Tuesday, December 6, 2022

Tennessee Judge Suspended

The Tennessee Supreme Court has ordered a 30-day suspension of a General Sessions Court judge who had been arrested on August 17, 2022 for driving under the influence as well as possession of a handgun while under the influence when a handgun was found in the glove box of his car.

The judge promptly self-reported the arrest and entered into an inpatient rehabilitation program. He successfully completed that program. 

He pleaded guilty to the driving offense and other charges were dismissed. He was required t o surrender the firearm, prohibited from driving for a year, and had an ignition interlock device on his vehicle. (Mike Frisch)

December 6, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, December 5, 2022

Reinstatement Favored

An Illinois Hearing Board has recommended the reinstatement of a suspended attorney with conditions

Petitioner was licensed to practice law in Illinois in 1996. After receiving his license, he worked for the Illinois Attorney General for three years. (Tr. 98-99). He then worked for a short time for Hinshaw & Culbertson but found the billing expectations unmanageable and was asked to leave the firm. (Tr. 100). For the next four years, he worked as a sole practitioner and as an associate at Romanucci & Blandin, handling plaintiff’s personal injury matters. He was let go from Romanucci & Blandin after he failed to file a case before the statute of limitations passed. (Tr. 102-103).

Petitioner and his wife then moved to Springfield, where Petitioner’s family lived. Petitioner’s father, the Hon. Richard H. Mills, is an attorney and retired United States District Judge for the Central District of Illinois. Petitioner began working as a Sangamon County Assistant State’s Attorney on February 1, 2005. (Tr. 104). At this time, Petitioner was having marital difficulties and was self-medicating with marijuana, alcohol, and cocaine. (Tr. 105). He was using a gram of cocaine per month with his wife and with another Assistant State’s Attorney. (Tr. 74-76).

In January 2006, the Sangamon County State’s Attorney was informed of a federal investigation into Petitioner’s drug activities. Petitioner was given the choice of resigning or being fired, so he resigned. (Tr. 110). Petitioner and his wife divorced in 2006. (Tr. 113)

He was suspended for two years and until further order.

Substantial rehabilitation

Petitioner is to be commended for his efforts in rehabilitating himself. Most importantly, he has maintained sobriety for over 12 years and has been consistent in obtaining mental health treatment and complying with his physician’s recommendations. The opinions of Dr. Bennett and Dr. Finkenbine satisfy us that Petitioner’s substance use disorders are in sustained remission, and there is no mental health reason that would inhibit his ability to practice law.

The evidence pertaining to Petitioner’s employment at the Water Reclamation District further supports our determination that he has returned to a constructive and trustworthy role. We find credible the testimony of Petitioner’s co-workers that he has been an exemplary and valued employee since 2014.

(Mike Frisch)

December 5, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Firepower

The Massachusetts Supreme Judicial Court affirmed the denial of a suspended attorney's second petition for reinstatement

The hearing committee properly considered Diviacchi's open contempt for the legal system and the disciplinary system, and particulary [sic] his baseless accusation, made publicly and maintained on the Internet, that his suspension was based on "bigotry," merely because a committee member was absent for part of the proceedings. Indeed, that contempt remains evident in his memorandum before this court.

In sum, the hearing committee's determination that Diviacchi lacks the moral qualifications required to practice law was well supported, and there has been no error of law or abuse of discretion in so determining.

Learning in the law

The board determined that, although Diviacchi has the "raw intellectual firepower to maintain his learning in the law," he had not done so. We agree. By the time of the hearing, Diviacchi had completed a course in practicing with professionalism, but he had undertaken no formal continuing legal education in any substantive legal subject.  It appears that he did engage in some informal efforts to learn about recent developments in the law, such as reviewing Massachusetts Lawyers Weekly and summarizing recent cases reported therein. As the hearing committee found, however, these efforts at most evinced a "superficial familiarity" with some recent decisions. Diviacchi's efforts were on a par with those deemed insufficient.

(Mike Frisch)

December 5, 2022 in Bar Discipline & Process | Permalink | Comments (0)

America's Respondent

The hearing in In re Giuliani is scheduled to begin at 9:00 am EST today and can be accessed through this link.

District of Columbia Disciplinary Counsel alleges that Respondent violated ethics rules that prohibit filing frivolous litigation and conduct prejudicial to the administration of justice in litigation brought in Pennsylvania. 

Because of the "choice of law" provisions applicable to D.C. attorneys, the charges allege violation of the rules governing Pennsylvania lawyers.

Disciplinary Counsel Fox has stated his intent to call Giuliani as the first witness. (Mike Frisch)

December 5, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, December 3, 2022

The Dark Side

Ohio Disciplinary Counsel has filed ethics charges against an attorney who was the subject of a February 2019 article in Cleveland.com.

The charges relate to alleged statements and omissions to the State Medical Board in an application to become a physician's assistant.

The February 2019 article

A Broadview Heights attorney once known as an expert witness for defendants in child pornography cases, and who digitally manipulated G-rated images and created child porn for his work, must pay a six-figure judgment to two women whose images he doctored despite filing for bankruptcy, a federal appeals court ruled.

Jack Boland filed for bankruptcy in 2016, and among the debts he included were a $300,000 judgment over images he downloaded from a stock photo website and digitally modified, or “morphed.” The images were of two girls from Cuyahoga County, ages five and six at the time, and Boland altered them to make it seem as if the photos were taken while they were in sexually explicit situations.

Boland presented the doctored images of the two girls and others in courtrooms in Ohio and Oklahoma in trials for which defendants faced child pornography charges.

 

U.S. Bankruptcy Judge Jessica Price Smith ruled in 2017 that Boland could discharge the judgment along with his other debts. However, a three-judge bankruptcy panel for the 6th U.S. Circuit Court of Appeals disagreed in a ruling issued Wednesday, meaning Boland will be back on the hook for the judgment.

 

Boland previously went by the first name Dean. He has written pieces over the years for The Plain Dealer and cleveland.com.

 

He is a former assistant Cuyahoga County prosecutor who was on a legal team that defended the state from a lawsuit filed by the estate of Dr. Sam Sheppard in 2000. The suit sought a declaration that Sheppard was wrongfully imprisoned for the murder of his wife Marilyn in Bay Village in 1954, though a jury ruled against the estate.

 

Boland declined comment when reached Wednesday.

 

By the mid-2000s, he gained a reputation as an expert consultant in computerized digital imaging for defendants in child porn cases. As an expert, he sought to show that innocent images could be altered to appear that children were having sex or posing explicitly, as part of a defense that some people charged did not knowingly view or possess child porn.

 

His work won him praise at the time from defense lawyers but condemnation from police and prosecutors. Bill Mason, then the county prosecutor, told The Plain Dealer in 2004 that Boland “has gone to the Dark Side.

Boland displayed images he created when he testified as an expert witness at a trial in Oklahoma in 2004. A federal judge admonished him to purge the images from his computer, but Boland did not do so. He subsequently used them in two other cases, according to court records.

 

The FBI opened an investigation and searched his home in 2005. Boland entered a pre-trial diversion agreement with federal prosecutors in Cleveland in April 2007, in which he admitted to violating a federal prohibition about knowingly possessing child pornography.

 

He published a statement in the Cleveland Bar Journal in which he apologized to the children whose images he used, along with their families. He said he thought his actions were appropriate under the circumstances but recognized that possessing the images violates federal law.

Two of the children whose images Boland altered sued him in September 2007. U.S. District Judge Dan Polster ordered Boland to pay $150,000 in damages to each victim, who went by Jane Doe and Jane Roe in the lawsuit. Boland filed for bankruptcy in 2016 and the victims argued he should not be able to discharge the judgment along with his other debts.

 

Smith, the bankruptcy judge, held a trial and ruled in 2017 that Boland could discharge the judgment because it was not for a “willful and malicious injury.” She wrote there was no evidence that Boland intended harm or knew it would harm the children.

 

The 6th Circuit bankruptcy panel, in an opinion written by U.S. Bankruptcy Judge Judge Guy Humphrey, wrote that Price Smith conducted the wrong analysis to come to her conclusion.

 

She should have focused on whether Boland meant “invade the (children’s) legally protected interests” or knew to a certain degree that his actions would do so, the panel wrote. These interests include their reputations, emotional well-being and privacy rights,. [sic]

When focused on that, “the evidence at trial established that Boland knew or was substantially certain” that the children’s’ privacy and other interests would be harmed, the opinion says. Boland’s actions also qualified as “malicious” under federal bankruptcy law, the court ruled.

 

Jonathan Rosenbaum, an Elyria attorney who represented the victims, declined comment.

(Mike Frisch)

December 3, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 2, 2022

The Full Picture

A three-month suspension has been imposed by the New Jersey Supreme Court for conduct described in the report of the Disciplinary Review Board

On August 1, 2018, a Pennsylvania State Police officer observed respondent driving erratically and committing traffic violations on local roads in Thornbury Township, Pennsylvania. Based on her erratic driving, the officer initiated a traffic stop and advised respondent to remain in her vehicle. However, respondent repeatedly exited her vehicle, against the officer’s instructions, and stood in the roadway while sweating profusely with bloodshot, glassy eyes. The officer moved respondent to safety and inquired whether she had been drinking, to which she replied, “I cook with vodka.” The officer then requested that respondent perform field sobriety tests. However, she could not comprehend the instructions and, thus, failed to perform the tests. Moreover, the officer observed that respondent failed to maintain her balance and exuded an odor of alcohol from her breath. Consequently, the officer arrested respondent and charged her with driving while intoxicated (DWI). At the time of her arrest, respondent’s blood alcohol content was 0.362.

She pled guilty to one count of misdemeanor DWI.

Another criminal matter involved terroristic threats

Between October 16 and 17, 2019, respondent called the home of her former psychologist four times, without leaving any messages. Beginning on October 19, 2019, however, respondent started leaving threatening voicemails and text messages on the psychologist’s home landline, personal cellular telephone, and business telephone. Specifically, respondent’s voicemails and text messages contained numerous death threats against the psychologist’s life and vulgar, anti-Semitic language directed at the psychologist’s Jewish faith. In one message, respondent threatened that she would “bury” the psychologist with her “bare hands.” In another message, respondent stated that she would “end” the psychologist with a firearm and, to illustrate the threat, sent the psychologist a picture of an unloaded handgun resting on a religious text. Additionally, respondent left long voicemails in which she rambled in a foreign language, accused the psychologist of owing her trillions of dollars, and threatened to shut down the psychologist’s business.

The threats continued into November and involved "no less than"17 messages.

respondent appeared in the Court of Common Pleas of Philadelphia County and pleaded guilty to first-degree misdemeanor terroristic threats and first-degree misdemeanor stalking. During the proceeding, although respondent admitted to the facts underlying her convictions and expressed remorse, she attributed her actions to her ongoing mental health problems.

New Jersey precedent on attorney DWI

Consistent with precedent that the disciplinary system does not address standalone DWI violations, the OAE’s motion did not seek the imposition of discipline based solely on respondent’s DWI conviction. However, we consider respondent’s DWI conviction as an aggravating factor in determining the appropriate quantum of discipline.

So no violation even if the lawyer-driver can't stand alone?

Anti-Semitic remarks

although the OAE did not charge respondent with any RPC violations based on her anti-Semitic remarks, consistent with our obligation to examine the “full picture” of the offense, we consider such remarks, as aggravating conduct, in imposing discipline.

Sanction

Attorneys found guilty of harassment or stalking have received discipline ranging from a reprimand to a term of suspension, depending on the duration of the offending behavior, whether the attorney had a history of stalking or harassment, and whether the attorney was suffering from mental illness.

...On balance, we determine that a three-month suspension is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar.

Additionally, based on respondent’s invocation of her mental health as an explanation for her misconduct, we require respondent to provide to the OAE, prior to reinstatement, proof of fitness to practice law as attested to by a medical doctor approved by the OAE. Moreover, because of her history with alcohol abuse and the egregious level of her blood alcohol content at the time of her DWI, we also require respondent to enroll in an OAE-approved alcohol treatment program and to submit proof of attendance to the OAE, on a quarterly basis, for at least two years.

Two members favored a six-month suspension. (Mike Frisch)

December 2, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Kansas Reinstates Attorney; Rejects Unauthorized Practice Allegations

The Kansas Supreme Court rejected contentions that a suspended attorney had engaged in unauthorized practice and ordered his reinstatement upon payment of required fees

Today we hold that a suspended attorney has not engaged in the unauthorized practice of law when the attorney merely indicates future representation is possible upon reinstatement and does not otherwise engage in any counseling, advising, or rendering services requiring legal knowledge while suspended. See 251 Kan. at 554 (finding a suspended attorney was not engaged in the practice of law while working as a law clerk because "he did not draft any of the documents, did not appear in court, and never offered advice or suggestions to" clients); State, ex rel., v. Hill, 223 Kan. 425, 425-27, 573 P.2d 1078 (1978) (a non-lawyer who had a franchise agreement to buy and resell kits that contained forms for obtaining a divorce in Kansas, completed sample forms, and written and audio instructions was not engaged in the practice of law because he did not personally provide legal advice, never represented himself to be an attorney, and advised at least some customers that he was not an attorney).

Holmes did not apply any law to the facts of his former client's case. He did not render services requiring his professional judgment, nor did he apply any part of his legal education to the specific legal problem of his client. The client knew that Holmes was suspended and not currently licensed to practice law. In fact, the client's wife approached Holmes because the client previously had positive experiences with Holmes' representation. Holmes merely indicated that upon his reinstatement—which he hoped would be imminent—he would readily return to representing his former client.

Holmes did not make any promises regarding future representation nor did he induce that client to rely on him for legal services during his suspension. We are unaware of any injury that the client suffered from Holmes' statements. We decline to extend the definition of the "unauthorized practice of law" to fit Holmes' conduct relevant to the January 8, 2021, informal admonition.

(Mike Frisch)

December 2, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 1, 2022

Unarrested Development

The Indiana Supreme Court has reprimanded a prosecutor who exercised his influence for the benefit of his son

At all relevant times, Respondent was the Wells County elected prosecutor. In the early morning on July 2, 2022, a Wells County deputy sheriff called Respondent after pulling over Respondent’s son on suspicions of operating a vehicle while intoxicated. Respondent spoke to his son, who was being belligerent and had refused a breath test, and encouraged him to cooperate with the officer. Respondent then asked to speak to the deputy sheriff again. At Respondent’s request, the deputy sheriff agreed to allow Respondent to come to the scene and pick up his son, who was ultimately not arrested.

Respondent readily admitted that he acted improperly, self-reported to the Commission, and has publicly and privately apologized and taken responsibility for his actions.

(Mike Frisch)

December 1, 2022 in Bar Discipline & Process | Permalink | Comments (0)

eBay Sales Draw Sanction

The web page of the Florida Bar reports on a recent revocation with leave to seek reinstatement after five years

While employed by the Office of the State Attorney, Vitola allegedly stole government-owned reference books and sold them on eBay for profit. Vitola was criminally charged by Information with dealing in stolen property, a second degree felony, grand theft, a third degree felony, and engaging in a scheme to defraud, a third degree felony. (Case No: SC22-1109).

(Mike Frisch)

December 1, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 30, 2022

Due Process Violation Precludes Reciprocal Discipline

The Supreme Court of the Virgin Islands concluded that an attorney who had been suspended for two years by the federal district court had been denied due process. 

Accordingly, the court declined to impose reciprocal discipline.

The complaint had originated with the mother of a client and had been assigned to a Magistrate from the Western District of Pennsylvania

The magistrate judge issued a report and recommendation on December 3, 2021. Before doing so, the magistrate judge did not hold an evidentiary hearing and did not interview Attorney Moorhead, his client, or the client’s mother who wrote the letter which initiated the investigation. In the report, the magistrate judge stated that she had “directed the Clerk of the District Court of the Virgin Islands to provide a list of matters in which the District Court of the Virgin Islands has imposed discipline upon Attorney Moorhead within the past five years” and that “[i]n addition, [she] independently conducted a search and located several additional matters, in District Court and other courts, in which discipline was imposed.” The magistrate judge provided a list of eight such matters, in which Attorney Moorhead had been fined by various courts or been removed from court-appointed representation and provided a factual summary of each. The report also disclosed that the magistrate judge had interviewed, on an ex parte basis, six individuals in conjunction with the investigation, but did not name them and only summarized their collective testimony, indicating that “Attorney Moorhead has long had problems with meeting court deadlines, making timely court appearances, successfully e-filing documents, communicating adequately with clients, and the like,” that he “may be suffering from an impairment of some kind, possibly due to substance abuse,” and that his “law practice has become increasingly disorganized and haphazard, questioning whether he still maintains a law office at all.” The magistrate judge concluded the report by recommending that Attorney Moorhead be suspended from the District Court Bar for two years and “that significant conditions should be imposed upon his readmission,” including “[a] comprehensive physical and mental health examination” and appointment of “[a] professional mentor” who would “supervise [his] practice of law.”

The process amounted to a denial of due process

Here, the record reflects that the magistrate judge did not provide Attorney Moorhead with an opportunity to be heard, as is expressly required by Local Rule 83.2(b). While the District Court excused this failure by noting that Attorney Moorhead possessed a right to submit a written objection to the magistrate judge’s report and recommendation, the plain text of Local Rule 83.2(b) provides Attorney Moorhead with a right to be heard before the magistrate judge and a right, at his option, to file a written objection to the magistrate judge’s report and recommendation. As such, the procedure employed by the District Court in this case did not provide Attorney Moorhead with the required opportunity to be heard, and thus reciprocal discipline is not warranted pursuant to Supreme Court Rule 207.18(d)(1).

The matter was referred to Disciplinary Counsel for an original investigation

The Office of Disciplinary Counsel must promptly conduct its own independent investigation of the ethical misconduct alleged in the January 25, 2022 order and the similar complaint filed with it and, if appropriate, prosecute Attorney Moorhead in a proceeding before the Board

(Mike Frisch)

November 30, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Wrecking Ball

Justice Wooton dissents from the decision of the West Virginia Supreme Court of Appeals to impose a two-year suspension of an attorney without any portion stayed

Based on the facts and circumstances of this case, I respectfully dissent from the draconian penalty imposed on the respondent, Gregory H. Schillace – a penalty which is, in practical effect, the death penalty for this solo practitioner’s career.

A better approach

Where, as here, the evidence establishes that the respondent’s misconduct was the result of a mental condition for which he is receiving ongoing treatment; that he has learned from his mistakes; and that he has already proved, throughout the course of “a sustained period of successful rehabilitation[,]”18 that future misconduct is unlikely, I would impose a two-year suspension and require the respondent to serve three months of it, with the remainder stayed for a twenty-one month term of supervised probation by a West Virginia licensed attorney in good standing tasked with providing quarterly reports to the ODC. Under the facts and circumstances of this case, the respondent’s ethical violations, although serious, do not warrant putting a wrecking ball to his career and livelihood.

(Mike Frisch)

November 30, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 29, 2022

After The Fall

A George Washington University adjunct law professor who sued the school for personal injuries had her claims dismissed by the United States District Court for the District of Columbia.

The court (Judge Trevor McFadden) held her many asserted causes of action (including RICO) foreclosed by worker's compensation

Hdeel Abdelhady, a law professor, fell on a staircase at the George Washington University Law School campus. She promptly filed for workers’ compensation benefits with her employer, George Washington University (GW), which PMA Management Corporation (PMA) helped administer on GW’s behalf. Abdelhady now sues GW and PMA for claims arising out of her fall and their handling of her workers’ compensation claim. Her claims run the gamut from common law negligence to violations of federal racketeering and civil rights laws.

Defendants move to dismiss all counts. They argue that the District of Columbia’s Workers’ Compensation Act provides the exclusive remedy for Abdelhady’s injury. In the alternative, they move for summary judgment and offer evidence in support. Because the Workers’ Compensation Act provides Abdelhady’s exclusive remedy, the Court will grant Defendants summary judgment on her negligence claim. The Court will dismiss the remaining counts for failure to state a claim.

The injuries occurred as she was leaving from an "adjunct appreciation" luncheon

As she left, she fell after stepping “on an uneven, sticky, and additionally hazardous stair surface.” Id. ¶ 12. She hit the wall at the bottom of the stairwell, injuring her head, face, wrist, hand, and fingers. See, e.g., id. ¶¶ 14, 29–30. Abdelhady was taken to The George Washington University Hospital, where medical personnel diagnosed her with a traumatic brain injury. Id. ¶ 27. The Hospital later billed her directly for “thousands of dollars” of treatment. Id. ¶ 91. Her doctor also referred her to specialists in neurology, ophthalmology, and plastic surgery. Id. ¶ 38

Merits

Abdelhady asks this Court to ignore her election (and receipt) of workers’ compensation benefits and find that the WCA does not apply after all. She argues that it is inapplicable here because she was not acting within the scope of her employment at the time of the injury. Opp’n to GW MSJ at 18, ECF No. 26-1; Opp’n to GW MTD at 14–16, ECF No. 25- 211. The Court disagrees. Her successful pursuit of workers’ compensation benefits forecloses this argument.

(Mike Frisch)

November 29, 2022 in Current Affairs | Permalink | Comments (0)

The Fast Track

The District of Columbia Court of Appeals has released the January 2023 oral argument schedule with this first on the docket

Tuesday, January 10, 2023 10:00 AM

ENBANC

No. 22-SP-0745 DONALD J. TRUMP, ET AL. V. E. JEAN CARROLL

Mark R. Freeman, Esquire
Jason C. Greaves, Esquire

The Hill covered the story

The District of Columbia Court of Appeals on Tuesday said it would expedite former President Trump’s challenge of a defamation suit filed by writer E. Jean Carroll, who accused Trump of rape.

Carroll, a longtime columnist for Elle magazine, accused Trump of raping her in a New York City department store in the 1990s. She sued the former president for defamation three years ago after he dismissed her allegations against him and accused her of lying.

The D.C. Court of Appeals scheduled oral arguments for Jan. 10, according to a new filing obtained by Axios, to answer the specific legal question of whether Trump made the allegedly libelous statements against Carroll within the scope of his role as president of the United States.

In the complex series of legal moves that followed Carroll’s initial suit, Trump’s legal team attempted to dismiss and delay the case, and eventually to countersue Carroll for bringing the lawsuit against him in the first place.

The Justice Department then moved to step in and argue that Trump could not be sued in his personal capacity, since he made the statements during his tenure in the White House, and that the Justice Department should be substituted as defendant in the case.

The former president sat for his deposition in the case earlier this month after his legal team repeatedly attempted to delay the proceedings. 

All active judges on D.C.’s highest court will hear the January arguments before the trial reportedly scheduled for February, according to the filing.

“We are pleased that the DC Court of Appeals set an expedited schedule to determine the issue certified by the United States Court of Appeals for the Second Circuit. As we’ve said several times by now, we are eager to get to trial on all of E Jean’s claims as soon as possible,” Carroll’s attorney Robbie Kaplan said in a statement.

(Mike Frisch)

November 29, 2022 in Current Affairs | Permalink | Comments (0)

No Thanks For (Time) Sharing

An agreed 61-day suspension and 18 months probation has been accepted by the Arizona Presiding Disciplinary Judge

The Agreement sets forth detailed facts and circumstances regarding the underling misconduct. Generally speaking, the ethical violations resulted from Mr. Graham’s involvement with the Timeshare Cancellation Law Group (TCLG) – which he founded – and Timeshare Attorneys of America (TAA), which TCLG acquired. Mr. Graham failed to conduct due diligence as to TAA personnel and court-imposed restrictions on TAA’s activities. He also failed to adequately supervise individuals performing work on behalf of timeshare clients or to ensure that certain lawyers were authorized to offer legal services in jurisdictions where they were engaged in the practice of law. Additionally, Mr. Graham failed to adequately communicate with timeshare clients or to receive authorization from them to share information with third parties assisting TCLG/TAA.

The parties agree that Mr. Graham violated duties owed to clients, the profession, and the legal system, causing actual harm. They further stipulate that he acted knowingly as to the violations of ERs 1.1, 1.3, 1.4 and 1.6 and negligently with respect to the violations of ERs 5.1, 5.3, 5.5(a), 8.4(a), and 8.4(d).

(Mike Frisch)

November 29, 2022 in Bar Discipline & Process | Permalink | Comments (0)

No Slam Dunk

The Delaware Court of Chancery has ruled against basketball legend Julius Erving's effort to avoid arbitration of an agreement concerning the sale of his trademark and intellectual property rights

Julius W. Erving II, known by the moniker “Dr. J,” is a basketball legend. In 2016, Mr. Erving agreed to sell a majority interest in his trademark and other intellectual property to Authentic Brands Group, LLC (“ABG”), a brand development and marketing company. ABG and its controlling member and CEO, James Salter, promised to grow Mr. Erving’s brand exponentially by obtaining new licensing agreements, promotional appearances, and other marketing opportunities.

The dispute

Plaintiffs brought this suit on September 22, 2021, bringing claims for breach of contract and specific performance against ABG Intermediate.

Holding

Because the parties evidenced a clear and unmistakable intent to have the arbitrator decide issues of substantive arbitrability, the action is STAYED pending the arbitrator’s decision. “If the arbitrator determines the claim is arbitrable, then this action will be dismissed for lack of jurisdiction . . . . If the arbitrator determines the matter is not arbitrable, then the parties may return to this Court for further proceedings.”

(Mike Frisch)

November 29, 2022 in Current Affairs | Permalink | Comments (0)

False Report Draws Proposed Suspension

The Illinois Review Board has proposed a 90-day suspension of an attorney

The complaint alleged that Respondent, who was ordered to complete 20 hours of community service as part of her sentence for a traffic violation, submitted a report to Woodford County Court Services, falsely representing that she had completed her community service by volunteering at St. Mark’s Church, in Peoria, Illinois, when, in fact, she had not done any volunteer work for St. Mark’s Church, thereby acting dishonestly and in a manner that reflected adversely on her honesty. Prior to the complaint being filed, Respondent was indicted for forgery, a felony, for submitting that false report (720 ILCS 5/17-3(a)(2)); she pled guilty to the indictment and was placed on Second Chance Probation for two years. 

The Administrator had sought a suspension of five months.

Respondent had been ticketed for driving at 95 mph in a 55 mph zone.

At the disciplinary hearing, when Respondent was asked why she submitted a false report, Respondent testified that she “cut corners.” (C. 151, 165.) She also testified that she justified it in her mind because she had performed enough volunteer work at the Peoria Symphony Guild to satisfy the court imposed requirement of 20 hours of community service. (C. 154-158, 165.)

A special concurrence by Member Scott Szala

under Illinois law, Respondent can credibly argue that she was not required to report her felony guilty plea of forgery to her existing or future clients. However, since the long-standing purpose of ARDC discipline is, in part, to “protect the public,” In re Timpone, 157 Ill. 2d 178, 197 (1993), some existing or future clients could be troubled to learn that their attorney pled guilty to a felony under the Second Chance Probation statute but was not required to disclose that guilty plea to them. Accordingly, from a public policy standpoint, I bring this issue cto the attention of the Court for its consideration.

(Mike Frisch)

November 29, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 28, 2022

"The Worst Of The Worst" A Children's Court Judge With A Taste For Child Pornography

The Wisconsin Supreme Court has accepted the license revocation of a former judge

According to information obtained from the court's file of the proceedings in this matter, the CCAP and WSCCA websites,  and the materials attached to the OLR's misconduct summary, in March 2021, the State filed a criminal complaint against Attorney Blomme alleging that he possessed child pornography during a time period in which he served as a judge in the Children's Division of Milwaukee County Circuit Court ("Children's Court"). On the same day the State filed the criminal complaint, this court issued an order temporarily prohibiting Attorney Blomme from exercising the powers of a circuit court judge and temporarily withholding his judicial salary, effective the date of the order and until further order of the court.

He pled guilty to two counts of distributing child pornography.

Sanction

we accept Attorney Blomme's petition for the consensual revocation of his Wisconsin law license. We note that, according to the federal sentencing transcript attached to the OLR's misconduct summary, the sentencing judge described some of the child pornography involved in Attorney Blomme's case as "the worst of the worst." The judge also noted that Attorney Blomme's wrongdoing "wasn't just the possession" but also "the selection and distribution of particularly virulent child pornography." The judge also voiced concern that Attorney Blomme "committed [his] crimes in part at the courthouse" where he was responsible for cases involving children who had been abused. The judge described Attorney Blomme's behavior as "a huge stain on the reputation of the judiciary."

Justice Roggensack concurred but decried the lack of judicial action

Blomme was arrested on March 16, 2021, and did not formally resign his seat on the Milwaukee County Circuit Court until much later, on September 1, 2021. In all that time, the Judicial Commission took no public action.

 Over 600 days have passed since Blomme was arrested at his residence and taken into custody on March 16, 2021. Blomme was formally charged in Dane County Circuit Court with seven felony counts of possession of child pornography on March 17, 2021 (Dane County Case No. 2021CF647). Blomme made his initial appearance in Dane County Circuit Court on March 17, when he was released on signature bond.

...The Judicial Commission protects the public. I am concerned by their inaction.

Urban Milwaukee reported that he was sentenced to a nine-year prison term.(Mike Frisch)

November 28, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Disgraceful Delay Is The Norm

The most frustrating aspect of the District of Columbia bar disciplinary system is the interminable delays that have become endemic over the past twenty years.

Second most frustrating is that no one in a position to do anything about it seems to care one whit.

So I found this letter from retired Superior Court Judge Peter Wolf somewhat heartening

This issue of the Daily Washington Law Reporter reprints a District of Columbia Court of Appeals attorney disciplinary decision, In re Krame. I was the one who made complaints against Attorney Krame. I was obligated to do so under the Judicial Canons of Ethics, and for more reasons than appear in the DCCA opinion.

I am not writing to argue one way or another the outcome of Mr. Krame’s case; I was not even called to testify. I write only to suggest to the Bar that our disciplinary processes are too slow and that something should be done about it. Mr. Krame’s case is proof of this pudding.

My letter complaint to Bar Counsel (as Disciplinary Counsel was then called) was written July 16, 2007. The Court of Appeals decision is dated November 3, 2022. That is a total elapsed time of more than FIFTEEN YEARS. That is too long -- too long for the accused attorney and too long for the public that our disciplinary rules are designed to protect.

I realize that attorney discipline can affect an attorney’s livelihood; therefore, great due process care must be taken. Many of the disciplinary system participants are volunteers with busy and conflicting schedules. Disciplinary counsel is short-staffed and underfunded. Cases can be extremely complicated. Discovery and motions take time. Briefing takes more time beyond testimony and oral arguments. The tribunals involved conscientiously take time to consider and write their decisions.

The Krame case was exceptional. For example, my complaint was stetted until an awaited decision in In re D.M.B., 979 A.2d 15 (D.C. App. Aug. 20, 2009), a delay of 25 months. Thereafter, Bar Counsel resumed investigation and discovery, much of it contested, for about 45 months. A possible negotiated disposition, which failed, occupied another 18 months. Attorney screeners caused delay. Disciplinary Counsel concluded an expert witness was necessary; once chosen, money had to be allocated for her.

A four-count, 139-paragraph, 41-page Specification of Charges was eventually filed March 31, 2016, almost nine years after my complaint. A hearing committee took ten days of testimony in October-December 2016; after briefing, a decision was rendered on July 23, 2018 (206 pages). Then there was more briefing before the Board on Professional Responsibility, oral argument, and more time for its disposition on July 31, 2019 (57 pages). The attorney was temporarily suspended by the Court of Appeals on October 15, 2019. (He has already been suspended, then, for more than three years; the final DCCA disposition ordered suspension for 18 months.) There was briefing before the Court of Appeals. Oral argument was finally set for June 24, 2021. The 53-page slip opinion, reprinted in the D.W.L.R. today, came down 16 months after that.

But the discipline took 15 years overall! That’s obscene. While 15 years is conspicuously excessive, I am aware of other cases that have also been, in my opinion, too slow.

I’m 87 years old, retired, and for the last four years a resident of Winston-Salem, N.C. I no longer maintain much contact with D.C. So, my plea is for someone locally -- anyone (even a committee)! -- to look at this system and its procedures and funding and make it faster.

More effective attorney discipline was the primary reason the compulsory D.C. Bar was created 50 years ago. Discipline has been more effective. But over those 50 years has it become too slow? -- inefficient, even though effective?

Krame may be extreme, but extreme cases should provoke reassessment. Thanks to anyone who answers this call.

Krame is sadly not an outlier on delay. One case - In re Harris-Lindsey - took 22 years. 

Examples abound, see here and here for instance.

I was an Assistant Bar Counsel from 1984 to 2001. This species of delay never happened back then.

So what did happen?

I actually have a pretty good idea. First, there are a plethora of cases where the "investigation" of a complaint that led to charges took five to eight years. That's on Disciplinary Counsel. Second, neither the Board on Professional Responsibility or the Court of Appeals has deemed it appropriate or necessary to even criticize delays. That's on the whole system. 

Let's see if anyone (say the Court of Appeals, which bears ultimate responsibility) responds to Judge Wolf's call to answer that question and takes meaningful action.

I am not going to hold my breath waiting. (Mike Frisch)

November 28, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, November 27, 2022

Bike Rental Dispute Leads To Judicial Misconduct Charges

A dispute over rented bicycles has led to charges of judicial misconduct before the Michigan Judicial Tenure Commission

Respondent attended a judicial conference on Mackinac Island on August 20, 2019.

Respondent rented bicycles from the Mackinac Island Bike Shop on Main Street for herself and a colleague.

Respondent Brue provided her credit card number to the staff of the bicycle rental shop before she was given bicycles for herself and the colleague.

When they returned their bicycles to the shop, respondent and her colleague explained to the bicycle shop staff that the colleague had a problem operating the bicycle.

Respondent did not want to pay full price for the rentals and asked a staff member for an accommodation. The staff member summoned his supervisor.

Respondent Brue spoke with the supervisor and again asked for an accommodation. The request was denied.

Respondent Brue told at least one of those two employees that she and the colleague were judges.

One of the employees summoned Ira Green, the proprietor of the bike shop.

Mr. Green and respondent spoke for approximately 20 minutes but were not able to resolve their disagreement over how much to pay.

During her discussion with Mr. Green respondent Brue said words to the following effect:
You’re going to call the police on two black judges. . . We’re trying to explain to you the situation with the bikes and so now you want to call the police officers on us.
****
I am absolutely a judge.

During her discussion with Mr. Green respondent reached over the cash register and forcibly attempted to take the bike rental paper out of Mr. Green’s hand, ripping the paper.

Respondent Brue then said to Mr. Green words to the effect:
You assaulted me. Did you just assault me? You took my receipt and tore it up. I want the police. Now we need the police. I am going to call them. Because you just assaulted an elected official who is here. . . who came here by invitation for a conference. You assaulted me. I asked you for my receipt back. You snatched my receipt back from me. You snatched my receipt and threw it away and grabbed my hand and you hurt me. You touched my hand with force and violence. I am a female. I am a judge. I am here for a conference and you --- . . . --- I am an African America female. That was racist, and it was disrespectful and it was violent.

No, you settle down. You touched me. I am afraid, I’m shaken. I’m in fear of my safety. --- With violence.” Do you know what is now going to happen to you, a Caucasian man that’s found guilty of striking an African American female judge?

The police responded and, allegedly, the judge made false statements

When Officer Hardy returned from watching the video of the incident, he told respondent Brue words to the effect of “it looks like you did the assault.” He demonstrated multiple times what he saw respondent Brue do that was captured on the video.

Then

Respondent Brue eventually admitted to Officer Hardy that Mr. Green had not assaulted her, and that she had reached across the counter and attempted to take the paper from Mr. Green.

Trooper Bergsma negotiated a settlement whereby respondent Brue and her colleague did not pay for their bicycle rentals, Mr. Green provided respondent Brue a receipt showing that she did not owe any money, and respondent Brue and Mr. Green would not seek to prosecute the other.

The judge also is alleged to have made false statements to the Commission concerning the incident.

Editor's note: The Michigan Judicial Tenure Commission web site is first rate. Highly informative with easy access to case information. (Mike Frisch)

November 27, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

On The Clock

A six-month suspension imposed by the South Carolina Supreme Court

After graduating from law school, Respondent was employed with a law firm as a law clerk. Upon being admitted to practice in November 2017, Respondent became an associate with the firm in an hourly position. The firm used computer software to track working hours in real time, and throughout 2018, Respondent used the software to clock in and out during times when he was not in the office or otherwise working in an effort to inflate his hours and increase his pay.  At tax time, Respondent's supervising attorney discovered the discrepancy and confronted Respondent on January 24, 2019. The total amount of overpayment was $17,722.74. Respondent initially denied misconduct, but later admitted what he had done. When Respondent's supervisor expressed his ethical duty to report Respondent's misconduct, Respondent requested an opportunity to self-report.

He self-reported and made full restitution

In his affidavit in mitigation, Respondent expresses remorse and explains that his preoccupation with financial security arose from his disadvantaged upbringing. Respondent explains that he erred in allowing his desperation to prove his personal worthiness and to achieve financial security to eclipse his better judgment. Respondent also states he has worked with several counselors to understand why he committed misconduct.

(Mike Frisch)

November 27, 2022 in Bar Discipline & Process | Permalink | Comments (0)