Saturday, August 24, 2019

Back To The Future

If you are interested in attending a bar discipline hearing in the District of Columbia, good luck.

Here is the current list of supposedly-pending hearings found on the web page of the Board on Professional Responsibility

In re Samuel Bailey, DN. 2015-D144
February 4-6, 2019, May 13, 2019, 9:30 a.m

In re Archie Rich, DNos. 2013-D003 & 2013-D181
May 13-17, 2019, 9:30 a.m.
Courtroom II

In re Isaac Marks, DN. 2013-D208
May 20-23 and June 11, 2019, 10:00 a.m.
Courtroom II

I am aware of several hearings held this summer that were never listed on the web page. 

The failure to provide information on pending hearings - and the consequent lack of transparency - is a real disservice to anyone who wishes to see attorney discipline in action (or inaction). (Mike Frisch)

August 24, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 23, 2019

No More Than Brady

From the web page of the Tennessee Supreme Court

August 23, 2019

In an opinion released today, the Tennessee Supreme Court vacated the Tennessee Board of Professional Responsibility’s Formal Ethics Opinion 2017-F-163, which provided guidance to prosecutors about ethical duties under Tennessee Rule of Professional Conduct 3.8(d).

On March 15, 2018, the Board of Professional Responsibility issued Formal Ethics Opinion 2017-F-163 with the purpose of clarifying Rule 3.8(d) of the Tennessee Rules of Professional Conduct.  Rule 3.8(d) covers a prosecutor’s ethical duties to disclose evidence or information tending to negate the guilt of the accused or to mitigate the offense.  The Ethics Opinion interpreted Tennessee’s ethical rules for prosecutors as extending beyond a prosecutor’s current legal duties for disclosure under federal and state constitutional law.  Additionally, the Ethics Opinion interpreted the definition of a “timely” disclosure under Rule 3.8(d) as “as soon as reasonably practicable,” which is different from current law.

On January 15, 2019, the Tennessee District Attorneys General Conference filed a petition to vacate the Ethics Opinion and requested that the Tennessee Supreme  Court stay the effectiveness of the Ethics Opinion pending review.  The Court determined that a full and deliberate review was necessary and ordered briefing and oral argument.  Additionally, the Court granted the stay of the effectiveness of the Ethics Opinion pending the Court’s review.

In its unanimous opinion, the Supreme Court considered other states’ interpretations of prosecutors’ ethical rules and ultimately agreed with the policy that a prosecutor’s ethical duties should be coextensive with the prosecutor’s legal and constitutional obligations.  The Court also determined that the history of Rule 3.8(d) supported this interpretation.  The Court disagreed with the Ethics Opinion’s interpretation of a prosecutor’s ethical duties under Rule 3.8(d) extending beyond the prosecutor’s legal duties and rather interpreted Rule 3.8(d) as being almost entirely coextensive in scope with federal and state constitutional law. The Court also recognized that a prosecutor must have knowledge of the particular information in order to have an ethical duty to disclose that information. The Court also declined to interpret “timely” within the rule as anything other than what is required constitutionally as a timely disclosure.  Accordingly, the Supreme Court vacated the Ethics Opinion in its entirety.

To read the Supreme Court’s opinion in In re: Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163, authored by Chief Justice Jeff Bivins, go to the opinions section of TNCourts.gov.

(Mike Frisch)

August 23, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Uncertainty Dooms Voluntary Discipline Petition

The Georgia Supreme Court rejected a petition for voluntary discipline notwithstanding the agreement of the State Bar

Golub admits that his conduct violated Rules 1.2, 1.3, 1.4, 1.5, 1.16, 3.2, and 8.4 (a) (4) of the Georgia Rules of Professional Conduct. The maximum sanction for a violation of Rules 1.2, 1.3, and 8.4 (a) (4) is disbarment, while the maximum sanction for a violation of Rules 1.4, 1.5, 1.16, and 3.2 is a public reprimand.

But

this Court has two concerns. The first is that it is not entirely clear from the admitted facts that Golub violated Rule 8.4 (a) (4), which concerns professional conduct involving dishonesty, fraud, deceit, or misrepresentation.  See In the Matter of Dorer, 304 Ga. 442 (819 SE2d 7) (2018) (not accepting recommended Review Panel reprimand for a putative Rule 8.4 (a) (4) violation without a full understanding of the facts); In the Matter of Braziel, 303 Ga. 154 (810 SE2d 476) (2018) (petition for voluntary discipline rejected where there was uncertainty about facts underlying purported rule violation); In the Matter of West, 299 Ga. 731 (791 SE2d 781) (2016) (rejecting petition for voluntary discipline where admitted facts did not show that lawyer violated rule he admitted to violating). Second, we are concerned that Golub has failed to fully repay the monies owed to the client’s son. In his petition, Golub states he intends to “pay as much of the money” as he is “able,” but states no intention of making the client’s son whole. See, e.g., In the Matter of Melody Yvonne Cherry, 304 Ga. 836 (822 SE2d 823) (2019) (petition for voluntary discipline rejected where there was lack of information of how a third-party doctor’s claim to unpaid settlement proceeds was resolved). Accordingly, the petition for voluntary discipline is rejected.

(Mike Frisch)

August 23, 2019 in Bar Discipline & Process | Permalink | Comments (0)

No Magistrate Limbaugh In South Carolina

A no-no on Talk Radio for magistrates from the South Carolina Advisory Committee on Standards of Judicial Conduct


OPINION NO. 10 - 2019

RE: Propriety of magistrate judges hosting a radio talk show.

FACTS

Several magistrate judges wish to host a radio talk show. The judges would not be paid for their involvement. The show will be taped and edited, not live, and the judges will control the topics and narratives. The judges intend to include topics on sports law, new laws, amendments to existing laws, opinions from the Supreme Court, and court procedures, such as how to file a suit in magistrate’s court. The judges will not take questions from live callers. The judges inquire as to the propriety of such a show.

CONCLUSION

A magistrate judge should not host a radio talk show.

OPINION

Appellate Court Rule 501 SCACR, Canon 4, does allow a judge to be involved in certain community activities and is not intended to totally isolate a judge from the society in which the judge lives and works. Canon 4 permits a judge to write, lecture, teach and speak on non-legal subjects only if such activities do not demean the judicial office or interfere with the performance of his judicial duties. See Canons 4A and 4B (emphasis added). Additionally, Canon 2B, in addressing the appearance of impropriety of a judge's activities, provides that a judge should: not lend the prestige of his office to advance the private interest of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.

In associating with a radio talk show on a regular basis, the judge(s) would clearly lend the prestige of judicial office to the advancement of the radio station, in an area where the public perceives the judges to be experts. Regular appearances on a talk show (as opposed to a bar association or other organization dedicated to the improvement of the law) could detract from the dignity of judicial office, in violation of Canon 4A. Moreover, a judge cannot publicly discuss litigation he has handled, or that some other judge may have handled. Thus, a judge’s talk show could place an undue and unnecessary strain on other judges by having to decide an issue on which the judge had already publicly discussed.

For the foregoing reasons, this Committee finds it improper for a judge or judges to host a radio talk show.

(Mike Frisch)

August 23, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Crime And The Coverup

Revocation and restitution has been imposed by the Wisconsin Supreme Court for an attorney's client-related misconduct and false statements in the ensuing bar investigation

The referee observes that what is disturbing about this matter is not simply the exceedingly careless trust accounting, but the "way in which Attorney Vaitys seemed to regard a vulnerable client as a 'cash cow'——someone whose settlement funds could be used for legal fees without regard to whether the legal services were worth it." The referee cites several cases in support of his conclusion that revocation is appropriate here, despite Attorney Vaitys' lack of prior professional discipline.

The principal victim

The first 12 counts of the OLR's disciplinary complaint arise from Attorney Vaitys' representation of T.A. T.A. is an individual with a "wide range of cognitive and comprehension difficulties, including difficulty reading and/or understanding written information." In February 2012, T.A. hired Attorney Vaitys and Attorney Thomas Napierala, a lawyer with another firm, to set aside a mediation agreement and settlement that T.A. had entered in a Milwaukee County Circuit Court case involving the estate of T.J.  If they succeeded in setting aside the settlement, the two lawyers would then commence litigation to establish that T.A. was entitled to inherit the T.J. estate. If not, they intended to appeal and, perhaps, seek review in this court. The legal work was to be paid from settlement funds that T.A. had received from the T.J. estate (the Probate Award). Work commenced in February of 2012, but no written fee agreement was signed until November 2012.

A settlement with the estate was reached but

Essentially, Attorney Vaitys improperly took a substantial portion of T.A.'s funds and kept T.A. in the dark about the balance of funds held by Attorney Vaitys and the charges against them.

When the bar opened an investigation

During the investigation, Attorney Vaitys represented to the OLR that billing statements were supported by contemporaneously created ledgers that he claimed to have gone
over with T.A. on a monthly basis. Attorney Vaitys later admitted that these statements and ledgers were fabricated to conceal his misuse of T.A.'s funds.

Attorney Vaitys also misrepresented the terms of the fee agreement, falsely stating that it provided for up to $43,000 in fees and costs for appellate work, and falsely claiming that he obtained T.A.'s authorization for every disbursement when he had not.

In addition, during the investigation, Attorney Vaitys procured an affidavit from Attorney Napierala stating that certain funds were not converted because he and Attorney Vaitys had an agreement by which Attorney Vaitys was authorized to offset these amounts against amounts owed to him by Attorney Napierala. However, Attorney Napierala later told the OLR that while there was such an agreement, it did not exist between  November 2012 and May 2014 when the funds at issue were converted.

(Mike Frisch)

August 23, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 22, 2019

Disbarred While Deceased

There are not many cases where an attorney engages in misconduct in the course of representing an accused lawyer in a bar discipline matter.

Here's one from the web page of the Colorado Presiding Disciplinary Judge

A presiding officer appointed to serve in the Presiding Disciplinary Judge’s stead approved the parties’ conditional admission of misconduct and suspended Kallman S. Elinoff (attorney registration number 18677) for 180 days, with 120 days of the suspension to be stayed upon successful completion of a one-year period of probation, to include practice monitoring. The suspension takes effect September 1, 2019.

Elinoff represented a client pro bono in a lawyer disciplinary case from 2013 through 2017. Though the client’s answer was due on May 7, 2014, Elinoff did not file it until May 20, 2014. Elinoff did not submit initial disclosures by the court-ordered deadline. The court granted a motion for sanctions on this basis. Elinoff also did not submit by the due date any documents in response to the disciplinary authorities’ requests for discovery and admissions. When the disciplinary authorities moved again for sanctions, Elinoff filed an untimely and noncompliant request for extension of time to respond. The court later entered default against the client.

Due to the client’s health issues, the court continued or held in abeyance the case more than once. The client was treated for cardiac congestive heart failure combined with ischemic stroke suffered in March 2014. The court ordered Elinoff to file status reports on his client’s health. One such report was due on May 20, 2015, but was not filed until June 9, 2015. The court then informed Elinoff that further failures to meet court-ordered deadlines could result in the issuance of a contempt citation. In a subsequent filing, Elinoff told the court that he had very limited communication with his client, who had conveyed to him that he was neither physically nor mentally able to fully comply with the court’s orders. A status report was due on October 15, 2015, but Elinoff did not file it until October 20, 2015. Another status report was due in June 2016 but was filed a day late. A status report due on June 1, 2017, was not filed until June 19, 2017, after the court issued a reminder.

The court ultimately lifted the stay in the case and set a sanctions hearing for November 15, 2017. Elinoff filed no prehearing materials. On October 20, 2017, the client died. The sanctions hearing went forward without Elinoff’s knowledge that his client had died. A hearing board issued an opinion disbarring the client. The next day, the disciplinary authorities informed the court of the death.

(Mike Frisch)

August 22, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 21, 2019

A Day At The Beach

A 60-day consent suspension has been ordered by the Maryland Court of Appeals.

While the order does not specify the misconduct other than identifying a violation of Rule 8.4(d)(conduct prejudicial to the administration of justice), this report from the Washington Post may be related

Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment. Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.

UPDATE, 11:17 a.m.: Ellis Rollins submitted his resignation on Monday as state’s attorney, Cecil County Administrative Judge Keith Baynes confirmed today. The resignation is effective Friday at 4:30 p.m., Baynes said. The move was first reported by the Cecil Whig.

It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.

Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched. He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions, and he also will probably continue as the state’s attorney of Cecil County, a county with a population of about 100,000 in the northeast corner of Maryland. He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.

Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call. At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room. Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartmentBut the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”

Rollins and his wife were staying at the Clarion Resort Fontainebleau Hotel, near 100th Street and Coastal Highway, where Rollins was attending the summer conference of the Maryland State’s Attorneys’ Association. Adjacent to the Clarion is another high rise, the Atlantis, a condominium rental. The weirdness began on June 21, when Karen Lynn and Lisa Smith, staying in the Atlantis, saw a naked man across from them in the Clarion, dancing at the sliding glass door to his balcony, squatting, posing, and masturbating, which prompted them to call Clarion security, the Cecil Whig reported.

“I was like, ‘What the hell is going on?’,” Lynn, of Harrisburg, Pa., testified. “He was looking right up at us. He made eye contact several times.” She said Rollins then had sex with his wife next to the sliding glass door. When the same action happened the next day, with Rollins seemingly appearing whenever the women at the Atlantis stood by their own glass window, Lynn used a zoom lens to take photos of Rollins naked. Then the Pennsylvania women called their condo office and the head of Atlantis security, Michelle Jones, testified that she saw Rollins masturbating in full view shortly after she arrived at the women’s room. The Whig reported that Jones couldn’t see Rollins at first, but that after she waited by the window, Rollins appeared wearing only a towel, then dropped the towel and began posing and masturbating.

Jones called the police. Officers arrived, testified that they saw Rollins naked, and arrested him. Worcester County State’s Attorney Beau Oglesby visited the scene, interviewed the women and then charged his prosecutorial colleague with two counts of indecent exposure and two counts of disorderly conduct. Oglesby and his top deputy personally tried the case in December, and Oglesby told the jury that the women’s photos of Rollins corroborated their story of his naked dancing and masturbating.

Oglesby responded that he attends Washington Capitals’ hockey games and watches goals scored from the cheap seats more than 172 feet away. “Each woman was visibly shaken by the entire ordeal and the recounting of it,” Oglesby told the jury, according to reporting by The Whig’s Carl Hamilton.

After four hours, the jury acquitted Rollins of the two charges from the first day of alleged misconduct, and convicted him of the charges for the second day of action. Rollins had told The Whig last June that he had been charged “based on one side of the story” and that Oglesby had not heard his side. “I am confident when that happens, my name will be cleared.”

The penalty for indecent exposure in Maryland can be severe, with imprisonment up to three years and a fine up to $1,000. Disorderly conduct carries a maximum punishment of 60 days in jail and a $500 fine. State records indicate Rollins has no prior convictions and it is unlikely a judge would send a first-time violator to jail, particularly a state’s attorney.

But will Rollins continue as the state’s attorney? According to The Whig, he stopped trying cases in Cecil County after his arrest but continued his administrative tasks, overseeing an office with a budget of about $2.2 million, of which $1.9 million is spent on salaries and benefits, county records show. Rollins has held the job since 2011.

The Maryland constitution provides that the state’s attorney shall “be subject to removal” from office “for incompetency, willful neglect of duty, or misdemeanor in office, on conviction in a Court of Law, or by a vote of two-thirds of the Senate, on the recommendation of the Attorney General.” Whether Rollins’ conviction qualifies as a “misdemeanor in office” — he was in Ocean City for a state’s attorneys’ function, though presumably not acting in his official capacity in his hotel room — is unclear, and Maryland Attorney General Brian E. Frosh (D) would have to launch such a removal initiative. His spokeswoman, Christine Tobar, said Monday her office had no comment on the matter.

(Mike Frisch)

August 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Remember Rosene

The New York Appellate Division for the Second Judicial Department imposed a two-year suspension of an attorney, rejecting the suggestion that his offense was not a "serious crime"

As revealed in the misdemeanor complaint charging the respondent with official misconduct, the respondent, in his role as a Special Prosecutor for the Village of Spring Valley Justice Court (hereinafter special prosecutor), appointed to prosecute traffic tickets and zoning violations for the village, “submitted false documentation to the Village Justice in order to justify giving favorable plea dispositions at the behest of Village Trustee Vilair Fonvil, whom [sic] attended plea negotiation sessions, met with individuals facing traffic charges and on occasions directed [the respondent] as to how to dispose of those charges.” More specifically, on November 30, 2016, Nathalie Rosene, who had been issued two traffic summonses for illegally parking in a handicapped parking spot, met with Fonvil. Fonvil then instructed the respondent to “remember [Rosene].” Thereafter, during plea negotiations, the respondent advised Rosene to pretend that she had a handicapped placard and that her placard had fallen inside her vehicle when, in fact, Rosene never had any such placard. The respondent then filed with the court a traffic infraction plea agreement which falsely stated “[d]efendant has disability sticker fell to bottom of car floor” in support of his application to dismiss the parking tickets. Such conduct, the misdemeanor complaint against the respondent charged, constituted an “unauthorized exercise of the [respondent’s] official functions.”

The court

Notwithstanding the aforementioned mitigation, the Court cannot overlook the fact that the crime committed here epitomizes the kind of corruption at the heart of the judicial system that undermines the public’s trust in the courts and their delivery of fair and evenhanded justice. The respondent, in his role as special prosecutor, fabricated evidence to secure a dismissal, knowing that his conduct was wrongful and improper.

(Mike Frisch)

August 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Essentially Similar

An attorney's Arizona conviction was for a crime "essentially similar" to a New York felony resulting in automatic disbarment

On September 22, 2017, in the Superior Court of the State of Arizona, County of Maricopa, the respondent was convicted, upon a plea of guilty, of aggravated assault, in violation of Arizona Revised Statutes § 13-1204(A)(2), a class 3 felony. As revealed in a transcription of the plea proceeding, the factual basis of the respondent’s plea was as follows:

“On May 5th, 2017, in Maricopa County, . . . Mr. Eugene O[‘C]onnor was in a physical altercation with his wife, Nancy O[‘C]onnor with whom he lived. During that physical altercation Mr. O[‘C]onnor recklessly caused physical injury to Ms. O[‘C]onnor by using a dangerous instrument, and that instrument was a scissor[ ], which caused a small laceration on her wrist.”

On October 25, 2017, the respondent was sentenced to six months’ incarceration in the county jail, an additional six months’ deferred jail term, and a four-year period of supervised probation. In addition, he was directed to participate in an anger management program, a domestic violence offender treatment program, and a substance abuse treatment program, and to make restitution for economic loss to the victim.

Consequently

Under the circumstances of this case, we conclude that the respondent’s conviction of aggravated assault is “essentially similar” to the New York felony of assault in the second degree (see Matter of Szego, 205 AD2d 76). By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

The sanction was imposed by the New York Appellate Division for the Second Judicial Department. (Mike Frisch)

August 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Moonlight In South Carolina (Apologies Vermont)

Moonlighting drew a public reprimand from the South Carolina Supreme Court

While a member of a South Carolina law firm (Law Firm), Respondent moonlighted, handling more than fifty client matters privately and "off-the-books." Law Firm identified approximately $100,000 Respondent personally billed to his moonlighting clients instead of billing on behalf of the firm. Respondent also provided legal services to many clients without charge.

Respondent's secretary reportedly helped Respondent screen for conflicts, and there is no evidence Respondent's moonlighting resulted in any conflicts of interest with current or former Law Firm clients. Respondent's secretary also helped Respondent issue and collect invoices, and a different non-lawyer staff member of Law Firm assisted Respondent in handling a moonlighting client's matter, but there is no record Respondent invoiced or collected a fee in that matter. In most instances, Respondent did not open files for his moonlighting clients on Law Firm's case management system; however, even when he did, he did not use Law Firm's billing software to track his time or bill his moonlighting clients. Respondent did not maintain a trust account or trust account records for his moonlighting cases and, on one occasion, Respondent failed to deposit $500 in unearned legal fees into a trust account. Respondent did use Law Firm's computers to draft correspondence and pleadings irrespective of whether the matter was a
firm matter or a moonlighting matter.

Respondent's moonlighting clients came to him independently of Law Firm and his moonlighting invoices bore only Respondent's name. However, invoice cover letters and update letters addressed to Respondent's moonlighting clients were typically on Law Firm stationery. Respondent presented affidavits from nineteen of his moonlighting clients stating they were aware they were represented solely by Respondent and not by Law Firm. Nevertheless, that same information was not made clear to third parties. Respondent's letters to opposing parties and counsel were on Law Firm stationery and Law Firm's name appeared in the signature block of Respondent's letters and court filings related to his moonlighting cases.

While working as a member of Law Firm, Respondent was entitled to seventy to eighty percent of his collected billings, covered his overhead, did not neglect firm matters, brought business into the firm through his moonlighting and firm-related work, and represented members of the firm and their families on numerous occasions for no charge. Additionally, while a member of Law Firm, Respondent was elected to town council and helped another member of Law Firm become appointed as town attorney.

Respondent maintains Law Firm had no prohibition against any member of the firm engaging in outside business activities and moonlighting was not prohibited. Respondent further notes he did not hide his moonlighting, but concedes it would have been better if he had explicitly discussed his plan to moonlight and sought clearance prior to engaging in moonlighting. A representative of Law Firm contended Law Firm's policy required all legal services rendered by the firm's attorneys to be billed in the firm's name and that all fees be collected by the firm; however, the representative confirmed this policy was never reduced to writing in Law Firm's operating agreement or elsewhere. Respondent and Law Firm quickly settled their dispute through Respondent's payment of $35,000 to Law Firm and the execution of a mutual release of all claims.

The attorney stipulated to ethics violation.

The court provides no analysis of its sanction reasoning, only the bottom line

We find Respondent's misconduct warrants a public reprimand. Accordingly, we accept the Agreement and publicly reprimand Respondent.

(Mike Frisch)

August 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

"The Plates Crashed. She Is Picking Up The Pieces."

Dan Trevas reports on this opinion of the Ohio Supreme Court

The Ohio Supreme Court today indefinitely suspended a Lakewood lawyer who continued to practice while under suspension and engaged in other professional misconduct, including lying to a client and a court about being suspended.

In a per curiam opinion, the Supreme Court suspended Rebecca Jo Austin, ordered her to pay $1,000 restitutionto one of her clients, and placed other conditions on her ability to return to the practice of law. Austin received an interim suspension in February 2018, and disciplinary investigators discovered she continued to practice for another three months.

A Court majority agreed to grant her credit for time served under suspension from the point when she stopped practicing, which was May 2018. Justices Sharon L. Kennedy, Judith L. French, R. Patrick DeWine, Michael P. Donnelly and Melody J. Stewart joined the opinion.

Chief Justice Maureen O’Connor and Justice Patrick F. Fischer dissented and would not grant Austin credit for time served under the interim suspension.

Attorney Ignores Client Matter, Cites ‘Communication Issues’

In February 2017, Joseph Long hired Austin to represent him in a divorce proceeding. He paid her a retainer and attempted to contact her by phone, email, and text to inquire about his case. Austin failed to respond to any of Long’s messages. About two months later, Long asked for a refund, and Austin failed to reply.

In May 2017, she sent Long an email apologizing for “recent communications issues,” claiming it was caused by technical problems with her email and phone and “exacerbated by personal issues.”

Long responded by requesting a refund of his retainer. Austin did not return it until 10 months later.

Also in 2017, Austin represented defendants in an employment discrimination lawsuit, in which the partiesagreed to settle the matter. Austin was to work with the plaintiffs' lawyers to produce a final settlement entry.

The settlement was not finalized, and the court considering the matter scheduled a “show cause hearing” to determine why the case was not settled. Austin failed to appear at the hearing and was found in contempt of court. She also failed to appear at a subsequent hearing where the opposing attorney asked the court to enforce the settlement and to order attorney fees.

Austin later testified that she did not receive electronic notices of the hearings. But she acknowledged the case docket was available online and that any issues with her email did not excuse her from her duty to attend the court hearings.

In November 2017, the Cleveland Metropolitan Bar Association charged Austin with neglecting the two client matters, failing to cooperate in the disciplinary investigation, and committing other professional misconduct.

In February 2018, after Austin failed to respond to the bar association’s complaint, the Supreme Court imposed an interim default suspension on her, and in May 2018, found her in contempt for failing to comply with the suspension order.

Lawyer Practices While Under Suspension 

Just days before her suspension, Austin agreed to represent Ashley Rogers in a domestic dispute, and Austin advised Rogers on how to obtain a protective order, which Rogers was able to secure on her own.

Austin failed to inform her client of her eventual suspension and instead collected $1,000 in cash and a $400 check from Rogers, then appeared at a hearing for Rogers in which the parties agreed to continue the matter and set a new hearing date.

At the hearing, Austin did not enter a notice of appearance for Rogers, and the court informed Rogers of that. Rogers asked Austin if she needed to hire a new lawyer, but Austin responded, “I’m representing you and I’ll clear it up.”

About a week later, Rogers learned of Austin’s suspension and requested a refund. Austin responded that she was “addressing the situation” and anticipated her suspension would be “very temporary.” Austin then billed Rogers for services performed during her suspension. She later returned Rogers’ $400 check, but never refunded the $1,000 cash payment.

The bar association amended its complaint against Austin after learning that she continued to practice under suspension, including representing Rogers and conducting other matters. During that time she also misled a magistrate and others about her suspension, telling them she was “working diligently to comply with the Supreme Court,” when in reality, she was not responding to orders issued regarding her disciplinary proceedings.

Lawyer Committed Multiple Rule Violations

The Board of Professional Conduct found Austin violated several of the rules governing the conduct of Ohio attorneys, including failing to keep clients reasonably informed of the status of their matters, making a false statement to a court, practicing law in violation of a regulation in a jurisdiction, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

During her interim suspension, Austin admitted to her misconduct, including not responding to Long’s inquiries or showing up at the settlement hearings, but denied any ethical rule violations.

Board Recommends Indefinite Suspension with Conditions

When considering recommending a sanction to the Court, the board considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

As aggravating circumstances, the board found Austin engaged in a pattern of misconduct, committed multiple offenses, and initially failed to cooperate in the bar association’s disciplinary investigation. It also found she harmed a vulnerable client during her representation of Rogers and failed to make restitution to Rogers.

As mitigating factors, the board found Austin had no prior disciplinary record and lacked a dishonest or selfish motive. The board panel hearing her case concluded that Austin never tried to take advantage of any client and was: “... genuinely trying to help her clients while keeping all of her spinning plates in the air. The plates crashed. She is picking up the pieces.” The board also noted Austin cooperated during her disciplinary hearing.

Austin did not claim the existence of any mental health disorder that would qualify as a mitigating factor, but did testify she was operating in “crisis mode” because of various stressors in her personal life and was receiving treatment from a mental health professional.

The board expressly opposed disbarment, concluding that Austin is likely to establish her ability to be readmitted to the practice of law in the future.

“An indefinite suspension will serve to protect the public while also leaving open the possibility that Austin might be able to return to the competent, ethical, and professional practice of law,” the Court majority stated.

The Court indefinitely suspended Austin, giving her credit for time served from May 2018 until today, and ordered that she pay Rogers within 90 days or reimburse the Lawyers’ Fund for Client Protection for any payments the fund makes to Rogers. Before applying for reinstatement, Austin must also undergo an assessment by the Ohio Lawyers’ Assistance Program and fully cooperate with any recommendations resulting from the assessment.

2018-0159Cleveland Metro Bar Assn. v. AustinSlip Opinion No. 2019-Ohio-3325.

(Mike Frisch)

August 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Out Of State, Out Of Pocket

An out-of-state attorney has been sanctioned by the Ohio Supreme Court as told by Dan Trevas

An out of state lawyer, who provided legal advice and services to more than six Ohioans, was fined $25,000 by the Ohio Supreme Court today for engaging in the unauthorized practice of law.

Donald A. Doheny Jr. was paid nearly $70,000 in legal fees for work in Ohio. In a unanimous per curiamopinion, the Supreme Court ordered Doheny to stop performing legal services in Ohio until he is admitted or otherwise certified to practice in the state, and to pay $2,500 for each of the 10 counts of unauthorized practice of law he committed.

Lawyer Engages in Butler County Airport Negotiations
Doheny has a law degree from the University of Notre Dame. His last listed business address in court records was in St. Louis, Missouri. He is or was licensed to practice law in Indiana, Virginia, and the District of Columbia, but was never authorized to practice in Ohio.

According to Doheny’s close friend Frederick Hogan, a serious head injury that Doheny suffered in a 1993 car accident prevented him from maintaining steady work. Doheny moved from the District of Columbia to St. Louis in 1998 to live with his mother. When his mother was admitted to a nursing home in 2006, Doheny was “essentially homeless,” Hogan stated. Doheny moved to Ohio to live with Hogan and his brother, Clifford, and lived with them until 2015.

In 2010, Hogan and another brother, Thomas, were informed by Butler County that they violated the lease of a rented hangar at the county airport by placing certain signage on the side and roof. Doheny researched the matter and met with county officials about the situation. The meetings resulted in the county dropping its demand to remove the sign.

Doheny attended a public meeting of the county commissioners where he sought to amend the Hogans’ airport lease so that they could qualify for a Small Business Administration loan to build a new hangar. Doheny provided legal advice to the Hogans regarding building permits for a new hangar, and he met with government officials regarding compliance with the permits.

Doheny advised the Hogans to file a lawsuit against the county, and told them he could not represent them in the case, but after they retained an Ohio lawyer, he asked to be part of the legal team. The attorney the Hogans hired rejected Doheny’s request.

Doheny also engaged the Federal Aviation Administration (FAA) on behalf of the Hogans and stated that the Hogans were his “clients.” When communicating with the FAA, Doheny used the letterhead “Doheny & Doheny,” listing offices in Los Angeles, St. Louis, Cincinnati, and Washington, D.C.

Frederick Hogan estimated he paid Doheny $64,000 for his services. He testified Doheny was not a member of a Doheny & Doheny law firm and that Doheny listed as the firm’s business address a piece of property Hogan owned. Hogan said he did not give Doheny permission to use the address.

Lawyer Involved in Property, Criminal Matters
Doheny prepared a purchase agreement for Clifford Hogan’s real estate, and billed him $1,150 for the services. He also charged another man $300 to prepare a deed to sell land to the man’s son. The deed stated that Doheny’s law office was in Guilford, Indiana, near the Ohio-Indiana border.

Later, when the man’s son was arrested, Doheny accompanied the father to the Butler County jail and told law enforcement officials he was the “family lawyer.” He attempted to negotiate the son’s release, and was paid $2,000 for his representation.

In another matter, Doheny prepared a deed for a property transfer by a Butler County woman, again stating that his law office was in Indiana.

Bar Association Seeks to Shut Down Lawyer
In March 2017, the Ohio State Bar Association filed a complaint with the Board on the Unauthorized Practice of Law, charging Doheny with 11 counts of engaging in the practice of unauthorized law.

The board recommended that the Supreme Court find that Doheny committed 10 counts of the unauthorized practice of law and fine him $2,500 for each count.

Court Adopts Penalty
The Supreme Court’s opinion noted the practice of law is not limited to handling cases in court, but pertains to “an individual who prepares legal documents or contracts that affect the legal rights of others.” The Court also stated that it has cited those not licensed to practice in the state for the unauthorized practice of law when they advised Ohio residents of their legal rights on the terms and conditions of a settlement.

Doheny’s legal advice to the Hogans and the negotiations with various government officials counted as practicing law, as did preparing real estate deeds and holding himself out to be the “family lawyer” when seeking to negotiate the release of the man from the Butler County jail.

The Court noted that Doheny initially cooperated with the bar association’s investigation, but stopped when his lawyer withdrew from representing him. He did not participate in the proceedings after the bar association filed its complaint with the board.

“The board found that Doheny flagrantly engaged in ten instances of the unauthorized practice of law. In some instances, he identified himself as a lawyer and his victims as ‘clients’ and he endeavored to legitimize or conceal his conduct by making it appear that he practiced law with a larger, multistate firm or from an office in Indiana,” the opinion stated.

Because of his action and the “significant fees” he collected for his work, the Court adopted the board’s recommendation to order Doheny not to practice law in Ohio and pay the $25,000 penalty.

2019-0245Ohio State Bar Assn. v. DohenySlip Opinion No. 2019-Ohio-3326.

(Mike Frisch)

August 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 19, 2019

Murder And The Queen

The Law Society of Upper Canada Tribunal Hearing Division has concluded that an attorney is incapacitated from practice

The Lawyer asked that he be referred to as Spirit Warrior during the course of the proceedings, a request that the panel and the participants at the hearing honoured.  He also asked to conduct a brief (five minute) spiritual ceremony at the outset of the hearing.  The panel permitted him to conduct his ceremony but did not require any others present to participate.

During the course of the hearing, the Lawyer made a motion arguing that the Law Society Tribunal lacked jurisdiction to hear this application and seeking to have counsel and the panel removed on the basis that Toronto is on unceded land.  We held that this motion had been heard and ruled on both by the Chair and a previous panel of the Tribunal and those rulings would not be revisited.  The Lawyer then made a motion that I remove myself as chair of this panel.  We ruled that there were no grounds for granting his request, denied it and continued with the hearing.

The evidence

The Lawyer was called to the bar in 1985.  He was administratively suspended from 1987 through to 2015 for non-payment of annual fees.  From February 2015 to April 2017, he practised law as a sole practitioner, with a brief intervening period of administrative suspension for non-payment of insurance. 

In March 2017, the Law Society brought a motion seeking an interlocutory suspension of the Lawyer’s licence.  On April 12, 2017, an interim interlocutory suspension was ordered.  On April 16, 2019, the interim interlocutory suspension was replaced by an interlocutory suspension.  The Lawyer has been continuously suspended from practicing law since April 12, 2017.

Ms. Oliphant gave evidence about the steps she had taken to investigate a number of complaints received by the Law Society concerning the Lawyer.  Specifically, she reviewed her affidavit which laid out the details of cases where, in advocating for his clients, the Lawyer had advanced unconventional, irrelevant and highly unusual theories such as one involving the Queen of England’s legitimacy as a monarch for reasons relating to “the illegitimacy of Edward IV, her conviction for murder via the Canadian eye witnesses in a common law court and her oath to the pope to obtain Vatican gold to back her illegal fiat currency banks.”

The Law Society subsequently brought a motion to have the Lawyer assessed by a psychiatrist, which was granted.  Dr. Klassen, a forensic psychiatrist, met with the Lawyer, reviewed materials provided to him by the Law Society and by the Lawyer, conducted an assessment and provided his opinion to the Law Society.  He gave evidence to the panel in support of his report.

Dr. Klassen testified that the most probable and likely diagnosis is that the Lawyer suffers from a delusional disorder, persecutory and grandiose subtypes.

Dr. Klassen described the Lawyer as a bright and compelling individual who is intelligent, has been quite driven and has a positive self-concept.  Following an event in his 40s, perhaps linked to the illness of one of his children, the Lawyer experienced a change or evolution of thinking that has resulted in his current presentation.  He displays idiosyncratic perspectives on a broad range of topics including the origins of humankind, cellular and human physiology, weight loss, energy, female sexuality and worldwide political and banking systems.

Dr. Klassen indicated that the Lawyer is not suffering from intellectual deficits or that he cannot learn.  He did say, however, that he observed three areas or “buckets” of focus:

•           somewhat grandiose thinking that manifests itself in the Lawyer making solemn pronouncements about a number of topics including the origins of humankind;

•           conspiratorial ideas about interconnectedness of disparate world political and banking institutions; and

•           a focus on Indigenous peoples and their causes.

For example, without training or research, the Lawyer has taken strong positions on scientific or quasi-scientific matters such as undigested food causing cancer.  He has also advanced the theory that aliens from another galaxy travelled to our planet and set up laboratories to grow grain.  Without rigorous scientific methods or peer review and the narrow filter through which these theories are being processed, the resulting confirmation bias on display in the self-published books outlining the Lawyer’s theories is, in Dr. Klassen’s view, severe.

The theme that emerged from his evidence is that the Lawyer experiences a strong sense of duty and has come to view himself as a rescuer and the hero of the various stories he is telling: the cancer story, the Indigenous story, the human origin story and the banking story.  For example, he speaks of suing the Vatican for the amount of the world debt to alleviate the suffering of Indigenous peoples.

Dr. Klassen gave evidence that people experiencing delusional disorder rarely get treatment and the condition, if treated with low dose antipsychotic medication, can result in reduced emotion or drive to act, but with the ideas or cognitive framework in the background left intact.  He explained that the condition waxes and wanes and, as a result, he is not optimistic about treatment and prognosis going forward and believes that the Lawyer will have continued challenges with conformity.  Furthermore, his opinion is that the Lawyer completely lacks insight into his condition and is very committed to his path.

The Lawyer testified at length about his life experiences and world view.  He introduced a number of documents into the record that he believed explained some of the sources of his ideas and research.  He expressed the view that he is free to write what he likes in his books, which he maintains are well-researched.  He describes himself as a “world leading expert on the knights templar” and claims he has lived “in perfect health and perfect weight for the last 20 years” as a result of his research.

The Lawyer gave evidence about some cases that he had argued where he had obtained positive results for his clients.  He also called as a witness a former client whom he had represented in a child protection matter.

Disposition

Even if we accept that the Lawyer’s illness did not, or would not, manifest itself in all cases, the possibility that the Lawyer may be able to meet some of his obligations some of the time is not sufficient reason for us to conclude that the public interest would be protected by determining that he has the capacity to continue to practise law.  This is bolstered by the Lawyer’s conduct during proceedings before this Tribunal, such as:

•           his pronouncement that he is a Métis individual who is to be “free of the rules”;

•           his insistence that the Tribunal lacks jurisdiction and that the laws of equity and something called the “Law of Ma’at” be applied in proceedings before it; and

•           his motion seeking that a finding of violation of the “indigenous privacy laws of Kinakwii” be made in respect of investigation counsel for the Law Society and that a finding of “treason” be made against counsel representing the Law Society in these proceedings. 

We find that the medical evidence establishes that the Lawyer does not have the capacity to meet his obligations as a licensee. The actions outlined above are clearly related to his illness. Accordingly, we find that the Lawyer was, and continues to be, incapacitated within the meaning of s. 37(1) of the Act.

(Mike Frisch)

August 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Under The Influence In Court And On The Road

The Illinois Review Board proposes a two-year suspension of an attorney

In May 2013, Respondent was arrested for driving under the influence of alcohol; he later was charged with and pled guilty to Aggravated DUI, as it was his third DUI conviction. In August 2014, Respondent was held in direct criminal contempt of court, after he appeared before a judge while intoxicated.

Based on these two incidents, the Administrator filed a two-count complaint against Respondent, alleging that he had engaged in criminal conduct that reflected adversely on his fitness as a lawyer, and, as to the second incident, had engaged in conduct that was prejudicial to the administration of justice.

Following a hearing at which Respondent represented himself, the Hearing Board found that Respondent had engaged in the charged misconduct and recommended that he be suspended from the practice of law for two years and until further order of the Court. Respondent appealed, challenging the sufficiency of the evidence in support of the charges against him.

Oral argument before this Board was scheduled for August 9, 2019. Counsel for the Administrator was present, but Respondent, who represented himself on appeal, did not appear.

The Review Board affirmed the Hearing Board's misconduct findings, finding that the two convictions constituted conclusive proof of the charges that he had engaged in criminal conduct that reflected adversely on his fitness as a lawyer. It further found that sufficient evidence supported the finding that he had engaged in conduct that was prejudicial to the administration of justice. The Review Board agreed with the Hearing Board's recommendation that Respondent be suspended for two years and until further order.

As to appearing in court under the influence

The judge whom Respondent appeared before while intoxicated testified about the effects of Respondent's conduct, including that it created more work for him. Based on the judge's testimony, the Hearing Board found that, "as a result of Respondent's conduct, the court was diverted in dealing with its heavy court call, to address the situation created by Respondent's appearance in an intoxicated state. That conduct led to contempt proceedings against Respondent and required the court to spend time dealing with Respondent's misconduct." (Hearing Bd. Report at 11-12.)

Respondent has failed to show that the Hearing Board's finding was unreasonable, arbitrary, or not based on evidence. To the contrary, it is fully supported by the judge's testimony, which the Hearing Board found to be credible. Because Respondent has failed to show that the Hearing Board's finding that he engaged in conduct that was prejudicial to the administration of justice was against the manifest weight of the evidence, we affirm it.

(Mike Frisch)

August 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, August 18, 2019

Reinstatement Denied After Murder Conviction

A recent unpublished opinion of the California State Bar Court Review Department affirms the denial of reinstatement to an attorney convicted of a murder shortly after his 1980 admission to practice

Petitioner Stephen Liebb requests review of a hearing judge’s decision denying his reinstatement to the practice of law. In 1981, Liebb viciously attacked and killed his college friend, and violently beat the victim’s brother and another family friend. In January 1983, he was convicted of first-degree murder and assault with a deadly weapon. Liebb was sentenced to 26-years-to-life in prison. He was released on parole in October 2013, after serving 31 years of his sentence, and remained on supervised release until November 2016. Nine months later, Liebb filed his petition for reinstatement. The hearing judge found that, given the seriousness of the crimes, Liebb did not demonstrate a sustained period of exemplary conduct during the 16 months between termination of his supervised release and the hearing on his petition for reinstatement. The judge denied his petition. Liebb asserts that the judge improperly focused only on the time after his discharge from supervised release, and that his time in prison, where he engaged in positive programming activities, should be given more weight. The Office of Chief Trial Counsel of the State Bar (OCTC) requests that we affirm the hearing judge’s decision.

We have independently reviewed the record (Cal. Rules of Court, rule 9.12), and find that the hearing judge’s opinion fairly and accurately details the facts and correctly applies the governing law. We focus our analysis on the key issue on review: Did Liebb present overwhelming proof of his rehabilitation by a sustained period of exemplary conduct following his discharge from supervised release? Like the hearing judge, we find that he did not.

The attorney was admitted in 1980 after graduating from UCLA Law School.

The crime involved an apartment he had sublet to the notorious Dr. Eugene Landy, best known for his "treatment" of Beach Boy Brian Wilson. 

In February 1981, Liebb rented apartment number 103 at Diller Apartments to Dr. Eugene Landy without informing Stanley or Altschuler. Liebb collected six months’ rent in advance, gave Dr. Landy a receipt that he signed as “Stephen Claymore,” and told Dr. Landy that he was a professional boxer. Liebb never provided Altschuler or Stanley with the rent he collected. Altschuler believed the apartment was empty.

On March 31, 1981, Liebb charged into Altschuler’s office, causing a commotion and repeatedly insulting Altschuler. Joe Gold, a friend of the Diller family, was also at the office. As Liebb was leaving the office, he angrily said to Gold, “You want it next?” Altschuler told Gold not to respond and Gold stopped talking to Liebb and resumed working. When Gold went to the elevators in the hall, Liebb came out of the office lobby area and started to threaten and swing at him. Liebb chased Gold back into the lobby area, struck him hard on the side of the head, put his hands around Gold’s neck, and pushed him toward the door of the waiting room with great force. Several people attempted to pull Liebb away from Gold before Liebb fled the premises. After Gold filed a police report, Liebb called him on three occasions to try to talk him into withdrawing his complaint. Gold eventually dropped the charges.

At the end of April 1981, Liebb vacated his apartment. Altschuler found the apartment badly damaged—with chairs turned over, windows broken, stains on the floor, and filthy sinks and fixtures.

Gold assumed management and

At about 7:00 p.m. on May 11, 1981, Gold, Michael, and Michael’s brother, Arthur, left Diller Apartments. As they were leaving, Liebb jumped out of the bushes, and charged up the front stairs carrying a baseball bat. He attacked Gold with the bat, hitting him 15 times over his head and body. As Arthur tried to intervene, Liebb hit him on the thigh and shoulders several times. Gold was seriously injured and filed a police report against Liebb.

Michael and Arthur’s mother, Dorothy, telephoned Liebb’s father in Brooklyn, told him about the attack, and asked him to come to California to help with the situation. On July 9, 1981, Liebb repeatedly called Dorothy and threatened to kill the entire Diller family if she did not call his parents and retract what she had said. Dorothy refused. After speaking with Dorothy, Arthur decided to talk to Liebb the next morning.

On July 10, Arthur went to Liebb’s apartment building and confronted him. They traded blows, and Liebb hit Arthur with a pipe, breaking his nose and causing injuries that required stitches on his face.

Then

Two days later, on July 12, Liebb hid behind a tree and waited for Michael to pick up his girlfriend, Jody Popkin, from her apartment building. Liebb was wearing a motorcycle helmet with a tinted shield that covered his face, and carrying a knife he had recently purchased. When Michael arrived, Popkin opened the passenger side door and entered the vehicle. Liebb ran up, grabbed the door before she could close it, and jumped onto Popkin. Liebb hit her and then began to attack Michael. Michael accelerated the car, and Liebb grabbed the steering wheel, causing the car to crash into a building. After the crash, Michael jumped out of the driver’s side and ran toward a park. Liebb chased Michael to the park office, where Michael dove through a half-open window. Liebb lay across the window sill, holding the knife. Michael grabbed the knife and cut his own hand. He pleaded with Liebb to stop, but Liebb stabbed Michael in the chest, and twisted the blade. As Michael lay mortally injured, Liebb walked calmly away and then left the scene on his motorcycle. Michael died shortly thereafter from loss of blood and a stab wound through his lung and heart. He was 23 years old. Liebb admitted that his murder was premeditated.

After conviction

In March of 1989, Liebb was involved in a prison fight with another inmate. A Rules Violation Report indicated that Liebb continued to attack the inmate after being ordered to stop and after the other man stopped fighting. An investigation into the attack determined that it was reasonable to conclude that Liebb had engaged in the fight as a diversion from the murder of another inmate that occurred the same day, in which he was suspected of being a co-conspirator.

Liebb was considered for and found unsuitable for parole six times. Each time, the Board of Parole Hearings (the Board) found that Liebb would pose an unreasonable risk of danger to society and a threat to public safety if released from prison.

Eventually

in 2012, the Board granted Liebb parole based on his demonstration of remorse at the hearing, his identification of character defects that negatively influenced his behavior in the past, a positive risk assessment report, his positive programming while in prison, and his 21-year history without discipline. In January 2013, the Governor exercised his discretion to reverse the grant of parole, based on the especially atrocious and cruel offense and on Liebb’s lack of insight. Liebb challenged this finding by filing a writ of  habeas corpus. On August 22, the Los Angeles Superior Court granted the habeas petition and vacated the Governor’s decision. Liebb was released from San Quentin on October 30, 2013.

Liebb complied with his parole until he was discharged from supervised release on November 15, 2016.

The nature of the offense placed a heavy burden on petitioner that he had failed to meet

Liebb asserts that the hearing judge wrongly focused on the period of exemplary conduct after his supervised release ended and argues that more weight should be given to his positive programming in prison and during parole. However, the judge correctly focused on the time following Liebb’s discharge from supervised release and determined that the less than two years between his discharge and his reinstatement hearing was insufficient to make the required showing of rehabilitation...

As the hearing judge found, Liebb has made strides toward showing his rehabilitation. Much of his work in prison involved self-help activities and groups. After release from prison, he engaged in additional self-help programs, as well as therapy. However, these activities alone do not demonstrate truly exemplary conduct in the sense of returning something to the community Liebb harmed. As such, they are somewhat minimized because they contribute substantially to his personal well-being instead of paying back the community he harmed...

Also, while the hearing judge found that Liebb demonstrated remorse for his crimes and his victims, remorse alone does not demonstrate rehabilitation. A truer indication of Liebb’s rehabilitation will be if he can demonstrate exemplary conduct over an extended period of time that establishes his moral fitness to practice law.

This issue - when to start the rehabilitation clock - was raised in the Tarra Simmons admissions case.

The Washington State Supreme Court accepted the proposition that she be given credit for her rehabilitation and treatment while still incarcerated. (Mike Frisch)

August 18, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 17, 2019

Cocked And Loaded

A suspension of at least one year has been imposed for an attorney's misconduct as described by the California State Bar Court Hearing Department.

The attorney had leased office space to a non-lawyer (Clayton) who purported to provide assistance in immigration matters.

The non-lawyer ran into problems with both clients and regulators and was subject to cease and desist status by the California Secretary of State.

One unhappy client (Rayman) came to the attorney's office twice. He sought to record the second encounter on his cell phone.

As the findings recount, the situation "deteriorated rapidly."

The attorney threatened to report Rayman as a trespasser and said that Clayton was no longer there and was afraid of Rayman.

Rayman: "She should be."

Attorney: "Get the hell out of my office...I am not responsible for this situation."

He then attempted to grab the cell phone and a "physical altercation" ensued. 

The attorney was knocked to the floor as Rayman tried to depart.

Then  the attorney

retrieved ammunition and a .40 caliber Heckler & Koch semiautomatic pistol from his desk drawer and briefly pointed it at Rayman.

And uttered the following

Do you see this. There is a loaded round in the chamber. Get out of my office. Get out of this office. See it's cocked.

The police declined to press charges against either party.

There were other unhappy Clayton clients who brought complaints. (Mike Frisch)

August 17, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 16, 2019

No One Speaks For Beulah, Minnie And Karen

The Connecticut Appellate Court affirmed denial of habeas relief in a matter brought on behalf of three elephants

The petitioner, Nonhuman Rights Project, Inc., appeals from the judgment of the habeas court declining  to issue a writ of habeas corpus that it sought on behalf of three elephants, Beulah, Minnie, and Karen (elephants), who are alleged to be confined by the named respondents, R.W. Commerford & Sons, Inc. (also known as the Commerford Zoo), and its president, William R. Commerford, at the Commerford Zoo in Goshen.

The court

Only a limited number of courts have addressed the issue of whether a nonhuman animal who allegedly has been injured has standing to bring a claim in a court of law. There are even fewer cases addressing whether a nonhuman animal can challenge its confinement by way of a petition for a writ a habeas corpus. The petitioner asserts that this case ‘‘turns on whether [the elephants] are ‘persons’ solely for the purpose of the common-law right to bodily liberty that is protected by the common law of habeas corpus.’’ In its view, the elephants are entitled to a writ of habeas corpus as a matter of common-law liberty because the writ of habeas corpus is deeply rooted in our cherished ideas of individual autonomy and free choice. It essentially invites this court to expand existing common law. This case, however, is more than what the petitioner purports it to be. Not only would this case require us to recognize elephants as ‘‘persons’’ for purposes of habeas corpus, this recognition essentially would require us to upend this state’s legal system to allow highly intelligent, if not all, nonhuman animals the right to bring suit in a court of law. At this juncture, we decline to make such sweeping pronouncements when there exists so little authority for doing so...

There are profound implications for a court to conclude that an elephant, or any nonhuman animal for that matter, is entitled to assert a claim in a court of law. In the present case, we have little difficulty concluding that the elephants—who are incapable of bearing legal duties, submitting to societal responsibilities, or being held legally accountable for failing to uphold those duties and responsibilities—do not have standing to file a petition for a writ of habeas corpus because they have no legally protected interest that possibly can be adversely affected. See Gold v. Rowland, supra, 296 Conn. 207 (‘‘[a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected’’ [internal quotation marks omitted]). Accordingly, we conclude that the court properly declined to issue a writ of habeas corpus on standing grounds.

(Mike Frisch)

August 16, 2019 in Current Affairs | Permalink | Comments (0)

The Best Lawyer In Town Has Left The Country

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has ordered a 10-month suspension of an attorney who has left New Zealand without plans to return

the Tribunal was informed by counsel for the practitioner that his client was not intending to return from overseas in the immediate future and counsel sought leave to withdraw, which was granted.

The particulars

The agreed facts in this matter are set out in the particulars of the charge annexed as Appendix I. In summary, Mr Arman was engaged by Ms O to act for her partner WJ in respect of criminal proceedings. WJ had been charged with sexual violation by rape, and two charges of sexual violation by unlawful sexual connection. The stated victim was Ms O’s then 15-year-old daughter.

Ms O had found Mr Arman in a Google search for “best lawyers in Auckland”. The practitioner’s website had included testimonial stating that he was “best lawyer in town”.

A fee arrangement of $15,000 for representing WJ if the matter proceeded to jury trial was agreed. Despite the limited income of both Ms O and WJ, Mr Arman did not advise WJ about his ability to apply for legal aid.

Contact with the client was sporactic

At no stage did Mr Arman meet WJ at the practitioner’s office. All meetings were at Court immediately before or immediately following scheduled court appearances. The meetings generally lasted less than 30 minutes with the exception of the meeting on 29 August 2016 when the guilty plea was entered.

At no stage did the practitioner discuss trial strategy with WJ or Ms O. Nor did he seek or obtain instructions from WJ about his version of events, possible defence witnesses, or the possibility of non-party disclosure from Child Youth and Family or others. Nor did he discuss the nature of the defence for trial.

On the morning that the trial was due to commence, 29 August 2016, Mr Arman met WJ at the Manukau District Court. The agreed facts placed before this Tribunal acknowledged that Mr Arman pressured WJ to plead guilty rather than proceed to trial; that he told WJ he had no chance of successfully defending the charges and advised him wrongly in respect of likely sentencing outcomes.

 It was found by Judge McNaughton that “neither the applicant nor Ms O were actually aware that 29 August was the date for the firm fixture”. His Honour rejected Mr Arman’s evidence that his client had got “cold feet” and pointed to the obvious discrepancy between that and the urgent summonsing of Ms O concerning the plea proposal that day.

The pressured plea was vacated

In his careful decision, Judge McNaughton granted the application to vacate WJ’s guilty pleas, having found there had been a substantial miscarriage of justice. The Judge concluded there had always been an available defence and that WJ had not received competent or correct legal advice, and that he had not pleaded guilty freely or on an informed basis.

The Judge’s comments about the practitioner’s evidence were that he had been “glib, discursive, careless as to matters of detail and ultimately a completely unconvincing witness”.

Sanction

We do not consider that a six-month suspension properly reflects the seriousness of this matter.

Having regard to consistency with other decisions we do not consider it would be proper to suspend the practitioner for more than 10 months. However, we accept the Standards Committee submission that he ought not to practice alone.

(Mike Frisch)

August 16, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Licensed To Marry, Not To Practice

A reprimand has been imposed by the New Hampshire Professional Conduct Committee for an isolated instance of unauthorized practice of law. 

The attorney was on retired from practice status in Massachusetts and was suspended for non-payment of dues in New Hampshire. He reactivated his Massachusetts license in 2019.

In 2018, he communicated (signing with "Esq."at first)  with counsel for an entity engaged in a dispute with a person he was engaged to marry.

She owned an interest in a time share condo managed by the entity. 

Opposing counsel reported him after inquiring as to his bar status.

He stipulated to the violation. (Mike Frisch)

 

August 16, 2019 in Bar Discipline & Process | Permalink | Comments (0)

The Carey Treatment

The Maine Supreme Judicial Court affirmed the order of a single justice in a matter involving an attorney who was subject to a 2016 stayed suspension with extensive conditions

In September of 2018, following a three-day hearing on the pending  matters, the single justice entered an order finding that Carey had, on numerous occasions, engaged in criminal conduct and violated court orders, all in  contravention of the Rules. After holding a sanctions hearing several months  later, the single justice entered an order suspending Carey’s license to practice  law for three years, see M. Bar R. 13(g)(4), 21(a)(1), (a)(3), (b)(6), with certain  conditions to be satisfied while the suspension is in effect. Carey appealed to  us, see M. Bar R. 13(g)(4), and we affirm the judgment.

Bar Counsel calls such attorneys "frequent flyers"

Carey is no stranger to attorney disciplinary proceedings. Since he  was admitted to the Maine Bar in 2006, his license to practice law in this State  has been suspended no fewer than three times—not including the most recent  suspension order—for violations of the rules of ethics governing attorney conduct.

After the 2016 stayed suspension

In April of 2018, while Carey was still subject to the conditions  established in the 2016 order, the Board learned that he had engaged in  conduct that resulted in an order for protection from abuse being entered  against him the previous month by the District Court (Rumford, Mulhern, J.)  The Board petitioned the court to immediately activate the 2016 suspension of  his license. Later that month, after holding a hearing, the single justice  (Warren, J.) entered an order suspending Carey’s license pending the final  resolution of the case based in part on a preliminary finding that Carey had  engaged in criminal activity, namely, unlawful sexual contact and assault.

The criminal conduct involved the following

In the spring of 2017, Carey rented a room in his house to a woman whom he had met years before when she was a client of his father, who is also  an attorney. While the woman lived in his house, Carey propositioned her for  sex a number of times, but each time the woman declined, at one point telling  him that his repeated advances were offensive.

After moving out of Carey’s house in late 2017, the woman lived  with her boyfriend, but that relationship became abusive, and the woman returned to Carey’s home. Carey agreed that she could stay in his home without  paying rent in exchange for cleaning and doing other work around the house, but as part of the arrangement he expected the woman to have sex with him,  and he continued to ask her to do so. Having just left an abusive relationship,  the woman was dependent on Carey for housing, so despite Carey’s unwelcome  advances, she had little choice but to stay there.

While the woman lived in Carey’s house during both periods, Carey  made unwanted physical advances toward her a number of times, including one  time when he entered her bedroom at night and touched her legs and between  her thighs, and another time when he stepped in front of her while she sat on  the couch, pulled her head against his crotch, and in crude terms asked her to  perform oral sex on him. Each time, the woman rebuffed Carey.

He then evicted her and she obtained an order of protection from his abuse

There is more. Carey had appealed the protection order. While  the appeal was pending, Carey met with counsel for the woman and, in what  Carey later described as an offer of “settlement,” provided the attorney with a  number of documents he had drafted. One of the documents contained a  statement that the woman would sign and submit to the single justice in this  matter and to the Board, stating that “things have been blown out of proportion  and Seth Carey did not abuse me.” Another document drafted by Carey was an  agreement that would require the woman to file a motion in the disciplinary  proceeding to “vacate the prosecution” of Carey. That agreement would also require the woman to file a motion to vacate the findings of abuse made by the  District Court in the protection proceeding, and it provided that once the  protection order was vacated, Carey would convey title to his car to the woman.  Pursuant to the proposed agreement, if Carey’s law license were reinstated by October 1, 2018, Carey would pay the woman $1,000. All of the terms that  Carey proposed were to be made subject to a nondisclosure provision stating that “[n]one of the details of any of this agreement are to be released to the  public or anyone not associated with this agreement.”

The proposed agreement was found to be unethical in addition to the violations found of the 2016 order.

To the extent that Carey has properly preserved issues for our  review, we find no error in any of the single justice’s findings of fact, his legal  determinations and conclusions, his discretionary calls, and his management of  the proceedings. All the factual findings contained in the September order are  supported by competent record evidence, and the December order presents a measured and thoughtful analysis of Carey’s conduct and determination of the nature and duration of the sanctions imposed for Carey’s ethical violations.

Judgment of suspension affirmed . (Mike Frisch)

August 16, 2019 in Bar Discipline & Process | Permalink | Comments (0)