearance. Respondent had been diagnosed as being bipolar with major depressive episodes by her treating psychiatrist, Dr. Cerny. However, Dr. Cerny testified that the bipolar condition was very likely substance-induced and caused by Respondent's admitted abuse of cocaine, diet pills and Adderall. Respondent is not currently bipolar and is unlikely to have a relapse absent drug abuse. Furthermore, Dr. Cerny could not testify that Respondent's drug-induced bipolar condition caused her to commit the misconduct herein, or that she is currently fit to practice law.

(MIke Frisch)

Treasure Trove On Thumb Drives: Remand Ordered In Dispute Over Conduct Of Departing Attorneys

The Massachusetts Supreme Judicial Court has remanded in a suit brought concerning the conduct of departing law firm attorneys.

Over the course of more than two decades representing clients in asbestos litigation, the plaintiff Governo Law Firm LLC (GLF) systematically created the contents of a research library, a treasure trove of materials amassed from GLF's own matters as well as other sources, that gave it a competitive edge in attracting and providing legal services to clients in this specialized field. GLF also built electronic databases to render the library readily searchable, facilitating retrieval of the information. In the fall of 2016, these proprietary materials were taken by a group of nonequity employees at GLF (attorney defendants) as they prepared to start a new law firm, the defendant CMBG3 Law LLC (CMBG3), in case their planned purchase of GLF proved unfruitful. The attorney defendants took turns secretly downloading the library and databases, as well as GLF's employee handbook, other administrative materials, and client lists, onto high-capacity "thumb drives";  the attorneys then surreptitiously removed these materials from GLF's offices. They subsequently made an offer to GLF's sole owner, David Governo, to buy GLF, stating that they would resign if the offer were not accepted that day. Governo rejected the offer that same day and locked the attorney  defendants out of GLF's computer systems. The next day, the attorney defendants opened for business under the previously incorporated CMBG3, where they used the stolen materials and derived profits therefrom.

GLF filed a complaint in the Superior Court asserting claims against its former employees and CMBG3. A jury found some or all of the defendants liable on the claims for conversion, breach of the duty of loyalty, and conspiracy, and none of the defendants liable for unfair or deceptive trade practices in violation of G. L. c. 93A, § 11. The jury awarded GLF $900,000 in damages, calculated based on the defendants' net profits. The judge then issued a permanent injunction enjoining the defendants from using the library and databases, and ordering those materials removed from the defendants' computers.

In GLF's appeal from certain of the judge's instructions at trial, as well as his posttrial rulings, we first address the question whether the attorney defendants, who misappropriated proprietary materials from their employer during their employment, and subsequently used those materials to compete, may be liable for unfair or deceptive trade practices pursuant to G. L. c. 93A, § 11, for actions that were, in part, taken while still employed by GLF. We conclude that that they, and their new firm, may be. Because the judge erroneously instructed the jury that the defendants' preseparation conduct was not relevant to GLF's claim under G. L. c. 93A, § 11, and because GLF has shown that its rights were affected thereby, the matter must be remanded for a new trial on the G. L. c. 93A, § 11, claim. We next address the scope of the permanent injunction. Although the jury found that the defendants were liable for conversion of GLF's proprietary materials, the judge issued a permanent injunction precluding the defendants' use of
only a subset of these materials. We conclude that the judge abused his discretion. Finally, we consider GLF's claims with respect to pre- and postjudgment interest. We conclude that prejudgment interest was not required under G. L. c. 231, § 6H, but that GLF is entitled to postjudgment interest.

Three attorneys were involved

The materials copied included three different types of information: a research library, databases, and administrative files. The research library contained over 100,000 documents relevant to asbestos litigation, including witness interviews, expert reports, and investigative reports, and was known within GLF as the "8500 New Asbestos Folder" (8500 folder). The library was developed by GLF over a period of twenty years, at a cost of more than $100,000.  According to testimony by GLF's expert, these materials were "extremely valuable" and provided a competitive advantage to GLF over other law firms within the field of asbestos litigation.

The departure

The attorney defendants incorporated CMBG3 on November 1, 2016. On November 18, 2016, they "hijack[ed]" the scheduled GLF partners' meeting and offered Governo $1.5 million in cash, plus net profits for some of the attorneys' work performed through the end of the year, to buy GLF.8 The attorney defendants gave Governo until 5 P.M. that day to respond and told Governo that if he rejected their offer, they would resign in thirty days.

The offer was rejected that same day.

Instruction error

The erroneous instruction was prejudicial. Had the jury considered the attorney defendants' conduct during their employment -- in particular, their conversion of GLF property -- the jury well might have reached a different result.

Injunction error

the exclusion of the administrative files from the scope of the permanent injunction was an abuse of discretion.

The oral argument and other case materials from the Suffolk Law web page are linked here  (Mike Frisch)

Former Tribal Judge Disbarred

Despite an expressed appreciation for career accomplishments, the Wyoming Supreme Court has disbarred the former Chief Judge of the Wind Rind River Tribal Court.

In light of "significant mitigating factors " and the "long delay," the court imposed the sanction retroactive to the date the attorney resigned the judgeship. 

From the Board of Professional Responsibility report

Respondent was raised in a dysfunctional family. Her entire family is afflicted with addiction issues. Mother, father, stepfather, brothers and sisters all had substance abuse issues. Aunts, uncles and cousins all had either substance abuse or gambling addictions. Respondent's definition of "helping family" often meant helping them find drugs or alcohol. Living on the reservation, respondent witnessed a lot of fighting, drinking, drug abuse, and people struggling to make a living However, to her, this was normal. Her family relationships created a symbiosis in drug-seeking behavior. It is perhaps incongruous that in spite of her environment and her own addictive struggles, Respondent was able to obtain not only a college degree but complete a graduate law school program and have a successful career as an attorney, although in the end she could not fully escape her formative environment. For many years, Respondent excelled in the face of extraordinary odds.

Her downfall was the result of an opioid addiction.

She pled guilty to two federal felony offenses involving conspiracy to distribute drugs and cooperated in the criminal investigation.

The many persons who face charges or have been convicted as a result of Respondent's cooperation and assistance to the government have friends and family all over the Reservation. Families are inter-related. Loyalties run deep. The parties agree that Respondent's cooperation with prosecutors in the face of such threats merits consideration as a mitigating factor...

(Mike Frisch)

D.C. Court Remands Case Where Law Firm Sued For Radio Statements

The District of Columbia Court of Appeals remanded a lawsuit against a law firm, concluding that defamation claims were properly dismissed but that a tortious interference count survived

A local radio station published statements by attorney Michael Nadel, a partner at McDermott Will & Emery LLP (“McDermott Will”), about appellant, Federal Title & Escrow Co. (“Federal Title”), in connection with his firm’s representation of Sean Smith and Erin Wrona in a lawsuit against Federal Title for the loss of $1.57 million held in escrow. Considering these statements to be defamatory and otherwise tortious, the appellants (Federal Title and its owner, Todd Ewing) sued the appellees (Nadel, McDermott Will, Smith, and Wrona) for damages, as well as a published retraction of Nadel’s statements and their removal from all websites. Appellees filed a motion to dismiss for failure to state a claim under Super. Ct. Civ. R. 12(b)(6), as well as a special motion to dismiss under the District of Columbia Anti-Strategic Lawsuits Against Public Participation Act  (“Anti-SLAPP Act”).

The trial court granted appellees’ 12(b)(6) motion to dismiss based on its determination that appellants failed to plead any viable claim. The court also granted appellees’ anti-SLAPP motion to dismiss, concluding that they had made the required prima facie showing that Nadel’s statements comprised “an act in furtherance of the right of advocacy on issues of public interest[,]” unrebutted by appellants, and thus that appellants’ claims could not succeed on the merits. The trial court then awarded appellees their attorneys’ fees under the Anti-SLAPP Act fee-shifting provision.

We conclude that the trial court correctly dismissed appellants’ claims for defamation and false light invasion of privacy but erred in dismissing their claim for tortious interference with business relations. Furthermore, the trial court erred in granting appellees’ anti-SLAPP motion to dismiss and awarding them attorneys’ fees. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

The underlying dispute involved a transfer of funds

In August 2017, Smith and Wrona filed a federal RICO suit against appellants Federal Title and Ewing, as well as against Schifflett, JMZ, and Jeff Zorbo (JMZ’s owner). Shortly after the suit was filed, Nadel was interviewed by a reporter from the local public radio station, WAMU, resulting in publication of the following statements carried both on the air and on WAMU’s website:

“Federal Title either caused our money to be stolen or stole it, and we need to get our money back,” said Michael Nadel, the couple’s attorney. “We don’t have any evidence that it happened because of hackers other than Federal Title’s say-so.” Nadel also says Federal Title, which has offices in Friendship Heights and Logan Circle, failed to effectively communicate with Smith and Wrona ahead of the closing—a situation he attributes to the company being involved in the scheme. “Federal Title never called Sean Smith and said, ‘Bring your money to closing,’ and didn’t even bring it up until the middle of closing. So if they weren’t responsible for helping steal the money, it certainly seems like they knew well in advance of that closing that the money was gone. Their conduct shows that,” he said.

McDermott Will published on its website a link to the WAMU story and repeated on the website Nadel’s statements that Federal Title had “either caused our money to be stolen or stole it,” and that “if they weren’t responsible for helping steal the money, it certainly seems like they knew well in advance of that closing that the money was gone.”

The RICO case was dismissed and refiled in the local courts, where a joint stipulation of dismissal resolved it.

The defamation suit followed

When examining a defamation claim, we cannot separate the words from their context. As the trial court correctly concluded, when one considers Nadel’s statements in context, it is clear that he is communicating no more than his theory of his clients’ case. While appellants are correct in observing that statements which tend to “injure [the] plaintiff in his trade, profession or community standing” are important considerations in evaluating a defamation claim, “[a]n allegedly defamatory remark must be more than unpleasant or offensive; the language must make [appellants] appear odious, infamous, or ridiculous.”  It is therefore certainly the case that, if Nadel had simply asserted that Federal Title had stolen Smith’s and Wrona’s money, appellants likely would have appeared “infamous.” But the language used and its context made it clear to the audience “to whom it was addressed” – the general public – that appellees were not sure what happened to the money but held Federal Title legally responsible because they either “help[ed] steal the money” or “seem[ed] like they knew” what happened to it.20 In   the context of the radio reporter’s interview and related article, it would have been clear to the audience that, considered objectively, Nadel was speaking as an attorney, espousing a theory of liability to serve his clients’ interests, not making a personal accusation that appellants were “odious, infamous, or ridiculous.”

The tortious interference claim was properly pleaded.

A slap

we cannot interpret Nadel’s statements as relating to an issue of public interest simply because they appear in an article featuring the issue of cybercrime, which Nadel himself does not address. Neither can it be said that Federal Title and its principal, Todd Ewing, filed their claim as parties on “one side of a political or public policy debate” about “cybercrime” or any other issue of public interest, as required for a SLAPP lawsuit. Indeed, the only “debate” the parties were engaged in was over who was responsible for Smith’s and Wrona’s missing funds and by what means; Nadel expressed no opinion about cybercrime or any other public matter. Nadel’s statements, rather, were directed primarily at protecting his clients’ (and thus his own) commercial interests, which are not protected under the Anti-SLAPP Act.

...Notwithstanding the broad scope of “an issue of public interest,” which should be “liberally interpreted” under the Anti-SLAPP Act when addressing each criterion specified in § 16-5501(3), we must conclude that appellees have failed to make a prima facie showing that Nadel’s statements – nowhere embraced by any language in that subsection – were “in furtherance of the right of advocacy on issues of public interest.

(Mike Frisch)

Suspensions For Aiding Unauthorized Practice

Eighteen month suspensions of two attorneys have been ordered by the New York Appellate Division for the First Judicial Department for employing a suspended attorney as a "paralegal"

On April 29, 2014, this Court suspended attorney Eric Gonchar for nine months, effective May 29, 2014, for maintaining a side practice of law for 11 years without his firm's knowledge in contravention of his terms of employment and failing to include the income derived therefrom (118 AD3d 1 [1st Dept 2014]). Respondents' law firm employed Gonchar as a paralegal while Gonchar was suspended and for a period of over two years. In 2015, we denied Gonchar's motion for reinstatement, and on October 5, 2018, we disbarred Gonchar for violating the terms of his suspension by continuing to hold himself out as an attorney and engaging in the unauthorized practice of law while employed by respondents' firm, finding that he "gave substantive legal advice on real estate matters to attorneys at the law firm . . . and a nonattorney employee in flagrant violation of our suspension order and Judiciary Law §§ 478 and 486" (166 AD3d 91, 92-93 [1st Dept 2018], lv denied 32 NY3d 914 [2019])...

Gonchar, like the attorneys in Brandes and the other cases cited above, operated as a "paralegal" dispensing advice through the intermediaries of attorneys who interacted directly with clients. He drafted legal documents and was admittedly possessed of superior legal knowledge regarding case matters — indeed, he had brought many of his client matters with him to respondents' firm. Gonchar "functioned as a senior attorney. . . by the exercise of his experience and acumen. . . not his services as a paralegal, [and] made major contributions to the resolution of many of the firm's cases," as noted by the AGC. The conclusion is inescapable that he was engaged in the unauthorized practice of law and that respondents aided and abetted him in the unauthorized practice of law.

Respondents' claim that they believed Gonchar could act as a paralegal so long as he did not interact with anyone outside the firm is not credible in light of the precedent; their claims are moreover undermined by the misleading job description they prepared specifically for purposes of Gonchar applying for reinstatement to the bar, and the fact that they failed to consult outside ethics counsel before hiring Gonchar.

Sanction

The Referee's sanction recommendation that respondents be publicly censured should be disaffirmed and both respondents should be suspended from the practice of law for 18 months (see Matter of Sishodia, 154 AD3d 123 [1st Dept 2017]). Our order made explicit that Gonchar was prohibited from practicing law in any form including giving legal advice or opinions to "another." It is difficult to see how respondents, both experienced attorneys, failed to appreciate the import of the order or credibly believed that the work Gonchar performed over a 2½ year period did not rise to the level of unauthorized practice of law. They, moreover, prepared a misleading job description the purpose of which could be none other than insulating them from liability, indicating that they well understood the repercussions of Gonchar engaging in unauthorized practice.

Accordingly, the AGC's motions with respect to respondents to confirm in part and disaffirm in part are granted to the extent of sustaining charges 1-3 and 8 in full and dismissing charges 4-7; disaffirming the Referee's liability finding dismissing charge 9, and instead, sustaining that charge; disaffirming the sanction recommendation of public censure and suspending respondents from the practice of law in the State of New York for a period of 18 months and until further order of this Court. Respondents' cross motions should be denied in their entirety.

(Mike Frisch)

Pre-Admission Criminal Conduct Draws Permanent Disbarment

The Ohio Supreme Court has permanently disbarred an attorney, primarily for criminal conduct that pre-dated his admission

From August 2006 until January 2010, Polizzi was employed by Cornerstone Christian Academy, where he taught high school history and middle school English, served as a mock-trial advisor and class advisor, and coached middle school cross country. In July 2017, the Lake County Grand Jury indicted Polizzi on one count of gross sexual imposition and 24 counts of sexual battery for conduct that allegedly occurred with a student (“Victim 1”) in January and February 2010. A second indictment, issued in December 2017, charged with 33 counts of gross sexual imposition, 22 counts of sexual battery, and one count of attempted sexual battery for conduct that allegedly occurred with a second student (“Victim 2”) between October 2007 and June 2008.

 On March 28, 2018, Polizzi pleaded guilty to one count of gross sexual imposition and three counts of sexual battery with respect to each victim. Polizzi admitted that in January 2010 he engaged in gross sexual imposition by touching Victim 1 on the thigh and compelling her to submit by force or threat of force. He also admitted that in early 2010 he committed three acts of sexual battery, by engaging in digital penetration, cunnilingus, and fellatio with Victim 1. Polizzi admitted that between October 2007 and June 2008, he engaged in gross sexual imposition by touching Victim 2’s clothed genital area and causing her to have similar sexual contact with him, and he further admitted that he had compelled the victim to submit by force or threat of force. He also admitted that he committed three acts of sexual battery between March and June 2008 by digitally penetrating Victim 2. Polizzi admitted that at the time of these offenses, Victims 1 and 2 were minors enrolled at the school at which he was employed as a teacher, coach, or other person in authority

He is serving a lengthy prison sentence.

During his disciplinary hearing, Polizzi testified that Victim 1 and Victim 2 had been students in his American History class and that he had coached Victim 1’s mock-trial team. Polizzi had met privately at the school with Victim 2 around a dozen times, at her mother’s request, to help her with a personal family matter. He testified that Victim 2 was 17 or 18 years old and still a student at the school when he began having illegal sexual contact with her in April 2008 and that he continued to engage in sexual conduct with her until October 2009.

Polizzi testified that he had communicated with both victims by text message, but he maintained that only one of those text messages, a text to Victim 1, was sexually suggestive. He admitted that he had met and engaged in sexual conduct with each victim at a park. After one such meeting with Victim 1 in January 2010, someone reported having seen Polizzi arrive at the school with Victim 1. When confronted by the superintendent of the school, Polizzi admitted that he had met with Victim 1, but he was not honest about his sexual relationship with his students. Nonetheless, the superintendent informed Polizzi that his contract would not be renewed.

He then started a law career

In August 2010, Polizzi began to attend the University of Akron School of Law and work at the Cuyahoga County Prosecutor’s Office. He graduated in December 2012 and took the February 2013 bar exam. Although he disclosed the termination of his employment at Cornerstone Christian Academy on his bar application, he did not disclose that he had engaged in sexual conduct with his students.

The court expressed concerns about his post-dismissal contact with the victims

Polizzi’s continued communication with his victims is just one of many factors that demonstrate his ongoing lack of remorse and failure to accept responsibility for his crimes. For example, as described above, at his disciplinary hearing, Polizzi was unwilling or unable to admit the true nature of the e-mail that he had sent to Victim 1 approximately eight years earlier. Although Polizzi now asserts that his hesitance in responding to relator’s questions illustrates nothing but shame, he actually attempted to convince the panel that he had e-mailed Victim 1 only because he felt guilty and wanted “closure.” On further cross-examination, however, he admitted that he had used a fake e-mail address, had not disclosed his identity, and had asked Victim 1 at least one sexually explicit question, so the e-mail is more properly characterized as an attempt to remind the victim of—rather than apologize for—his past criminal conduct.

As to precedent

The most significant distinction between disciplinary cases involving sexual misconduct that resulted in an indefinite suspension and those that resulted in permanent disbarment is that—like Polizzi—the attorneys who were disbarred were either convicted of gross sexual imposition or used force, the threat of force, or extreme forms of coercion to compel their victims to submit to their sexual demands...

In this case, for more than two years, Polizzi used his authority as a teacher to compel two of his students to engage in sexual conduct with him and threatened at least one victim with discipline or expulsion to keep her from reporting his conduct.

As to the disclosure on the bar admission application

Although Polizzi disclosed the termination of his teaching employment on his bar-exam application, he did not disclose that he had had sexual contact with two of his students. Had Polizzi disclosed that conduct or been convicted before he sought admission to the bar, his application most certainly would have been disapproved.

Justice Donnelly dissented

The court today permanently disbars respondent, Anthony John Polizzi Jr., but not because of anything that Polizzi did or did not do as an attorney. The court imposes this ultimate form of discipline for criminal offenses that were committed three to five years before Polizzi became an attorney but were not prosecuted until four years after he became an attorney. Because that sanction is inconsistent with our precedent, I respectfully dissent.

To be absolutely clear, when it is discovered that an attorney has committed criminal acts, whether the conduct occurs after bar admission or before, swift and severe consequences are necessary. Polizzi’s criminal conduct indisputably predated his 2013 admission to the practice of law. In the only Ohio case to which we have been directed where discipline was imposed for criminal conduct that occurred prior to the attorney’s admission to the practice of law, this court indefinitely suspended the attorney.

...This court has chosen the less severe sanction of indefinite suspension for equally reprehensible criminal acts, including predatory sexual acts involving children.

The possibility of redemption

Our primary objective in disciplinary proceedings is to protect the public in relation to the lawyer’s fitness to practice law through sanctions that are consistent with those imposed in similar cases. The discipline imposed should be both purposeful and proportionate. I do not believe that Polizzi’s disbarment is compelled by our precedents or by the principles that guide the disciplinary process.

 I do not know whether Polizzi should be permitted to practice law again. I do not believe that that issue should be considered until there has been sufficient time and opportunity for Polizzi’s due reflection and true contrition and for Polizzi to establish affirmative evidence of his redemption. But today’s decision declaring him to be beyond redemption and categorically unfit to ever practice law again eliminates any incentive for him to seek professional and perhaps personal rehabilitation. I would indefinitely suspend Polizzi from the practice of law. I therefore dissent, respectfully.

DEWINE and STEWART, JJ., concur in the foregoing opinion. 

(Mike Frisch)

Georgia Court Reduces Proposed Sanction; Expresses Concern About "Weaponized" Bar Complaints

The Georgia Supreme Court has reduced an attorney's proposed two-year suspension to a public reprimand and, in so doing, chided the State Bar for declining to investigate his former law partners who had filed the bar complaint

This matter arose from a grievance filed by one or both of Cook’s former law partners in the midst of the dissolution of their partnership. After an investigation, the Bar filed a formal complaint charging Cook with a variety of Rules violations, but it later amended its formal complaint to leave only the allegations that Cook’s handling of the firm’s trust account and his responses to this disciplinary matter violated Rules 1.15 (I) (a), 1.15 (II) (a) and (b), and 8.4 (a) (4), as set out in Bar Rule 4-102 (d). Ultimately, Cook stipulated that he violated Rules 1.15 (I) (a) and (II) (a) and (b), but denied that he had done so knowingly or that he violated Rule 8.4 (a) (4). After extensive hearings, special master Bryan Downs made factual findings; concluded that Cook violated Rules 1.15 (I) (a) and Rules 1.15 (II) (a) and (b), but not Rule 8.4 (a) (4); and found, in the light of a number of mitigating factors, that a one-year suspension was the appropriate punishment. After considering the exceptions filed by both parties, see former Bar Rule 4-217 (d), the Review Board disagreed with some of the special master’s factual findings underlying the conclusion that Cook had not violated Rule 8.4 (a) (4). The Review Board substituted its own different factual findings on that point and concluded that Cook had violated Rule 8.4 (a) (4) in addition to his stipulated violations of Rules 1.15 (I) and (II). The Review Board concluded that Cook should face a two-year suspension for his violations.

The attorney was the managing partner of a three-partner firm that handled personal injury matters.  The firm dissolved in 2012.

The court deferred to the findings of the Special Master

With regard to the issue of injury or potential injury, the special master found that no client was actually harmed because they all ultimately received their settlement proceeds on a timely basis. He concluded, however, and we agree, that the potential for injury created by Cook’s mismanagement of the trust account was substantial as the aggregate amount of money prematurely removed from the trust account was large and the trust account’s balance was repeatedly depleted well beyond the amounts that should have been held in trust for disputed contingencies related to client matters.

As to the other partners

The special master addressed another proposed mitigating factor submitted by Cook, namely, that his discipline should be mitigated somewhat because Hall and Lampros — who were also lawyers and partners in the firm, who had duties to CHL’s clients and others, and who therefore shared the obligation to monitor CHL’s trust account — wholly abdicated their responsibility in that regard during the relevant time, and yet have not been pursued by the Bar for their failures. The special master found the Bar’s seeming indifference to the other partners’ complicity and its decision to single out Cook for discipline troubling, particularly where the underlying grievance was filed not by clients or injured third parties, but by those same former law partners. The special master noted that Cook would lose his status as “designated counsel” for the railroad union if suspended, that Cook losing this status would be tantamount to disbarment given that the substantial majority of his practice was representing railroad workers in injury cases, and that his former law partners, who practice in the same area of specialty as Cook, had a pecuniary interest that would benefit from any discipline imposed on Cook. Noting that the logical consequence of such uneven treatment by the Bar would be the erosion, among members of the Bar, of the principle that law firm partners have a shared responsibility for the firm’s trust account, he considered these circumstances to be mitigating.

The court on sanction

Here, we note that the evidence did not prove that Cook acted dishonestly, intentionally, or maliciously, and, although the potential for harm was undeniably great, it appears that no client or third party suffered any actual harm as a result of the violations — as no client or third party ever suffered any delay in obtaining the funds owed to him or her. Moreover, this is Cook’s first disciplinary infraction in what appears to have been a long and distinguished legal career, and, during the many years since these infractions, Cook has taken steps to prevent any additional issues of this nature. Further, the record contains no evidence, or even an allegation, that Cook failed to adequately or competently represent a client. Although we wish to emphasize the seriousness of Cook’s misconduct and the non-delegable obligation he has as a fiduciary of his clients’ property, given the special considerations discussed above, this Court concludes that the mitigating factors present in this case ⸺ which do not include the Bar’s disparate treatment of Cook compared to his former partners ⸺ outweigh the aggravating factors of multiple violations and substantial experience in the practice of law such that a suspension is not warranted.

Further concerns

Under the Bar Rules, Cook’s partners bore responsibility, along with Cook, for the trust account and for the safekeeping of their clients’ funds and other property.

Yet the Bar chose not to exercise its authority to initiate an investigation into the actions of either of Cook’s partners, explaining to this Court that Cook never filed a grievance against those partners, and that, if he had believed they were complicit, he could have done so. The Bar further argues that factors like motivation behind the grievance and uneven treatment should not be considered in mitigation because the ABA Standards do not separately recognize them as mitigating factors.

...The Bar has not offered any explanation of why it did not exercise its authority to investigate the other law firm partners, and its failure to do so could be seen as lowering the standards imposed on law partners who are not specifically tasked with managing their firm’s trust account. And such failure could encourage lawyers to use the Bar’s disciplinary process to resolve internal law firm disputes and settle old scores with former partners. Such weaponization of the disciplinary process must not be encouraged.

Presiding Justice Nahmias dissented and finds the majority downplayed the seriousness of the misconduct

When the scope of Cook’s misconduct is detailed, it becomes clear that none of the trust-account cases imposing reprimands that the majority opinion cites as “similar” to this case really are similar in terms of the extent of the violations or the amount of client funds put at risk. Moreover, the majority opinion ignores numerous attorney discipline cases in which violations of Rule 1.15 – even with no actual harm to clients, no major aggravating factors like lying to clients or disciplinary authorities, and various mitigating factors – have resulted in suspensions.

...I cannot agree that other lawyers will be deterred, or that the public will be given confidence that this Court will maintain the ethics of the legal profession, when they see that the penalty for Cook’s repeated and serious violations of Rule 1.15 – violations that put large amounts of many clients’ funds at great risk - is just a public admonition not to do that again. I respectfully dissent.

Chief Justice Melton joined the dissent. (Mike Frisch)

Snoopy Marked Safe

A two-year retroactive suspension for criminal conduct unrelated to the practice of law has been imposed by the Pennsylvania Supreme Court.

The report of the Disciplinary Board states that the case began with a search warrant for possible animal abuse. The executing officers saw crack cocaine in plain sight.

The attorney initially was charged with having sex with an animal and drug charges.

While out on bond, police responded to a neighbor's 911 call for shots fired in his residence.

His guilty plea involved drug and firing an air gun charges but but sex with an animal. 

The sanction is retroactive to his interim suspension.

The board noted his treatment for mental health issues and drug abuse.

TribLive reported on  the criminal case.

Animal cruelty charges were dropped against a Pittsburgh attorney who police had alleged was having sex with his dog.

Defense lawyers told the Tribune-Review on Monday that Ivan Devoren, 62, of Highland Park, never had sex with his dog, which is why prosecutors dropped those charges.

They said Devoren had a drug problem and has been clean for 10 months. Devoren pleaded guilty to drug-related and other charges.

“Absolutely nothing happened with this animal that was sexual in any way,” said defense attorney T. Brent McCune.

Mike Manko, a spokesman with the Allegheny County District Attorney’s office, said the dog, a yellow Labrador retriever named Snoopy, is with a foster family and is “healthy and happy.”

“We offered to withdraw the animal charge in order to have him surrender the dog to the foster family,” he said.

(Mike Frisch)

Discipline For School Social Distancing Violations Upheld

The New York Appellate Division for the First Judicial Department affirmed the imposition of disciplinary sanctions imposed by New York University for violation of social distancing policies

The petitioners in this case, Marc Santonocito, Ashley Storino, and Elnaz Pourasgari, were each found to have violated the above policies because of off-campus gatherings they attended during August 2020 in the weeks leading up to the start of the fall semester. The main issue on this appeal is whether petitioners had notice prior to their conduct that attending these gatherings could result in discipline. On August 12 and 14, 2020, Santonocito attended two gatherings of between 10 to 13 people, held indoors in a private apartment and partly on the apartment's private rooftop. No one at either gathering masked or social distanced. On August 12, 2020, Storino attended a party with 12 or 13 people indoors at an off-campus apartment and on August 14, 2020, she hosted a party with 10 to 12 guests on the private roof of her apartment building. No one wore a mask or social distanced at either gathering. On August 22, 2020, Pourasgari attended a gathering with up to 15 guests at a friend's off-campus apartment rooftop. No one at the gathering masked or social distanced. Each petitioner was captured in at least one photo on social media depicting them unmasked and in physical contact with other individuals who were also not wearing masks: Santonocito arm in arm with other unmasked individuals, Storino cheek to cheek with other unmasked individuals, and Pourasgari touching the face of another unmasked individual.

Petitioners were each notified via email that the Office of Student Conduct had received reports that they had attended parties during the month of August without the proper use of masks and social distancing. Petitioners attended virtual individual conduct conferences at which all three admitted to attending the gatherings in question and admitted to not wearing a mask or social distancing at the gatherings. The Office of Student Conduct determined that each petitioner had violated sections B1 and E1 of the Policy, and each was suspended for the fall 2020 semester, among other disciplinary sanctions. Petitioners individually appealed the decisions pursuant to the procedure set forth in the Policy, and the Dean of each petitioner's school denied the appeals and upheld the disciplinary sanctions. These article 78 proceedings followed.

The court found that proper notice had been provided and that the school had not acted in an arbitrary or capricious manner.

Petitioners argument that they did not have pre-conduct notice is further contradicted by communications they received from NYU. Prior to the gatherings in question, NYU had sent emails to its students regarding safety procedures related to COVID-19. These emails reflect NYU's concern over COVID-19 spreading through the congregant university community and convey the seriousness with which NYU was approaching the threat. NYU notified students via email on July 30, 2020 of certain requirements. While many of those requirements concerned out of state students, still others also applied to in-state students. Students were notified that anyone intending to access the NYU campus at the start of the semester would have to provide a negative COVID-19 test. The only students explicitly exempt from being tested were those who would live off-campus, attend class remotely, and, crucially, would not be interacting with members of NYU's community. By its own logic, the testing requirement implicates safe practices to avoid contracting the virus prior to the start of the semester. The July 30 email further stated that, to have a successful semester, all students must "strictly abide by the new COVID-19 health and safety protocols — wearing a mask, keeping social distance . . ." and warned students that they may face discipline, including interim suspension, for repeated or egregious behavior that threatened the health and safety of others. Given the substantial deference to be accorded to NYU's application of its policies, we find that the July 30 email can rationally be understood to immediately govern student conduct (see Powers, 25 NY3d at 216).

(Mike Frisch)

Resignation Accepted

The Massachusetts Board of Bar Overseers accepted an attorney's resignation 

In connection with the respondent’s representation of a plaintiff in litigation against the United States government, he signed the name of the Assistant United States Attorney to a settlement document without her knowledge or authorization. In addition, the document in question contained terms that were different than those agreed to by the government. When questioned by the federal judge about the matter, the respondent’s explanation – that the unauthorized signing was inadvertent – was intentionally false, misleading, and deceptive. Also in connection with the same litigation, the respondent intentionally inflated the litigation expenses for which he sought reimbursement out of the settlement proceeds. During the course of the investigation, the respondent made intentional misrepresentations to bar counsel about the foregoing events. The misrepresentations included the submission of falsified invoices to support his claim for expenses in the litigation. He also intentionally misrepresented material facts during an examination under oath by bar counsel, including his unauthorized signature on the settlement document.

(Mike Frisch)

Judge Admonished For Facebook Posts

The New York Commission on Judicial Conduct has admonished a judge for his Facebook posts

The Formal Written Complaint alleged that from July 21, 2020 through October 16, 2020, respondent publicly displayed on his Facebook page: (A) two photographs of himself wearing an Ontario County Sheriff’s uniform, and (B) a post with his personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event, which was held to show support for law enforcement. The post and photos garnered hundreds of “likes” and comments from other Facebook users. It was also alleged that respondent engaged in this conduct notwithstanding having been cautioned by the Commission in April 2019 for an inappropriate Facebook post regarding a candidate then running for a law enforcement position.

The photo was taken at his daughter's graduation from the police academy and pictured him in uniform after he had retired

By July 21, 2020, respondent’s “cover photo” had garnered approximately 277 Facebook “likes,” two “shares,” and 37 comments from other Facebook users. His public post containing the text and the second photograph...had garnered approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users. Among the comments was one that identified him as “Judge!” 

Sanction

Respondent now recognizes that individuals viewing his Facebook posts, and seeing him in a law enforcement uniform, would reasonably question his ability to conduct himself in a fair and impartial manner while presiding over cases involving law enforcement. 

Respondent takes full responsibility for his actions and has been cooperative and contrite with the Commission throughout its inquiry. He regrets his failure to abide by the Rules in this matter. He pledges to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.

(Mike Frisch)

The Way It Works In Ohio

Csaba Sukosd explains on the Ohio Supreme Court web page

Many jobs require a background check. Investigations of prospective Ohio attorneys are based on answers they provide and information gathered by the National Board of Bar Examiners.

The group in Ohio responsible for granting clearance is the Board of Commissioners on Character and Fitness.

The 12-member board includes an attorney from each of the state’s appellate districts. It ensures applicants possess the requisite moral qualifications to practice as an attorney.

This evaluation takes place before they can prove their professional competence through the Ohio Bar Examination.

“It’s some of the most rewarding work these board members ever do. They don’t get a lot of recognition because the process is confidential,” said Gina Palmer, the Ohio Supreme Court’s director of the Office of Bar Admissions and Attorney Services.

In essence, the review process determines the requisite character, fitness, and moral qualifications of each applicant.

Crimes, including high-level felonies, do not automatically disqualify a person’s pursuit of becoming a lawyer. The board’s emphasis on character and fitness stresses an individual’s current standing.

However, serious offenses require more investigation and scrutiny to determine whether an aspiring lawyer has been rehabilitated.

A common concern is how a person behaves during the probe, which lasts an average of four to eight months and can be extended to two years if there are multiple investigations and appeals.

“It’s not always the deed itself that gets you pulled,” Palmer said. Instead, she said, it’s the failure to disclose information or “lying, or mischaracterizing.”

The application process starts by registering in the second year of law school with the Office of Bar Admissions. That material is forwarded to the National Conference of Bar Examiners, which compiles a thorough report verifying background information, contacting references and conducting police checks.

Once complete, those details are sent to the admissions committee of a local bar association, where at least two committee members interview the applicant. After the interview, and possibly further investigation, the committee offers its recommendation to the character and fitness board.

If an aspirant is not granted unconditional approval by the local bar, the person can appeal to the board.

If an applicant receives local bar approval but the board is not satisfied that they have shown the proper character and fitness — or if the board wants information — the board will further examine the applicant’s qualifications.

Like the Board of Professional Conduct, three members of the character and fitness board will hear testimony and arguments presented by the applicant and the local bar association’s committee. A report of the hearing — and any additional investigation — is presented at a meeting and voted on by the full board.

“For attorneys, who are used to advocating, that’s a pretty cool thing to sit on the bench and hear cases,” said Palmer. “It’s an important thing. It keeps the integrity of the entire profession.”

If denied final approval by the board, the applicant is entitled to an oral argument before the Supreme Court. The justices then make the final decision on whether the prospect is deemed fit.

Red flags beyond criminal offenses could also include untreated substance use disorders, academic misconduct or neglecting to pay debts.

“If you can’t manage your own finances, how can you be trusted to manage others?” Palmer asked.

Along with approving first-time lawyers, the board also handles applications from out-of-state attorneys seeking an Ohio license.

As part of the process to ensure good standing, the board will examine whether there have been complaints of misconduct, malpractice, issues with fulfilling continuing legal education requirements, multiple firings, and even scrutinize excessive traffic tickets that can question “an applicant’s respect for the law.”

Board members are appointed by the Supreme Court for three-year terms, which they can retain for three cycles.

(Mike Frisch)