Legal Profession Blog

An Incident In Pueblo

The Colorado Presiding Disciplinary Judge accepted a stipulated disbarment for multiple violations

In December 2020, two clients paid Gradisar $12,500.00 as a retainer. Gradisar took the funds for his own use even though he knew that he did not perform legal services to earn the funds and knew that his clients had not authorized him to take the money. Gradisar closed his office in July 2021 but did not notify his clients or inform them that he was no longer practicing law.

In another matter, two clients paid Gradisar $10,000.00 in May 2021 as an advance retainer for his representation in a trial set for June 2021. On Gradisar’s motion, the court continued the trial until January 2022 and scheduled a status conference for September 2021. On July 1, 2021, Gradisar was administratively suspended from the practice of law. He did not notify the court or his clients of his suspension or move to withdraw from the case. Gradisar failed to appear at the status conference. Gradisar informed his clients of his suspension more than five months after it took effect, telling them that he had prepared for their trial and would petition to reinstate before the trial date. The week before trial, the clients moved to continue the hearing, stating that Gradisar did not notify them of his suspension until late December 2021. On the hearing date, the court denied the motion and dismissed the clients’ case with prejudice. Gradisar knew
that he did not earn the $10,000.00 trial fee and that his clients had not authorized him to take their funds for his own use. Even so, he used the funds for his own purposes.

During his suspension, Gradisar performed legal work by sending a letter written on his office stationary to a collection company on behalf of another; attending court appearances; exchanging paperwork to finalize a client matter; preparing for a trial and paying himself for the work from the client’s retainer; and discussing potential legal work with clients.

Finally, Gradisar was arrested in April 2022 for felony criminal mischief related to domestic violence. In June 2022, he was charged with criminal mischief, a class-five felony, in Pueblo County Court. Gradisar did not notify disciplinary authorities of the case, which remains pending. In November 2022, Gradisar’s significant other sought a temporary restraining order against him related to a domestic violence complaint. The court granted a temporary civil protection order and continued the order in January 2023. A permanent protection order hearing was set for April 2023.

KRDO reported on the arrest

The son of Pueblo Mayor Nick Gradisar and a prominent attorney faces felony criminal mischief charges following an incident in Pueblo on April 23.

Douglas Gradisar is accused of causing between $5,000 and $20,000 in damages to the inside of a home he shared with his former girlfriend, Shawna Santistevan.

According to court documents, Gradisar was originally charged with felony menacing, domestic violence, and harassment.

Arrest documents obtained by 13 Investigates say his former girlfriend, the victim, called the Pueblo Police Department on the morning of April 23, 2022. She told police that Gradisar said their home had been broken into and there was extensive damage inside the home.

Officers entered the home and saw "broken furniture on the ground and broken glass on the floor." She told police most of the broken items belonged to her, arrest documents say.

As officers began searching the home, they found that Gradisar's pinball machine, arcade game, and music equipment were all intact. The victim provided 13 Investigates with photos of the damage inside her shared home with Gradisar.

Pueblo Police officers arrested Douglas that morning. He was booked into the Pueblo County Jail and two days later posted a $5,000 personal recognizance bond and was released.

However, on April 28, documents were filed that said the case was dismissed.

Documents obtained by 13 Investigates say Pueblo District Attorney Jeff Chostner did not believe there was enough evidence to proceed. The document reads, "there is insufficient information provided in the reports submitted by law enforcement to indicate how law enforcement was able to determine it was the suspect who committed the alleged offenses."

 

In a statement to 13 Investigates, Chostner said, "The case was put in a “no-action” posture, pending additional information/investigation by the Pueblo Police Department. Once we received that, we believed we had sufficient evidence to proceed and we did."

More than a month later on June 6, Chostner filed a motion to reinstate the case. Court documents say "additional follow up investigation was conducted by the Pueblo Police Department and additional information was provided to the District Attorney's Office."

For the last three months, 13 Investigates has asked for answers about what evidence was missing in the initial investigation and what "additional follow up" was done.

Pueblo Police Chief Chris Noeller issued this statement to 13 Investigates:

The case is still open and active so I can’t go into detail, but there were additional interviews that needed to be conducted, and evidence that needed to be collected that was not collected by the officers that night.

Pueblo Police Chief Chris Noeller

When asked about what new evidence came to light, Noeller said:

"As soon as I discovered the deficiencies with this case, I had a detective from our Special Victims Unit assigned to investigate the case and conduct further follow up.  This follow up was conducted and the case with the new information was presented to the DA’s Office.  Unfortunately, I cannot discuss the evidence in this case as this is an ongoing investigation and as you noted still in active court proceedings.  I don’t want to affect the case one way or another.  What I can say, as I’ve stated in the past, is this was not an example of our best work and for that I apologize to all involved.  We caught the deficiencies, we’ve addressed them with our staff, and we completed a more thorough investigation which the DA’s Office reviewed and has charged.  To state anything further would be inappropriate at this time."

Pueblo Police Chief Chris Noeller

13 Investigates first learned of Gradisar's charges in late April. A citizen informed Pueblo City Council member Regina Maestri of the charges. She says she became concerned when the charges were put into a "no-action" posture.

"Obviously something took place and as I further looked into it, I found that the accused was trying to have the records sealed," Maestri said.

Maestri is referring to an effort made by Gradisar's defense attorney Adam Schultz to seal the records related to the case.

The motion was filed on May 3 by Schultz. In response, Chostner indicates that there is a possibility of charges being refiled in the case. They asked Judge David Alexander to not grant the motion to seal all records related to the case. Judge Alexander chose not to seal the records.

"I was elected and stood to be a voice for this community," Maestri said. "To bring change to this community, to bring transparency to this community."

The victim in the case told 13 Investigates that she is worried for her safety and did not feel comfortable speaking out. Maestri says she never wants a Pueblo citizen to feel like they can't speak out.

"If victims do not feel comfortable speaking out, I am comfortable speaking out for any victim in this community because that is what you elected me for," Maestri said.

13 Investigates reached out to Pueblo Mayor Nick Gradisar for comment on his the allegations against his son. Gradisar said:

I love my son and it is shameful that my status as an elected official makes some people believe that his legal troubles, which have nothing to do with me, can be used to politicize his unfortunate situation. 

Mayor Nick Gradisar

Maestri said she is not speaking out as a way to seek political gain or politicize the situation. Rather, to shed light on how prevalent domestic violence crimes are in Pueblo.

"That's is a selfish statement from the Mayor. That he is more worried about his political career than he is about the well-being of our community," Maestri said. "I'll have critics for coming forward and being a voice for all victims, especially with this one being the Mayor's son."

The City Council member cited two domestic violence homicides occurring in early 2022 as a large reason for feeling the need to come forward.

13 Investigates reached out to Chief Noeller and District Attorney Chostner for interviews regarding this case. Both declined and cited open investigations and ongoing litigation as the reasons why. Gradisar's defense attorney Adam Schultz declined to comment on his client's charges as well.

Gradisar will be back in court on September 1.

(Mike Frisch)

A Balance Of $2.15

An interim suspension has been ordered by the New York Appellate Division for the First Judicial Department on these facts

In March 2022, the AGC received a complaint from S.M., a client who respondent had represented in the sale of an apartment. On September 23, 2021, in connection with the sale, respondent deposited into his escrow account the contract deposit for $63,700. Thereafter, withdrawals from the account via online transfers to a linked checking account were made resulting in the account balance dropping to $51,906.16 on January 21, 2022. As of February 2, 2022, seven days prior to the closing, the escrow records showed a balance of only $3,781.16. At the closing on February 9, 2022, respondent received $32,735.15, representing the balance of the purchase price. After seller expenses, respondent was to wire his client the balance of the proceeds totaling $78,086.14, but he failed to do so.

On April 22, 2022, the Lawyers' Fund for Client Protection notified the AGC that on March 24, 2022, an escrow check from respondent's account for $250 had been dishonored and returned for insufficient funds. Respondent's escrow account records shows that as of March 11, 2022, his account balance was $2.15.

In his October 2022 answer to the complaint, respondent explained that, during the COVID-19 pandemic, he had developed an addiction to methamphetamine, spent several weeks at a Nevada facility receiving intensive treatment for his addiction and agreed to join an attorney monitoring program and be randomly drug tested. Additionally, respondent admitted having used his client's funds for his own personal use during his addiction and that the $250 check was dishonored due to his having wrongfully written the escrow check to himself. Respondent explained that he had fully repaid S.M. by October 2022.

The court

Here, the bank records and respondent's admissions sufficiently demonstrate that respondent engaged in professional misconduct by intentionally converting and/or misappropriating client funds maintained in his IOLA account, warranting his immediate suspension from the practice of law (see Matter of Grant, 184 AD3d 315 [1st Dept 2020]; Matter of Goldsmith, 159 AD3d 188 [1st Dept 2018]; Matter of Pierre, 153 AD3d 306 [1st Dept 2017]; Matter of Reid, 137 AD3d 25 [1st Dept 2016]). Moreover, respondent's delinquency in his attorney registration provides another ground for his suspension (see Judiciary Law § 468-a; Matter of McCrea, 211 AD3d 167, 170 [1st Dept 2022]; Matter of Willner, 209 AD3d 47, 50 [1st Dept 2022]).

(Mike Frisch)

Accused Attorney Cannot Cross-Examine Complaining Witness

The British Columbia Law Society Hearing Division has granted an adjournment to permit the Respondent to secure counsel and arrange for someone other than Respondent to cross-examine the key witness

The Respondent practises in Nanaimo. He has been a member of the BC bar for just over 47 years.

He has been cited for conduct alleged to have occurred at an examination for discovery he conducted of the female opposing party (“CK”) in a family law matter. The Citation alleges that during and after the examination:

(a)        he made statements that were discourteous, uncivil, offensive, or demeaning, and

(b)        he engaged in harassment by inappropriate conduct or comments toward CK, that he knew or ought to have known were unwanted and could have the effect of violating CK’s dignity.

The alleged conduct occurred on September 16, 2020. The Citation was authorized on June 6, 2022.

 

The hearing

 

Proceeding with the hearing would have created unfairness to both the Respondent and the complainant, CK. The Respondent, although he had initially decided to proceed without counsel, changed his mind after speaking with Ms. Brown. Mr. Beaubier on the Respondent’s behalf noted some contested evidentiary issues that the hearing panel will face, both in terms of what he says are highly relevant documents the Respondent may try to introduce, but whose admissibility the Law Society disputes, and in whether the opinion of Ms. Brown in her affidavit can be admitted as expert evidence. It is preferable for a fair hearing that the Respondent have able and impartial counsel to address these issues, to conduct witness examination, and to make submissions. There is wisdom in the old maxim about the foolishness of those who represent themselves.

 

It is also very unfair to CK to put her in the unenviable position of having to agree to the Respondent personally cross-examining her in return for the hearing proceeding. While it is commendable that she agreed to do so to help preserve the hearing dates, the concerns that underlay my original order to appoint counsel to cross-examine have not gone away. The crux of the disputed allegations is the conduct of the Respondent while cross-examining CK. Repeating the process is not a helpful exercise for the parties or the hearing panel.

 

(Mike Frisch)

Jurisdiction Retained

A Disciplinary Hearing Panel of the Manitoba Law Society holds that it retains jurisdiction to discipline an attorney

Ms. Cramer was called to the bar in 1962. She practised for almost 60 years with only one disciplinary matter on her record. She was the subject of two citations in 2020 and retained prominent, experienced counsel, Saul Simmonds, to represent her. Through negotiations in December 2020 with senior staff of the Society (Leah Kosokowsky, the current CEO of the Society), it was agreed that in exchange for Ms. Cramer's commitment to voluntarily retire from practice no later than February 14, 2021 and to enter into an undertaking that took effect on December 14, 2020, the Society would not proceed to a Discipline panel with the charges in the two 2020 citations.

 It is apparent from the record that the Society alleges that Ms. Cramer did not comply with that undertaking and the Society issued a third citation, in 2022, against her relating to her activities following the agreement to retire and the undertaking signed December 7, 2020. The Society also suspended Ms. Cramer from practice on an interim basis. Ms. Cramer has not admitted to the allegations in any of the citations.

The argument that retirement equates with resignation was rejected

Neither Mr. Hill nor Mr. Kravetsky had any precedent decisions from this or any other jurisdiction on the issue of whether retirement is equivalent to resignation. Mr. Kravetsky submitted that this is because the Act is clear and the argument in this case is novel and contrary to the express provisions of the Act.

This panel finds that the provisions of s. 17 of the Act are clear as to the requirements for a resignation to be effective in ending the membership of a practitioner. Only when a panel of the Society hearing a disciplinary matter concerning the member makes an order permitting the member to resign, can a resignation be effective and membership ended on that basis. No such panel order has occurred yet in this case, and none is asserted to have occurred.

In fact, at the time of the agreement between the parties, Ms. Cramer formally applied to be accepted as a non-practising member of the Society and submitted her payment to gain that status ($100 plus GST). There is no suggestion that she was misled about her withdrawal from practice and changing her membership in the Society, while she was represented by senior, experienced counsel.

 

It can be added that lawyers who choose to cease practice for reasons other than death generally retire and must meet the requirements of the Society to care for the interests of their clients in doing so. That act of retirement does not remove their membership status or the Society’s jurisdiction over them. They are either non-practising or inactive, per their election. In some instances, lawyers come out of retirement and to do so, request the Society to accept them back as practising members in good standing on whatever conditions the Society imposes. The third citation in this matter alleges that Ms. Cramer effectively came out of retirement without the Society’s approval, and in contravention of her undertaking at the time of her December 2020 retirement.

 

For all of the above reasons, this panel rejects the jurisdiction submission on behalf of Ms. Cramer and finds that the Society retains jurisdiction over her. The parties may now proceed to schedule a hearing on the three (3) citations at a time convenient to all.

 

(Mike Frisch)

A Question Of Balance: The Return Of Ruthie

The Iowa Supreme Court affirmed a decision to deny intervention into the reopening of the estate of a deceased but notable citizen

Ruth Bisignano—“Ruthie,” as she was professionally known—owned and operated a popular bar in Des Moines throughout the 1950s and ’60s called “Ruthie’s Lounge.” She was famously (or, to some, scandalously) known for her ability to serve beer by balancing two pint glasses on her chest in a bar trick she referred to as the “well-balanced glass of beer.” The trick earned her both attention in newspapers across the country and a premium price on drinks— reportedly charging about three times as much as other bars in town. It also earned her some legal trouble, although perhaps of the no-such-thing-as-bad-publicity variety. Ruth was criminally charged several times for performing her serving trick with allegations that included “indecent dress and behavior” and “indecent behavior and running her lounge in a loud, boisterous manner with the juke box blaring.” And in 1955, the IRS came after Ruth for unpaid taxes totaling $44,694, alleging that her beer-balancing trick qualified as entertainment and made her bar subject to the tax on “cabarets.” In 1971, she sold her bar and closed the door on her bartending and tavern-operating days.

Her legacy revived (and the basis for reopening the estate on allegations of misappropriation)

In 2012, Exile Brewing Company (Exile), taking Ruth and her contributions to the beer and restaurant industry as an inspiration, named one of its craft beers “Ruthie” and used Ruth’s image performing her serving trick on bottles, cans, beer taps, and other paraphernalia. Today Ruthie is the best-selling Iowa-made beer in the state. Before it began selling the Ruthie beer, Exile searched for trademarks and products sold under the name “Ruthie,” searched for pictures of Ruth, and searched for children, an estate, or a trust for her. Exile alleges that the search came up empty, so it began selling the beer using the name “Ruthie” and Ruth’s likeness. Exile applied for a federal trademark for “RUTHIE” in 2019, which was granted in 2021.

Ruthie passed in 1993; her husband Frank followed in 1996

Fred Huntsman is Frank Bisignano’s nephew and the son of Frank’s deceased sister Barbara Hamand. In March 2020, Huntsman filed a petition to reopen Frank’s estate, alleging that he “hired an attorney to investigate and pursue potential claims against a corporation” that, if successful, would benefit Frank’s estate.

Exile's efforts to intervene and close the estate fell on deaf beers 

Because we affirm the district court’s judgment on the threshold issue denying Exile’s attempt to intervene in the matter and striking Exile’s motion to vacate, dismiss, and close the estates, we need not address the merits of the other issues raised in that motion.

Merits

Our holding in this appeal rests exclusively on the probate court’s decision to reject Exile’s attempt to intervene and to strike Exile’s motion to vacate, dismiss, and close. We advance no views and take no position on the existence or inheritability of Ruth’s name, image, and likeness rights. Exile’s only connection to the probate proceedings is as a potential debtor to the estates. We will not turn the probate court’s simple reopening of the estates into a second litigation over whether or to whom the potential debt is owed where Exile has no other connection to the estates. Exile has the opportunity to raise its defenses in the civil lawsuit to determine whether it is in fact a debtor. 

From the Des Moines Register

The late Ruthie Bisignano was a national sensation in the 1950s for her unusual bar-keeping skills. She could balance a beer glass on each of her 48DD breasts, fill the glasses and deliver them to wide-eyed customers without spilling a drop.

“Well,” remembered 102-year-old Louis Frederick, “she was pretty well-endowed in the chest area. She had on a garment that enhanced that. She would lean back until she made a platform out of that chest and she carried those beers around like a million bucks!”

The Register reported that the memories of Ruthie flowed like beer on tap

Ruthie Bisignano had a few other last names. She was said to have been married 15 times to eight men — once to three men at the same time — before settling on Frank Bisignano for the final 32 years before her death in 1993.

She opened Ruthie’s Lounge in Des Moines in 1950 at 1311 Locust St., moving to various locations over 21 years before it closed.

But the Locust Street location was best known and was where famous movie director Cecil D. DeMille once showed up to see her exploits. He convinced her to raise her prices from the standard 17 cents a glass of most taverns of the time to 50 cents because of her special talents.

“We always gave her a tip, good ones too,” said Frederick.

Ruthie once told former Des Moines Register columnist George Mills that she made as much as $250 on weeknights when a lot of traveling salesman were in town.

Somehow The Music Man missed this story. 

Notably

Her feats earned her space in numerous national magazines, a pair of mountains named after her by Korean War soldiers (“The Ruthies”), a photograph session with President Eisenhower at the Iowa State Fair and a visit by the Des Moines cops, as chronicled in Bill Bryson’s book “The Life and Times of the Thunderbolt Kid.”

The Iowa Capital Dispatch has extensive coverage of related (and contentious) federal court litigation. (Mike Frisch)

Crimes In The Corn

A voluntary license surrender was accepted by the Nebraska Supreme Court, which imposed disbarment of an attorney admitted in 2002.

The multiple complaints involved both client-related and  criminal conduct of the attorney

Count IV concerns intimate partner violence and arises out of a criminal complaint filed against the respondent on October 26, 2020, in the county court for Douglas County, case No. CR 20-19892. The respondent was charged with five counts: (1) domestic assault, third degree, Class I misdemeanor, on August 27; (2) criminal trespass, first degree, on August 27; (3) criminal mischief, $0 to $500, on September 26; (4) domestic assault, third degree, Class I misdemeanor, on September 26; and (5) criminal trespass, first degree, on September 26. On May 27, 2021, the respondent entered a plea of no contest to an amended count of disturbing the peace, a Class III misdemeanor. All other counts were dismissed.

Later

Count V arises from the criminal complaint, case No. CR 20-22584, arising from the respondent’s later assault of November 27, 2020, on the same victim. On December 11, the respondent was charged with domestic assault, third degree, a Class I misdemeanor.

In May 2021, the respondent entered a plea of no contest to an amended count of disturbing the peace, a Class III misdemeanor.

Driving offenses

Count VI of the amended formal charges alleges that on April 8, 2021, a criminal complaint was filed against the respondent in the county court for Douglas County, case No. CR 21-5801. The respondent was charged with driving under the influence, first offense, a Class W misdemeanor, and careless driving, based on events which occurred on February 7. The respondent entered a plea of no contest to the driving under the influence charge, and the careless driving charge was dismissed. The court ordered the respondent to participate in a sobriety program, but he failed to comply. On March 15, 2022, a bench warrant was issued for his arrest, and the respondent was arrested. He was released from jail on March 25 on his own recognizance...

Count VII arose out of a criminal complaint filed against the respondent in the county court for Douglas County on June 18, 2021, in case No. CR 21-9839. The respondent was charged with driving during revocation/impoundment, a Class II misdemeanor, and driving a vehicle without a valid registration, a Class III misdemeanor, which events occurred on May 13. The respondent entered a plea of no contest to the charge of driving during revocation/impoundment, and the registration charge was dismissed.

More domestic violence

Count VIII arises out of a criminal complaint filed against the respondent in the county court for Douglas County, case No. CR 21-10233. The respondent was charged with five counts of violating a domestic violence protection order in May and June 2021. Each count is a Class I misdemeanor. On March 8, 2022, the respondent entered a plea of no contest to all counts. 

There were additional driving offenses.

The case is STATE EX REL. COUNSEL FOR DIS. V. MAXELL Cite as 314 Neb. 346. (Mike Frisch)

A Provident Exercise Of Discretion

An effort by a law firm to collect a contingent fee was rejected by the New York Appellate Division for the First Judicial Department

The motion court's award to Napoli, plaintiff's prior counsel, of $300 for the costs incurred in connection with its preliminary investigation of the matter, rather than 40% of the net contingency fee that Napoli sought, was a provident exercise of discretion (see Han Soo Lee v Riverhead Bay Motors, 110 AD3d 436 [1st Dept 2013]; Hinds v Kilgallen, 83 AD3d 781, 782 [2d Dept 2011]). The court providently apportioned the legal fee to reflect that current counsel, Scott A. Wolinetz, P.C., not Napoli, commenced the lawsuit that resulted in the settlement of plaintiff's workers' compensation action. Napoli only preliminarily investigated the matter over approximately three months, including obtaining medical records from only one of plaintiff's several medical providers and submitting certain no-fault and workers' compensation applications and medical authorizations. By contrast, Wolinetz demonstrated that it commenced the underlying action, conducted discovery and depositions, engaged in motion practice, and negotiated the settlement that resulted in an award to plaintiff.

We have considered Napoli's remaining arguments and find them unavailing.

Bad Bets

The imposition of an interim suspension by a single justice was affirmed by the full Massachusetts Supreme Judicial Court.

The allegations

The petition asserts that Tariri had misappropriated hundreds of thousands of dollars of client funds to support a gambling addiction and pay personal debts. More specifically, the petition asserted, among other things, that Tariri represented a client (client A) with respect to client A's residential property purchase; that Tariri held certain of client A's funds for that purpose in an Interest on Lawyers' Trust Account (IOLTA account); and that Tariri misused those funds to purchase lottery tickets. In the process, Tariri allegedly failed to make certain wire transfers in connection with client A's property purchase; deposited money from other clients in the IOLTA account; and used the money from other clients to make the required payments for client A's property purchase.

In another instance, the petition avers, Tariri repeatedly borrowed money from a client (client B) who he had represented in a variety of matters. One of those matters allegedly resulted in a monetary settlement between client B and the Commonwealth pursuant to which the Commonwealth paid client B a set sum. According to the petition, the amount of money that Tariri borrowed from client B was approximately the same amount of money that Tariri knew client B had received in the settlement. Tariri subsequently wrote checks to client B to repay the loan, but each time he did so, the checks were returned for insufficient funds. Although Tariri allegedly did eventually repay some of the loan to client B, the petition avers that the loan was never fully repaid and that client B eventually filed a complaint against Tariri with the board. 

The petition also alleges several other instances of Tariri borrowing money from current and former clients and of writing checks to repay the loans only to have those checks returned for insufficient funds.

On review

There was, in short, "sufficient evidence . . . from which the single justice could have concluded that [Tariri] posed a threat to present and potential clients." Matter of Kenney, 399 Mass. 431, 434-435 (1987).

The single justice did not err or abuse his discretion in concluding that a temporary suspension was warranted.

A Tenth Of An Hour

An opinion issued today by the New Jersey Appellate Division

In this appeal from summary judgment in a breach of contract action, defendants argue plaintiff law firm violated rules of professional conduct by failing to disclose in its retainer agreement the unit of incremental billing – one tenth of an hour – it would utilize during the course of representation.  Plaintiff and defendants entered two retainer agreements, both of which disclosed a required initial deposit, the hourly rates of each attorney at the firm, and which party was responsible for certain administrative costs. 

Plaintiff represented defendants for more than two years pursuant to the parties' retainer agreements, sending monthly and bimonthly invoices throughout the duration demonstrating work billed in increments of one-tenth of an hour.  When defendants refused to remain current with outstanding fees, plaintiff ceased representation and instituted the breach of contract action. The trial court granted summary judgment.  Defendants urged reversal on appeal.

The court affirmed summary judgment as properly granted, and held the retainer agreement was lawful and ethical where, among other things, it sufficiently apprised the clients of the express terms of the agreement in accordance with RPC 1.5(b), and the parties' course of conduct for two years demonstrated assent to those terms.

The background

When AMG commenced representing defendants in the Sollecito matter, discovery had already commenced. AMG was the seventh law firm to represent defendants in the Sollecito matter, in which there were thirty different parties, sixteen different law firms, and tens of thousands of pages of discovery. The issue before us involves a fee dispute for AMG's legal work in the Sollecito matter.

The parties operated under a retainer agreement for two years; a second retainer addressed another matter involving a fee dispute with a former firm

Ultimately, AMG ended its legal representation of defendants in the Sollecito and W&M matters, substituting out of both cases in July 2020.

In this dispute

Defendants argue a retainer agreement must explain which increment of time--for example, one-tenth of an hour--the law firm will be utilizing despite hourly rates and initial deposits being otherwise clearly defined. The trial court noted a dearth of case law, statutes, and comments to the rule addressing this issue and ruled AMG was entitled to summary judgment for breach of contract. We agree.

The agreement passed ethical muster

Having reviewed the express terms of both retainer agreements entered into between AMG and defendants, we find AMG's agreements with defendants comport with RPC 1.5, fully apprising defendants of their fee, and affirm for substantially the same reasons as the trial court. Further, based upon the parties' course of dealing, where defendants availed themselves of AMG's legal services for more than two years without objecting to any invoices or raising the incremental billing issue, defendants' claim suggests an improper motive. Defendants' assertion they were unaware billing was occurring in increments of one-tenth of an hour is not supported by the record. We add only the following observation regarding defendants' claim a retainer agreement must include the unit of incremental billing by which a client will be charged.

Based upon our review of the relevant rules, commentary thereto, and case law, there is no rule as rigorous as the one defendants urge us to adopt; there is no specific pronouncement requiring a retainer agreement to explicitly set forth the unit of incremental billing to be used. Defendants urge us to require retainer agreements include disclosure of incremental billing units, although unsupported in our current jurisprudence. While the request is perhaps an issue for one of our Supreme Court's practice committees, it cannot provide a basis for reversal of summary judgment in this case. To pronounce otherwise would usurp our Supreme Court's exclusive rulemaking process. 

(Mike Frisch)

A Good Day In D.C.

It is always a good day when the District of Columbia Court of Appeals approves a consent disposition in a bar discipline matter. 

When they accept two in a day, yippie!

One involved a public censure and probation for a trust account lapse

We are satisfied that the dishonored check in question would not support a charge of misappropriation (negligent or otherwise) because it involved an attempted transfer between respondent’s IOLTA and her operating account, such that she would have continued to hold the requisite amount of entrusted funds between those two accounts even had the check cleared. See In re Ekekwe-Kauffman, 210 A.3d 775, 794 (D.C. 2019) (per curiam) (“[E]ven depositing unearned funds into an operating account, though it violates Rule 1.15’s prohibition against commingling, does not
alone constitute misappropriation. . . . For misappropriation to occur, the balance in that account must fall below the amount the lawyer was required to hold in trust for the client at that particular time.”) (emphasis added); In re Pels, 653 A.2d 388, 394-95 (D.C. 1995) (confirming that misappropriation occurs when a check disbursing entrusted funds is dishonored if there is no evidence that the attorney held sufficient funds in another account).

The other involved a one-year suspension with six months stayed

Respondent Richard J. Tappan voluntarily acknowledged that, in connection with his appointment as guardian and conservator in a probate case, he failed to provide competent representation and to serve the client with commensurate skill and care; failed to represent the client zealously and diligently and to act with reasonable promptness; charged unreasonable fees in his fee petitions to the probate court; failed to maintain complete records of entrusted funds; and engaged in conduct involving at least reckless dishonesty and that seriously interfered with the administration of justice. As a result, respondent admits that he violated D.C. R. Prof. Conduct 1.1(a)-(b), 1.3(a) & (c), 1.5(a), 1.15(a), and 8.4(c)-(d). 

A win for much-desired efficiency.

Before you get too excited, note that the first matter was docketed for investigation in 2018 and the second one in 2019. (Mike Frisch)

"Of A Kind With That Of Countless Litigants"

Neither Rule 11 or inherent authority justified the award of sanction against a losing litigant, according to a decision issued today by the District of Columbia Court of Appeals

In sum, we cannot discern clear and convincing evidence in the record that Ms. Yeh’s actions in pursuing her case remotely resembled conduct we have previously affirmed as sanctionable. She perpetrated no flagrant fraud on the court, she did not wantonly disobey its orders, and she did not knowingly violate any professional ethical duties. Although we do not condone Ms. Yeh’s apparently halfhearted approach to the discovery process, her behavior overall appears of a kind with that of countless litigants in our courts who bring ill-supported claims under acrimonious conditions and ultimately lose on the merits—and far from the extraordinary circumstances or egregious misconduct that would justify invocation of the bad-faith exception. We conclude that the trial court’s finding of bad faith was clearly erroneous and consequently that the court abused its discretion in sanctioning Ms. Yeh under its inherent authority.

The case

Marianna Yeh sued Gary Hnath in Superior Court for a divorce, asserting that the two were in a common-law marriage. Mr. Hnath successfully moved for summary judgment and sought sanctions against Ms. Yeh in the form of attorneys’ fees. Citing Super. Ct. Dom. Rel. R. 11 and the court’s inherent authority, the Superior Court granted Mr. Hnath’s sanctions motion and ordered Ms. Yeh to pay over $70,000 in fees.

Associate Judge Easterly authored the opinion. (Mike Frisch)

Lost Hollow

The Ohio Supreme Court has imposed an 18-month suspension with 12 months conditionally stayed for misconduct described in a summary by Dan Trevas

A Franklin County attorney is suspended for 18 months, with one year stayed, for engaging in an impermissible conflict of interest, making false statements to a court, and  “intentionally and habitually” filing frivolous motions, the Supreme Court of Ohio ruled today.

In a unanimous per curiam opinion, the Supreme Court suspended Brent Stobbs of Reynoldsburg for his actions in three cases, two dealing with attempts to resolve issues with the Lost Hollow Campgrounds in Hocking County. The attorney for the campground incurred $5,812 in expenses to fend off legal maneuvers by Stobbs that were found to be frivolous. Stobbs must pay the expenses within 90 days, the Court ruled.

In 2002, the Office of the Disciplinary Counsel filed a complaint against Stobbs with the Board of Professional Conduct. The board found Stobbs violated seven ethical rules while representing clients in three matters.

Lawyers Filings ‘Had No Basis in Law or Fact’
Judy Davis owned a lot in Lost Hollow Campground. She was part of the Lost Hollow Property Owners Association and wanted to challenge the association’s efforts to apply R.C. Chapter 5312 (governing planned residential communities) to the campground, despite the fact that the original plat and rules for the campground prohibited permanent residential structures. Davis hired Stobbs, who sought a declaratory judgment from the Hocking County Common Pleas Court to establish that R.C. Chapter 3729, which regulates camping facilities, rather than R.C. Chapter 5312, applied to Lost Hollow Campground. Stobbs named the Lost Hollow Property Owners Association, its board of directors, and two individuals as the defendants.

The trial court dismissed the case without prejudice at the campground’s request because Stobbs had failed to include all 386 property owners as parties in the case.

In April 2019, Stobbs filed a motion to vacate the dismissal. He argued that he did not need to include all 386 property owners for the merits of the case to be considered because he named the property owners association as a defendant. The trial court denied the motion.

In June 2019, Stobbs filed additional motions in an attempt to have the Hocking County court hear the case. One motion asked for a new trial by reiterating the claims he made in April, which the judge had already rejected. The campground’s attorneys objected to Stobbs’ motion and sought sanctions against him. The attorneys argued that Stobbs engaged in frivolous conduct by rehashing the same arguments that were just denied by the trial court.

Stobbs reacted by attempting to have the campground’s attorney removed from the case and to strike the defendants’ pleadings from the case. In February 2020, the trial court overruled all of Stobbs’ requests and determined that all but one of his arguments were filed “in bad faith and had no basis in law or fact.” The judge ordered Stobbs to pay $5,812 in attorney fees incurred by the campground to defend against Stobbs’ frivolous filings.

Attorney Attempts to Take Case to Another Court
After losing in Hocking County, Stobbs devised a plan with his client Davis and with Laura Wurzburger, another Lost Hollow property owner. Wurzburger would file a complaint against Davis in Franklin County Municipal Court. They would claim they were suing about matters dealing with campground property, and as part of this case, would ask the court to declare the transactions are not governed by R.C. Chapter 5312, dealing with planned communities. Their plan was to secure a judgment that the law did not apply to campgrounds, and then settle the case.

Stobbs informed the women that he had a conflict of interest and could not represent them both in the Franklin County case. Stobbs would later testify that he represented Davis and that Wurzburger was to represent herself. He acknowledged he drafted Wurzburger’s complaint to initiate the case and gave it to her for approval.

When Wurzburger’s complaint was filed, it contained Stobbs’ signature indicating he was Wurzburger’s attorney, not Davis’ attorney. On two forms filed with the court, Stobbs indicated he was Wurzburger’s lawyer.

At his disciplinary hearing, Stobbs first blamed Wurzburger for filing a “rough draft” of the complaint with his name listed and claimed that she had signed his name. He later stated that he did not realize his signature was on the complaint, and testified that he “probably” was the one who filed it.

Stobbs misrepresented to the municipal court that only Davis and Wurzburger would be affected by the judgment regarding the applicability of R.C. Chapter 5312. The claim was in direct contrast to Stobbs’ argument in Hocking County, where he maintained this matter would impact all 386 association members, the Board of Professional Conducted noted.

Judges Asked to Sign Off on Judgment
After Davis responded to Wurzburger’s complaint, Stobbs approached Judge Jodi Thomas when she was serving as the court’s duty judge. He presented a proposed joint motion for a declaratory judgment and a proposed entry the court could file to resolve the case. Judge Thomas questioned Stobbs about which party he represented in the case, and she said his answers were “evasive.” After reviewing the documents, Judge Thomas declined to sign them and dismissed the case.

Despite its dismissal, Stobbs took the same paperwork to another judge serving as the duty judge, who approved the entry. However, when the second judge learned the case had been dismissed by Judge Thomas, the judge vacated the entry.

The professional conduct board found Stobbs’ conduct violated several rules, including making a knowingly false statement to a court and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Judge Skeptical of Attorney’s Case  
In an unrelated case in 2019, Eliot Dugger was indicted in Franklin County on three criminal counts, including illegally possessing a gun. Stobbs agreed to represent Dugger in 2021, after Dugger had previously been represented by another attorney.

Prior to hiring Stobbs, a court had already denied Dugger’s request to suppress the evidence in his case regarding the weapons charge. However, four days before Dugger’s scheduled trial, Stobbs filed a motion to dismiss the weapons charge. After a lengthy discussion with Judge Christopher Brown, the motion was denied, and the trial was rescheduled for December 2021.

Prior to the December trial, Stobbs filed five more motions. One of his motions referred to the case of Ex Parte Bushnell without providing any citation for the decision or explaining its relevance. The trial court found that the 1858 opinion was not relevant to Dugger’s case. On the day of the trial, Stobbs filed another motion to dismiss the weapons charge, arguing that seizing Dugger’s weapon violated his rights under the Fourth Amendment to the U.S. Constitution. He cited no legal authority to support his argument.

During the pretrial hearing on the motions, Stobbs repeatedly interrupted Judge Brown and at one point told him, “You don’t understand the argument.”

Judge Brown denied all of Stobbs’ motions, and Dugger negotiated a plea agreement to resolve the charges.

Judge Brown testified at Stobbs’ disciplinary hearing that he thought Stobbs’ behavior was disrespectful to the court. The board found Stobbs violated the rule against raising frivolous issues and engaging in conduct that is discourteous to the court.

The Court adopted the board’s recommendation to suspend Stobbs for 18 months, and stay 12 months with the condition that he proves within 90 days of the decision that he paid the $5,812 sanction in the campgrounds case. He was also required to pay the costs of the disciplinary proceedings.

(Mike Frisch)

Smartmatic v. Powell

The United States District Court for the District of Columbia (Judge Carl Nichols) will permit Smartmatic leave to amend its complaint against Sidney Powell to establish jurisdiction with respect to allegedly defamatory statements made outside the District of Columbia 

To be sure, Powell’s declaration concedes that she was in the District for the December 10 interview. Powell Decl. ¶ 20. And her reply brief concedes that she was in the District for the November 19 press conference as well. Powell Reply at 2 n.2, ECF No. 34. Thus, for the reasons given in Powell I, Smartmatic has sufficiently pleaded personal jurisdiction for claims related to Powell’s statements at the November 19 press conference and during the December 10 interview.

That the Court has personal jurisdiction over Powell for claims relating to those statements does not, however, mean that it has personal jurisdiction for claims relating to her other statements. After all, “each separate defamatory statement itself constitutes a separate and distinct cause of action.” Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 917 (E.D. Va. 2004) (quotations omitted). And because specific personal jurisdiction is claim-specific, it “must be established for each claim.” Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274–75 (5th Cir. 2006); see also 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1351 (3d ed. 2023) (“There is no such thing as supplemental specific personal jurisdiction; if separate claims are pled, specific personal jurisdiction must independently exist for each claim and the existence of personal jurisdiction for one claim will not provide the basis for another claim.”). Accordingly, for its claims based on statements Powell made on November 14, 15, and 16, and during the interview on November 19, Smartmatic must establish claim-specific forum contacts. In the face of Powell’s unrebutted declaration, Smartmatic’s reliance on its Complaint’s bare allegations about Powell’s location does not suffice.

For now, however, the Court will not dismiss these claims. Smartmatic has requested leave to either amend its Complaint or take jurisdictional discovery. Opp’n to Mot. to Dismiss at 11 n.4, ECF No. 27. The standard for granting leave to amend a complaint is generous: “The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Likewise, the “standard for permitting jurisdictional discovery is quite liberal,” and leave may be granted even when the plaintiff “has not made out a prima facie case of jurisdiction.” Diamond Chem. Co., Inc. v. Atofina Chems., Inc., 268 F. Supp. 2d 1, 15 (D.D.C. 2003).

The Court finds no basis for denying Smartmatic leave to amend its Complaint. See Zalduondo v. Aetna Life Ins. Co., 845 F. Supp. 2d 146, 160 (D.D.C. 2012) (observing that grounds for denial include undue delay, bad faith, undue prejudice, and futility). And given Powell’s activities and whereabouts during the relevant period, see generally Powell Decl., Powell I, 554 F. Supp. 3d 42, the Court finds that Smartmatic’s request for discovery is made with a “good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant,” Diamond Chem., 268 F. Supp. 2d at 15 (quotations omitted). At the very least, the Court does not believe that discovery here “would amount to nothing more than a fishing expedition.” Bastin v. Fed. Nat’l Mortg. Ass’n, 104 F.3d 1392, 1396 (D.C. Cir. 1997).
                                                                                                   * * *
Accordingly, Smartmatic shall file, within two weeks of this Opinion and Order, notice of whether it intends to amend its Complaint or take jurisdictional discovery on the question of Powell’s contacts with the District with respect to her allegedly defamatory statements. The case is stayed pending the filing of an amended complaint or the completion of jurisdictional discovery.

(Mike Frisch)

Second Sanction

The Oklahoma Supreme Court has ordered a three-year suspension as reciprocal discipline for a sanction imposed in Louisiana

From the record before this Court, it is clear that at a minimum, Respondent committed simple conversion of funds when he used trust funds to pay his credit card bills, rent, and salaries. The Louisiana Supreme Court's use of a different term congruent with their own laws will not limit this Court from recognizing the nature of Respondent's misconduct. While there are some indications that Respondent may have committed a higher level of misconduct than simple conversion due to the repetitive nature of his actions and some of the comments in the record, we will not discipline him for more without a finding from the Louisiana Supreme Court or evidence to support those findings.

Misconduct

The certified copy of Respondent's Louisiana discipline showed that on December 9, 2022, Respondent was suspended from the practice of law for three years and ordered to pay restitution in the amount of $27,721.44, as well as all costs in the proceedings. The Louisiana Supreme Court found the facts showed that from July 2004 to April 2006 Respondent systematically committed 160 separate acts of conversion of funds, in the amount of $260,334.24, from a trust account for which he served as trustee. The Court found that Respondent used the converted funds to pay his credit card bills, rent, and salaries.

The Court determined that Respondent subsequently remitted $212,279.73 to one of the income beneficiaries of the trust and in November 2006 tendered another $6,000.00 in partial payment of the misappropriated funds. In May 2007, the income beneficiaries filed a disciplinary complaint and civil suit against Respondent. Respondent then paid the remainder of the misappropriated amount, and the parties entered into a settlement agreement wherefore the income beneficiaries withdrew the disciplinary complaint and dismissed the civil suit.

The Louisiana charges were filed in 2008. Respondent took disability inactive status in 2009.

The charges were adjudicated after his 2018 reinstatement.

In Oklahoma

Respondent asserted, without any supporting evidence, that as trustee he "was vested with authority to borrow funds from the trust without prior approval of the settlor or the income beneficiaries." Response 2. Respondent claimed that he "exercised that authority, but negligently commingled borrowed trust funds with other funds in his client trust account, and his operating account." Id. Respondent claims he immediately paid the funds back and settled the lawsuit, with one of the terms of the settlement that the income beneficiaries would waive any accrued interest. Id. 3. With no attached evidence, Respondent then asserts that the Louisiana Supreme Court assessed the interest against him, in addition to the principal, knowing of this waiver. Id. Respondent then detailed his medical problems from 2008.

 In mitigation, Respondent states that he is 70 years old and was diagnosed with prostate cancer in May 2022, which he was treated for from August 2022 to October 2022. Respondent claims that he fully cooperated from the beginning of the investigation against him and he "feels that the Louisiana Supreme Court's ruling is nothing more than a response to his having sued the chief justice 18 years ago." Id. 3-4. Respondent finishes by explaining that even without a suspension he cannot practice law due to his emeritus status and that he "allowed his Oklahoma law license to lapse around 40 years ago, and has no intention of returning to Oklahoma to practice law." Id. 4. Respondent declined a hearing before this Court. As evidence, Respondent attached a copy of a negotiated consent agreement discipline which the Louisiana Supreme Court rejected, and a copy of the Hearing Committee report; he did not submit any transcripts or other evidence from the Louisiana Supreme Court disciplinary proceedings or otherwise regarding the trust

Combs, J., with whom Kuehn, J. joins, concurring in part and dissenting in part:

I concur in the finding that discipline is warranted, however I dissent to the discipline. I would disbar the Respondent from the practice of law in Oklahoma.

(Mike Frisch)

A Chiropractic Adjustment

The Minnesota Supreme Court has disbarred a convicted attorney

The Director of the Office of Lawyers Professional Responsibility has filed an amended petition for disciplinary action alleging that respondent Bradley Hans Ratgen has committed professional misconduct warranting public discipline— namely, being convicted of a felony for conspiracy to commit healthcare fraud that was directly related to his practice of law, making knowingly false statements to the Director, failing to maintain required trust account books and records, and negligently misappropriating client funds.

Respondent stipulated to the discipline.

StarTribune reported on the criminal case

A longtime St. Paul personal injury attorney is going to prison for more than a year for participating in a multiyear scheme to recruit chiropractic patients that duped auto insurance companies into covering health care services.

Bradley H. Ratgen, 52, was sentenced Tuesday in U.S. District Court in Minneapolis to a 16-month term after pleading guilty to conspiracy to commit health care fraud under Minnesota's no-fault insurance law, which requires insurers to cover clients' medical expenses regardless of who's to blame for a crash.

Along with his prison time, Ratgen was ordered to serve one year under court supervision upon his release. He also was fined $10,000 and ordered to pay more than $22,000 in restitution.

The scheme began in 2015 and continued until late 2021, according to prosecutors. For example, according to the charging document, Ratgen would be hired to represent an illegally recruited chiropractic patient in that person's threat to sue an auto insurance company.

"Runners," as they are called, were paid $300 by Ratgen for each recruited patient who had actual crash injuries, was not at fault and attended multiple chiropractic visits, the prosecution outlined in one court filing.

In total, according to prosecutors, Ratgen's scheme attempted to cheat insurance companies out of nearly $60,000 and succeeded in compelling $22,748 in illegal payouts.

"Ratgen, by using his status as a lawyer to commit fraud, eroded the public trust that people have in lawyers and the legal system," prosecutors said in a filing ahead of sentencing.

Ratgen graduated from St. Paul's William Mitchell College of Law in 1995 and founded his personal injury law firm in 2000, according to its website.

The state's Lawyers Professional Responsibility Board, the profession's licensing regulatory body in Minnesota, filed a disciplinary case against Ratgen in July 2021 related to the fraud allegations against him.

Board Director Susan Humiston said Wednesday that Ratgen has agreed to being disbarred, which is pending before the state Supreme Court.

Ratgen's attorney told the court in late February that his client would surrender his license and realized that "his career as a lawyer is over.

(Mike Frisch)

You Need A Lawyer

The Arkansas Court of Appeals dismissed an appeal of an award of benefits for want of an attorney

On May 13, 2022, CFO filed its petition for review with this court. The petition reflected that CFO was not represented by counsel and was signed by the operations manager, Lesley Harris. It is well settled that corporations must be represented by licensed attorneys. IHOP #1914 v. Dir., 2023 Ark. App. 102, at 1; see also Davidson Props., LLC v. Summers, 368 Ark. 283, 285, 244 S.W.3d 674, 675 (2006) (holding that individual’s representation of limited liability company constitutes the unauthorized practice of law). Furthermore, where a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to the jurisdiction of a court, those actions, such as the filing of pleadings, are rendered a nullity. Davidson, 368 Ark. at 285, 244 S.W.3d at 675.

In the instant case, Harris is an operations manager, not an attorney, and may not represent CFO. Invoking the process of a court of law constitutes the practice of law. IHOP, 2023 Ark. App. 102, at 2. Because Harris was practicing law when she signed the petition, the petition is null and void. As a result, we lack jurisdiction and dismiss this appeal.

(Mike Frisch)

An Inappropriate Relationship

A one-year suspension imposed by the Tennessee Supreme Court is summarized on the web page of the Board of Professional Responsibility

This disciplinary action involved two (2) separate complaints. In one disciplinary matter, Mr. Marshall failed to prepare and file an Order reflecting the trial court’s ruling, resulting in contempt charges being filed against his client, failed to timely address an Order of Protection or advise his client of the ramifications of cohabitation, failed to fully advise his client that the dismissal of his divorce complaint would not affect the pending counter-complaint for divorce filed by his wife, and failed to timely withdraw as attorney of record after closing his file. In a second disciplinary matter, Mr. Marshall created a conflict of interest by engaging in an inappropriate relationship with his client during the representation. Mr. Marshall submitted a conditional guilty plea acknowledging his conduct violated Rules of Professional Conduct 1.3 (diligence), 1.4 (communication), 1.7 (conflict of interest), and 1.16 (declining or terminating representation).

The Daily Herald reported a prior public censure

The Tennessee Supreme Court has publicly censured Maury County private attorney James Michael Marshall after he was convicted of two counts of assault against his former wife and father in law.

Marshall also was found in contempt of court in an unrelated civil matter for failure to pay court-ordered child support, alimony and medical costs.

The Board of Professional Responsibility of the Supreme Court said Marshall violated the rules of professional conduct through his actions

(Mike Frisch)

Right To Public Trial

The New York Court of Appeals has reversed convictions in two separate matters as a result of the denial of a right to a public trial.

One involved a second degree murder conviction

Defendant was charged with second-degree murder and two counts of second-degree weapon possession, both related to his alleged role in a fatal shooting. In the midst of defendant’s jury trial, the People moved to close the courtroom, citing the fact that photographs had been taken in the courtroom and posted on Instagram with the caption “Free Dick Wolf”—which the prosecutor asserted was a reference to one of defendant’s street names.

The courtroom was then closed

Defense counsel objected to the closure and proposed barring cellphones in the courtroom as an alternative, stating that it would be unfair to exclude all spectators from the trial based on the misconduct of a particular individual or group of individuals. The court rejected counsel’s proposal and, in what it described as an effort to keep the jury from drawing negative inferences from the absence of any particular group of spectators, closed the courtroom entirely, including to the victim’s family. The court explained that its decision was based on the “cumulative” effect of various factors that created an atmosphere of intimidation during the trial.

The court

We emphasize that our decision should not be read as suggesting that a courtroom can never be closed based on the trial court’s observations of intimidation (or other prejudicial behavior) taking place in the courtroom. Trial courts retain “inherent discretionary power . . . to close the courtroom” (Hinton, 31 NY2d at 75). However, that discretion must be “sparingly exercised” and invoked “only when unusual circumstances necessitate it” (id. at 76; see Ming Li, 91 NY2d at 917). When such unusual circumstances occur, it is incumbent on the court to ensure that the record adequately supports excluding members of the public. Here, the court failed to create a sufficient record to justify a complete closure of the courtroom and, as a result, the closure was not narrowly tailored to the interests sought to be protected.

The other case also involved a second-degree murder conviction

On the morning of the third day of trial and second day of testimony, several members of the victim’s family and defendant’s supporters began arriving at the courtroom doors around 8:50 a.m. In accordance with the court’s rule, they turned in their cellular phones to the court officer standing outside the courtroom doors in anticipation of being allowed entry when the court opened. They then waited in the hallway directly across from the officer.

At approximately 9:40 a.m. the prosecution’s witness was escorted by investigators through the doors and into the courtroom. By this time, several individuals had arrived and were standing or sitting across from the courtroom doors. Before the witness entered, individuals from the prosecutor’s office, as well as defense counsel and several court officers, periodically entered and exited the courtroom.

After the prosecution completed the direct examination of the witness, and a few minutes into defense counsel’s cross examination, the prosecutor learned and immediately informed the court that several members of the public were waiting in the hallway. The trial judge interrupted the proceedings and ordered the jury out of the courtroom to allow the public waiting outside to enter. Once the public was seated inside, the trial judge recalled the jury and defense counsel continued with the cross examination.

The court

The record from the hearing below establishes that, due to a miscommunication in the court officers’ enforcement of the court’s policy, officers prevented the public from entering the courtroom during a period that the courtroom should have been open pursuant to the court’s policy. That exclusion was more than an “inadvertent lapse” resulting in a “continuation of a proper courtroom closing” (see People v Peterson, 81 NY2d 824, 825 [1993]). Rather, court personnel affirmatively kept out members of the public before the proceedings began and that closure continued for a significant period. The closure, though mistaken, cannot be deemed inadvertent.

(Mike Frisch)

 

32 Days Of Hearings

The District of Columbia Board on Professional Responsibility ordered an informal admonition in what well have been the longest hearing in D.C. Bar history in terms of number of days

This matter arises out of Respondent’s conduct in two court-appointed guardianships. Disciplinary Counsel alleged that Respondent committed 62 violations covering four D.C. Rules of Professional Conduct: 1.5(a) (unreasonable fee), 3.3(a)(1) (knowingly making a false statement to a court), 8.4(c) (dishonesty, deceit or misrepresentation), and 8.4(d) (serious interference with the administration of justice). A 32-day hearing ensued (spanning from November 10, 2020 until April 28, 2021) and, following briefing, an Ad Hoc Hearing Committee unanimously recommended that Disciplinary Counsel had proven a violation of Rule 1.5(a) by clear and convincing evidence. A majority further recommended that Disciplinary Counsel had proven a violation of Rule 8.4(c) and a violation of Rule 8.4(d); the dissent, by contrast, would not find a violation of either Rule.

The board, however, rejected the Rule 1.5(a) violation.

A week after the Hearing Committee issued its Report and Recommendation, the Court of Appeals found a violation of Rule 1.5(a) in a different case because the respondent’s overbilling, which included repeated double-billing and multiple erroneous charges, suggested “that he was, at the very least, negligent.” Bailey, 283 A.3d at 1208 (rejecting the argument that Rule 1.5(a) prohibited only intentional overcharges). Indeed, in Bailey, Disciplinary Counsel had “sought to prove only that the overbilling was ‘unreasonable’ or negligent so as to constitute a violation of Rule 1.5(a).” Id. at 1208 n.4. Having the benefit of Bailey, which the Hearing Committee did not have, and understanding Bailey to hold that less-than-negligent overcharges do not violate Rule 1.5(a), we find no Rule 1.5(a) violation because the Committee found that the single instance of over-billing was the result of a data entry error, not negligence.

Conduct that "seriously interfered" with the administration of justice

We agree with the Hearing Committee majority. There is no question that Respondent’s conduct (1) was improper (she failed to make timely filings), and (2) bore on identifiable cases (the Toliver-Woody and Williams probate cases). Whether the misconduct had a more than de minimis effect on the administration of justice, however, is a closer question. Not every late filing, or even several late filings, necessarily interfere with the administration of justice in more than a de minimis way. But here there is a pattern of lateness. Respondent was late on seven of the thirteen Guardianship Reports filed in Toliver-Woody, was late in filing the Suggestion of Death (or notifying the Court of the ward’s passing) in both cases, was late in filing the Guardianship Plan in Williams, and was late in filing one of the two Williams Guardianship Reports. Her late filings led to three summary hearings (a fourth hearing was cancelled), requiring the Probate Division staff to prepare for three hearings necessitated solely by Respondent’s failure to meet her deadlines. We recognize that Respondent is not unique in her failure to file reports on time, and that many other Probate Division practitioners fail to meet their court-imposed deadlines. We further recognize that, as the dissent noted, Respondent’s 11 dilatory filings were spread over an almost ten-year period.6 But neither of these factors diminishes Respondent’s misconduct and the resulting steps the Division had to take.

The board directed Disciplinary Counsel to issue the admonition. (Mike Frisch)

On The Street Where They Live

The Vermont Supreme Court rejected challenges to the extension and modification of a stay away order directed towards the plaintiffs' neighbor

The parties are longtime neighbors who live on the same street in Mendon, Vermont. Defendant owns a home on the street; he also owns a vacant lot next to the home of plaintiffs Swett and Earle.

A stay away order was accepted by stipulation in February 2021.

Thereafter the plaintiffs sought further relief

Following a hearing, the court granted plaintiffs’ request. It made the following findings. Before plaintiffs obtained stalking orders in February 2021, defendant repeatedly screamed profanities at plaintiffs Swett and Earle from his vacant lot. He told them he had “nothing better to do than to torture the fuck out of my neighbors!” On one occasion after an interaction with plaintiff Stake, defendant shot off over 100 rounds of ammunition on the vacant lot. He shot into a log pile between the open area of his lot and the Swett/Earle residence. Despite his denials, the court found that defendant was shooting in the direction of the Swett/Earle home to scare them.

 Turning to events after February 2021, the court found that defendant had been clearing the vacant lot for over a year. He said he was preparing to build something. Plaintiffs believed that defendant was purposefully using loud machinery on the lot for months on end to harass them. The court found that defendant intentionally parked his truck on dark mornings to shine his headlights into the Swett/Earle home to disturb them. It rejected defendant’s assertion that he was simply sitting in his truck reading and checking email at 6 a.m. in that location. Defendant also sat in his car in the road and stared at the Swett/Earle home.

In September 2021, defendant played an electronic game call of a rabbit in distress on the vacant lot for two hours in the late evening until the police arrived. Defendant testified that he did not consider the sound annoying and wanted to see what animals were around for hunting purposes. The court rejected these propositions as not credible and absurd. It found defendant clearly intended to annoy plaintiffs Swett and Earle.

A security camera captured another incident with plaintiff Stake. Defendant was operating an excavator on the vacant lot and as soon as plaintiff Stake walked by with his dog, defendant began screaming at the top of his lungs. Defendant got progressively louder and unmistakably angrier. He used words like “you have a fat ugly wife” as well as cruder comments about both Mr. Stake and Mr. Stake’s wife. According to defendant, he was not directing his words at Mr. Stake but just singing along to music and making up songs. The court rejected defendant’s testimony as entirely lacking in credibility. It found the anger in defendant’s voice unmistakable and found that defendant’s words sounded nothing like singing. When asked if he was singing in the recording submitted to the court, defendant acknowledged that he “was just yelling.”

The court also rejected defendant’s assertion that he was singing when he repeatedly told Mr. Stake that he “better get a gun, motherfucker” and told Mr. Stake and Ms. Swett to “go back to New Jersey,” where both were from. Defendant also shouted at plaintiffs with a megaphone, including in June 2021. He told Ms. Swett to “go back to New Jersey if you don’t like Vermont, you fucking bitch.” He stood on his adjoining lot and called Ms. Swett a “dirty bitch” and a “cunt.” Plaintiffs installed security cameras outside their homes because of their concerns about defendant. They were clearly afraid that his excessively angry behavior would escalate to violence. Mr. Stake, who resided primarily in New Jersey, came to Vermont less often because of defendant’s harassment.

The right to sing

Defendant maintained below that “[h]e was just happily singing to himself, making up his own lyrics to songs while listening to music” and “[h]e lacked the subjective intent to contact Plaintiffs in violation of the Stalking Order.

Rejected

Plaintiffs testified to the fear caused by defendant’s ongoing contact with them in the form of harassing and threatening songs. Defendant made crude and threatening comments to plaintiff under the guise of “singing.” The court reasonably concluded that a specific and definite restriction was required to prevent this type of behavior from continuing and to make it clear to defendant that this type of behavior would constitute a violation of the order. The clear prohibition “minimize[es] interpretation issues” and provides plaintiffs with “a measure of emotional security.” Id. The court did not err in including this restriction in its order.

Defendant's right to enjoyment of the vacant lot

The court’s decision is grounded in its findings. Defendant was engaging in activities on the lot to harass and contact plaintiffs in violation of existing stalking orders, including parking with his lights shining in the Swett/Earle home at 6:00 a.m., playing an animal-distress sound for hours late at night, screaming expletives through a megaphone at plaintiffs while they ate dinner, and screaming crude and personal insults at Mr. Stake from the lot as he walked his dog on the road. Defendant continually made loud noise on the lot—leaving the alarm on his excavator to beep as he used the vehicle and banging on a metal drum—as often as every day. He had been working on the vacant lot for over a year. All plaintiffs expressed fear of defendant; Mr. Stake was visiting Vermont less because of defendant’s behavior. The court acted within its discretion in determining that limiting defendant’s presence on the lot to business hours, Monday through Friday, was necessary to protect plaintiffs. The limitation reduces defendant’s ability to use the lot as a place from which to harass and contact plaintiffs and provides plaintiffs a measure of safety and security during these periods and an ability to enjoy their own property. It reduces interactions based on “proximity,” with the hopeful goal of preventing any escalation to violence.

Oral argument linked here. (Mike Frisch)