Tuesday, September 21, 2021

A Mighty Fortress

A majority of the Illinois Review Board has recommended a three-year suspension for false expense charges

Respondent began working at Vedder Price P.C., a large international law firm, as a summer associate in 2005. After being licensed to practice law, he remained at Vedder Price, became a shareholder in 2014, and continued practicing until his termination in October 2019. One of his clients was Fortress Investment Group, which provides finance and leasing services to airlines. Under its contracts with its customers, Fortress could pass its expenses, including legal fees, onto its customers.

Between January 2018 and September 2019, Respondent created and sent nine invoices to Fortress customers, including Azur Havaciliki A.S. (“Azur”) (a company that leased airplanes and had leasing agreements with Fortress), while knowing that those invoices sought payment for services in which Fortress already had paid. Based on those invoices, Fortress customers remitted almost $109,000 to Vedder Price. Those funds, Respondent admitted, belonged to Fortress.

As a part of his scheme, Respondent instructed the Vedder Price accounting department to reactivate a dormant account that had been assigned to his former client, the L. Martinez Construction Company; and he further instructed the accounting department to credit the payments made on the false invoices to the Martinez Construction account, which was done.

Around the same time, Respondent prepared a false invoice in the amount of $7,488 directed to another client, GA Tellesis, using the Martinez Construction account number on the invoice, which caused payment on the false invoice to be credited to that account.

As Respondent was creating and submitting false invoices, he sent requests to Vedder Price’s accounting department seeking payment from the reactivated Martinez Construction account purportedly to reimburse him for expenses. For example, he requested reimbursement of $2,140.18 for fees related to a “client event” and a “race day” event (Adm. Ex. 5); $2,599.99 for the purchase of a crossbow, purportedly as a gift for someone with whom he had gone on a hunting trip (Adm. Ex. 10; R. 52); $13,772.43 for airfare (Adm. Ex. 13); and $16,986.46 for first-class plane tickets to Moscow, which he did not use and for which he received a credit to his personal credit card. (Adm. Ex. 12; R. 60-61.)2 The reimbursement requests were fraudulent.

Based on those false reimbursement requests, Respondent personally received at least $79,790.43 in funds that belonged to Fortress and GA Tellesis.

The Hearing Board had proposed a 20-month suspension which the Review Board found insufficient

In short, we believe that the 20-month suspension recommended by the Hearing Board is clearly insufficient. Respondent’s misconduct, which spanned 18 months, was calculated and deliberate, and resulted in him converting almost $80,000 of his clients’ funds. Conversion is an egregious breach of an attorney’s duties.

...Furthermore, Respondent undertook his fraudulent scheme as a handsomely compensated attorney and shareholder of a large international law firm, with an expertise in aircraft financing, a unique practice.

A dissent would impose 20months and cites a notable instance of prior lenienct in an earlier case

In In re Smolen, 2013PR00060 (Hearing Bd., Jan. 7, 2015), approved and confirmed, M.R. 27199 (March 12, 2015), over a five-year period, the attorney submitted over 800receipts for cab rides he did not take, and received almost $70,000 in reimbursement from his firm for the falsified expenses. In addition, a forensic accounting consultant hired by the firm identified $379,000 of additional reimbursed expenses for which it could not identify a sufficient underlying basis, including restaurant gift cards, country club meals, air fare, and other entertainment expenses. The firm paid the forensic accounting consultant $258,000 to perform its investigation.

The Hearing Board found Respondent’s conduct to be purposeful and intentional, and did not find credible his claim that he did not realize he was doing anything wrong. It also found other aspects of his testimony inconsistent and not credible. In aggravation, it found he engaged in a lengthy, systematic pattern of dishonest conduct from which he profited financially, and harmed his firm. In mitigation, it found he did not charge false expenses to clients, and paid $400,000 in restitution to his firm. It also found he admitted wrongdoing when confronted by his firm, cooperated in his disciplinary proceeding, had no prior discipline, presented positive character testimony, and engaged in volunteer and pro bono work. In observing his demeanor, it stated that he was genuinely remorseful, accepted responsibility for his misconduct, and did not present a risk of repeating his misconduct. He was suspended for one year and until he completed 12 months of psychiatric treatment.

(Mike Frisch)

September 21, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 20, 2021

Reduced Suspension For Former Judge

A Michigan judge's relationship with an attorney - demonstrated through voluminous texts - led to findings of misconduct and a sanction.

The Attorney Discipline Board  found misconduct but reduced the hearing panel's one-year suspension to a 180-day suspension

The complaint alleged that respondent engaged in misconduct by participating in ex parte communications via text messages involving “scheduling favors,” sentencing in certain cases, and other matters. The complaint also alleged that respondent should have disclosed his personal friendship with Mr. Nassif to litigants between 2010 and 2013 and that his failure to do so  violated various rules of conduct and judicial canons. In another count, the complaint alleged that respondent disclosed certain information regarding Ann Arbor’s contract negotiations with Mr. Nassif’s firm for indigent representation and, at least, gave Mr. Nassif the impression that he could influence the Ann Arbor City Council's renewal of the indigent defense contract and award of back billings to Mr. Nassif's law firm. The complaint further alleged that respondent failed to accurately respond to an Attorney Grievance Commission subpoena, and made a false statement regarding the subpoena in his sworn statement given during the Commission's underlying investigation of respondent's actions.

Texts

While most of the text messages involved here did not deal with substantive matters or issues on the merits, the fact remains that some clearly did. Furthermore, the colorful, and at times offensive language of some of the messages supports the panel’s finding that respondent failed in his duty to exercise good judgment, and avoid impropriety.

Relations

Count Two charged that respondent committed misconduct by failing to disclose to litigants the extent of his relationship with Mr. Nassif between 2010 and 2013, during which time, the two went on a cruise with each other, traveled to Chicago together, and respondent used Mr. Nassif as a cover and used his apartment in order to meet with a woman who was not his girlfriend.

Those charges were sustained.

Respondent's position has been, both before the panel and now on review, that disclosure was unnecessary as it was common knowledge within the legal community in which he and Mr. Nassif worked, that they were friends. However, it soon became clear that the extent of the friendship was not “common knowledge” within the legal community. For example, Washtenaw County Prosecutor Brian Mackie testified that his prosecutors knew respondent and Mr. Nassif had a close friendship, however, they were all unaware of the extent of the relationship until the contents of the text messages were revealed.

Thus

we find that the record establishes that respondent violated Canon 2.A, B, and C of the Code of Judicial Conduct, as he failed to “avoid impropriety and the appearance of impropriety in all activities,” and to “promote public confidence in the integrity and impartiality of the judiciary,” MCR 9.104(1) and (4), and MRPC 8.4(a) and (c). We further find that violations of Canon 3B; MRPC 3.5(b), 8.3; 8.4(b); and, MCR 9.104(3), as charged in Count Two of the formal complaint, are not supported by the record.

Sanction

We agree with the panel that a suspension, rather than a reprimand, will serve the purpose of protecting the public’s confidence in the judiciary and the legal profession and will hopefully serve to deter others from engaging in similar conduct. However, given that respondent did not adjust a decision or base a ruling on his friendship with Mr. Nassif, we reduce the suspension imposed by the hearing panel from one year to 180 days.

Michigan Live reported on his resignation from judicial office

The messages reveal a jocular relationship between Easthope, now 48, and the young attorney, now 31, whose firm had a contract to represent indigent defendants with Easthope's court. They discuss drug use, women, Nassif's firm's city contract and requests Nassif made for special consideration as an attorney in Easthope's courtroom.

In his statement, Easthope denies showing any favoritism in the courtroom.
 
At 9:54 p.m. on Dec. 23, 2012, Easthope texted Nassif: "Oh lord. Getting stoned with the lawyer who appears before you more than anyone? Of course I suppose (redacted) appears before you too. Oh well. We have to make sure (redacted) doesn't bail. (Redacted) says he's getting cold feet! I'm thinking 8:30? And I don't think it's rolled meaning we need rolling paper or a pipe."
 
The next morning, Christmas Eve, the two exchanged these messages starting at 10:11 a.m. while Easthope was at work:
  • NN: Enjoy last night? Lol.
  • CE: Tired today?
  • NN: Nah I'm alright. U?
  • CE: Tired.
  • NN: Hope you enjoyed it.
  • CE: Oh ya-
  • NN: Haha. It was awesome. Dude ur arm thing was hilarious lol
  • CE: I was so stoned I kept watching the movie - my arm felt great! At work waiting for transport. I was carrying on a long stoner conversation with you and didn't know you were asleep.
  • NN: Haha awesome. I like passed out. Woke up and didn't realize u left lol. Hahahahhaha. Wednesday night is gonna be hilarious.
  • CE: I know!
  • NN: We're gonna rip on (redacted) so bad lol
There are seemingly more references to drugs between the two a few days later. At 10:25 a.m. on Dec. 26, Easthope texts Nassif: "Me u (redacted) said bring some pot."
 
At 11:33 a.m., Nassif texts Easthope: "Gotcha"
 
Later that day, the two exchange this text thread between 1:30 p.m. and 1:44 p.m.:
  • CE: (Redacted) and (redacted) acting like scared little girls so I'm out tonight - not worth their drama - let's get a drink later instead -
  • NN: Why the drama. It's gonna be a snow out at (redacted) house. Homos
  • CE: They're worried we'll tell someone and to promise we won't I told him that they were way over thinking it and not worth my time -
  • NN: (Redacted) just texted me
  • CE: I texted him said I'm out
  • NN: If ur out I'm out
  • CE: I'm out - not in mood for drama - Jesus (expletive)
The text messages also show Easthope and Nassif discussing the contract Nassif's firm had with the city.
 
(Mike Frisch)

September 20, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Lobbying In The Dominican Republic

A notice of license revocation from the web page of the Law Society of Ontario

The Law Society alleged that Matys Rapoport, 1984, of Brooklin, engaged in professional misconduct.

The panel determined that the following allegations were established:

  • The respondent charged excessive and unreasonable fees to clients that were not disclosed in a timely fashion, contrary to then Rule 2.08(1) of the Rules of Professional Conduct.
  • The respondent failed to serve clients, contrary to then Rule 2.02(2) of the Rules of Professional Conduct.
  • The respondent breached then Rule 2.03(1) of the Rules of Professional Conduct in that he, while vacationing in the Dominican Republic, worked on a client’s physical file in a hotel lobby, and showed photographs from the file to strangers.
  • The respondent communicated in a manner that was abusive, offensive or otherwise inconsistent with the proper tone of professional communication from a lawyer, contrary to then Rule 6.03(1) of the Rules of Professional Conduct

It looks like the web page has a user-friendly updated look. (Mike Frisch)

September 20, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Don't Fence Me In

The New Jersey Supreme Court found no right of privacy in certain dog licensing records

The Court considers whether owning a dog creates an objectively reasonable expectation of privacy such that the owner’s personal information in the dog licensing record might be exempt from disclosure under the Open Public Records Act (OPRA).

Plaintiff Ernest Bozzi requested copies of defendant Jersey City’s most recent dog license records pursuant to OPRA and the common law right of access. Plaintiff, a licensed home improvement contractor, sought the information on behalf of his invisible fence installation business. Plaintiff noted that Jersey City may redact information relating to the breed of the dog, the purpose of the dog, and any phone numbers associated with the records. He sought only the names and addresses of the dog owners.

Jersey City opposed disclosure but

Owners and their dogs are regularly exposed to the public during daily walks, grooming sessions, and veterinarian visits. Dog owners who continually expose their dogs to the public cannot claim that dog ownership is a private undertaking...

While plaintiff here has requested only the names and addresses of dog owners, the Court stresses that there are other parts of the dog licensing records that would give rise to security concerns. Any similar disclosure of dog records should not include breed information or the purpose of the animal, and the names of dogs may need to be excluded. 

Because Jersey City has not established a colorable claim that public access to the names and addresses of dog owners would violate a reasonable expectation of privacy, the Court need not conduct an extended Doe analysis. The Court agrees with the evaluation of the trial court that the factors collectively favor disclosure. The Court continues to abide by the plain language of OPRA and its fundamental policy favoring disclosure.

Dissent

In Justice Pierre-Louis’s view, that reasonable expectation of privacy should recognize every citizen’s right not to have each and every piece of information provided to the government divulged for reasons that do not further the purpose of OPRA, and the fact that information may be available elsewhere does not eliminate a person’s reasonable expectation of privacy altogether. Noting that the information sought here -- name, address, and dog ownership -- taken together, is not public, Justice Pierre-Louis finds it reasonable that dog owners would have expected that the information they provided to Jersey City for the sole purpose of complying with the law by obtaining a dog license would remain private. Justice Pierre-Louis reviews the Doe privacy factors and finds that five out of seven factors also militate against disclosure.

The quoted portions come from the court's headnotes. (Mike Frisch)

September 20, 2021 | Permalink | Comments (0)

Claim Of Fiduciary Breach Survives

The United States District Court for the District of Columbia (Judge Contreras) denied defendant's motions in a legal malpractice case

Rothschild Broadcasting, LLC (“Plaintiff” or “RBLLC”) brings this action against Evan D. Carb (“Carb”) and The Law Offices of Evan D. Carb, PLLC, (collectively, “Defendants”) for legal malpractice, breach of fiduciary duty, and fraud resulting from Carb’s representation of Plaintiff regarding sales of radio stations. Plaintiff alleges, among other things, that Carb undertook legal representation of Plaintiff despite Carb co-owning a company that was actively negotiating a contract with Plaintiff, and that Carb made false representations to Plaintiff that intentionally resulted in a better position for Carb at the expense of Plaintiff. Defendants move to dismiss the complaint on four grounds: (1) Plaintiff did not adequately plead a claim for legal malpractice, (2) the claim for breach of fiduciary duty is duplicative of the legal-malpractice claim, (3) fraud is not pleaded with particularity, and (4) the punitive damages request fails as a matter of law. For the reasons given below, Defendants’ motion is denied.

As to the fiduciary breach claim

But here, Plaintiff’s fiduciary-duty claim does not merely restate a claim for malpractice. Although Plaintiff’s complaint references the same facts to support the two claims, the facts alleged include conduct uniquely relevant to a fiduciary-duty claim, such as allegations of divided loyalty and self-serving. This does not appear to be an example of a plaintiff adding a claim for breach of fiduciary duty premised on factual allegations already covered by other claims. If anything, the issue here seems to be that Plaintiff included additional factual allegations to support its malpractice claim that are more naturally suited to a claim for breach of fiduciary duty. That does not justify dismissal of Plaintiff’s fiduciary-duty claim as duplicative.

Punitive damages

The Court will not grant Defendants’ motion to dismiss Plaintiff’s request for punitive damages. Defendants present limited analysis attempting to show that Plaintiff’s request for punitive damages cannot succeed as a matter of law. They do not grapple with the allegations discussed above—and accepted as true for purposes of this motion to dismiss—that Defendants entered into representation of Plaintiff despite knowledge of conflicts of interest, and then used their representation of Plaintiff to benefit themselves. Accordingly, Defendants have not demonstrated that, as a matter of law, Plaintiff’s request for punitive damages cannot succeed.

(Mike Frisch)

September 20, 2021 | Permalink | Comments (0)

Oral Argument In Bar Discipline Matter

An oral argument tomorrow before the Ohio Supreme Court

Disciplinary Counsel v. Samuel R. Smith II, Case No. 2021-0448
Cuyahoga County

The Board of Professional Conduct suggests the Ohio Supreme Court suspend a Cuyahoga County lawyer for committing ethical violations, some that occurred while he was under suspension for previous misconduct.

The board recommends Samuel Smith II, a Cleveland solo practitioner, be suspended for two years with six months stayed with conditions, including that he reimburses a client $445 for court costs assessed against the client for Smith having filed a lawsuit then not pursuing it.

Smith is accused of several ethical violations related to a criminal case in which he signed his name to a client’s change-of-plea form without the client’s consent, and mishandling three other civil matters. Smith objects to the claim that he changed the plea without his client’s consent, and maintains that his actions warrant a fully stayed suspension.

Smith’s objections triggered an oral argument before the Supreme Court.

Lengthy Jail Sentence Issued After Lawyers Changes Client’s Plea
Smith represented Stacey Lattimore on several charges against her in Shaker Heights Municipal Court related to a department store theft. At the time her charges were pending, Lattimore was in the Cuyahoga County jail serving time for an unrelated theft conviction.

In June 2017, Smith presented Lattimore with a “in absentia” plea agreement form, which would change her pleas from not guilty to no contest. Lattimore stated that she refused to sign the forms because she was unhappy that the plea agreement didn’t contain any measures to address her mental health issues.

Smith signed Lattimore’s name to the form and executed the notary public attestation, swearing he witnessed her signing the form. He then filed it with the court. The in absentia form can be signed by an attorney rather than the client if the lawyer indicates that the client verbally granted authority. Smith didn’t indicate he had Lattimore’s authority when he submitted the form, and he didn’t appear in court when the judge considered the change of plea.

The judge sentenced Lattimore to 18 months in jail and fined her $2,870. When Smith learned about Lattimore’s sentence, he didn’t contact her, seek to reduce or modify the sentence, or file an appeal.

Attorney, Client Provide Conflicting Accounts
Lattimore told a three-member hearing panel at the Board of Professional Conduct that she learned about her sentence when it was mailed to her at the jail, and she claimed she was shocked and confused because she didn’t agree to change her plea. Lattimore was able to obtain assistance from the county public defender’s office, which produced a copy of the plea form. Lattimore told the public defender that wasn’t her signature, and her name was misspelled on the form. The office sought to reinstate her not guilty plea, and more than three years later, the matter hadn’t yet been resolved.

Smith told the hearing panel he signed the form because he was unable to slide it under the glass to Lattimore during the jail visit, and was “adamant” that he obtained her authorization to sign her name. Lattimore insisted she didn’t want to plead guilty, and noted that she was able to sign other forms during jail visits that were slipped under the glass.

The panel found, and the full board agreed, that Smith knowingly made a false statement to the trial court when he signed the form without his client’s consent and lied about witnessing her signature. The board also found he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Prior Discipline Impacts Clients
In December 2017, the Court suspended Smith for 18 months, with 12 months stayed on the condition that he engage in no further misconduct. Part of the suspension required notifying clients by certified letter of the suspension and aiding the clients in efforts to find other representation if they need it.

Based on Smith’s handling of Lattimore’s case and three civil matters, which began before Smith was suspended, the Office of Disciplinary Counsel filed a complaint against Smith noting that he neglected three civil clients, leading to unnecessary delays in their cases or dismissals. Some of the issues relate to Smith’s attempt to transfer 25 of his pending cases to another lawyer he trusted and assumed the attorney had agreed to work on all the cases. The substitute attorney told the board he agreed to handle eight cases and understood that Smith told the clients whose cases he wasn’t taking that they had to make other arrangements.

The board found several violations, including Smith’s failure to place advanced fees clients paid him into his client trust account and for using the fees before proving he completed the work to earn the money. He also failed to give proper notice of his suspension to clients, to promptly refund any money to clients that he didn’t earn, and to competently represent a client.

Attorney Challenges Board Finding
Smith contends he may have made mistakes in his interactions with his clients, but his conduct doesn’t warrant a two-year suspension with six months stayed. Smith maintains he had Lattimore’s consent to change the plea and that he made a mistake by not indicating to the trial court that he had her consent. He notes that the public defender was able to vacate the plea agreement.

Regarding two of his civil case clients, he believed the substitute attorney had agreed to handle their cases and was pursuing them. Any failure to formally notify the clients of his suspension was mitigated by the ongoing communications he had with his client who were made aware by text messages or phone calls that he was suspended.

His fourth client paid advanced fees to file three lawsuits against government agencies, and the client proposed further litigation against family members and others. Smith states that he notified his client that she might not have viable cases, and in some, the statute of limitations had expired. Smith told the board he was researching theories that could extend the time to file the lawsuits against the government agencies based on the harm his client suffered. While he may have made an error while attempting to find a solution for his client, that isn’t an ethical violation, he argues.

He also maintains he has returned all client fees and expenses paid to him except the court costs for the lawsuit that he and the substitute attorney failed to pursue.

Disciplinary Counsel Supports Suspension
The disciplinary counsel supports the board’s recommendation because Smith violated the same ethical rules he was accused of in his first disciplinary case. Those violations occurred while his disciplinary case was pending and then while he was suspended.

Smith had a chance to “right his wrongs, serve his previous suspension, and demonstrate integrity and reliability,” the office notes. Instead, he engaged in more dishonest conduct, didn’t safeguard his clients’ funds, neglected client matters, and “shirked his responsibility” to notify his clients of his suspension.

Because Smith didn’t change his behaviors after an 18-month suspension, a longer suspension is warranted for his current misconduct, the office concludes.

 Dan Trevas

(Mike Frisch)

September 20, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 17, 2021

Violations Of Protection Order Draw Proposed Suspension

An Illinois Hearing Board recommends a two-year suspension with fitness for an attorney's post-divorce conduct

An emergency order of protection, entered following the dissolution of Respondent’s marriage, prohibited Respondent from contacting his ex-wife or entering their former home. Even though Respondent was personally served with that order, he sent his ex-wife multiple text messages. After being arrested for violating the order of protection, Respondent sent his ex-wife additional text messages. Those messages included false claims, which Respondent reiterated to police and medical personnel, that he had been raped. He was arrested again. Subsequently, Respondent entered and removed property from the marital house and then drove to his ex-wife’s residence, conduct for which Respondent was arrested a third time. Respondent pled guilty to violating the order of protection and was placed on probation. Probation was revoked after Respondent violated probation by continuing to use alcohol and failing to report.

In aggravation, Panel considered the fact that Respondent violated court orders knowingly, repeatedly and over time. His false claims of rape included racial slurs. Respondent’s minimal participation in his own disciplinary proceedings is a serious aggravating factor. Although he participated the first prehearing, thereafter Respondent ignored these proceedings.

The complaint in the matter is attached and provides details as to the racially-tinged false rape allegation. (Mike Frisch)

September 17, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Jumping The Gun

The Maine Supreme Judicial Court affirmed misconduct findings and sanctions imposed for disclosures made to a potential opposing party without the authorization of the putative client.

After an initial meeting with the client to discuss domestic violence and a possible divorce, the complainant did not appear for a second meeting to sign a retainer agreement.

Nonetheless

Ms. Doe had second thoughts about the divorce and failed to appear at that meeting. A day later, she contacted Attorney Rhoda and told him she changed her mind and did not need his services. During that conversation, Attorney Rhoda informed Ms. Doe that he had seen her estranged husband in the courthouse the day before and asked him if he had retained counsel so he could serve him with divorce papers. He talked only about service and not substance of the divorce, thinking he could save his client the costs of service by sheriff.

Ms. Doe contends that disclosure put her at risk of harm. She never returned to see Attorney Rhoda and he did not charge her for his time spent on the matter. About two weeks later, on February 15, 2019, she filed a bar complaint alleging he failed to maintain her confidentiality about the potential divorce matter. Attorney Rhoda responded he did not know she did not want her husband to know of the impending divorce. She contends that he should know domestic violence survivors are concerned with safety of their information, He maintains he was not aware of Ms. Doe's concern about disclosure of her information.

The court agreed with the panel below that the conduct violated the obligations of communication and confidentiality

While this conduct is clearly not violent or dishonest it does include a breach of trust at a minimum. Attorney Rhoda may have had good intentions when he spoke with Ms. Doe's husband, but as an experienced practitioner he should have understood his obligations, the sensitive nature of his presumed representation, the need for confidentiality until he obtains his client's consents and, in this case, most notably, the presence of a history of domestic abuse sufficient to warrant issuance of a protective order, His lack of sensitivity and lack of understanding of his obligations as an attorney rise to the level of a breach of trust sufficient for this Court to conclude that the Panel's Findings in this regard were not clearly erroneous and are affirmed.

The court accepted the sanction of reprimand and probation with conditions.

I use this Indiana decision to make a point to my students about the dangers of speaking without the client's authority. 

Respondent represented an organization that employed "AB." Respondent became acquainted with AB though this connection. In December 2007, AB and her husband were involved in an altercation to which the police were called, during which, AB's husband asserted, she threatened to harm him. In January 2008, AB phoned Respondent and told her about her husband's allegation and that she and her husband had separated. In a second phone call that month, AB asked Respondent for a referral to a family law attorney. Respondent gave AB the name of an attorney in Respondent's firm.  Respondent then called this attorney to inform her of the referral and to give her AB's phone number. The attorney called AB that same day and arranged a meeting the following day, when AB retained the attorney. AB told the attorney about the December 2007 incident and directed her to file a divorce petition. Respondent was aware that AB had retained the attorney from her firm and had filed for divorce. AB and her husband soon reconciled, however, and, at AB's request, the divorce petition was dismissed and the firm's representation of AB ended.

In March or April 2008, Respondent was socializing with two friends, one of whom was also a friend of AB's. Unaware of AB's reconciliation with her husband, Respondent told her two friends about AB's filing for divorce and about her husband's accusation. Respondent encouraged AB's friend to contact AB because the friend expressed concern for her. When AB's friend called AB and told her what Respondent had told him, AB became upset about the revelation of the information and filed a grievance against Respondent.

(Mike Frisch)

September 17, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 16, 2021

Podcasts And Linked In

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2021-14
Date of Issue: September 1, 2021

ISSUES

1. May a family division judge participate in a podcast presented by the judge’s spouse, for which the spouse receives compensation, to speak on subjects related to family law?

ANSWER: Yes, provided the participation is on a limited basis and the judge’s comments are purely informational, do not constitute legal advice, and do not include commentary on pending cases or legal controversies.

2. May a judge post a congratulatory message on the web site LinkedIn when a book written by the judge’s spouse is released?

ANSWER: No.

Analysis

The first question raised in this inquiry falls squarely at the intersection of two provisions in the Code of Judicial Conduct that may seem to point in different directions. Canon 4 encourages Florida’s judges to “engage in activities to improve the law, the legal system, and the administration of justice.” More specifically, Canon 4B permits judges to “speak, write, lecture [and] teach” about these subjects as well as on “the role of the judiciary as an independent branch within our system of government.”

The activities authorized in general terms by Canon 4 are, however, circumscribed by Canon 4A. For example, they must not be of such a nature as to cast reasonable doubt upon the judge’s capability of ruling impartially, demean the judge’s office, lead to frequent disqualification, or interfere with the performance of the judge’s duties – that is, consume an inordinate amount of the judge’s time. In Fla. JEAC Op. 2019-02, this Committee provided a “laundry list” of eight factors that a judge should consider before agreeing to speak publicly:

1. Whether the activity will detract from full time duties. Since this judge contemplates infrequent appearances on the podcast, there should be no likelihood that the judge’s professional duties will be overlooked.

2. Whether the activity will call into question the judge’s impartiality, either because of comments reflecting on a pending matter or comments construed as legal advice. The inquiring judge clearly understands this restriction, and does not plan to comment on pending cases or offer legal advice.

3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage. The judge does not plan to receive compensation for the proposed appearances on the podcast, nor are the appearances connected in any way with a campaign for re-election or other efforts to advance the judge’s career. While it is certainly possible that listeners may come away with a favorable opinion of the judge, this is inherent in any situation wherein a judge’s talents are exposed to members of the public at large. It is an inescapable fact that judges can do well when they do good;

4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters. If the judge merely provides neutral, factual, non-case specific information there should arise no danger of other judges being improperly influenced by it, nor should it open the judge to possible undue influence in cases the judge will be handling.

5. Whether the activity will lend the prestige of judicial office to the gain of another with whom the judge is involved or from whom the judge is receiving compensation. We discuss this question in greater detail below.

6. Whether the activity will create any other conflict of interest for the judge. Given the judge’s understanding of the limitations upon what can be discussed in the podcast, there appears to be no potential for meaningful conflicts of interest. The judge could not oversee legal matters involving the spouse in any event, and the potential for litigation involving the sponsor of the podcast should be minimal, particularly if the judge remains assigned to the family law division.

7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court. The inquiry does not lead the Committee to suspect that the sponsor engages in, or is potentially likely to engage in, frequent litigation. Further, since the judge plans to speak only on factual matters, and neutrally, we see no chance of the judge’s remarks being parroted back to the judge in some future family law setting.

8. Whether the activity will lack dignity or demean judicial office in any way. This consideration should not be implicated by discussing the nuts and bolts of family law. Again, as noted, the judge does not plan to discuss specific cases that might involve salacious details.

In sum, the subject matter about which the judge envisions speaking appears to be purely informative, so long as the judge does not go beyond explaining statutory family law procedures by attempting to apply those procedures to specific factual situations. Were the judge to do so, this might to intrude into giving legal advice, which judges are not permitted to do. See Canon 5G. Cf. Fla. JEAC Op. 2018-23, which approved a judge’s plan to write “an informative article about the divorce process” to be published on a for-profit web site, so long as the judge did not “comment on pending cases . . . answer hypothetical questions in a way that appears to commit to a particular position, [or] make any other remarks that could lead to the Judge’s disqualification, or be construed as an indication as to how the Judge would rule in a particular case.”

We now turn to the second provision of the Code that could impact the judge’s ability to appear on the podcasts. Canon 2B prohibits judges from “lend[ing] the prestige of judicial office to advance the private interests of the judge or others.” In the context of personal media appearances, we addressed this provision most recently in Fla. JEAC Op. 2021-10, in which the inquiring judge was a regular guest on a local public radio station’s talk show. The judge’s appearances were brief and informative in nature, and involved neither questions from the public, pending cases, nor the giving of legal advice. Additionally, the judge did not receive compensation for these appearances, an area the Committee described as “often problematic.”

Having dispensed with any significant concern that the judge’s personal interests were advanced by the radio appearances, the Committee then turned to the potential effect of the Canon 2B language “or others.” In the context of Fla. JEAC Op. 2021-10, the “other” was the radio station that frequently hosted the inquiring judge. In the present case, the judge’s proposed conduct would implicate not only the broadcaster, but the judge’s spouse as well.

With regard to the radio station, the Committee found that “[s]everal variables could potentially inform that question’s resolution, including how the station receives financial support, whether it advertises the judicial officer’s appearance and in what manner [and] whether the judge’s appearance is considered a public service/informative aspect of the station’s operation or whether it is a potential source of advertising funding for the station.” Fla. JEAC Op. 2021-10 was not unanimous in concluding that the judge’s continued radio appearances were not violative of Canon 2B. The dissent relied upon Fla. JEAC Op. 1996-25, which in turn placed great reliance upon In re the Inquiry of Evan W. Broadbelt, J.M.C., 146 N.J. 501, 683 A. 2d 543 (1996), cert. denied, 520 U.S. 1118 (1997).2

The judge’s activities in Broadbelt would certainly have caused concern if they had involved a Florida judge. Judge Broadbelt regularly appeared on commercial television programs such as Geraldo Live and Court TV to provide “guest commentary” on high-profile cases, even though, more innocently, he also appeared on a local program “to discuss generally the jurisdiction and procedures of the municipal courts.” He did not receive compensation for any of these appearances. Even so, Judge Broadbelt was found in violation of several canons, the language of which is similar to Florida’s Code of Judicial Conduct. First, the New Jersey court found that judges should not comment on cases in any jurisdiction, and not solely those likely to come before their courts. Second, and more to the point of our discussion, the judge’s regular television appearances “allowed the prestige of his judicial office to advance the private interests of commercial television.”

Broadbelt discussed in some detail two 1961 opinions by the American Bar Association, the first of which “barr[ed] judges from appearing on commercial television programs that simulate or recreate judicial proceedings,” but “did not consider whether other programs such as panel discussions or interviews would be improper.” The second opinion “approved of a judge's appearance on Meet the Press because it was ‘distinctly . . . a public service type [of show]’ similar to a news report dealing with matters of general public interest.” Notably, in the second opinion the ABA committee stated that “the nature of the program and the nature of the appearance of the lawyer or judge on it is the important thing and whether or not it is commercially sponsored is secondary.” This suggests that purely informational, neutral contributions by judges are likely to satisfy ethical standards even if delivered via a commercial medium.3

Fla. JEAC Op. 1996-25, which cites other authorities in addition to Broadbelt, offered several explanations why a judge’s regular participation in a commercial talk show could run afoul of the Code of Judicial Conduct. Canon 5A concerns itself directly with extrajudicial activities. Under this rule, “a judge's extrajudicial activities must be conducted in such a manner so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties.” The Committee finds reason for concern that each of these considerations under Canon 5A is implicated by the present inquiry.

“A judge must ensure that extrajudicial activities do not cast reasonable doubt on the judge's capacity to act impartially as a judge. Here the inquiring judge proposes to comment extensively on issues arising, and have actually arisen in other courts around the United States. In this context, it would be nearly impossible for the judge to avoid injecting his own legal opinion or foreshadowing how he might rule on a contested legal issue. On the question of demeaning the judicial office, the Committee recognizes that, in view of many, television news is largely a commercial endeavor. As recent experience with several high publicity legal proceedings has demonstrated, issues that come before courts are often not conducive to exposition in the ‘soundbyte’ format of television news. Unfortunately, the extremely limited time available to a commentator on a television news show is not conducive to full and fair explanation of complex legal proceedings. Accordingly, the Committee has serious concerns that the commercial and entertainment aspects of a regular judicial appearance on a television news show might well outweigh the legitimate public information aspects.

“Finally, with regard to the third consideration under Canon 5A, an extrajudicial activity must not interfere with the proper performance of judicial duties. Here, the judge proposes regular appearances on a local television news broadcast. Such an arrangement could well lead to a public perception that the judge has priorities other than proper performance of judicial duties. Moreover, Article V, Section 13 of the Florida Constitution mandates that all judges shall devote full time to their judicial duties. Again, the very real risk is the perception that the inquiring judge would be viewed as devoting a substantial amount of their productive time to a very public commercial endeavor unrelated to judicial duties.”

“In addition to the canons discussed above, Canon 5D(1)(b) may well be implicated. Members of the electronic media are frequently litigants in the courts of this state. Under this portion of the Code of Judicial Conduct a judge must avoid engaging in continuing business relationships with persons likely to come before the court.”

Our impression is that a judge’s infrequent appearances on a podcast, limited to providing nonjudgmental information about the family court system, is a situation qualitatively different than the practices engaged in by the judge in Broadbelt and contemplated by the inquiring judge in Fla JEAC Op. 1996-25. However, this does not end the inquiry. While it may be that sporadic appearances on the podcast may have little effect on the broadcaster’s bottom line, we must not overlook the fact that the inquiring judge’s proposal will necessarily provide some benefit to the judge’s spouse, who, as noted, receives compensation for the podcasts. “A judge shall not allow family â€¦ relationships to influence the judge’s judicial conduct” (emphasis added). The Commentary to Canon 2B provides only a single example of what this provision seeks to avoid: “[A] judge must not use the judge’s judicial position to gain advantage in a civil suit involving a member of the judge’s family.” In addition to making rulings that might benefit a family member, other examples would include judges hiring a relative or lobbying law firms or court administration to do so. 4

The question posed in the current inquiry appears to be unique in this Committee’s history. For one thing, podcasts are a recent innovation, though it would not surprise us to learn of judges whose spouses may have performed on radio talk shows or worked as reporters seeking an interesting story for the newspapers or magazines that employed them. We just have not been asked, until now, to consider whether or to what extent judges may lend their time and experience when it is a spouse, and not a stranger, who wishes to elicit comment that a judge otherwise would be within the graces of the Canons to furnish.

An analogy perhaps may be drawn to books, articles, and scholarly papers written by judges. While this Committee has often written on such questions as the content of writings and how extensively their judicial authors may promote them, even though writing is often a collaborative effort we have less frequently addressed the question whether a judge may partner with someone else – colleague, fellow lawyer, friend – to write something and then advertise it. To do so inures to the benefit of not only the judge, but the other author as well. Fla. JEAC Op. 1998-1 is not directly on point – it involved a judge who wished to write a crime novel with assistance from an Assistant State Attorney, but did not contemplate co-authorship – but the opinion also includes a review of earlier opinions including some wherein judges contemplated joint projects. While the trend is generally favorable to co-authorships, many of our prior opinions focus on disqualification/disclosure more so than lending judicial prestige to the co-authors. Most directly on point is Fla. JEAC Op. 1978-12, in which three Committee members dissented, believing the proposal to co-author a procedure manual with a lawyer would intrude into lending judicial prestige, while the majority concluded the joint authorship was ethically permissible.

Though the distinction may be a fine one, the Committee finds it relevant that the judge’s spouse is already involved in the process of recording and airing the podcasts, and would continue to do so regardless of whether the judge made an occasional contribution – that is, we are not dealing with the situation where the judge is intervening with a broadcaster in order to obtain a position, contract, or extra compensation for the spouse. Thus, we do not believe the inquiring judge would run afoul of the Code by occasionally appearing on the podcast to provide non-case-specific information about the family court system.

It must be noted that two members of the Committee dissent from this conclusion, expressing their belief that the judge’s proposed activity would lend the prestige of office to the podcast.

Issue 2

As for the inquiring judge’s second question, we begin our discussion by excerpting the following information from the web site LinkedIn.com itself: LinkedIn is “the world's largest professional network with 756 million members in more than 200 countries and territories worldwide.” Its vision is to “[c]reate economic opportunity for every member of the global workforce” by “connect[ing] the world’s professionals to make them more productive and successful.” The site, which is a subsidiary of Microsoft, “leads a diversified business with revenues from membership subscriptions, advertising sales and recruitment solutions.” 5

As indicated above, this Committee has received many inquiries from judges who have written books. In Fla. JEAC Op. 2020-21, we acknowledged that a judge who had written a biography of a noted attorney should be allowed to promote the book, including on web sites like Facebook, provided the judge operated within guidelines established by the Code of Judicial Conduct (essentially those discussed in this opinion under Issue 1). But see Fla. JEAC Op. 2019-18, cautioning against “endorsement of any products, persons, services, or materials.” The Committee has not addressed such issues as whether a judge may publish a review of a book written by someone else, even if intended as a scholarly criticism.

Similar to the position this Committee has taken on vetting judicial candidates’ campaign literature, we have not asked the inquiring judge to provide the exact language of the proposed congratulatory message. We believe that it is enough that the message will draw readers’ attention to the book’s publication, which is likely to be perceived as an endorsement and promotion of the book. Moreover, there is a substantial likelihood that the judge’s posting will come to the attention of attorneys, court staff, fellow judges, and other persons whom the judge is in a position to influence. There is also potential for persons desirous of currying favor with the judge to purchase the book and make it known that they did so. This is particularly so given the nature of the LinkedIn web site – designed for networking among professional people such as lawyers - and the uses to which it is put. We conclude that the judge should err on the side of caution and let the book – and its author – speak for themselves. We trust that the judge’s spouse is already aware of the judge’s pride in this achievement.

One member of the Committee disagrees with this conclusion, having the opinion that the proposed activity is permissible under the Code.

(Mike Frisch)

September 16, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Guidance, Please: A Missed Opportunity

I was a bit disappointed to see a one-page order of the Maryland Court of Appeals admitting an applicant to practice

ORDERED, by the Court of Appeals of Maryland, a majority of the court concurring, that the favorable recommendations of the Character Committee for the Fifth Appellate Judicial Circuit and State Board of Law Examiners be, and they are hereby, accepted, and it is further

ORDERED, that the applicant be admitted to the Bar, conditioned upon satisfaction of the requirements of Maryland Rules 19-212 (Maryland Law Component) and 19-213 (Qualifying MPRE Score Required), and upon taking the oath prescribed by the statute.

I have no issue with the result.

As in my favorite lawyer movie Body Heat, the problem lies elsewhere.

I had listened to the oral argument in the matter and understood that the issues involved the applicant's history of alcoholism, behavior while drinking, and the status of his sobriety.

The court missed an opportunity to provide useful guidance to applicants concerning the standards that it applies in considering such circumstances.

This is particularly important in light of the fact that only "a majority of the court" concur in the result.

I have made the same argument about opaque admission orders in Louisiana. 

Law school is expensive and time-consuming.

While I do understand protecting the applicant's identity, a far more helpful opinion can be written without violating confidentiality. 

Courts have an obligation to provide a clear roadmap to those who struggle with addiction issues of the standards applied to their applications for admission.  (Mike Frisch)

September 16, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Circuit Court Turf War Won By Court Clerk

The Missouri Supreme Court has sided with a Circuit Court Clerk in a dispute with a Circuit Court judge, holding that the judge lacked the power to essentially dethrone the clerk

Both Judge Flynn and [circuit clerk] Allsberry were elected to their respective positions in the 2018 general election and took office in January 2019. Intense conflict between the two began immediately and escalated over the weeks and months. There was considerable evidence at trial about the parties’ acrimonious power struggle, the rift this discord created among the staff at the Lincoln County courthouse, and the disruption their dysfunctional professional relationship caused – the details of which are largely irrelevant to the legal questions presented in this appeal.

The judge's actions

Judge Flynn’s suspension of Allsberry has been kept in effect continuously since May 2019; at this point, she has been suspended more than half of her four-year term in office. In March 2020, she filed a petition seeking a declaration that Judge Flynn was not authorized under any of the cited statutory provisions to place her on indefinite administrative leave and bar her from performing her duties as circuit clerk or entering the courthouse. She also sought...injunctive relief...

The circuit court correctly concluded that the judge had exceeding his authority

the circuit court did not err in concluding that Judge Flynn had no authority to take the action he did against Allsberry.

But erred in denying injunctive relief

the circuit court erred in concluding that it had no power to order injunctive relief solely because the defendant was another circuit judge.

(Mike Frisch)

September 16, 2021 | Permalink | Comments (0)

Wednesday, September 15, 2021

Felonies Lead To Interim Suspension

A criminal conviction has drawn an interim suspension from the Oklahoma Supreme Court

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), has forwarded to this Court certified copies of the Information, Plea of Guilty, and Order of Deferred Sentence, in which Amber Ann Sweet entered pleas of guilty to one count of Grand Larceny, a felony, in violation of 21 O.S. Supp. 2018, § 1705, and one count of False Declaration of Ownership in Pawn Shop, a felony, in violation of 59 O.S. Supp. 2018, § 1512(C)(2). On June 18, 2021, the district court deferred sentencing for three years, until June 3, 2024.

RGDP 7.3 provides: "Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and the judgment and sentence, the Supreme Court may by order immediately suspend the lawyer from the practice of law until further order of the Court." Having received certified copies of the papers and orders under RGDP 7.3, this Court orders that Amber Ann Sweet is immediately suspended from the practice of law. Amber Ann Sweet is directed to show cause, if any, no later than September 28, 2021, why this order of interim suspension should be set aside. See RGDP 7.3. The OBA has until October 13, 2021, to respond.

(Mike Frisch)

September 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)

RESPECT

The California State Bar Court has admonished an unnamed attorney for disrespectful behavior in one matter and disobeying a court order in another.

Respondent BB, while a new San Francisco County Deputy Public Defender, violated his duty to maintain respect due to the courts in two separate courtroom incidents. Before his disciplinary trial, respondent stipulated to his misconduct in the first incident, in which he made disrespectful statements to a superior court judge during jury selection; he apologized to the judge shortly thereafter. In the second incident, respondent violated a court order when his client was remanded during a plea colloquy. When bailiffs were attempting to take the client into custody, respondent failed to comply with a judge’s order to immediately step away from his client, which resulted in a contempt order against respondent.

The hearing judge found respondent culpable of two counts of disrespect to the courts and one count for failure to obey a court order. The judge determined an admonition was appropriate under the “unique circumstances” established at trial along with five circumstances in mitigation and only one in aggravation. The Office of Chief Trial Counsel of the State Bar (OCTC) appeals, arguing an admonition is inappropriate and some form of discipline should be imposed. It requests an actual suspension of 30 days as the minimum required here. Respondent did not appeal.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s culpability findings but differ in our review of the aggravating and mitigating circumstances. We find the record establishes no aggravating circumstances and four mitigating ones. Because we increase the weight assigned to three of the mitigating circumstances, the overall mitigation is greater than the judge found. We also acknowledge the unusual facts of the case and conclude, as the judge did, that discipline is not necessary here to protect the public, the courts, or the legal profession. Accordingly, we affirm an admonition as the appropriate disposition for respondent in this matter.

One incident involved a struck Latino juror where the judge had changed his initial favorable ruling

Respondent argued about the changed ruling, and stated, “the [c]ourt has a lack of backbone.” Then, interrupting the judge, he repeatedly stated he did not respect the court or its decision. The court warned respondent about his comments, and respondent challenged the court to place him in custody. The court then took a short recess. Later that day, respondent apologized to the judge. He was reprimanded for his actions by Jeff Adachi, the San Francisco Public Defender at the time, and another high-level supervisor.

The other incident involved an unruly client

While the exchange was taking place, respondent kept his right arm between the deputies and the defendant and briefly interfered with the arrest process. While it is unclear exactly how long respondent delayed the arrest, several witnesses, including a bailiff, testified the delay lasted from 10 to 15 seconds. After the recess, Judge Moody told respondent that he was subject to arrest for interfering and asked him if he understood. Respondent then stated, “The [c]ourt told my client he would either finish the plea or go to jail.” Judge Moody told respondent to answer his question. Respondent stated,

That’s what the [c]ourt said to my client. And I have the duty—I have a duty to protect my client in a situation with extreme mental health. In chambers I explained to the [c]ourt my concern about [the defendant]. And the [c]ourt has—is usually very diligent and very concerned about those issues. And it was very obvious while I stood here what was going on. And to put someone in a bind to say you either understand what I’m saying or go to jail is improper. And I don’t know how to react. And then for it to turn physical was improper. And I’m embarrassed for the [c]ourt today.

Judge Moody then said, “[Respondent], we’re talking about your actions today.” Respondent replied, “You mean my reactions,” to which the judge said, “All right.” Respondent finished by stating he needed counsel and the matter was adjourned.

The contempt was affirmed on appeal.

Respondent was ordered to pay a fine, which he did. He also reported the contempt judgment to the State Bar. He has since appeared before Judge Moody, who testified respondent has acted professionally on those occasions. The bailiffs also testified they have since interacted with respondent in the courtroom, have not had any other problems with him, and feel comfortable working with him in the future.

An aspect of "extraordinary" mitigation

Forty-four people testified or attested to respondent’s good character. More specifically, eight attorneys testified: seven public defenders, including the current San Francisco Public Defender, and respondent’s former employer when he was in private practice. The remaining three witnesses consisted of a former member of the Board of Supervisors for the City and County of San Francisco, a captain and Assistant Sheriff with the San Francisco County Sheriff’s Office, and a current client. Almost all of these witnesses were aware of the misconduct and almost all the attorneys testifying on respondent’s behalf witnessed the incident in Judge Moody’s courtroom. Thirty-three people submitted declarations: 11 additional public defenders, four former clients, two assistant district attorneys, three other attorneys (one of whom was the former City Attorney for the cities of Santa Cruz and Capitola), a priest, and 12 other people from respondent’s personal life. Most of these people had known respondent for several years and were aware of his misconduct.

(Mike Frisch)

September 15, 2021 in Bar Discipline & Process | Permalink | Comments (1)

Depraved Minds, Particular People

The Minnesota Supreme Court reversed a "depraved mind" murder conviction of an officer who shot an innocent person while responding to a 9-11 call that the victim made

This case comes to us following the tragic death of Justine Ruszczyk on July 15, 2017. Ruszczyk had called police that night out of concern for a woman she heard screaming behind her home. When Ruszczyk approached the police vehicle that came in response to her call, appellant Mohamed Mohamed Noor fired his service weapon at her from the passenger seat. Noor’s bullet struck Ruszczyk in the abdomen and sadly, she died at the scene.

..The issue before us on appeal is not whether Noor is criminally responsible for Ruszczyk’s death; he is, and his conviction of second-degree manslaughter stands. The issue before us is whether in addition to second-degree manslaughter, Noor can also be convicted of depraved-mind murder. Because conduct that is directed with particularity at the person who is killed cannot evince “a depraved mind, without regard for human life,” Minn. Stat. § 609.195(a), and because the only reasonable inference that can be drawn from the circumstances proved is that Noor directed his single shot with particularity at Ruszczyk, we conclude that he cannot. Accordingly, we reverse Noor’s conviction of depraved-mind murder and remand the case to the district court for Noor to be sentenced on the second-degree manslaughter conviction.

The issue on appeal

According to Noor, our precedent establishes that a depraved mind cannot be evinced when a defendant’s conduct is directed with particularity toward the person who is killed. For ease of reference, we refer to Noor’s argument as the “particular-person exclusion.”  Because the evidence establishes that his conduct was aimed specifically at the victim, Noor argues that the evidence is not sufficient to sustain his conviction of third-degree murder. The State responds that the evidence is sufficient under a line of cases that purportedly refutes the existence of the particular-person exclusion or, at the very least, conflicts with the line of cases cited by Noor. The State also argues that many of Noor’s cases are distinguishable based on their procedural posture and therefore, the particular person exclusion is not as well-established as Noor contends. And finally, if we reject the State’s first two arguments, the State urges us to overrule our precedent and begin our depraved-mind murder jurisprudence anew.

The court

In sum, our precedent confirms that Noor is correct in arguing that a person does not commit depraved-mind murder when the person’s actions are directed at a particular victim. The particular-person exclusion is simply another way of saying that the mental state for depraved-mind murder is one of general malice.

...We reaffirm our precedent today and confirm that the mental state required for depraved-mind murder cannot exist when the defendant’s actions are directed with particularity at the person who is killed.

The court overruled the single precedent that favored the State's position

Mytych was clearly and manifestly wrong when it was decided, and it remains clearly wrong today. The defendant in that case bought a revolver, called in sick at work, and then flew hundreds of miles under an assumed name before killing the victims. Mytych, 194 N.W.2d at 278. The intended target was the defendant’s former fiancé, who secretly married another woman and later lied about the nature of his relationship with his new wife in order to engage in further sexual relations with the defendant. Id. Although this fact pattern closely resembles that of a first-degree murder case, the district court, perhaps motivated by a desire to avoid an overly harsh result for a sympathetic defendant, acquitted the defendant of the first-degree charge and convicted her of only depraved-mind murder. Id. at 281, 283.

Mytych’s analysis in affirming the conviction of depraved-mind murder is poorly reasoned. The analysis is composed almost entirely of direct quotations from the district court, and the district court’s reasoning, in turn, was heavily dependent on the testimony of a medical expert at trial. Id. at 281–83. The expert testified “that the word ‘depraved’ could mean automatically out of touch with ordinary standards of decency and reality.” Id. at 283. What little analysis exists in Mytych represents a near-absolute deference to that medical expert’s opinion on the legal definition of a “depraved mind.” Id.

The Mytych decision - linked here - tells the story of her romance with Sam Pulford, who married Janet Williams but had told Mytych that the marriage was "platonic" and had sexual relations with her after he had tied the knot

Communication for the next 4 months consisted largely of efforts by defendant to learn when Pulford would see her again. In February 1968 he visited Chicago where he again saw defendant. Telephone conversations continued thereafter between them until March 14, 1968, the date of the homicide and the assault.

Then

Upon arrival at the Twin Cities International Airport, she went to a rest room, loaded the revolver, and took a cab to the St. Paul Bus Depot. From there, she took another cab to the Pulford apartment and rang the bell. Pulford, in bed at the time, opened the door at his wife's insistence but only after his wife had gone to the bathroom. After letting defendant into his apartment, he walked down a short hallway to get a cigarette and had turned back toward defendant when she shot him in the side. Pulford heard two more shots while lying on the floor. When he arose he found his wife's body in the bathtub, lifeless as a result of two bullet wounds. Defendant denied any memory of taking the gun from her purse and firing it.

If the law is against you

Finally, the State asks us to abandon our precedent and reinterpret the depraved nmind murder statute from a clean slate. It essentially contends that there is a compelling reason to overturn our cases that rely on the particular-person exclusion. And that reason, the State argues, is that the particular-person exclusion creates a “significant hole” in Minnesota’s graduated statutory homicide scheme.

If there were, in fact, a “hole” in the statute, as the State argues, it would be the job of the Legislature to fill it. But as this case itself proves, there is no hole in Minnesota’s statutory regime. The parties agree that the evidence is sufficient to sustain Noor’s conviction for manslaughter. His death-causing action still results in criminal liability, and therefore there is no “hole” in the statutes in the truest sense of the word.

(Mike Frisch)

 

September 15, 2021 in Current Affairs | Permalink | Comments (0)

No Duty To Inquire Into Co-Defendant Conflict

An oral argument held in April before the Ohio Supreme Court raises interesting ethical questions.

The case involves a criminal appeal. 

One attorney represented two clients - husband and wife - who were charged in drug offenses after a search of their home.

They both pleaded guilty. The husband got jail time; the wife did not. 

The appeal agues that the failure of the trial judge to inquire into possible conflicts required reversal of the conviction.

The court today rejected the argument with a dissent

In State v. Williams, the Court ruled a Cuyahoga County trial court had no obligation to question whether the attorney jointly representing a husband and wife pleading guilty to drug-related charges had a conflict of interest. (Also 2020-0991.)

The opinion is linked here.

In this discretionary appeal, we consider whether a trial court has an affirmative duty to inquire into the possible conflict of interest created by an attorney’s dual or multiple representation1 of codefendants in a criminal case. Although making this inquiry is the better practice, we conclude that absent some factor which would alert the trial court about a possible conflict of interest created by such representation, the court has no affirmative duty to do so. We therefore affirm the judgment of the court of appeals.

Justice Brunner dissented

I believe that the majority opinion’s analysis is incomplete. I would address the right to counsel in Article I, Section 10 of the Ohio Constitution and hold that it requires a trial court to make a prompt inquiry into whether a conflict exists any time two or more defendants facing charges arising out of the same matter are represented by the same attorney. Because the trial court in this matter did not conduct such an inquiry, I would remand this matter to the trial court for it to determine whether an actual conflict existed. Further, because the majority opinion indicates that inquiries into multiple representation should be addressed by a rule or a statute, I note several specific matters any such rule or statute must address to sufficiently protect the right to counsel

(Mike Frisch)

September 15, 2021 | Permalink | Comments (0)

New Jersey Gets Tough

We often have occasion to lament the institutional leniency of New Jersey attorney discipline.

Well, today that system produced a result to counter our narrative.

The attorney had been subject to a public reprimand in Pennsylvania for conduct described by the New Jersey Disciplinary Review Board

This case arises from respondent’s representation of two clients in their personal injury matters, wherein he sued the wrong defendant; misidentified the address where his clients’ injuries occurred; failed to preserve his clients’ claims before the statute of limitations expired; and then deceptively induced the clients to settle and release any potential malpractice claims they had against him.

The DRB surveyed the sanctions for the violations

Based on New Jersey disciplinary precedent, a term of suspension is required for the totality of respondent’s misconduct. A reprimand would be the baseline level of discipline merely for respondent’s misrepresentations to his clients or his tricking his clients into waiving their malpractice claims against him. Further considering his gross neglect; his egregious failure to communicate, including his failure to inform his clients that the statute of limitations had run; and his failure to provide his clients with fee agreements, at least a censure would be required.

Respondent, however, committed additional, serious misconduct, in an attempt to conceal his legal malpractice and to minimize his own financial and reputational consequences. Specifically, he directed Oliver to induce his clients, under completely false pretenses, to waive their potential claims for legal malpractice. Respondent, thus, exceeded the misconduct of attorneys who merely failed to supervise their employees, by affirmatively directing his employee to engage in misconduct. Respondent then failed to pay the sums he had promised to his clients to secure the nonconsensual, improvident releases that he had directed his employee to obtain. Further, respondent made a false statement to Pennsylvania disciplinary authorities, denying that he had committed any misconduct. For such brazenly dishonest behavior toward clients and disciplinary authorities, a term of suspension is required to protect the public and preserve confidence in the bar.

Thus three months.

The New Jersey Supreme Court accepted that recommended sanction. (Mike Frisch)

September 15, 2021 in Bar Discipline & Process | Permalink | Comments (1)

Tuesday, September 14, 2021

Home Remedies

The New Jersey Supreme Court ordered a public censure in a case of first impression, rejecting the majority recommendation of its Disciplinary Review Board for a suspension and favoring non-suspension as advocated for by a dissenting member.

From the majority report 

On February 2, 2018, at approximately 2:50 p.m., respondent was packing her personal belongings to move to a new home. Her friend, M.C., who was assisting her, picked up a black bag containing respondent’s 9-millimeter semiautomatic handgun, which respondent lawfully owned and had registered. Respondent took the bag, checked to see whether the gun was loaded, and attempted to secure it for proper transport. While respondent was attempting to secure the gun, it fired, and a bullet traveled through a wall, striking a minor in the home, in the area of the minor’s right thigh and buttock.  After the minor screamed that the minor had been shot, respondent and M.C. examined the minor’s bleeding wound, cleaned it with betadine and peroxide, and wrapped it with a sweatshirt that had been on the floor. They failed to summon medical or emergency assistance.

At approximately 2:55 p.m., respondent telephoned Wouter Smits, her former husband, who is a part-time emergency medical technician (EMT) and surgical technician, to ask him to examine the minor’s wound. Because Wouter did not answer the telephone, respondent left a voice message requesting a return call, but did not reveal that the minor had been shot.

When Wouter returned respondent’s call at approximately 3:30 p.m., respondent informed him of the discharge of the gun and the injury to the minor. Wouter replied that he would examine the wound after he went to Home Depot to purchase painting supplies for respondent’s new home. At approximately 4:15 p.m., Wouter arrived, examined the minor, and stated that the wound likely required stitches.

The report details further delays in seeking medical treatment

The treating trauma physician, Dr. John A. Adams, opined that, although there was no permanent damage to the minor, when a bullet travels through materials, as it did in this case, there is a risk that embedded material on the bullet could enter the body and cause infection. Dr. Adams stated that a gunshot wound victim immediately should be taken to the hospital for proper diagnosis and medical treatment

Criminal charges were brought

On July 9, 2018, respondent waived indictment and entered a guilty plea via an accusation charging fourth-degree neglect...

She stipulated to the ethical violation

In sum, we find that respondent violated RPC 8.4(b). The sole issue left for us to determine is the appropriate quantum of discipline for respondent’s misconduct.

Respondent’s criminal conduct presents us with a case of first impression. The Court has never disciplined a New Jersey attorney for such misconduct – failing to seek medical attention for a minor after inflicting the minor with a gunshot wound. The following cases provide some direction for the appropriate quantum of discipline.

Sanction

On balance, we determine that a three-month suspension is the quantum of discipline necessary to protect the public and preserve confidence in the bar. Member Singer voted to impose a reprimand and filed a dissent.

From the dissent

In short, respondent, with a heretofore unblemished ethics history in twenty-four years of practice, made a single mistake of judgment, unrelated in any way to her representation of clients. Her suspension is not supported by any of the cited precedent. Nor are there any aggravating factors to justify it. She reported her conviction quickly to ethics authorities, cooperated fully with them entering into a disciplinary stipulation, and took responsibility for her actions. Her mistake in judgment, made under unique circumstances, is virtually certain not to be repeated and a suspension is unnecessary to protect the public or preserve public confidence in the bar. In short, a reprimand is adequate and fair discipline in this case.

(Mike Frisch)

September 14, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 13, 2021

Bar Discipline On Trial

The Maryland Court of Appeals heard argument this morning in a case that raises some important questions about the conduct of investigation, prosecution and disposition of bar discipline matters

AG No. 9 (2020 T.) Attorney Grievance Commission of Maryland v. Dawn R. Jackson

Attorney for Petitioner: Lydia E. Lawless
Attorney for Respondent: Irwin R. Kramer

The case is fascinating. 

Respondent is not and has never been a member of the Maryland Bar.

She had the misfortune to go into partnership with an attorney named Brynee Baylor, who was convicted of crimes in federal court and disbarred.

Editor's note: I was an expert witness on legal ethics for the United States in the Baylor trial.

Maryland investigated Baylor and met with Respondent. Respondent took Bar Counsel's advice about compliance with Maryland's rules regarding unauthorized practice in light of her "brick and mortar" office in Maryland.

Respondent also fully cooperated in the Baylor investigation.

Nonetheless, after the passage of several years and her relocation to the District of Columbia, Bar Counsel acted on an anonymous complaint and  prosecuted her for a laundry list of ethics violations.

The trial judge soundly rejected Bar Counsel's numerous contentions and found two "technical" unauthorized practice violations in signing "lines" in Maryland cases a decade ago.

The judge also found that the Respondent had been deeply affected by the trauma of her partnership experience and its fallout. 

Bar Counsel appealed.

The argument delves into the philosophy of attorney regulation and the appropriate role of disciplinary counsel in a way that few cases do.

It is worth the time to watch the video.

The link to the argument should appear here shortly. (Mike Frisch)

September 13, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 10, 2021

Fee Flee Leaves Law Firm Stuck

The South Carolina Court of Appeals affirmed the dismissal of a suit brought by a law firm alleging that the Workers Compensation Commission had failed to protect its fee interest

In its complaint, KCC alleged the following set of facts. On July 31, 2007, Bruce Nadolny retained KCC to represent him in a worker's compensation claim against AVX Corporation and Liberty Mutual Insurance Company. KCC, on behalf of Nadolny, entered into mediation on his claim. From that mediation, Nadolny agreed to accept a $120,000 settlement. The day after mediation, Nadolny informed KCC he no longer needed its representation, and KCC was relieved as counsel. KCC informed Nadolny that it had expended multiple hours and expenses working on his case and would file a claim for attorney's fees.

The law firm alleged that it notified the workers compensation commission of its claim but nonetheless

On November 3, 2016, the Commission approved the settlement to Nadolny's widow without notifying KCC of the hearing. KCC alleged Nadolny's widow moved out of South Carolina after receiving the settlement. 

KCC asserts the Commission was negligent, reckless, and willful...

In response the Commission asserted governmental immunity.

The circuit court agreed and here

KCC argues the circuit court erred in finding the Commission was immune under the Act. KCC asserts the Commission's failure to notify KCC of the hearing was a ministerial act and therefore neither the Act nor judicial immunity immunized the Commission. We find the issue of whether the Commission's alleged action or inaction was ministerial is not preserved for appellate review.

In its response to the Commission's motion to dismiss, KCC asserted the Commission was not immune because the Commission's act was not a judicial or quasi-judicial act because it was simple negligence. KCC did not raise the issue of whether the Commission's act was a ministerial act—and thus an exception to the Act's immunity—until its Rule 59(e), SCRCP, motion.

Thus waiving that issue on appeal.

The court further rejected the law firm's claimed due process violations. (Mike Frisch)

September 10, 2021 in Billable Hours, Clients | Permalink | Comments (0)

Thursday, September 9, 2021

An Absolute

The Mississippi Supreme Court has reprimanded a judge who did not wind up his private practice within the required six months

The Commission found no evidence that Judge Watts had acted in bad faith; it found that Judge Watts’s violations resulted from his misinterpretation of the effect of filing motions to continue or withdraw. He acknowledged an awareness of the six-month winddown period. The Commission further found that in one matter in which he appeared at a contested hearing after the wind-down period, his violations resulted from acts of charity, motivated by a desire to help impecunious clients avoid hiring new counsel and paying legal fees they could not afford. They found Judge Watts’s conduct demonstrated error in judgment and an unacceptable lack of diligence. The record is devoid of any evidence that Judge Watts’s violations resulted from any intention to satisfy personal desires, such as receiving money or favors, or that he otherwise acted in a manner indicating any improper personal motive. They found no evidence that Judge Watts received any fees for his filings and, in at least one instance, he paid another lawyer the entire fee he had received so that the case could be concluded.

His ill-advised attempt to offer aid to clients blinded him to his duty to the law, to other jurists, and to parties opposite.

Sanction

Judge Watts’s failure to abide accordingly requires sanctioning. The Commission found by clear and convincing evidence that Judge Watts violated Mississippi Code Section 9-9-9 by continuing to practice law after the six-month wind-down period and that his violations constituted conduct prejudicial to the administration of justice which brought the judicial office into disrepute. See Miss. Cons. art. 6, § 177-A. The Commission further found by clear and convincing evidence that Judge Watts’s conduct did not warrant removal from office but that he should be publicly reprimanded and fined $2,500.00. We agree. The six month wind-up period is an absolute. Any action of any nature on behalf of litigants after that deadline is prohibited. Judge Watts has agreed to the Commission’s determination and acknowledged his wrongdoing. This Court thus finds that the Commission’s proposed sanctions are appropriate. Judge Watts should be publicly reprimanded and fined.

(Mike Frisch)

September 9, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)