Friday, October 30, 2020
A complaint recently filed by Ohio Disciplinary Counsel alleges a disturbing pattern of sexual advances to clients and a court employee.
The lengthy charges make for painful reading.
The complaint notes
Since at least 2015, respondent has not maintained a law office. and regularly meets with clients at his home or in secluded places [such as the county law library]
The court employee was allegedly subjected to comments of a sexual nature and unwanted touching.
In one instance when she was wearing a skirt, he allegedly "grabbed [her] knee and ran his hand up to [her] mid-thigh."
She filed a civil complaint against the City of Wilmington (where he served as an acting prosecutor and judge) and received a financial settlement.
A person who he had known for 30 years consulted him about a divorce. He allegedly offered her $100 (which she needed for a medical procedure) to clean his home, "forcibly kissed her" and offered to represent her for free if she cleaned in the nude.
He then allegedly contacted her multiple times over a two week period, called her "gorgeous" and sought sexual relations.
He continued to represent her, made a second offer of free representation for naked cleaning and made further sexual advances.
She made a police report but no charges were filed.
He allegedly subjected another client in a court-appointed felony drug case to romantic and sexual advances.
She contacted the police and wore a wire that recorded their conversations, including "I would like to see you naked."
The Sheriff's Office advised the county prosecutor of the advances. The issue of potential conflict was brought to the judge's attention and new counsel was appointed.
Another client was a Facebook friend charged with theft. They had no prior personal or professional relationship.
He allegedly reached out to her on Facebook after he learned of the charges and offered his assistance.
She had no permanent residence and stayed with friends on a "night to night" basis.
He allegedly met with her at the Hidden Carryout and gave her $70 to "help her out" which she interpreted as an offer to exchange sex for legal services.
She told him she was "not that kind of girl."
After he let that client use the washer and dryer in his home, he allegedly tried to put his hand down her pants.
He allegedly communicated by Facebook Messenger with another client charged with telephone harassment. He called her "dear," "gorgeous," and "babydoll."
Their alleged communications and interactions are recounted in detail and include his suggestion of Carribean trip together.
When she tried to steer the conversation back to her case, he replied he preferred
talking about the potential for an "us" at the moment.
They had dinner; he paid for the meal.
He invited her to the pool; she declined.
The client had her bond revoked. The attorney allegedly failed to contact her or prepare for trial.
He allegedly pressured her to plead guilty to one charge.
A client in a dependency case allegedly had sexual intercourse with him in his home.
He allegedly told her that "he loved her and that he wanted to marry her" and that the sex "was in lieu of attorneys fees."
When the client was charged with OVI (driving under the influence), he allegedly again had sex with her in lieu of a fee.
The News Journal reported that he was removed from a homicide case in March 2020
The attorney for a suspect in a recent homicide case has been removed after police and court officials say that attorney was apparently under the influence of alcohol during a meeting.
Attorney Richard Federle Jr., 52, was removed as the appointed attorney for murder suspect Corey Ruffner, 22, after Federle was allegedly under the influence at an arraignment hearing on Feb. 28.
Ruffner requested — in a letter to Clinton County Common Pleas Judge John “Tim” Rudduck — the removal on Wednesday due to concerns he had about Federle.
When reached by phone for comment Wednesday, Federle told the News Journal, “I am not in a position to comment at this time.”
According to a report by Wilmington Police Det. Scott Baker, during the hearing he noted that, as he was speaking with Federle, “I detected a strong odor of an alcoholic beverage coming from his breath. I also noticed his eyes were red, bloodshot and glassy.”
Baker also reported that Federle’s movements were “slow, off-balance and uncoordinated” and his speech was “slow and slurred.”
Baker reported that he spoke with the court bailiff and magistrate who also “had a concern for Richard Federle being under the influence of alcohol.”
A prosecutor has been reprimanded by consent for a Brady violation by the Arizona Presiding Disciplinary Judge.
The issue involved information that a prosecution witness was under the influence of alcohol
NJ and a friend appeared for trial on October 10, 2019. Respondent smelled alcohol but could not identify if the odor came from NJ or his friend. Det. Sapp performed a horizontal gaze nystagmus (HGN) test on NJ and observed 3 of 6 cues. One of NJ’s eyes was non-responsive due to a prior injury, meaning that Det. Sapp observed 3 of 3 cues in NJ’s functioning eye.
A portable breath test was performed on NJ between 8:30 and 8:45 A.M. Sometime between 8:45 and 9:00 A.M., Det. Sapp informed Respondent that NJ’s PBT resulted in a BAC of .226%.
Respondent believed the BAC could have been a holdover from consuming alcohol the day before because NJ did not display any of the outward signs or symptoms typically associated with a blood alcohol concentration of that level, as he had when he appeared on October 8. Respondent also believed that the PBT result could have been inaccurate, as PBTs are not as reliable as standard breath test devices regulated by A.R.S. 13-1323.
The prosecutor did some research and consulted with a superior.
Respondent met with NJ again between 10:30 and 10:45 A.M. Respondent could no longer smell alcohol and observed NJ to be alert and responsive to questions. Respondent believed that while NJ may have had alcohol in his system, he might not be intoxicated.
NJ told Respondent that he did not have anything to drink that day and maintained the same even after being confronted with the PBT results.
Respondent called NJ to testify.
On cross examination, Defense counsel asked NJ if he had anything to drink in the last 24 hours. NJ answered “no.”
The prosecutor did not disclose the test; the defendant was convicted of a lesser offense
The defendant was convicted of the lesser-included offense of misdemeanor assault. Defense counsel learned of the PBT/HGN results after trial and filed a motion to dismiss the matter with prejudice.
The Court held an evidentiary hearing on the motion to dismiss on October 31, 2019, and found Respondent had violated his Brady duty to disclose. The matter was dismissed with prejudice as a sanction.
The reprimand also has a one-year probation condition. (Mike Frisch)
The Kansas Supreme Court has imposed an indefinite suspension of an attorney admitted in 2017 who traded illegal drugs for legal services in a criminal case.
From the findings of the Hearing Panel
During law school, utilizing the student health services, the respondent obtained a prescription for Adderall. Following graduation, the respondent no longer had access to health services and began purchasing Adderall illegally. Initially, he purchased Adderall from E.R., the respondent's friend. During the summer of 2017, the respondent met C.M. After the respondent learned that E.R. was purchasing the Adderall from C.M., the respondent began purchasing the Adderall illegally directly from C.M.
In February, 2018, C.M. was charged with harassment by a telephonic device, a class A misdemeanor, in the Leawood Municipal Court. C.M. asked the respondent to represent him. The respondent requested a $1,500 retainer. C.M. failed to pay the retainer or sign an employment agreement.
The night before C.M.'s first appearance, C.M. contacted the respondent to discuss the case. C.M. implied that the respondent had to represent C.M. or C.M. would use the respondent's illegal use of Adderall purchases against the respondent. The respondent was not sure how C.M. would use the information, but he believed that C.M. would use the information to harm the respondent. The respondent did not know whether C.M. planned
'to use the information as leverage in securing a better deal with the city prosecutor, inform the police, or simply to contact the KS Bar as a way to "punish" [the respondent] for not helping him out.'
As a result, the respondent agreed to represent C.M. On March 28, 2018, the respondent entered his appearance on behalf of C.M.
In February, 2018, the respondent began using methamphetamine as a substitute for Adderall. According to the respondent, methamphetamine 'was more readily available, much cheaper and allowed [him] to work long hours from home while saving [the] adderall [sic] for the day and work week.' During this time period, the respondent was also using marijuana.
The respondent accepted Adderall and methamphetamine from C.M. in lieu of the payment of attorney fees.
Respondent failed to appear for A.W., who was later arrested.
She then contacted Respondent's employer
In reaction to the respondent's text message and because A.W. contacted Mr. Stuart after she was arrested on the warrant, Mr. Stuart conducted an investigation of the respondent's files and the computer. When Mr. Stuart reviewed the respondent's file he maintained for the representation of A.W., he saw that the respondent recorded A.W.'s May 22, 2018, court date in the file. The respondent failed to put the appearance on the firm's master calendar. During Mr. Stuart's investigation of the respondent's files, he discovered that the respondent failed to appear on behalf of two other clients, including C.M.
This led Mr. Stuart to access text messages on Respondent's computer
When Mr. Stuart reviewed the text messages, Mr. Stuart discovered that the respondent was trading legal representation for illegal drugs with C.M.
On June 26, 2018, the respondent sent the disciplinary administrator a short letter, self-reporting misconduct. In the letter, the respondent stated: 'Please accept this letter as my self-report of a violation of the Model Rules. I traded legal services for an illegal and unlawful substance with one of my clients.' That same day, Mr. Stuart also filed a complaint against the respondent. Mr. Stuart provided detailed and background information to the circumstances which gave rise to the respondent's self-report.
He also continued to practice after his administrative suspension.
From the Hearing Panel conclusions
The respondent created a serious conflict of interest in representing C.M. when he accepted illegal drugs in exchange for legal representation and thereby engaged in felonious conduct with his client. The representation of C.M. was materially limited by a personal interest of the respondent. Obviously, C.M. did not give informed consent, confirmed in writing. Additionally, the respondent created a conflict of interest by purchasing illegal drugs from E.R. and then representing E.R. The representation of E.R. was materially limited by a personal interest of the respondent. Just like with C.M., each time the respondent purchased illegal drugs from E.R., the respondent and E.R. engaged in felonious conduct.
The court on sanction
This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. Supreme Court Rule 212(f). We are certainly aware and sympathetic of the devastating consequences of drug dependence and the toll it can take in the lives of people like the respondent. However, we cannot overlook the serious
nature of the misconduct underlying the findings in this case, which includes the respondent creating a serious conflict of interest by accepting illegal drugs in exchange for legal representation and thereby engaging in felonious conduct with his client. We therefore adopt the recommendation of both the hearing panel and the Disciplinary Administrator of indefinite suspension.
The oral argument is linked here. (Mike Frisch)
Anne Yeager reports on the web page of the Ohio Supreme Court
The Ohio Office of Disciplinary Counsel unveiled its new website, designed to be more user-friendly for the public and legal professionals.
“We wanted to build a website that provides relevant information and greater accessibility to the Office of Disciplinary Counsel and Ohio’s unique disciplinary system,” said Joseph Caligiuri, disciplinary counsel for the state of Ohio.
“Through the Online Grievance Portal, a person can now complete a grievance form in one of eight languages and immediately upload it to our office,” Caligiuri said. “Furthermore, the site contains dozens of FAQs for members of the public and legal professionals.”
“It will provide greater transparency and promote a better understanding of our process,” he said.
The Office of Disciplinary Counsel investigates allegations of ethical misconduct against Ohio lawyers and judges and prosecutes formal complaints before the Board of Professional Conduct.
The office also provides training to local certified grievance committees and participates in continuing education activities for lawyers and judges.
Rule V of the Supreme Court Rules for the Government of the Bar of Ohio vests responsibility for appointing disciplinary counsel with the Board of Professional Conduct. The board’s appointment is subject to approval by the Supreme Court.
Since Ohio is already the most accessible jurisdiction for bar discipline information, their efforts to improve show a uniquely public-friendly approach to regulation.
Oh how I wish other courts would emulate Ohio's example. (Mike Frisch)
The Wisconsin Supreme Court imposed identical reciprocal discipline in a matter involving sanctions imposed by the United States Patent and Trademark Office
This is a reciprocal discipline matter. On February 5, 2020, the Office of Lawyer Regulation (OLR) filed a complaint and motion pursuant to Supreme Court Rule (SCR) 22.22, asking this court to suspend Attorney Michael W. Starkweather's license to practice law in Wisconsin for a period of 36 months, as discipline reciprocal to that imposed by the United States Patent and Trademark Office (USPTO). Upon review, we agree that it is appropriate to suspend Attorney Starkweather's law license for a period of 36 months. Although the OLR's complaint did not address this subject, we also follow our practice of ordering Attorney Starkweather to comply with the terms and conditions of the USPTO disciplinary order, including a two-year period of probation. We do not impose costs.
on October 17, 2019, the USPTO issued an order suspending Attorney Starkweather's ability to practice before the USPTO for 36 months as a result of his failure to provide competent representation in a reasonably prompt, diligent, honest manner to the inventors he took on as clients.
PTO reinstatement conditions
The USPTO order also states that Attorney Starkweather's future reinstatement by the USPTO, if any, shall be conditioned on, among other things, attaining a certain score on the Multistate Professional Responsibility Exam (MPRE) and completing 12 hours of continuing legal education courses on certain subjects. Id. In addition, the USPTO order states that, if reinstated, Attorney Starkweather must serve a two-year probationary period with a number of specified conditions.
Reciprocal discipline and compliance with PTO conditions
There is no indication that any of those exceptions apply in this case. In addition, although certain elements of the USPTO disciplinary order are generally not imposed in Wisconsin disciplinary proceedings (e.g., imposition of a probationary term, the requirement of a particular score on the MPRE), this court's practice in like situations is to order the respondent-lawyer to comply with the terms and conditions imposed by the disciplinary order in the other jurisdiction in order to make the discipline identical under SCR 22.22.
Thursday, October 29, 2020
The Mississippi Supreme Court has held that an insurer had waived attorney-client privilege in communications with in-house counsel.
This is an interlocutory appeal of a bad-faith failure-to-pay claim. The trial court found that the insurance company waived the attorney-client privilege and was required to produce written communications between its in-house counsel and its claims handler and to produce its in-house counsel for a deposition. We agree and affirm.
The claim involved damage over $2,000 caused to a flagpole by an unidentified driver
Travelers denied Renaissance’s claim. Travelers’ claims handler, Charlene Duncan, determined there was no coverage under the UM policy because the flagpole was not a covered “auto.”
Editor's note: This position makes a certain amount of intuitive sense, as the dissent notes.
Renaissance's counsel made an argument for coverage
On February 19, 2016, Renaissance’s attorney, Rick Wise, sent an email to Duncan that set forth Renaissance’s legal arguments as to why coverage should be afforded under Mississippi’s UM statute.
...Before responding, Duncan sought legal advice from Travelers’ then in-house counsel, Jim Harris. Duncan is not an attorney. Duncan sent a letter, dated March 2, 2016, that again advised Renaissance that its claim was denied under its UM policy because the policy required damage to a covered auto.
In the ensuing litigation
Renaissance took Duncan’s deposition and asked that she explain both the denial letter and the reasons Travelers denied the claim.
Renaissance commenced this claim on August 25, 2016. In the complaint, Renaissance asserted a claim for coverage under the UM policy and a claim for bad-faith denial of the claim. In an effort to resolve the matter, Travelers paid the full amount for damage to the flagpole. Renaissance, however, continued to litigate its bad-faith claim.
As to the advice
After in camera review, the trial court found that “Travelers ha[d] waived the attorney-client privilege as it relates to attorney Jim Harris.” The trial court ordered Travelers to produce the emails and to produce Harris for a deposition. Travelers filed a petition for interlocutory appeal, which this Court granted.
Travelers sent the denial letter to Renaissance in an effort to explain its arguable and legitimate basis to deny the claim. The letter was signed by Duncan; but based on her deposition testimony, it clearly was prepared by someone other than
Duncan, most likely Harris. If so, Harris did not act as legal counsel and give advice to Duncan to include in the denial letter. Instead, the denial letter contained Harris’s reasons to deny the claim. Duncan’s signature was simply an effort to hide the fact that Harris, not Duncan, had the personal knowledge of Travelers’ reasons to deny the claim and to use the attorney-client privilege as a sword to prevent Renaissance from discovering the reasons from the person who had personal knowledge of the basis to deny the claim.
..Renaissance is entitled to depose the individual with personal knowledge of the basis for the denial of coverage as set forth in the denial letter. That person is Harris.
There is a dissent from Justice Ishee joined by Justice Coleman
The majority concludes that the legal arguments contained in Duncan’s denial letter were probably the product of her consultation with Harris. That is almost certainly the case, but the majority then goes on to conclude that since Duncan, the claims handler, could not explain the legal arguments, the letter “clearly was prepared by someone other than Duncan, most likely Harris” and that “Duncan’s signature was simply an effort to hide the fact that Harris, not Duncan, had personal knowledge of Travelers’ reasons to deny the claim.” Maj. Op. ¶ 18. Thus, the majority reasons, Travelers has waived the attorney-client privilege, and Renaissance is entitled to depose the attorney, Harris, and to discovery of the correspondences between the claims handler and the attorney.
With all due respect to the majority, I disagree with its underlying premise. Duncan clearly understood the reason for denying the claim, which was the same reason stated in her initial denial letter: the express language of the policy precluded coverage. Duncan faltered only when asked to respond to Renaissance’s legal arguments concerning questions of statutory interpretation that might have overridden the express policy language. The majority thus appears to impose a requirement that in order to preserve the privilege, a claims handler must be able to explain legal arguments at her deposition—the same legal issues for which she sought advice in the first place. I can find no authority to support this proposition, and I fear it is an unreasonable standard that will have deleterious and chilling effects on the exercise of the attorney-client relationship. “[A]n insurance company should be free to seek legal advice in cases where coverage is unclear without fearing that the communications necessary to obtain that advice will later become available to an insured who is dissatisfied with a decision to deny coverage.” Aetna Cas. & Sur. Co. v. Superior Ct., 200 Cal. Rptr. 471, 475 (Cal. Ct. App. 1984).
The underlying facts of the claim here were not disputed: an unidentified motorist struck and damaged Renaissance’s flagpole. Travelers’ attorney’s participation was limited to evaluating legal arguments presented by Renaissance’s attorney in a demand letter after the initial denial of coverage. The communications between Travelers’ claim handler and its attorney are protected by the attorney-client privilege, and I cannot find the privilege to have been waived by the mere involvement of the attorney in evaluating the legal arguments presented in Renaissance’s demand letter. I respectfully dissent.
The Florida Judicial Ethics Advisory Committee blesses a judge's membership in the NAACP.
Opinion Number: 2020-22
Date of Issue: October 22, 2020
May a judge become a dues paying member of the NAACP?
The inquiring judge states that a member of the local chapter of the National Association for the Advancement of Colored People (NAACP) has urged several judges to become dues paying members of the organization. There are several levels of membership, each with its required donation; however, the base level annual membership for an adult is less than fifty dollars. The judge intends to join, but is concerned that the NAACP may be a political organization, and that if it is, the Code of Judicial Conduct may prohibit membership. The inquiring judge notes that the NAACP has many roles, some of which may be viewed as political activity. We answer the inquiry based on the assumption that the inquiring judge will not be personally involved in fundraising, act as a leader, serve as an officer or engage in political campaign activity on behalf of the NAACP.
The JEAC has previously analyzed whether an organization that has multiple roles, some of which are political, is a “political organization.” In Fla. JEAC Op. 09-13, this Committee considered whether a judge may become a member of the National Rifle Association because proof of current NRA membership was a condition precedent to membership in the local gun club the judge wished to join. The Committee answered that question, in part, by reference to Fla. JEAC Op. 00-22 in which it concluded that, although “the NRA is involved in political matters, it is neither a ‘political party’ nor a ‘political organization’ as defined in the Definitions of the Code of Judicial Conduct.”
We conclude that the NAACP does not meet the Code’s definition of political organization. Thus, dues paying membership in the NAACP is not prohibited by Canon 7. However, the answer to the judge’s inquiry does not end there. We again refer to JEAC Op. 09-13 which contains an informative review with summaries of earlier JEAC opinions that dealt with judicial membership in various organizations that have multifaceted roles which included political activity. That opinion does such a good job of pointing out that judges must be mindful of other relevant provisions of the Code of Judicial Conduct, that we quote from it at length:
Canon 2A states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 5A provides, in pertinent part, “A judge shall conduct all of the judge’s extrajudicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive.” Canon 3E(1) requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
This Committee has consistently cautioned judges against lending the prestige of the judicial office to further the interests of advocacy groups, and it has specifically opined that judges cannot be personally involved with any lobbying activities for such organizations. However, the Committee has historically taken the position that mere membership in an organization which is well-known for its positions on political or controversial issues or promotes a particular legislative agenda is not prohibited by the Code of Judicial Conduct.
. . . .
The judge is reminded of the commentary to Canon 5C(3)(a) which provides, in pertinent part, “The changing nature of some organizations and their relationship to the law makes it necessary for a judge to regularly reexamine the activities of each organization with which the judge is affiliated in order to determine if it is proper for the judge to continue the affiliation.” This comment has equal relevance to any consideration of Canon 2A’s command that a judge act in a manner that promotes public confidence in the impartiality of the judiciary, Canon 2B’s directive that a judge not lend the prestige of judicial office to advance the private interests of another, Canon 2B’s proscription that a judge not convey the impression that others are in a special position to influence the judge, or Canon 5A’s cautions that a judge be circumspect in the judge’s extra-judicial activities. Thus, the inquiring judge must continually monitor membership in this, or any, organization to ensure that the organization’s activities and the public perception of the organization have not changed to the extent that continued membership implicates any of the various provisions of the Code of Judicial Conduct.
The Indiana Supreme Court has ordered a 90-day suspension with 60 days stayed for conduct unrelated to the practice of law.
On September 18, 2017, Respondent was observed driving recklessly on the Indiana Toll Road. A police officer later found Respondent asleep behind the wheel at a service plaza along the Toll Road. After Respondent refused to perform any field sobriety tests or to submit to a chemical breath test, she was taken to a nearby hospital for a blood draw pursuant to a warrant. Upon arriving at the hospital, Respondent struggled with the officer and twice spat upon him. Respondent was charged with Battery by Bodily Waste, a level 6 felony, and later pled guilty to Battery Resulting in Bodily Injury, a class A misdemeanor. Respondent has a prior conviction for reckless driving, pled down from an original charge of operating while intoxicated. Respondent failed to report that conviction to the Commission.
NBC5 Chicago reported on the criminal charges
The attorney is placed on probation with conditions for two years. (Mike Frisch)
The District of Columbia Court of Appeals dismissed one conviction and remanded another for a new trial.
Mr. Augustin appeals his convictions for misdemeanor sexual abuse of a minor (MSA-M) and simple assault. His claims of error raise questions of statutory interpretation and sufficiency of the evidence. We vacate appellant’s conviction of MSA-M and remand for the trial judge to make new findings and render a new verdict on that count. We reverse appellant’s conviction for simple assault.
Defendant and victim
In the fall of 2016, when appellant was a thirty-three-year-old athletic trainer and teacher at a Washington, D.C., parochial high school, he became infatuated with A.G., one of the student athletes he had taught and advised. She was then in her senior year, just a few months shy of her eighteenth birthday, and she had what she called a “crush” on appellant. In mid-September, appellant began asking A.G. to visit him in his school office. She did so, almost daily. During several of these visits, appellant hugged her closely and affectionately. The MSA-M charges were based on these embraces. During a few visits appellant kissed A.G., including once on the lips. The simple assault charge was for the kissing.
According to A.G., whom the judge credited, appellant gave her a few tight, “intense” and “intimate” body-to-body hugs lasting several seconds, during which his chest pressed against her breasts, and areas somewhere in the vicinity of their genitals also made physical contact. Appellant may have complimented A.G. on her appearance while doing so. If we were to view A.G.’s description of the hugs in isolation, as it were, we doubt we could deem it sufficient by itself to support a finding with the requisite degree of certainty that appellant embraced A.G. for purposes of sexual gratification or arousal. To be sure, appellant crossed a line he should not have; but the patent inappropriateness of his conduct is not enough to establish that the specifics of MSA-M were sufficiently proved. There was no testimony that appellant spoke to A.G. in a sexually provocative way during these hugs; that he had an erection while hugging her; that he caressed A.G. or kissed her in a passionate or intimate manner; that he rubbed his chest against her breasts (or any other part of his body against hers); that his hands touched or went near any of the parts of A.G.’s body protected by the MSA-M statute; or that appellant performed any other lewd or lascivious action beyond the tight hugs themselves.
...Appellant’s hugs initially were brief and casual in nature, but over time, A.G. said, they became “slightly longer,” up to four to five seconds in duration. A.G. characterized three or four of appellant’s embraces as “intense,” and “intimate,” and like “the kind of hugs [one] would exchange with [one’s] boyfriend.” Appellant held her tightly and firmly in these hugs, with his hands around her shoulders and sometimes, “momentarily,” on the small of her back above her waistline. They both remained fully clothed. Their upper bodies, stomachs, hips, and lower areas were all in contact. Appellant did not rub or move his body against A.G.’s. He did not caress or fondle her, nor did he ever put his hands on her breasts or anywhere below her waist. During one hug, appellant kissed A.G. on the cheek. They both remained fully clothed. A.G. did not testify that appellant had an erection or otherwise appeared to become sexually aroused. Appellant may have told A.G. she looked pretty or complimented her on her appearance, but she did not testify that he spoke to her in any more sexually heated or provocative way during these hugs.
Where, as here, the evidence is sufficient to support a verdict of guilty in a bench trial, but the trial judge appears to have grounded the verdict on a mistaken view of the facts without (apparently) having considered and rejected the permissible factual basis, the proper course is for this court to remand the case for the trial judge to weigh the evidence afresh.
The simple assault can be committed by sexual touching conduct that does not fall within the ASAA. The present case illustrates this: appellant could never have been convicted of MSA-M or any other ASAA offense for kissing A.G. in the manner it was proved he did, because such kissing (even if non-consensual, for sexual gratification, and committed by someone in a “significant relationship” with A.G.) was not “sexually suggestive conduct,” a “sexual act,” or a “sexual contact,” within the meaning of the ASAA.
...we agree with appellant that sixteen years is the age of consent for the non-violent sexual touching prosecuted as simple assault in this case, and that the trial judge’s ruling that seventeen-year-old A.G. lacked the legal capacity to consent to appellant’s kisses was legal error. To convict appellant of simple assault, it was the government’s burden at trial to prove he kissed A.G. without her consent.
It is clear from her testimony that A.G., who admittedly had a “crush” on appellant and welcomed an amorous relationship with him, was amenable to his kisses. No reasonable trier of fact could find beyond a reasonable doubt that she found the kisses objectionable or did not consent to them.
The New York Appellate Division for the Third Judicial Department has disbarred an attorney who is awaited sentencing on a federal felony conviction
In November 2019, following a jury trial before the United States District Court for the Southern District of New York, respondent was convicted of two federal felonies, conspiracy to commit money laundering (see 18 USC § 1956 [a]  [B] [i];  [B] [i]) and conspiracy to commit bank fraud (see 18 USC §§ 1344, 1349). These convictions stem from respondent's involvement in a wire fraud scheme in which $400 million in cryptocurrency was transferred to and from accounts in the United States and foreign locations, as well as his role in defrauding federally backed financial institutions of moneys and other property through the misrepresentation of material facts. Respondent has not yet been sentenced.
The conviction and New York state felonies
Respondent's conviction for conspiracy to commit money laundering fails to meet this standard (see 18 USC § 1956 [a]  [B] [i];  [B] [i]; Penal Law § 470.10; Matter of Bristol, 94 AD3d 85, 87 ; Matter of Stern, 205 AD2d 162, 164 ). Nevertheless, we find that, under the circumstances presented, respondent's conviction of conspiracy to commit bank fraud in violation of 18 USC §§ 1344 and 1349 is sufficiently similar to the New York felonies of scheme to defraud in the first degree (see Penal Law § 190.65 ) and grand larceny in the second degree (see Penal Law § 155.40 ) so as to trigger his automatic disbarment in this state.
As to proceeding now
To the extent that respondent argues that disciplinary action in this state is premature in light of his pending posttrial motion, such circumstances to do not entitle him to a stay of disciplinary proceedings (see Matter of Mitchell, 40 NY2d 153, 157 ; Matter of Tzeuton, 66 AD3d 1082, 1082 ). Should respondent's posttrial motion or potential future appeal be successful, "he may move to vacate the sanction imposed by this Court in accordance with Judiciary Law § 90 (5) (a)" (Matter of Tzeuton, 66 AD3d at 1082; see Judiciary Law § 90  [a]).
A press release on the conviction from the Southern District of New York Office of the United States Attorney notes that he is a former Locke Lord LLP equity partner.
SCOTT – who was employed between June 2015 and September 2016 as an equity partner at Locke Lord LLP, a prominent international law firm – was first introduced to Ignatova in September 2015. Beginning in 2016, SCOTT formed a series of fake private equity investment funds in the British Virgin Islands known as the “Fenero Funds.” SCOTT then disguised incoming transfers of approximately $400 million into the Fenero Funds as investments from “wealthy European families,” when in fact the money represented proceeds of the OneCoin fraud scheme. SCOTT layered the money through various Fenero Fund bank accounts in the Cayman Islands and the Republic of Ireland. SCOTT subsequently transferred the funds back to Ignatova and other OneCoin associated entities, this time disguising the transfers as outbound investments from the Fenero Funds. As part of the scheme, SCOTT and his co-conspirators lied to banks and other financial institutions all over the world, including to banks in the United States, to cause those institutions to make transfers of OneCoin proceeds and evade anti-money laundering procedures...
SCOTT, who boasted about earning “50 by 50,” was paid more than $50 million for his money laundering services. He used that money to purchase, among other things, a collection of luxury watches worth hundreds of thousands of dollars, a Ferrari and several Porsches, a 57-foot Sunseeker yacht, and three multimillion-dollar seaside homes in Cape Cod, Massachusetts.
SCOTT was arrested near one of his seaside homes in Barnstable, Massachusetts, on September 5, 2018.
The Wisconsin Supreme Court imposed a 60-day suspension of an attorney for ethical lapses in two client matters.
One set of charges dealt with his role as "standby" counsel
With respect to Attorney Anderson's representation of J.H., the referee noted that Attorney Anderson was appointed standby counsel only, and she pointed out Wisconsin has not specifically addressed the issue of whether standby counsel owes an ethical obligation to the defendant he or she is assisting. The referee said it seems logical that a limited attorney-client relationship was formed when J.H. asked Attorney Anderson to perform certain tasks and when the circuit court asked Attorney Anderson to be prepared to take over J.H.'s defense at trial if requested to do so. The referee reasoned that in order to accomplish those tasks, Attorney Anderson would have to act with diligence so that he could be informed about the case prior to trial and communicate with J.H. about the tasks that were requested.
The referee found that Attorney Anderson did not violate Supreme Court Rules when he failed to inform J.H. about how to subpoena witnesses or when he failed to send additional discovery documents to J.H. since those discovery documents were already in J.H.'s possession and there was no evidence presented indicating the documents were important to help J.H. prepare his case for trial. The referee said that J.H. had already received discovery from prior counsel, who had prepared the case for trial before having to withdraw. The referee also noted that J.H. had received a complete set of discovery at the pretrial conference.
The referee found a failure to communicate with both clients including J.H.
We adopt the referee's findings of fact and conclusions of law as to Attorney Anderson's professional misconduct. As to the appropriate sanction, we conclude that a 60-day suspension, rather than the 30-day suspension recommended by the referee, is an appropriate sanction.
Wednesday, October 28, 2020
An Illinois Hearing Committee proposes that an unusual request be denied
Petitioner was licensed to practice law in New York in 2003 and thereafter moved to Illinois. Although he was never admitted to practice law in Illinois, Petitioner represented clients in Illinois state court on a pro hac vice basis. On January 29, 2019 the Illinois Supreme Court suspended Petitioner for 90 days until further order of Court.
Petitioner filed a petition requesting reinstatement to his pre-disciplinary status of being able to practice law in Illinois on a pro hac vice basis, and the Administrator filed objections. After considering the six factors set forth in Supreme Court Rule 767 as well as other evidence, the Hearing Board concluded that Petitioner had not met his burden of proving his good character, current knowledge of the law and rehabilitation. The Hearing Board is recommending the petition be denied.
Applying the Rule 767 factors to this matter, we conclude that Petitioner engaged in serious misconduct as a mature and experienced attorney, and did not demonstrate that he fully recognizes the severity of his wrongdoing or that he respects the authority of the Court. Most significant to our decision, however, is his improper conduct during his suspension period and his lack of candor and forthrightness in his dealings with the Administrator. Those factors are fatal to Petitioner's reinstatement request.
Moreover, Petitioner did not sufficiently establish his general good character. He presented numerous character witnesses who expressed high opinions of his willingness to help other people, his diligence, and his honesty but, as we stated previously, some of the witnesses received assistance from Petitioner on a pro bono basis, which fact may contribute to a bias in his favor. Conversely, we heard unfavorable character testimony from Deanne Medina and Jack Terpstra, both of whom were credible, with respect to their dealings with Petitioner, their belief that he misrepresented his position, and the harm he caused to their client or judicial proceedings. Finally, we cannot overlook a comment Petitioner made during his opening statement that "[t]he evidence will show that dishonest people tend to be of a lower intelligence." (Tr. 17). That remark indicates an arrogance that reflects negatively on his character.
The evidence regarding Petitioner's current knowledge of the law was not persuasive. He admittedly has not completed any CLE classes since his suspension in January 2019, nor did he submit any certificates showing when he last completed any courses. His testimony regarding his fulfillment of CLE requirements for the New York bar was vague as to timing, although we assume he did submit the required forms to maintain his New York license. We also note Petitioner's failure to understand the continuing nature of his suspension, and the criticism he has received from various courts as to arguments on diversity jurisdiction. The fact he has mishandled the same issue more than once is an indication he has not bothered to re-educate himself on basic principles. Petitioner's citation to less recent cases in which he represented the prevailing party does not reassure us as to his current knowledge of the law.
Misconduct in two client matters drew a 60-day suspension from the Minnesota Supreme Court
The parties agree that Bosse’s misconduct is unique. Bosse engaged in serious misconduct, including failing to properly communicate with and diligently represent two clients, entering into improper fee agreements with these clients, dishonestly charging one client multiple times for the same work, and making a false statement to one client. But Bosse’s practice involves complex medical malpractice litigation, and he obtained a favorable expert opinion for T.H., prepared and served a complaint for T.H., and obtained an expert opinion, although unfavorable, for D.H. Given all of these considerations, we conclude that a 60-day suspension is appropriate for the misconduct here.
The fee issue
On December 30, 2010, T.H. had coronary artery bypass surgery. Following the surgery, T.H. suffered complications. In May 2013, he consulted with Bosse about a potential medical malpractice claim. Four months later, in September 2013, T.H. and Bosse moved forward with the case. Over the next 2 years, T.H. signed three fee agreements with Bosse: (1) the Flat Fee Agreement, (2) the Availability Fee Contract for Pre-Suit Mediation of Potential Malpractice Claim (Availability Agreement), and (3) the Hourly Retainer/Contingency Fee contract (Hourly Agreement).
Despite the communication issues, Bosse prepared and served the summons and complaint on December 23, 2014, just before the statute of limitations expired on December 31, 2014. T.H. terminated the representation on February 20, 2015, for “[u]nreasonable charges for services rendered.” Bosse then sent T.H. a copy of the client file. T.H. was unable to find another attorney to take his case; in the end, and after paying Bosse more than $50,000 for legal fees and expenses, T.H. agreed to dismiss the litigation.
The referee found
Bosse entered into improper Flat Fee Agreements with both clients, an improper Availability Agreement with T.H., and failed to deposit fees related to these agreements into trust...
The Ohio Supreme Court has accepted an attorney's resignation.
Justice Fischer dissented and expressed concerns about restitution
According to statistics compiled after a review was conducted of cases over the past ten years in which this court has accepted resignations with disciplinary action pending, the total amount of restitution awarded by the Fund to former clients of resigning attorneys was calculated to have been more than $3.7 million. During that same time period, the Fund has recovered less than $50,000 from those attorneys; this amount includes the money recovered with the assistance of the Ohio Attorney General. That is about 1.3 cents recovered per every dollar awarded. That is a very low recovery percentage and is one of the reasons why “it pays” for a lawyer charged with unethical conduct to resign with discipline pending.
The resigning attorney’s former clients may or may not, depending on the amount owed, be reimbursed in full for their losses. Plus, these harmed members of the public are forced to apply and wait for recompense. So, in the end, the public, the former clients, and Ohio’s attorneys all lose under this system.
The dissent would require financial disclosure
I must respectfully dissent because, based on these reports submitted by disciplinary counsel, I cannot tell if there is any “blood” in the “turnip” available to pay any restitution in these cases
Chief Justice O'Connor joined the dissent.
Dan Trevas reported on his May 2020 suspension
The Ohio Supreme Court today suspended a Toledo attorney for two years for engaging in a pattern of neglecting client matters, soliciting sex from a client, and failing to return fees for work he did not do.
In a unanimous per curiam opinion, the Supreme Court suspended Mark D. Berling and gave him 90 days to pay about $30,000 in restitution to seven former clients, including $16,500 to one client. The opinion noted that while Berling “technically acknowledged” most of his conduct was inappropriate, he attempted to minimize some of his behavior and shift blame to his clients and others.
Berling has been under an interim remedial suspension since March 24 based on a separate complaint brought against him by the Toledo Bar Association to the Board of Professional Conduct. Today’s sanctions are based on violations for the mishandling of cases from 2013 to 2019.
Attorney Crosses Line in Cross-Border Representation
In 2017, a woman paid Berling a $5,000 retainer to represent her in a divorce action that was pending in Monroe County, Michigan, just across the state border from Toledo. Berling was not licensed to practice in Michigan, but advised his client that he would seek temporary admission and affiliate with a Michigan-licensed attorney. He also assured his client she would not have to pay for two attorneys.
He asked Salvatore Molaro Jr., an attorney licensed in both Ohio and Michigan, to assist.
In February 2017, Berling texted his client to indicate his admission request was “[a]ll done.” However, he never filed for admission. In May and June, Molaro sent Berling two letters identifying several tasks to complete for a June 29 trial , and requesting that the client visit Molaro’s office to discuss his fee. Berling never told the client about the letters.
Berling appeared with Molaro at a mid-June mediation and a final pretrial hearing on the matter. After the hearing, Molaro advised the client he could not represent her because of a failure to reach an agreement on his fee. Because Berling never secured admission to practice in Michigan, the client was forced to obtain a new lawyer one week before her scheduled trial.
During the representation, Berling sent the client multiple text messages that were sexual in nature, including messages in which he solicited sexual activity from her.
Based on this conduct, the board found Berling violated several professional conduct rules, including soliciting sexual activity from a client when no prior sexual relationship existed; practicing law in a jurisdiction in violation of that jurisdiction’s rules; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
The Court adopted the board’s recommendation that Berling pay his client $16,500 in restitution, which includes returning her $5,000 retainer and compensating her for the $11,500 she had to pay to her new attorney.
Board Considers Sanction
When considering a sanction to recommend for Berling, the board considered aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.
Based on a report from a three-member board hearing panel, the board found six aggravating factors, including that Berling acted with a dishonest and selfish motive; committed multiple offenses; refused to acknowledge the wrongful nature of his conduct; and caused harm to vulnerable clients. The board noted he had failed to properly notify his clients that he did not carry malpractice insurance.
“He also had tried to justify his actions by offering certain medical and social conditions as excuses, which the panel concluded showed a lack of sincerity and remorse,” the board reported.
Berling submitted some evidence that he suffered from mental and physical disorders, but the board found the conditions did not qualify as a mitigating factor. However, the board did note that, in mitigation, Berling had no prior disciplinary record, cooperated with disciplinary proceedings, and submitted evidence of his good reputation and competency as an attorney.
Based on sanctions imposed in other cases involving lawyers engaging in patterns of neglecting client matters, the board recommended a two-year suspension with conditions for reinstatement.
The Court agreed and suspended Berling with the condition that he pay restitution in the next 90 days to seven clients, ranging from $1,000 to $16,500. He also must submit to an evaluation by the Ohio Lawyers Assistance Program and comply with any counseling or treatment recommendations from the evaluation, and he must provide an opinion from a qualified healthcare professional that finds he can return to the competent, ethical, and professional practice of law. He also must pay the costs of the disciplinary proceedings.
Monday, October 26, 2020
An Illinois attorney has filed a motion for disbarment by consent
Between at least January 15, 2015 and December 19, 2019 (when his partnership in the firm was terminated as a result of the conduct described in this statement of charges), Movant was a partner in the Chicago office of the McDonnell Boehnen Hulbert & Berghoff LLP intellectual property law firm, where he was responsible for patent prosecution and due diligence matters. As part of the work he did for the firm and its clients, Movant occasionally travelled from Chicago to other cities and towns, and he knew that the firm would reimburse him for the airfare, lodging, dining and other expenses that he legitimately incurred on those business-related trips.
The firm’s expense-reimbursement process required that attorneys submitting requests for reimbursement were to support their requests by attaching receipts (including, for example, for airfare, hotel bills and restaurants), then signing the form to verify both the accuracy of its contents and that the expenses for which they were seeking reimbursement had been incurred for business purposes. In some cases, Movant bought airline tickets or made other transportation reservations, then canceled the original purchase and received a full or partial refund. Movant kept the receipt for the original purchase or reservation, and submitted it to the firm as part of a request to be reimbursed for expenses he had not actually paid, and for trips he had not actually taken.
In 2015, Movant submitted three requests that the firm reimburse him for purported expenses he falsely claimed to have incurred in making ten trips to Brookfield, Wisconsin, between January and November of that year. Movant requested and received $1,171.67 in payment of purported expenses that he knew he had not actually paid.
In 2016, Movant submitted at least 68 false requests that the firm reimburse him for purported expenses he claimed to have incurred in travelling to various locations between November 18, 2015 and December 15, 2016. In reality, Movant had not taken those trips or paid the claimed expenses. Movant requested and received $37,600.19 in payment of purported expenses that year that he knew he had not actually paid.
In 2017, Movant submitted at least 116 false requests that the firm reimburse him for purported expenses he claimed to have incurred in travelling to various locations between December 19, 2016 and December 22, 2017. In reality, Movant had not taken those trips or paid the claimed expenses. Movant requested and received $66,448.88 in payment of purported expenses that year that he knew he had not actually paid.
In 2018, Movant submitted at least 104 false requests that the firm reimburse him for purported expenses that he claimed to have incurred in travelling to various locations between November 26, 2017 and December 8, 2018. In reality, Movant had not taken those trips or paid the claimed expenses. Movant requested and received $82,836.95 in payment of purported expenses that year that he knew he had not actually paid.
In 2019, Movant submitted at least 91 false requests that the firm reimburse him for purported expenses that he claimed to have incurred in travelling to various locations between December 7, 2018 and October 11, 2019. In reality, Movant had not taken those trips or paid any of the claimed expenses. Movant requested and received $91,807.46 in payment of purported expenses that year that he knew he had not actually paid.
The vast majority of the funds Movant received came at the firm’s expense, as he attempted to remove from his clients’ bills (i.e., "write off") the fraudulent charges that he originally identified as having related to client matters (as opposed to business development for the firm), but he was not entirely successful in doing so. In at least four instances, fraudulent travel charges totaling $4,624.96 were passed on to, and paid by, firm clients. After it discovered Movant’s conduct, the firm reimbursed those clients.
In 2019, the firm conducted a review of Movant’s claimed travel expenses. Following its review, it concluded that in addition to the false claims outlined above (for which it found that there was no evidence to show the trips had been taken, and in many cases evidence to show that the trips had not been taken), there were additional claimed expenses that could not be documented. The amount of those claimed expenses was $81,771.32, which, when combined with the $279,865.15 described above, brought the total of Movant’s questioned expenses to $361,646.47. On November 27, 2019, Movant paid the firm $100,000 as partial restitution. He later paid an additional $20,000 to the firm and forfeited his capital account and a portion of his monthly draw. On December 19, 2019, the firm’s other partners voted to terminate Movant’s partnership in the firm.
The New Hampshire Professional Conduct Committee accepted an stipulated reprimand but rejected an analysis of the duties of an attorney in connection with responses to a disciplinary matter.
The Hearing Panel had found no Rule 8.1 violation because the allegedly false statement came in the attorney's initial response but before a formal charge.
The PCC concluded
if an attorney undertakes to file a "voluntary" response with the [Attorney Discipline Office], the lawyer assumes the responsibility to communicate honestly and truthfully with the General Counsel. that responsibility in neither greater, nor less, than the responsibility of a lawyer filing an answer to a docketed complaint or an answer to a formal notice of charges.
However, the PCC agreed that the response at issue was not material.
The stipulation agreed with Rule 1.3 and 5.3 violations. (Mike Frisch)
Friday, October 23, 2020
The British Columbia Law Society Review Board increased the fine imposed for a corporate counsel's conflicts of interest
The matter before this Review Board is the appropriateness of the $5,000 fine assessed against the Respondent for professional misconduct. The Respondent was found to have participated in conflicts of interest over the course of several years, in multiple situations involving his role as corporate counsel, while simultaneously acting for opposing shareholders. As well, he acted as legal counsel in a divorce for one of the shareholders, and in matters involving the arrangements concerning his client’s addiction issues.
The misconduct was serious
In this matter, the Respondent acted for and against different shareholders of a company in two separate share sales while still purporting to act as corporate counsel. The Respondent also acted on behalf of one of the shareholders (“WD”) in a divorce proceeding from his wife, who was another shareholder, where the valuation of the company and the value of the shares would impact all the shareholders. Indeed, the Respondent’s ties to WD were further problematized when at one point, the Respondent held a power of attorney for WD for the sale of the matrimonial home. Finally, the Respondent acted in matters arranging for WD’s drug rehabilitation treatment program.
The Review Board finds that the failure of the Respondent, as a senior lawyer, to identify and avoid these conflicts of interest is serious misconduct.
In the consideration of intention as a mitigating factor, we find the hearing panel erred in placing too much weight on the Respondent’s “good intentions”. While the hearing panel noted that the Respondent did not stand to gain financially or otherwise, the Respondent, as an experienced lawyer, had other legitimate and viable options to avoid the conflicts of interests. The Respondent could have referred out the work or advised the clients to obtain independent legal advice. The Respondent wanted to resolve the client’s financial difficulties and considered the matter urgent, but that objective did not necessitate the Respondent acting contrary to his professional obligations.
The Respondent’s altruistic intention to help his client overcome financial difficulties is considered by the Review Board as a mitigating factor, but not to the level of being “highly” mitigating as found by the hearing panel.
The Review Board finds that the hearing panel in the present matter erred in departing from the joint submission. The $12,000 fine proposed in the joint submission was fair and reasonable, particularly having regard to the nature and gravity of the Respondent’s misconduct and his PCR. Further, the proposed fine would not bring the administration of justice into disrepute and is not otherwise contrary to the public interest. The acceptance of this fine would not lead reasonable and informed persons, aware of all the relevant circumstances, to believe that the proper functioning of the Law Society disciplinary system had broken down.
The Maryland Court of Appeals has entered an order in a matter involving a high-profile attorney who is currently under federal indictment.
The summary of the criminal charges from the United States Attorneys Office for the District of Maryland is linked here.
According to the eight-count indictment, between January and October 2018, Snyder attempted to obtain $25 million from the University of Maryland Medical System (UMMS) for himself, separate and apart from any claim by one of his clients, by using threats of economic and reputational harm to UMMS and its organ transplant program. Specifically, the indictment alleges that Snyder threatened that if UMMS did not pay him $25 million, Snyder would launch a public relations campaign against UMMS that alleged, among other things, that UMMS transplanted diseased organs into unsophisticated patients without informing them of the quality of the organs they were receiving in order to generate revenue. According to the indictment, Snyder told UMMS officials that the campaign would include: a front-page article in the Baltimore Sun; other national news stories; a press conference; advertisements on the Internet, including one that would run every time someone accessed the UMMS transplant site; and at least two videos Snyder produced and would air if his demand for a $25 million payment were not met.
Snyder allegedly demanded that UMMS disguise the $25 million payment as a sham consulting arrangement between Snyder and UMMS. Snyder also allegedly threatened that a lawyer (Lawyer 1) working for the insurance program insuring UMMS and its faculty physician groups would lose her job and threatened to harm the professional reputation of a UMMS doctor (Doctor 1) if they did not aid Snyder in obtaining the $25 million payment.
...An indictment is not a finding of guilt. An individual charged by indictment is presumed innocent unless and until proven guilty at some later criminal proceedings.
The order imposes an agreed-upon temporary suspension who this proviso
Respondent shall enter into the monitor agreement, with a monitor acceptable to Bar Counsel, and that the monitor agreement shall remain in effect through March 31, 2021
within five (5) days of the date of this Order, the Respondent shall provide a copy of the Indictment, the Petition for Disciplinary or Remedial Action, the Joint Request, this Order, and the monitor agreement to Clients A and B and obtain their informed consent to his continued representation of those clients, confirmed in writing and submitted to Bar Counsel no later than ten (10) days after the date of this Order, and shall comply with the other conditions set forth in paragraph 10 of the Joint Request...
The order stays the discipline proceedings pending resolution of the criminal charges. (Mike Frisch)
The District of Columbia Board on Professional Responsibility held an oral argument yesterday in a matter involving allegations that two Assistant United States Attorneys violated their ethical obligation of disclosure to the defense.
This oral argument is worth watching as it shows the D.C. discipline system at its best.
The quality of the oral advocacy is outstanding from Disciplinary Counsel (who argued the case himself) and for both Respondent attorneys.
Disciplinary Counsel made the argument that withholding exculpatory that could lead to a wrongful conviction is the most serious of rule violations.
Many BPR members clearly had wrestled thoughtfully with the record and were engaged with the issues.
And for a bonus - the hearing committee report was issued on June 18, 2020. The BPR received briefs and conducted the oral argument in four months.
That is nothing short of lightning speed.
The bad news - Disciplinary Counsel docketed the matter for investigation in 2014.
The Hearing Committee report can be found here.
The hearing committee majority proposed a 30-day suspension of both attorneys as we reported when the report was issued.
The non-attorney hearing committee member favored an informal admonition.
The video of the oral argument is linked here. Click on the October 22, 2020 BPR session. (Mike Frisch)
Thursday, October 22, 2020
The Idaho Supreme Court reversed a finding against an attorney
Attorney Craig Wise appeals a district court’s determination that he breached a duty of care owed to Billy Kyser, Jr., as a beneficiary of Carolyn Kyser’s will. Wise represented Billy’s mother, Carolyn, in divorce proceedings from Bill Kyser, Sr., and in preparing a will that bequeathed her entire estate in equal shares to Billy and his brother Brent Kyser. As part of the divorce proceedings, and before Carolyn’s will was completed, Carolyn and Bill Sr. executed a property settlement agreement in which Bill Sr. and Carolyn agreed to retain sequential life estates in the family home, with the remainder going to Brent and Billy as tenants in common upon the death of the last surviving parent. Wise prepared a deed memorializing the terms of the property settlement agreement. After Bill Sr. and Carolyn both passed away, Brent retained Wise to represent him as the personal representative of Carolyn’s estate. Brent also hired Wise independently to prepare a quitclaim deed transferring Billy’s interest in the home to Brent. Wise sent the deed to Billy, who then executed it. David Kalb, Billy’s court-appointed conservator, then filed a malpractice suit against Wise. After a court trial, the district court held Wise breached the duty he owed to Billy as a beneficiary of Carolyn’s will by preparing the deed because it frustrated Carolyn’s testamentary intent that her estate be divided equally between her two sons.
We reverse the district court’s legal determination that Wise owed Billy a duty of care when Wise was acting as counsel for the personal representative of Carolyn’s estate, Brent. Although Wise owed Billy a duty of care in drafting and executing Carolyn’s will, the district court impermissibly extended that duty by requiring that Wise ensure an asset outside the probate estate complied with Carolyn’s intent in her will. We, therefore, remand with instructions to enter judgment for Wise.
Liability to a non-client
One may rightly question Wise’s “moral blame” as part of this test – indeed the district court did so. We make no conclusion regarding Wise’s professional responsibility here today; however, Idaho Rules of Professional Conduct 1.7(a)(2) and 4.3 may be relevant for an inquiry by the Idaho State Bar as to Wise’s ethically questionable actions in (1) directly contacting Carolyn’s unrepresented and severely disabled son, (2) having that son transfer his interest in the real property to Wise’s client, (3) failing to advise Billy to seek the advice or intervention of independent counsel, and (4) failing to consult Billy’s conservator before performing any of these acts.
Even so, an alleged violation of any ethical rules, and the moral blame attendant to such conduct, is insufficient alone to extend a duty in tort from Wise to Billy under the balance-of-theharms test. The remaining factors of the test simply do not support extending a duty to Wise’s conduct in preparing non-testamentary instruments – the 2002 Deed and the 2012 Deed – that ultimately transferred Billy’s interests in the home to his brother. While the district court found this action violated a duty owed by Wise to Billy because it frustrated Carolyn’s intent as expressed in her will, we disagree. Wise’s preparation of a deed as a non-testamentary document ten years after the will was drafted, and his contact with Billy to obtain his signature, did not violate a duty Wise owed to Billy as a beneficiary of Carolyn’s will since the deed did not concern an asset of her estate. Wise’s duty at that point was owed to Brent as the personal representative of the estate and to Brent individually in connection with the preparation of the deed. Billy was a non-client, and Wise owed him no duty of care.
I hope that Professor Mike Oths and his Concordia Law students are still reading this blog. (Mike Frisch)