Thursday, December 5, 2019

Former Magistrate Charged With Misconduct

A former Ohio magistrate has been charged with violations of the Code of Judicial Conduct for an incident with a person who was seeking a civil protection order but came too late to be heard that day. 

WCPO 9 Cincinnati had the details 

A Hamilton County Common Pleas Court magistrate says he was forced to resign this week after video cameras caught him chasing a woman down courthouse hallways and leading her by hand into his courtroom, then ordering her arrested, sparking a violent incident that spread from his courtroom to the jail.

Former Magistrate Michael Bachman told the WCPO I-Team that Court Administrator Patrick Dressing personally told him Monday to “resign or be terminated.”

"I think the video speaks for itself," Bachman told the I-Team in his defense. "I didn’t choke her or manhandle her. I merely put my hand up to guide her to the courtroom.”

I-Team: 'Was the mistake touching her?

Bachman: “Apparently it was.”

Bachman told WCPO he left the bench to confront Kassandra Jackson on Sept. 4 because she was yelling outside his courtroom and disrupting a hearing.

As the video begins, you can see Jackson trying to file for a protection order, but staffers told her she missed the deadline and would have to come back. Witnesses say Jackson got angry and argued with them, and Bachman claimed he couldn't hear an attorney question a witness.

Nine seconds after Jackson walked away, Bachman charged through the door to the hallway. Bachman jogged after her, pointing at her and ordering her to return to his courtroom. He caught up to her at the public elevators and they started walking back together. 

As Jackson started to go down a side hallway, Bachman put his hand on the back of her shoulder and guided her back on the correct path, then kept his hand there for 23 seconds until he pushed her into a seat in the jury box. Bachman and Jackson continued talking.

WATCH Bachman chase Jackson and lead her to his courtroom below:


Once in the courtroom, the incident almost immediately flared up when Bachman notified Jackson that she was being arrested for contempt of court.

Jackson resisted two deputies’ attempts to arrest her. The deputies, assisted by courtroom staff, struggled to subdue her. Once Jackson was handcuffed, she still resisted and those deputies and several others dragged her down hallways and elevators to the Justice Center.

They restrained her to chairs and later removed her in a restraint chair.

WATCH deputies arrest Jackson in Bachman's courtroom below:

Jackson was freed two days later by presiding Judge Kim Wilson Burke. Burke ordered the contempt charge and rest of Jackson's 10-day sentence dropped  “for good cause.”

In his contempt citation on Sept. 4, Bachman said the incident started when Jackson “was witnessed becoming belligerent and heard screaming loudly in the halls."

WATCH deputies drag Jackson to jail below:




The citation went on to say:

“Kassandra Jackson’s conduct interrupted the hearing and the court ordered her to return to the courtroom. Kassandra Jackson refused to return and had to be forcefully brought back to the courtroom. Upon learning she was being held in contempt of court and imposing a three-day sentence,  Kassandra Jackson resisted arrest and attempted to flee the custody of deputies. The court then added seven days to the sentence.”

Bachman ended by saying he imposed the sentence for “disrespectful and disruptive behavior.”

Two longtime Hamilton County judges told the I-Team they can't remember a case like this one - where a judge or magistrate charged out of a courtroom, and pursued someone down a hallway, pointing at them and talking to them, then literally put a hand on that person from the hallway to a chair in the courtroom. recited some prior issues

In more than 10 years as a magistrate, Bachman sent dozens to jail. Nearly 40 people in all were sentenced to approximately 435 days for contempt since 2007, the records show.

Most of the offenses involved only profanity.

In his first such order, in early 2007, Bachman put a man in jail for a month because he told the magistrate, "You're a d---head," according to the records.

Later that year, he sentenced a woman to three days after she "stuck out her tongue and pretended to 'moon' the court."

In 2009, he threw a man in jail for a month for saying, "I don't give a f---."

In 2010, Bachman ordered a woman spend 20 days in jail for "refusing to remain silent," arguing and not sitting in a specified place when ordered to, the records show.

A woman denied a temporary protection order screamed in the hallways, for which Bachman sentenced her to one day in jail. She then ignored Bachman's orders to not reach into her bag and to set her bag down, so he gave her two more days.

The records show some inconsistencies in Bachman's punishments.

In 2009, a man got seven days for saying, "This is bulls---." A different man uttered the same phrase about a month later but was sentenced to 30 days in jail.

A few weeks later, a woman uttered the same phrase, prompting Bachman to impose a $250 fine.

And a woman who said "bulls---" in 2012 got a $100 fine.

No other circumstances factored into these similar cases with disparate sentences, according to the records.

The charges here were filed by Ohio Disciplinary Counsel. (Mike Frisch)

December 5, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

The Pedal Extremity

A medical malpractice claim must be tried according to a recent decision of the New York Appellate Division for the First Judicial Department

In this medical malpractice action, plaintiff testified that after he saw an advertisement by defendant in a magazine about alternative medicine he sought treatment from defendant for Lyme disease. Defendant is a licensed podiatrist who the record shows told plaintiff that he could treat a host of incurable non-podiatric conditions. Defendant wrote in plaintiff's medical records that plaintiff suffered from varicose veins, and recommended that plaintiff take part in his ozone therapy study. It is undisputed that this treatment is not FDA-approved. Following the third session of this therapy, defendant noted in the medical record, plaintiff fell asleep, and on waking became confused and disoriented. He was taken and admitted to a hospital, where he was examined and found, inter alia, to have left-sided weakness and paralysis. Although there was an initial concern that plaintiff had suffered a stroke, and he was evaluated for a possible stroke and seizure, this was not a conclusive diagnosis. Nevertheless, plaintiff was kept in the hospital from October 26, 2013, the date of his admission, until he was discharged on November 8, 2013, which would seem to suggest that plaintiff was suffering a valid, even if undiagnosed, medical condition. Plaintiff claims that after he was released from the hospital he was confined to bed for three months, and that inflammation caused by the ozone therapy damaged veins in his forearms, and that inflammation of his brain and nerves resulted in paralysis of his limbs and face, memory loss, lack of concentration, chronic fatigue, personality changes, and other physical and neurological injuries that some evidence shows may be associated with ozone therapy.

Defendant has a history of being accused of using his putative study of ozone therapy's ostensible benefits in treating podiatric conditions as a cover for his treatment of non-podiatric conditions (see e.g. Altman v Robins, Sup Ct, NY County, Mar. 9, 2009, Lobis, J., index No. 103794/08). In the present case, the record reflects that the putative treatment was not for a podiatric condition, and thus that defendant was practicing medicine outside of the medical confines of podiatry (see Education Law § 7001[2]), which raises an issue of professional misconduct (see Education Law § 6509[2]).

Defendant failed to make the necessary prima facie showing of entitlement to judgment as a matter of law, requiring reversal and denial of his motion for summary judgment regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Bongiovanni v Cavagnuolo, 138 AD3d 12 [2d Dept 2016]). Defendant failed to establish the standard of care with which he should have complied for the treatment of Lyme disease, as to which he submitted no expert evidence (see Ocasio-Gary v Lawrence Hosp., 69 AD3d 403 [1st Dept 2010]). Thus, on this record, it cannot be determined whether defendant deviated from accepted standards of practice. A trial is required on the issue whether defendant's treatment proximately caused the physical and neurological manifestations of injury alleged by plaintiff.

(Mike Frisch)

December 5, 2019 in Comparative Professions | Permalink | Comments (0)

Wednesday, December 4, 2019

Reversal Of Fortune

The South Carolina Supreme Court has granted a new trial for a prosecutor's misconduct in argument

Among the several blatantly improper comments the prosecutor made in his closing argument to the jury in Oscar Fortune's murder trial, he claimed, "My job is to present the truth," and said, "if you look in the . . . Code of Laws . . . [ ,I] have to say what the truth is." "On the other hand," the prosecutor told the jury, "the defense attorneys' jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to --without regard for the truth." The prosecutor explained that if he—the prosecutor— believes "somebody else did the crime," then he must "dismiss it." "And [if] I know the person has done something that I think the facts show they're guilty of, then I can't [dismiss] it. I have to go forward with it."

We find the prosecutor's improper remarks violated the defendant's rights under the Due Process Clause. We reverse the denial of post-conviction relief (PCR), and remand to the court of general sessions for a new trial.

The case

The State charged Oscar Fortune with murder and possession of a weapon during the commission of a violent crime in connection with a shooting in the parking lot of the Huddle House in Cheraw, South Carolina, on December 23, 2001. Evidence presented at trial demonstrated both Fortune and the victim—Anthony Shields— possessed and fired guns. Fortune claimed Shields shot at him first, and he shot Shields in self-defense.

The court noted that such arguments are universally condemned

Whether this assistant solicitor's closing argument was improper—in light of the long history of courts condemning the same misconduct—is an easy question. The PCR court found it was improper, and we wholeheartedly agree. Whether the assistant solicitor's misconduct violated Fortune's due process rights is a tougher judgment call. In State v. Thomas in 1986—twenty years before Fortune's 2006 trial—we granted the defendant a new trial because—in our judgment—the solicitor's similarly improper closing argument required it. 287 S.C. at 412-13, 339 S.E.2d at 129. We cautioned solicitors not to engage in misconduct of this sort because we recognized the extent to which it endangers the due process rights of criminal defendants. 287 S.C. at 413, 339 S.E.2d at 129. Today, we make the same judgment call. The assistant solicitor's misconduct in his closing argument requires that Oscar Fortune be granted a new trial.

(Mike Frisch)

December 4, 2019 | Permalink | Comments (0)

Assault On Infant Daughter Draws One-Year Suspension

Non-practice related criminal conduct has resulted in a one-year suspension from the New Jersey Supreme Court.

The Disciplinary Review Board described the circumstances

Sometime between March 22 and 23, 2012, during an alcohol-induced blackout, respondent, who described herself as an "angry drunk," inflicted the following injuries on her eight-week-old daughter: a fractured skull, bleeding in her brain, a palm print on her face, an unidentified injury to her leg, and bruises. As a result, the Essex County Prosecutor’s Office charged respondent with one count of second-degree aggravated assault causing serious bodily injury, in violation of N.J.S.A. 2C:12-1(b)(1), and two counts of second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a).

On November 29, 2012, respondent appeared before the Honorable Michael L. Ravin, J.S.C., and pleaded guilty to one count each of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-t(b)(7), and third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a)(2). In exchange, the Prosecutor’s Office agreed to dismiss the second count of child endangerment and recommend probation, plus anger management classes, parenting classes, and "continued Drug/Alcohol abuse evaluation and treatment."

In addition to the facts underlying respondent’s assault on her infant daughter, respondent testified that, prior to that incident, she had blacked out on more than one occasion. According to respondent, when she was either intoxicated or experiencing a blackout, or both, she would "break stuff" and "go into the [sic] rage."

The bar proceeding

At oral argument before us, respondent’s counsel represented that his client did not report her 2012 conviction to the OAE until 2018 because, prior to that time, she was not certain that she wanted to practice law. Counsel also informed us that, since the incident, respondent has completed a long-term inpatient treatment program, regained custody of her child, and is drug- and alcohol-free. He also represented that she is prepared to accept such form of discipline as we deem appropriate.

The DRB found domestic violence disciplinary cases comparable for sanction purposes

In our view, respondent clearly committed a brutal act of domestic violence against her daughter, which resulted in severe injuries. Under the circumstances, a three-month suspension would be insufficient. Respondent’s victim was not only her own child, but a helpless infant for whom there existed no possibility of de-escalation, self-protection, escape, or even calling for help.

To be sure, respondent was under the influence of alcohol at the time, but the above cases show that the quantum of discipline does not depend on whether the attacker was intoxicated. The horror of a mother, intoxicated or not, brutally attacking her newborn baby cannot be met with a short-term suspension.

(Mike Frisch)

December 4, 2019 in Bar Discipline & Process | Permalink | Comments (0)


The Pennsylvania Supreme Court accepted a five-year retroactive consent suspension as a consequence of a federal false statement conviction.

The Bucks County Courier Times reported on the charges

Savona's resignation comes following allegations contained in the new second superseding indictment against three former public officials and a former manager of a Philadelphia credit union who are accused of crimes including conspiracy to money launder, money laundering, bribery, and wire and mail fraud.In the latest indictment dated Dec. 5, federal investigators alleged that two defendants — John Waltman, 60, of Lower Southampton, a former Lower Southampton district judge, and Robert P. Hoopes, 70, of Doylestown Township, the former Lower Southampton director of public safety — extorted, or attempted to extort, money or other actions from businesses in exchange for promises to use their political influence with local municipal officials to secure favors.

The indictment alleges that Waltman and Hoopes discussed with an attorney identified only as “Solicitor 1” alleged bribes the defendants sought from a sign company that wanted to erect a digital billboard last year in Russell Elliott Park in the 100 block of Street Road in Lower Southampton. The charging document describes “Solicitor 1″ as working as Lower Southampton’s township solicitor during the same two years that Savona held the position.

The indictment also described “Solicitor 1” as “LST’s chief legal advisor Solicitor 1 had actual and perceived authority over legal matters in LST and had actual and perceived influence over actions taken by and on behalf of LST by LST board of supervisors, officers and employees.”

In a telephone interview Thursday, Savona’s attorney, Mark Sheppard, said his client “will continue to cooperate fully with authorities, and that given the ongoing litigation he is not in a position to comment further."

The indictment also includes excerpts from text messages and telephone conversations between Waltman, Hoopes and “Solicitor 1” colluded to negotiate “consulting fees” that the sign company would pay Raff’s Consulting in exchange for the two officials’ assurances that the Board of Supervisors and other township officials would look favorably on the billboard proposal and lease agreement. Raff’s Consulting was a business owned by Bernard Rafferty that figures prominently in the federal government’s allegations of money laundering, according to the previous December and August indictments against the defendants.

Rafferty, 62, of Lower Southampton, is the former deputy state constable who worked out of Waltman’s district court. He is facing charges in the federal probe.

The billboard company and its salesman were not identified in the Dec. 5 indictment, but Lower Southampton Board of Supervisor meeting minutes confirm that Savona was involved in negotiations last year with a subsidy of Catalyst Outdoor Advertising LLC of Malvern called Southampton Outdoor LLC. An attorney for Catalyst Outdoor confirmed Wednesday that the salesman identified in the indictment was former vice president of asset development Robert DeGoria. DeGoria is not criminally charged in the Lower Southampton probe.

The company was seeking to place a two-sided advertising billboard in Russell Elliott Park. The agreement never came before the board of supervisors for a vote, according to township Manager John McMenamin.

Minutes from last year corroborate the timeline outlined in the Dec. 5 indictment involving the billboard proposal and the alleged scheme to extort a payment for Waltman, Hoopes and Rafferty.

The minutes show DeGoria, who recently was terminated from Catalyst and Southampton Outdoor, according to Catalyst’s attorney, appeared before the board of supervisors on April 27, 2016, to pitch the proposed LED billboard project. According to those minutes, DeGoria said it could generate revenue for the township as a place where local businesses could advertise.

DeGoria sent a term sheet to “Solicitor 1” in May 2016 offering the township $48,000 a year over 30 years for the right to erect a billboard in the park, according to the new indictment. Lower Southampton supervisor minutes from May 11, 2016, confirm the Savona told the board he received a proposal from Catalyst for a double-sided billboard at Russell Elliott Park offering $48,000 a year for 29 years and 11 months. It also promised a 10-percent increase in the annual payment every 60 months.

“Mr. Savona said that Catalyst needs to come a long way to match” another company that operated a one-sided digital billboard in the township that paid the township an annual fee of $50,000 with a 2-percent increase annually, according to the May 11, 2016, supervisor minutes.

The Dec. 5 indictment confirmed that “Solicitor 1” and the supervisors thought the offer was too low and wanted $68,000 a year, money it planned to use for capital improvements and the general fund.

In early November 2016, DeGoria sent a revised term sheet to “Solicitor 1” offering $60,000 a year over 30 years, and afterward according to the Dec. 5 indictment. DeGoria, Waltman and Hoopes allegedly entered into an “unlawful arrangement” where the public officials allegedly agreed to solicit, accept and conceal bribes through “Raff’s Consulting.”

In return, the public officials agreed to “influence actions taken by, and on behalf of, LST’s Board of Supervisors, LST officers, and ‘Solicitor 1’ to accept the company’s lease offer for the billboard at Russell Elliott park,” according the latest indictment.

The Dec. 5 indictment specifically noted that in early November 2016, DeGoria asked Hoopes if someone could “influence LST’s Board of Supervisors to take a favorable view” of the new lease offer.

“Yeah, I can do that,” Hoopes said, according to the Dec. 5 indictment, adding, “I’ll make it happen.”

Hoopes also allegedly specifically asked DeGoria about being paid to influence the outcome, stating, “We’re going to get money if we make it happen,” according to the Dec. 5 charging document.

The last time the billboard proposal was publicly discussed was the Nov. 9, 2016, supervisors work session where Savona told the board that Catalyst had been reaching out to him about the April presentation involving a digital billboard at Russell Elliott Park, according to the board minutes. “Mr. Savona said this would generate revenue for the Township. If the Board is interested, he will give them a nod to go ahead and present paperwork to him,” according to a copy of the Nov. 9, 2016, board minutes.

Over the next few weeks, the deal started to fall apart after Waltman and Hoopes allegedly balked at the amount of the kickback DeGoria offered, according to the indictment. DeGoria wanted to give Waltman a one-time payment of $3,000 as a consulting fee, but Waltman was expecting annual payments.

The indictment alleges that with the knowledge of Waltman and Hoopes, “Solicitor 1” participated in the reviewing and negotiations of the “consulting fee” that would be paid to Raff’s Consulting. In one conversation with DeGoria, Waltman described “Solicitor 1” as “one of us,” according to the indictment.

(Mike Frisch)

December 4, 2019 in Bar Discipline & Process | Permalink | Comments (0)

"No Additional Discipline Need Be Imposed"

A Marine officer serving as a Deputy Station Judge Advocate who communicated by telephone with his incarcerated brother by falsely claiming to be his attorney has had reciprocal discipline charges dismissed by the New Jersey Supreme Court.

And the Court having determined from its review of the matter that the discipline imposed by the Department of the Navy is adequate to address respondent’s conduct and that no additional discipline need be imposed...

The Disciplinary Review Board found that reciprocal discipline was appropriate and proposed a reprimand

Respondent was admitted to the New Jersey bar in 2006, the District of Columbia bar in 2009, and the Arizona bar in 2017. At the relevant times, he served as a Deputy Station Judge Advocate in the USMC.

At the time of the misconduct, he had been recently reassigned due to stress from his "intense defense work"

On December 17, 2014, respondent’s brother, Staff Sergeant James L. Plagmann, Jr., was placed in the Pre-Trial Confinement Facility (brig) aboard MCAS Iwakuni, Japan, where he remained for six days...

Although respondent was neither Staff Sergeant Plagmann’s attorney, nor authorized to form an attorney-client relationship with him, between December 19 and 21, 2014, he spoke to his brother six times by misrepresenting that he was his brother’s lawyer.

The Navy convened a Board of Inquiry

[Lt. Col.] Beckwith recommended that respondent be temporarily barred from practicing law and that his certification to serve as trial counsel or defense counsel, under the Uniform Code of Military Justice, 10 U.S.C. § 827(b), be suspended for four years. In addition, he recommended that respondent continue treatment for his mental health issues.

On March 1, 2018, Judge Advocate General J. W. Crawford, III, upheld Beckwith’s findings and suspended respondent’s certification indefinitely. In reaching his determination, the Judge Advocate General took into consideration respondent’s rank, years of honorable service, medical diagnosis of post-traumatic stress disorder, and his General (Under Honorable Conditions) discharge, but found that these factors were "outweighed by the significance of [his] underlying misconduct."

On March 7, 2018, the Navy reported respondent’s indefinite suspension to the OAE, noting that the decision was based on "a ’clear and convincing’ evidentiary standard."

The DRB on sanction

Here, respondent lied to brig personnel to gain access to his brother. Unlike Musmanno, however, he did not lie to disciplinary authorities. We recognize that, in addition to respondent’s misrepresentation to brig personnel that he was his brother’s attorney, he misrepresented that he had co-counsel. In our view, this additional misrepresentation is insufficient to justify a censure. Rather, it was part and parcel of respondent’s attempt to gain access to his brother.

The court disagreed.

I prosecuted a roughly comparable but more serious bar discipline reciprocal matter summarized on the D.C. Bar web page

In this reciprocal matter from the United States District Court for the District of Columbia, the board recommends that Robertson be suspended for 30 days, nunc pro tunc to April 22, 1992. The District Court disciplined Robertson for misrepresenting the identity of a Washington Post reporter who accompanied him as he entered the cell block of the United States Courthouse to interview his client.

The Court of Appeals rejected the recommendation and upped the sanction

Robertson, who is not a member of the District Court bar, appeared pro hac vice in that court to represent the principal defendant, Rayful Edmond, III, in a highly publicized criminal trial. Before and during the trial, the United States Marshals' Service maintained very strict security in and around the United States Court House, and Edmond himself was housed at a secret location several miles away, not at the District of Columbia Jail. After the trial began, the trial judge relaxed to some extent  the security surrounding Edmond so that family members might visit him in the courthouse cellblock. Soon thereafter, however, the Marshals' Service concluded that these visits were disruptive, terminated the privilege of visits from family members, and informed the trial judge that visitation must be limited to attorneys and court personnel. Although there was no written order to this effect, Deputy Marshal Floyd Johnson told Robertson that only attorneys and court officials would thenceforth be admitted to the cellblock to see Mr. Edmond.

After Edmond was found guilty on several charges, Mr. Robertson told Elsa Walsh, a Washington Post reporter who had asked him several times during trial for permission to interview his client, that she could now speak with Edmond while he was in the cellblock. Mr. Edmond had previously requested that Robertson be present during his pre-sentence interview with a probation officer, and it was to this meeting on December 11 that Robertson invited Ms. Walsh. At the entrance to the cellblock, as a Deputy Marshal looked on, Robertson signed the log book for himself, Ms. Walsh, and the probation officer, Gregory Hunt. He wrote his own name and both of their names in the book, and next to Ms. Walsh's name he wrote the abbreviation "Atty."

The violation

As the Board recognizes, "the integrity of the cellblock is vital to the overall operation of the courthouse." This is particularly true in a case as sensitive and notorious as the Edmond case, in which more than twenty defendants were charged with crimes ranging from conspiracy to distribute drugs to first-degree murder while armed. Mr. Robertson's smuggling  of a newspaper reporter into the cellblock in these circumstances was utterly inexcusable and should be unthinkable.

The Board, in recommending a thirty-day suspension, relies on cases in which this court imposed suspension ranging from a three-month suspension to a public reprimand. In one such case, In re Sandground, 542 A.2d 1242, 1247-1248 (D.C. 1988), we held that a three-month suspension was warranted when an attorney was found to have knowingly assisted his client in the concealment of assets in a pending divorce action, given the attorney's unblemished record over thirty years of practice and his excellent reputation. In another case, In re Rosen, 481 A.2d 451, 455 (D.C. 1984), the attorney received a thirty-day suspension for making false statements in three sets of motion papers filed with the trial court. We do not accept the Board's premise that these cases are comparable to the case at bar. While we cannot condone the concealment of a client's assets or the filing of false documents with the court, we think that what Mr. Robertson did here was far more serious, and potentially far more harmful. The gross breach of courthouse security that Robertson deliberately committed calls for a substantially longer suspension than we imposed in either Sandground or Rosen. We run no risk here of "foster[ing] a tendency toward inconsistent dispositions for comparable conduct," D.C. Bar Rule XI, § 9(g), because, as far as we are aware, there is no prior instance of comparable conduct in any District of Columbia disciplinary proceeding to date. What Mr. Robertson did here is different in kind, not just in degree, from what the attorneys did in Sandground, Rosen, and similar cases.

For these reasons the six-month suspension by the District Court, the presumption favoring identical discipline (or its functional equivalent) if at all possible, Mr. Robertson's past record of disciplinary violations, and above all the gravity of his misconduct we conclude that a suspension for six months is appropriate in this case.

Judge John A. Terry - who I admired enough when he was Appellate Chief in the Office of the United States Attorney for the District of Columbia to have him serve as my Supreme Court sponsor - authored the opinion. (Mike Frisch)

December 4, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, December 3, 2019

Jailhouse Lawyer

An immediate suspension ordered by the Oklahoma Supreme Court

 the Complainant [Oklahoma Bar Association] states that in Oklahoma County District Court Case no. CF-2016-4381, a jury returned a guilty against Respondent for assault and battery with a deadly weapon for willfully and knowingly shooting a person with a handgun, with formal sentencing set for December 19, 2019. Complainant alleges that despite Respondent's incarceration pending formal sentencing, Respondent is engaging in the practice of law and operating his law office from the Oklahoma County Detention Facility by participating in telephone conversations with family members, who are not licensed to practice law, regarding the handling of clients' cases and his law practice. The Complainant alleges that Respondent spoke to family members regarding client payments, deposits of client checks into his operating account without discussion of whether the checks were for fees already earned, and transferring money between Respondent's numerous bank accounts. Complainant alleges Respondent spoke to a family member about the possibility of his formal sentencing being continued, which would allow him to continue to practice law longer, and that he could practice vicariously through other people.

Complainant alleges that Respondent has a conflict of interest in continuing to represent clients pending his formal sentencing in that Respondent's personal interest in retaining client fees paid in advance and those to be paid for his personal financial benefit is in direct conflict with his clients' interests in being competently and diligently represented. Complainant alleges that Respondent's practice of law while in custody poses an immediate threat of substantial and irreparable public harm. Complainant requests an Order of Emergency Interim Suspension; an Order directing Respondent to deposit all monies, checks, or property into his designated IOLTA client trust account so that an audit may be performed; and an Order directing Respondent to assist Complainant in accessing his CLIO accounts to determine what fees, if any, should be refunded to clients.

Oklahoma News 4 reported

 An Oklahoma City attorney has been sentenced to 2.5 years for shooting a man in the parking lot of a popular club in 2016.

In 2016, Oklahoma City officers were called to a reported shooting in the Groovy’s parking lot. When they arrived, they found a victim suffering from a gunshot wound and another man being held at gunpoint by witnesses.

“The person who ultimately was arrested, Jay Silvernail, was in the parking lot. He was actually being held at gunpoint by another person there,” Msgt. Gary Knight, with the Oklahoma City Police Department, said.

Jay Silvernail, who is a local attorney, was booked into the Oklahoma County Jail and was charged with one count of assault and battery with a deadly weapon.

In 2017, the case ended in a hung jury.

From AP News

An Oklahoma City attorney who claimed he acted in self-defense when he shot a man has been convicted of assault and battery with a deadly weapon.

The Oklahoman reports a jury returned the guilty verdict Thursday against 53-year-old Jay Silvernail, who was accused of shooting 31-year-old Ryan Dejesus outside a northwest Oklahoma City nightclub on May 13, 2016. Dejesus had part of his right leg amputated as a result of the shooting.

Silvernail claimed he shot Dejesus in self-defense during an argument over a woman. Prosecutors alleged Silvernail was the aggressor and that his actions weren’t justified. Silvernail’s jury recommended a sentence of 2.5 years in prison as punishment.

Silvernail fatally shot a former client in 2015, but police said then he acted in self-defense when the man attacked him.

The attorney consented to the order. (Mike Frisch)

December 3, 2019 in Bar Discipline & Process | Permalink | Comments (0)

No Removal

A district court  judge has been publicly reprimanded and admonished by the Oklahoma Supreme Court over a number of dissents

The Council on Judicial Complaints initiated this case by delivering a report to the Chief Justice concerning the Council's investigation of District Judge Kendra Coleman. The report contained an evidentiary record and Findings of Fact, Conclusions of Law and a Recommendation that the Supreme Court en banc file a petition with the Court on the Judiciary to remove Judge Coleman. Given the fact that two members of the Supreme Court sit on the Appellate Division of the Court on the Judiciary, the Chief Justice appointed Special Justices to serve in their place as well as a Special Justice to serve for a currently vacant office on the Supreme Court. Thereafter, the Supreme Court, thus constituted, reviewed the Council's report and voted 5-4 that the allegations and evidence of misconduct set forth in the report did not warrant the filing of a petition for removal.

The violations

Judge Coleman's admitted and unexcused violations of the Ethics Commission rules governing campaign financing and reporting are another matter. These rules protect the integrity of the election process. Compliance with these rules is a duty that every candidate, especially candidates for judicial office, owes to the people and electorate of this state. While Judge Coleman's efforts to rectify her delinquent reports is commendable, they do not relieve her of accountability and discipline for this serious violation of the Code of Judicial Conduct. In order to deter Judge Coleman and future candidates for judicial office from failing to comply with Ethics Commission campaign rules, we hereby Reprimand Judge Coleman for this violation and will make this Reprimand public by publishing this opinion.

Judge Coleman's neglect to pay over sixty parking tickets, and similar neglect to attend to various county, state and federal tax obligations for several years, reflect adversely upon her judicial service, because such neglect raises a reasonable concern that she may likewise neglect her judicial duties. While her belated payment of the parking tickets and recent efforts to rectify her tax delinquencies demonstrate a sense of responsibility to attend to important matters, this Court believes an Admonishment is warranted to impress upon Judge Coleman the imperative of timely addressing all personal legal obligations that arise during or reflect upon her judicial service. As in the case of the Reprimand for failure to timely file Ethics Commission reports, this Admonishment is made public by publication of this order.

The last issue this Court must address is the pending felony charge that arose from Judge Coleman's neglect of her state tax obligations. This Court finds that final discipline should be deferred until this charge is resolved. In the meantime, Judge Coleman is on Probation with conditions (1) to report monthly to the Council on Judicial Complaints concerning the status of the various tax delinquencies, (2) to complete at least five mentoring sessions pending final discipline with Retired Justice Daniel Boudreau, Retired Judge April Sellers White, or another experienced judge and (3) to comply with all local, state and federal laws, and the Code of Judicial Conduct. Failure to comply with these conditions for deferred final discipline can be the basis for additional discipline and the Council on Judicial Complaints is authorized to bring any breach of these conditions to this Court through the complaint process provided by the Rules Governing Complaints on Judicial Misconduct.

There were dissents (not reported in full here)

WINCHESTER, J., with whom KANE, J. and WISEMAN, S.J., join, dissenting:

The Council on Judicial Complaints thoroughly investigated the numerous allegations of misconduct against Judge Coleman, including a review of all evidence presented and the testimony from several witnesses. The Council found multiple violations of the Code of Judicial Conduct worthy of her removal from office. Pursuant to 20 O.S.2011, § 1658, the Council recommended her removal and referred the matter to this Court for further proceedings.

I would refer this matter to the Court on the Judiciary for trial, which is the appropriate next step given the extensive evidence of the appearance of impropriety. I will not minimize blatant misconduct. While the various alleged infractions might not necessitate removal from office when considered individually, accumulatively they indicate a clear pattern of disrespect for the judicial office. I dissent from the majority's decision today because I believe Judge Coleman's actions warrant a trial on the matter.

In her short time on the bench, a span of less than one year, Judge Coleman has been the subject of numerous reports. The Council heard from several witnesses and reviewed all the evidence submitted, determining that the multiple instances of misconduct required Judge Coleman's removal from office. The Council ultimately found that Judge Coleman lacked the judicial temperament requisite of a judge, was guilty of oppression in office, and failed to follow the law and appreciate the importance of a fair and impartial judiciary.

 If found to be true, the accumulation and sheer numerosity of the allegations against her reflect a pattern of lack of integrity or respect for the law. The majority's decision shields Judge Coleman's actions from review by her peers and erodes the confidence of her fellow judges and the public in the judicial system's willingness to discipline its own members. Accordingly, I dissent.

Kane, J., with whom Wiseman, S.J. joins, dissenting:

The Council on Judicial Complaints ("the Council") has submitted a recommendation for the Supreme Court to file a Petition to convene the trial division of the Court on the Judiciary ("the Court on the Judiciary") regarding allegations against the respondent judge. A majority of this Court concludes that a more proper exercise of our discretion in this matter would be to divert the subject of the proceedings from the statutory and constitutional processes in place, and proceed, instead, with an ad hoc Order, tailored to the responding judge, based upon the alleged facts suggested in the Council's report, without the benefit of a trial.

While I believe that this Court does have the power to undertake relief in the nature proposed by the majority, I do not believe that this exercise of power has precedence, and I further do not believe that it is a wise or warranted exercise of our power under the facts presented in this case. I believe that a Petition, based upon the concerns expressed by the Council on Judicial Complaints' report, should have been prepared and presented to the Court on the Judiciary for a trial. I therefore dissent.

Kuehn, S.J., with whom Kane, J., and Wiseman, S.J., join, dissenting:

While I agree with the Majority that the Supreme Court has the jurisdiction to refer this matter to the Court on the Judiciary or retain it, based on the referral by the Council on Judicial Complaints, I part from the decision to retain it. I respectfully dissent.

By retaining this case the Supreme Court is determining, without a full hearing on the merits, that Judge Coleman has violated the Code of Judicial Conduct and committed the offense of oppression in office, a constitutional violation. Given the number and nature of the allegations, I find this unfair to both Judge Coleman and the people of the State of Oklahoma. I believe the best course is to refer this case to the Court on the Judiciary to determine, after a full hearing, what violations occurred and what punishment, if any, should be imposed as a result. I agree with the Majority that not every referral warrants this procedure, and emphasize that my decision rests on the particular circumstances of this matter.

If this matter is referred to the Court on the Judiciary, that court may independently reach its own conclusions on the merits and has the authority to fashion appropriate remedies beyond removal or dismissal. No statute or rule requires the Court on the Judiciary to remove a respondent who has been recommended for removal by the Council. Title 20, Section 1651(2)(a) explicitly says that referral to the Court on the Judiciary is for the "purpose of removal, reprimand, or admonition." This plain language suggests the Court has the authority to impose a variety of punishments. And in fact, the Court has done so. In State ex rel. Simms v. McCallister, the Court on the Judiciary agreed the judge had committed oppression of office, rejected the recommended remedy of removal, and imposed a four-month suspension from office without pay; that punishment was upheld on appeal. 1986 OK JUD 1721 P.2d 427. In a later case, the Appeals Division found that, where the offense alleged was not serious enough to require removal or compulsory retirement, the Court on the Judiciary lacked "jurisdiction to reprimand, or discipline in any other way." Mattingly v. Court on Judiciary, Trial Div.2000 OK JUD 1¶ 19, 8 P.3d 943, 950. This language supports my conclusion that, in an appropriate case, the Court on the Judiciary has the authority to fashion appropriate remedies beyond removal or compulsory retirement.

I would afford Judge Coleman the opportunity for a trial by her peers, as contemplated by statute. I respectfully dissent.

(Mike Frisch)

December 3, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Courtesy And Respect

A 30-day suspension has been imposed by consent by a tri-county hearing panel of the Michigan Attorney Discipline Board.

The consent

was approved by the Attorney Grievance Commission and accepted by the hearing panel. The stipulation contained respondent's admissions to the allegations that he committed acts of professional misconduct by failing to treat with courtesy and respect a person in the legal process.

The Detroit Free Press had this story in February (which is not referenced in the above order)

A prominent metro Detroit attorney is facing new claims of professional misconduct for allegedly mouthing off to a young female prosecutor and then, in a Facebook rant, misrepresenting what happened.

The Michigan Attorney Grievance Commission filed a complaint last month against Clifford Woodards II, a criminal defense attorney and former 910 AM radio show host, accusing him of discourteous and unprofessional behavior in his March 2018 encounter with the prosecutor in Detroit's 36th District Courthouse.

Woodards, 56, who started the Detroit Law Center in Southfield, has come under scrutiny in the past for derogatory comments in person and on Facebook concerning female court personnel or fellow lawyers, including remarks about the attire of a lesbian attorney.

In 2017, Woodards was reprimanded by the Attorney Discipline Board and ordered to pay $750 after telling a probation agent in Wayne County Circuit Court that she had "angry black woman's syndrome" and "that's why you don't have a husband."

Woodards is also black.

The incident at the center of last month's complaint occurred in the Detroit Law Department office inside the courthouse, where Woodards went to obtain a plea offer for a client who had a driving ticket for a prohibited left turn.

The prosecutor assigned to the case had worked in the office for less than a year. She told Woodards that she first needed to see the client's driving record before any plea could be offered.

That response caused Woodards to become aggressive and argumentative, the complaint says. He said he had been working downtown for 15 years and insisted there was no such policy.

Woodards then proceeded to belittle the prosecutor, calling her a child and saying that she was too inexperienced to know how things were done in the office, the complaint says.

"She's probably only been practicing law for six months and she's going to try to tell me the policy," Woodards allegedly told a secretary in the office.

'Know your place'

Woodards at one point walked within inches of the female prosecutor, pointed his finger in her face and said something to the effect of "You need to back up little girl and know your place," according to the complaint.

Hearing raised voices, the prosecutor's supervisor then entered the room and separated Woodards and the prosecutor.

The grievance complaint says the prosecutor was correct about the office's formal policy regarding driving records and plea offers.

Reached by phone Monday, Woodards declined to comment about any details of the grievance complaint while the complaint is still active.

Attorney grievance complaints can result in disciplinary actions, such as a reprimand, suspension or even disbarment.

After leaving the office, Woodards went on Facebook and wrote a lengthy post about the incident, naming the prosecutor and depicting her as the perpetrator.

The grievance complaint says Woodards' narration of what happened wasn't accurate.

"She lost all maturity and professionalism," Woodards wrote. "She went straight into rat mode, stepped into my personal space and derisively started waving papers directly in my face."

He continued, "Whatever happened to the idea of just shutting up, being quiet and learning the law, at least for a while, before you start arguing with lawyers who have been doing this since you were in high school? … Who told these young black women that it's okay to step into a man's personal space and wave objects in his face?"

Woodards' Facebook post garnered more than 200 reactions before he erased it several days later.

Sagging jeans?

In 2016, Woodards made headlines for a different Facebook post in which he criticized a lesbian attorney's attire during a training event for criminal defense attorneys in the Coleman A. Young Municipal Center.

The post said: “After watching yet another woman dressed up like a man, wearing sagging jeans, boxer briefs and sporting a mohawk, it finally dawned on me to ask this question: Why you wearing men’s draws though? It’s not like you’re gonna need the flap. Do they make you feel more manly? I don’t understand."

Woodards made the Facebook post during the training event. His post didn't identify the attorney by name, but said "she sitting right across from me now."

The attorney, Erica Moise, recalled in a phone interview last week that Woodards' post nevertheless caused a commotion in the middle of the September 2016 training event.

"So all these other attorneys around me started talking about my underwear, because  everyone in the room is mutual friends," Moise said. "Then I commented on it, asking him to stop, but he kept going."

Woodards' post garnered more than 100 reactions and comments, including comments by people who denounced his language as offensive and homophobic.

Responding to some of the comments, Woodards offered a graphic reference to gay men and sex.

Coincidentally, Moise had once dated Woodards' own adult daughter for about three months. But Woodards said that at the time he was unaware of their past relationship.

“I had no idea that my daughter had dated her when I wrote that," he said Monday.

Woodards went on to discuss his Facebook post and the controversy it generated during his 910 AM radio show.

For her part, Moise insisted last week that she was not dressed inappropriately for the attorney training event, which took place on a Friday. She said that many of the attorneys there wore jeans or even tracksuits.

“Unless you have court on a Friday afternoon, no attorney is going to wear their suit for other attorneys. That’s ridiculous," Moise said.

She also denied sagging her jeans so low that her underwear was visible.

“You could not see my underwear — that’s a lie," Moise said. "He might have been looking when I tied my shoe."

More: MSU will pay former top lawyer Bob Young $990,402 not to work for them

Judge Colombo gets involved

The now-retired Wayne Circuit Court Judge Robert Colombo Jr. was among those who were disturbed by Woodards' Facebook post about Moise's attire.

He wrote a letter to the Attorney Grievance Commission requesting an investigation for what he saw as a potential violation of professional conduct rules.

"Mr. Woodards failed to treat Ms. Moise with courtesy and respect based solely upon her attire and sexual orientation," Colombo wrote in the Oct. 18, 2016 letter.

Colombo last week recalled taking offense to the Facebook post.

“I was disturbed about it," Colombo said in a Free Press interview. "I felt, one, that he had disrupted our education program and, two, I felt it was just wrong to be criticizing this female attorney. I thought it was bullying."

However, the judge's letter did not prompt the commission to make a formal complaint about Woodards' Facebook post.

 “The Attorney Grievance Commission decided not to take any action. I assume — but I am just guessing — that they were concerned about First Amendment issues," Colombo said.

Grievance commission investigations that do not lead to formal complaints are kept private.

Speaking on Monday, Woodards offered the following statement about his 2016 Facebook controversy: “In today’s modern society, social media has often supplanted mainstream traditional media. Occasionally, when this platform is used, questions are raised as to whether the author of the content is functioning as a journalist and therefore exercising First Amendment rights.”

(Mike Frisch)

December 3, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Monday, December 2, 2019

No Liability For Hockey Injuries

The Massachusetts Supreme Judicial Court affirmed the grant of summary judgment to multiple defendants in a case involving an injury during a hockey game

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away. Borella appeals from the decision of the Superior Court judge granting summary judgment in favor of the defendants...

We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever. Because, in addition, no rational view of the evidence would permit finding a causal nexus between Borella's injury and any breach by the other defendants -- coaches, referees, rink manager, and owners -- of their respective duties of care to Borella, we affirm.

The combatants

On July 14, 2013, Borella was injured during an ice hockey game between his  team, the New England Renegades (a Massachusetts-based team coached by the defendant Bernard Brun, a parent volunteer) and Lever's team, Team Kanaly (a Pennsylvania-based team coached by the defendant Justin Grevious). Both teams were in the Midget Major division for high school players aged seventeen to nineteen years old -- a division where checking was allowed.

The game was heated

Prior to the injury, both teams engaged in verbal jousting, which referee Mahoney described as "pretty typical for this age group." The referees cautioned both coaches to instruct their players to stop the taunting, and both coaches did so. The referees were unbiased in their officiating; however, some Renegades team spectators believed that the referees did not control the game and failed to call some rule violations.

And the evidence suggested a hard hit

As a result of the check, Borella fell to the ice onto the puck. Lever continued to battle for the puck, and though the details are murky in part because Borella temporarily lost consciousness,  Borella's wrist was sliced by one of the blades Lever wore on his feet in what Borella acknowledges was a "freak accident." Mahoney called a minor penalty for "boarding," sending Lever into the penalty box. Borella, who was bleeding from the laceration, was carried from the ice, and the game ended before the official game clock had run. The injury resulted in the permanent partial loss of the use of Borella's dominant hand.

The majority granted summary judgment to the other player

No rational view of this record supports a finding that Lever's conduct was reckless -- that is, extreme misconduct outside the range of the ordinary activity inherent in ice hockey. The game of hockey at the level at issue in this case - - seventeen to nineteen year old high school Midget Major division players -- involves, as the parties agree, "a lot of body contact, which requires a player to be aggressive and physical." Checking (and even checking hard and deliberately) is not only allowed, but "is an inherent, fundamental part of the sport."22 Karas, 227 Ill. 2d at 456. Both Lever and Borella had been playing ice hockey for years, and both were well acquainted with the fact that an inherent part of the sport involves physical contact, such as checking (whether within the rules or in violation thereof), and the potential for injury from the same.

That, while vying for the puck, Lever aggressively engaged in conduct that constituted a penalty (such as boarding, charging, or hitting from behind) does not alter the analysis.

Also to the refs, coaches, rink and others

RUBIN, J. (dissenting).

Thirty years ago, in Gauvin v. Clark, 404 Mass. 450, 454 (1989), the Supreme Judicial Court held that when a tort claim "aris[es] out of an athletic event," there a college ice hockey game, liability will be imposed "in cases of reckless disregard of safety." The court today improperly and without authority replaces that test with the one utilized by courts in States that have rejected the recklessness standard articulated by the Supreme Judicial Court and applicable here...

If the facts in this case don't raise a jury question about recklessness, it is hard to imagine what will. Because the majority's opinion is not consistent with the precedent by which we are bound, and because it may both place children who play sports needlessly in danger's way, and lead some responsible parents to withdraw their children from youth sports, respectfully, I dissent.

(Mike Frisch)

December 2, 2019 | Permalink | Comments (0)

Saturday, November 30, 2019

Reciprocal Suspension In Colorado For Missouri Sanction

Colorado has imposed reciprocal discipline for sanctions ordered in Missouri

The Presiding Disciplinary Judge approved a conditional admission of misconduct and imposed reciprocal discipline, suspending Katherine Dierdorf Mester (attorney registration number 49286) from the practice of law in Colorado for three years, effective November 20, 2019. Dierdorf Mester must petition for reinstatement and show by clear and convincing evidence that she has been rehabilitated, has complied with disciplinary orders and rules, is fit to practice law, and has been reinstated in Missouri.

This reciprocal discipline case arose out of discipline imposed by the Supreme Court of Missouri on August 29, 2019, indefinitely suspending Dierdorf Mester from the practice of law, with no leave to apply for reinstatement for three years. Dierdorf Mester was disciplined for multiple violations of the rules of professional conduct based on her dishonesty about and concealment of a brutal assault of a suspect in custody by a police detective and the charges resulting therefrom filed by her friend and co-assistant circuit attorney for the city of St. Louis.

Her colleague had filed false charges of fleeing after a police officer had severely beaten a suspect in the theft of his daughter's credit card.

Notably the Missouri case involved (in part) a failure to report to superiors pursuant to Rule 1.13

Here, Ms. Dierdorf – a lawyer for OCA – knew another assistant circuit attorney – Ms. Worrell – had violated the law by filing false charges against a suspect to cover up a police officer’s brutal assault of the suspect. The failure to report such conduct was a violation of Ms. Dierdorf’s legal obligation to the circuit attorney’s organization and could have resulted in a civil rights violation or lawsuit against OCA. Accordingly, it was reasonably necessary in the best interest of OCA that Ms. Dierdorf report Ms. Worrell’s conduct.

Instead, Ms. Dierdorf chose to conceal her knowledge of Det. Carroll’s misconduct and Ms. Worrell’s filing of a false charge by lying to her supervisors, IAD, and the FBI. Ms. Dierdorf’s statements to her supervisors and IAD gave the impression that both she and Ms. Worrell did not know about the assault until after charges were filed against the suspect. She further instructed another attorney, Ms. Schuessler, not to give any information to her supervisors. Ms. Dierdorf then lied again during her first FBI interview
regarding when she initially learned about the assault carried out by Det. Carroll. It was not until her second FBI interview – over a month after the incidents occurred – that Ms. Dierdorf finally admitted Ms. Worrell had told her about the assault on Wednesday prior to the filing of the charges.

As AUSA Goldsmith testified, Ms. Dierdorf “time shifted” to protect both herself and Ms. Worrell by making it appear they did not know about the assault until after Ms. Worrell filed charges. Furthermore, Ms. Dierdorf’s lies and omissions interfered with and prolonged the FBI’s investigation of Ms. Worrell. The record, therefore, reflects, by a preponderance of the evidence, that Ms. Dierdorf violated Rule 4-1.13 when she failed to report Ms. Worrell’s misconduct.

The Denver Post reported

An attorney whose law license was suspended last week by the Missouri Supreme Court has resigned from the Denver public defender’s office.

Katherine Anne “Katie” Dierdorf, also known as Katherine Mester, resigned from the Denver office and her last day was August 14, Diane Vertovec, a marketing and communications director with the city, said.

Dierdorf had worked for the public defender’s office since February 2016.

On Aug. 13 her law license was suspended in Missouri in connection to “covering up a police beating of a handcuffed suspect in 2014,” according to the St. Louis Post-Dispatch.

The court’s ruling cited “the severity of Ms. Dierdorf’s misconduct as a result of her dishonesty and instruction of others to conceal information about the incident,” the Post-Dispatch reported.

Denver officials, in an email, said they had “no knowledge of the matter involving Katherine Mester in Missouri.”

(Mike Frisch)

November 30, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 27, 2019

Retainer Agreement Ambiguity As To Client Identity Construed Against Law Firm

The New York Appellate Division for the Second Judicial Department ruled that New York privilege law applied and reversed the trial court orders

On this appeal we are asked to address a conflict between New York and Delaware law relating to which law applies, and implicating who or which entity may assert the attorney-client privilege, in the context of the merger and restructuring of businesses, the sale of membership interests, and related transactions which occurred in connection with those events.

Upon concluding that, under Delaware law, the right of the plaintiffs, Kevin Askari and Sina Drug Corp. (hereinafter Sina), as sellers, to transactional documents contained in the file of the defendant law firm McDermott, Will & Emery, LLP (hereinafter McDermott), relating to the reorganization, merger, and sale of Sina, was transferred to the new entity/buyer, the defendant Oncomed Specialty, LLC (hereinafter Specialty), post- merger/reorganization, the Supreme Court denied the plaintiffs’ motion for summary judgment on the complaint and granted the defendants’ separate cross motions for summary judgment dismissing the complaint insofar as asserted against each of them. We reverse the order appealed from for the reasons set forth herein.

The court

In this case, Sina was merged into NY Merger LLC and NY Merger LLC’s shares were contributed to Specialty. The same merger/conversion occurred with respect to Sina’s related corporations and their corresponding holding entities. Besides management of the “Company,” the business did not change as a result of the merger, and the rights, privileges, liabilities, and obligations of the business passed to Specialty. However, Sina, which continues to “exist” for the purpose of this action (see Business Corporation Law § 1006), and Askari, as a former director of Sina, or even in his capacity as “Seller’s Representative,” had the right to request McDermott’s files on behalf of Sina with respect to those documents involving the “transactions,” as well as in his own behalf with regard to the employment agreement and promissory notes.

Here, Business Corporation Law § 1006 specifically provides that a dissolved corporation, like Sina, may commence an action in any court under its corporate name. Sina’s dissolution does not affect Sina’s right or capacity to maintain this replevin action since the claim arose from McDermott’s representation of Sina which began before Sina’s dissolution. The exceptions listed in Business Corporation Law § 1006 do not apply. Thus, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law in this action for replevin since the plaintiffs submitted evidence, through Askari’s affidavit, that McDermott represented Sina and Askari during the “transactions.” As a result, the plaintiffs demonstrated, prima facie, their superior possessory right to McDermott’s files.

In opposition, the defendants failed to raise a triable issue of fact. Their reliance on Delaware law with respect to the attorney-client privilege is unavailing since Delaware law is not applicable here with regard to the plaintiffs’ claim, which does not involve the enforcement or interpretation of any agreements pertaining to the merger.

In addition, the fact that Askari utilized the services of more than one attorney during the “transactions” does not demonstrate or raise an issue of fact as to whether Iryami was Askari’s sole counsel. While the plaintiffs submitted the affidavit of Askari stating that he was represented by McDermott during the subject transactions, the defendants did not submit evidence to the contrary from any individual with personal knowledge of the facts.

Moreover, the engagement letter similarly  does not definitively establish exactly who and which entity or entities McDermott represented given the fact that the entity by the name of Onco360 did not exist at the time that the engagement letter was drafted. The ambiguity as to the identity of McDermott’s clients must be construed against McDermott as the drafter of the engagement letter (see Albunio v City of New York, 23 NY3d 65, 71). “The general rule that ‘equivocal contracts will be construed against the drafters’ is subject to particularly rigorous enforcement in the context of attorney-client retainer agreements” (id. at 71, quoting Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 176). In addition, the engagement letter stated that it pertained to “the sale of all or substantially all of [Onco360’s] assets to PharMerica Corporation,” as opposed to the restructuring of Sina and eventual merger into Specialty and the transactions related to that event. Further, McDermott’s opinion letter, which was subsequently prepared, showed that McDermott represented numerous entities, in addition to “Onco360,” during the course of the transactions.

For the same reasons that the plaintiffs are entitled to summary judgment on the complaint, the Supreme Court should have denied the defendants’ separate cross motions for summary judgment dismissing the complaint insofar as asserted against each of them.

(Mike Frisch)

November 27, 2019 | Permalink | Comments (0)

No Interlocutory Appeal Of Denied Motion To Disqualify Counsel

The Maine Supreme Judicial Court declined to reach the merits of an interlocutory appeal of  a denied motion to disqualify counsel

In her complaint, Flanders alleges that, in January 2017, she was  attacked by Gordon’s dog. Flanders retained Attorney Sarah Gilbert and  commenced this personal injury lawsuit against Gordon in October 2017.  Gordon retained Attorney Eric Morse of Strout & Payson, P.A., to defend her.

In January 2018, while the lawsuit against Gordon was still pending,  Flanders was injured in a motor vehicle accident. Flanders sought legal  assistance from Attorney Darby Urey, a partner of Attorney Morse at Strout  & Payson, P.A., who continued to represent Gordon in the dog-attack case. Attorney Urey discussed the potential conflict with Flanders, who then signed  a conflict waiver agreement provided to her by Attorney Urey. Attorney Urey  met and consulted with Flanders several times and gathered her medical  information; however, Flanders eventually terminated Attorney Urey’s  services and engaged new counsel.

On February 15, 2019, Flanders moved to disqualify Attorney Morse  from representing Gordon in this personal injury case based on an alleged  conflict created by Attorney Urey’s earlier representation of Flanders in  connection with the January 2018 motor vehicle accident. On  February 25, 2019, following a hearing on the motion at which Flanders briefly  testified, the court denied Flanders’s motion to disqualify Attorney Morse.

On interlocutory appeal

The death knell exception is inapplicable here. Under this exception,  an order granting a motion to disqualify is immediately appealable; however,  an order denying a motion to disqualify generally is not. State v. Carrillo,  2018 ME 84, ¶¶ 5-6, 187 A.3d 621. The reason for this rule is straightforward.  Disqualification involves a disadvantage and expense that cannot be remedied once the case is over, whereas an order denying a motion to disqualify  “implicates no such concerns.”

A footnote on exceptions to that general rule

We have twice permitted interlocutory appeals from orders denying motions to disqualify  counsel, but those cases involved facts distinguishable from the facts here. In Estate of Markheim v.  Markheim, 2008 ME 138, ¶¶ 20-21, 957 A.2d 56, we considered the merits of a denial of a motion to  disqualify under the death knell exception because the moving parties identified specific examples of  confidential information that the attorney had acquired from his prior representation that could be  harmful to them in the pending case. Here, the court found, with support in the record, that Attorney  Morse did not receive any confidential information as a result of Attorney Urey’s representation of  Flanders. See Liberty v. Bennett, 2012 ME 81, ¶¶ 20-21, 46 A.3d 1141. Similarly, we permitted an  interlocutory appeal from an order denying a motion to disqualify counsel in Butler v. Romanova,  2008 ME 99, ¶¶ 5-10, 953 A.2d 748, a divorce case, after concluding, without elaborating, that  otherwise the moving party “st[ood] to irreparably lose substantial rights.” Flanders has not  identified what substantial rights she stands to lose. See State v. Carrillo, 2018 ME 84, ¶¶ 7-8,  187 A.3d 621; Liberty, 2012 ME 81, ¶¶ 20-21, 46 A.3d 1141.


...permitting an interlocutory  appeal here would unnecessarily delay the litigation in the trial court regardless of the outcome of the appeal. Thus, allowing the appeal of this
interlocutory order to proceed would not be in the interest of judicial economy.  Liberty, 2012 ME 81, ¶¶ 22-23, 46 A.3d 1141. We therefore decline to reach the  merits of this appeal.

(Mike Frisch)

November 27, 2019 in Law & Business | Permalink | Comments (0)

"100% Wrong"

A discipline decision issued today by the Ohio Supreme Court is summarized by the estimable Dan Trevas

The Ohio Supreme Court today issued a two-year suspension to an Akron attorney convicted of assisting a couple in their attempt to evade paying outstanding federal taxes.

The Supreme Court suspended Gregory T. Plesich and credited him for time served since the Court’s initial interim suspension of him in June 2018. His suspension will now end in June 2020. The Court’s per curiam opinion noted that Plesich provided the couple no legal services and collected no fees regarding  the transactions that led to the crime and he admitted that his actions were “100 percent wrong.”

Justices Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the opinion.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Patrick F. Fischer dissented, stating they would not grant Plesich credit for the time served.

Lawyer’s Account Used to Pass Money
In 2009, Plesich began representing Lawrence and Angela Tipton in a dispute with the IRS. Plesich subsequently received notices from the IRS regarding the Tiptons’ outstanding tax liabilities and attempts to collect from either one or both of the Tiptons.

In 2013, Lawrence Tipton gave Plesich a check of nearly $118,000 from a property sale, which Plesich placed in his client trust account. A month later, Tipton gave him a $79,000 check from an insurance claim, which he placed in the account. Over the next year, Plesich authorized 29 checks to be written from his trust account made payable to Angela Tipton for amounts ranging from $3,000 to $7,500. Plesich testified that he accepted and disbursed the money without questioning the Tiptons or discussing the purpose of the transactions.

In 2017, the federal government charged Plesich with willfully aiding and abetting his clients in their attempt to evade federal taxes. After a four-day trial, a jury convicted Plesich. In June 2018, he was sentenced to three years’ probation and ordered to pay $197,000 in restitution, a $10,000 fine, and a $100 assessment. Plesich paid them all.

The Court placed Plesich under an interim felony suspension based on the conviction. Shortly after, the Akron Bar Association filed a complaint with the Board of Professional Conduct, charging Plesich with violating several rules governing the conduct of Ohio lawyers.

Plesich and the bar association stipulated that he engaged or assisted a client in conduct he knew was illegal or fraudulent; committed an illegal act reflecting on his honesty and trustworthiness; and engaged in conduct involving dishonest, fraud, deceit, or misrepresentation. The parties proposed Plesich be suspended for two years with credit for time served under the interim suspension.

Board Considers Recommended Sanction, Court Agrees
When the board considers a sanction to recommend to the Court, it considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. 

The board found Plesich engaged in a pattern of misconduct by issuing 29 checks and misused his client trust account in the course of criminal conduct. The board also noted that Plesich had no prior discipline in his 46-year legal career, lacked a selfish motive, and did not receive any benefit from the transactions with the Tiptons. The board also found Plesich made full disclosure of his action, cooperated with the disciplinary proceedings, and received criminal sanctions for his misconduct.

The Court’s opinion noted that Plesich did not attempt to evade his own tax liabilities or personally benefit from his actions. And the Court noted that the board considered that the federal court determined he did not deserve prison time and that he fully paid his financial penalties when it crafted its recommended sanction.

2019-0806Akron Bar Assn. v. PlesichSlip Opinion No. 2019-Ohio-4843.

(Mike Frisch)

November 27, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 26, 2019

Crime Of Moral Turpitude

The California Bar Journal reports the disbarment of an attorney convicted of a crime of moral turpitude.

Deadline had the story of the conviction and interim suspension

 The California State Bar has suspended the license of entertainment attorney Benjamin Lawson Adams, a former director of business and legal affairs at The Weinstein Company, in the wake of his no-contest plea to one count of lewd or lascivious conduct with a 14-year-old boy. The suspension of his license to practice law in the state was effective Monday.

Adams was an attorney for MGM at the time of his arrest in May 2016 and later sued the studio, claiming he was wrongly terminated after news accounts of his arrest surfaced. A Los Angeles Superior Court judge subsequently dismissed the suit and ordered Adams to pay the studio $227,400 in attorney fees.

He originally had been charged with nine felony counts, including oral copulation, sexual penetration and sodomy with a minor under the age of 16. The victim, now a 16-year-old transgender girl, said they met on Instagram and had sex at Adams’ West Los Angeles apartment and, on two occasions, under the Manhattan Beach pier. After his arrest, Manhattan Beach police said, “It is believed Adams used his title of entertainment lawyer to attract the victim’s interest.” Sentencing is set for August 15.

In suspending his license, the State Bar said: “Since respondent Benjamin Lawson Adams has been convicted of violating Penal Code section 288(c)(1) (lewd act upon a minor under 14 years of age), a felony involving moral turpitude, it is ordered pursuant to Business and Professions Code section 6102 that respondent be suspended from the practice of law effective July 30, 2018, pending final disposition of this proceeding. It is further ordered that respondent comply with California Rules of Court, rule 9.20, and perform the acts specified in subdivisions (a) and (C) of that rule within 30 and 40 days, respectively, after the effective date of this suspension. Within 120 days of the date of this order, the Office of Chief Trial Counsel of the State Bar is ordered to submit evidence of finality or provide an update on finality.”

(Mike Frisch)

November 26, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Illinois Potpourri

The Illinois Supreme Court took action in a number of bar discipline matters highlighted on the ARDC web page.

A few of the matters

Mr. Anderson, who was licensed in 2011, was suspended for one year. While employed at two separate large law firms, he intentionally inflated the time he claimed to have spent on client matters, knowing that the clients would be asked to pay for time he had not actually spent on their cases. In 2018, he told the head of his practice group about the false billings. Both firms conducted reviews of his past bills and offered refunds or credits to the affected clients. The suspension is effective on December 10, 2019

Mr. Bulmer, who was licensed in 2005, was disbarred on consent. He engaged in sexual relations with the wife of one of his clients and falsely denied that relationship to a prosecutor in the client’s criminal matter. He also engaged in prohibited sexual relations with another client.

Mr. Franz, who was licensed in 1993, was disbarred on consent following his convictions for resisting arrest, driving under the influence of alcohol, telephone harassment, and unlawful possession of a firearm without a FOID card. 

Mr. Reeves, who was licensed in 2016, was suspended for 30 days and until further order of the Court, with the suspension stayed in its entirety by three years of probation with conditions. Mr. Reeves had asked a client to provide him with nude pictures or sexual acts in exchange for reduced legal fees. The client did not accept the offer and terminated the representation.

Mr. Thomas, who was licensed in 1969, was suspended for two years and until further order of the Court following his conviction for aggravated driving under the influence of alcohol and his conviction for criminal contempt resulting from his appearance in court while intoxicated.

(Mike Frisch)

November 26, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Robbing Peter To Pay Paul No Mitigator

A recommendation for disbarment from an Illinois Hearing Board

Respondent dishonestly converted funds totaling at least $29,513.08 from earnest money he agreed to hold for two real estate transactions and falsely told the attorneys for the buyers that he had refunded the earnest money when he had not done so. In addition, Respondent failed to provide information requested by the Administrator during the disciplinary investigation and failed to comply with a subpoena to appear and provide a sworn statement.

The Panel considered in mitigation that Respondent has no prior discipline and eventually refunded the earnest money for both transactions. We give little weight to Respondent's return of the earnest money given that the refund in the first transaction was made with funds he converted from the second transaction, and the source of the refund in the second transaction is unknown.

In aggravation, Respondent engaged in a pattern of extremely serious misconduct and refused to cooperate in this matter. The minimal mitigation is not sufficient to overcome the egregious misconduct and aggravating factors. We conclude that Respondent presents a danger to clients and, therefore, disbarment is the appropriate recommendation in this case.

(Mike Frisch)

November 26, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Not Ready To Dismiss

An order of the Louisiana Supreme Court apparently involves a dismissed complaint against a prosecutor

On the showing made, we are unable to determine whether the disciplinary board acted arbitrarily, capriciously or unreasonably in approving the dismissal of the complaint against respondent. Supreme Court Rule XIX, § 30(C). However, given the allegations made by the complainants, we believe the disciplinary board erred in not directing that the matter be investigated further pursuant to Supreme Court Rule XIX, § 30(A). Accordingly, this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation pursuant to Supreme Court Rule XIX, § 11(B). During its investigation, the ODC should take additional evidence for the purpose of determining whether respondent failed to disclose exculpatory material. The issue of prescription is not relevant at this stage as the ODC should accept the allegations of the complaint as true; however, the issue may be raised by respondent as a defense if and when formal charges are filed. See In re: Stanford, 10-1547 (La. 12/17/10), 50 So. 3d 151. The ODC is further authorized to investigate any other relevant issues raised by the complaint.

Similar orders were entered in two other matters linked here and here. (Mike frisch)

November 26, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 25, 2019

Making Matters Worse

The Maryland Court of Appeals disbarred an attorney who had failed to respond to Bar Counsel's investigation and defaulted on the ensuing charges

In the case at bar, Respondent has demonstrated a continuing disrespect for the attorney grievance process and his client. Ms. Hekmat relied on Respondent to pursue her matter competently and diligently. Instead of informing Ms. Hekmat that he was terminating the representation or that he could not perform his duties to her, Respondent ignored her repeated phone calls and text messages, leaving his client to find replacement counsel shortly before a hearing. Respondent also engaged in similar conduct with respect to Bar Counsel by failing to respond to numerous letters, emails, phone calls, and in-person visits. His conduct throughout the investigation has exacerbated the misconduct. In the absence of mitigating factors or other justification for his failure to respond to or participate in this proceeding, we find no legitimate reason to impose the lesser sanction of indefinite  suspension.

(Mike Frisch)

November 25, 2019 in Bar Discipline & Process | Permalink | Comments (0)

The Three Levels

The Oklahoma Supreme Court explained the levels of misconduct with respect to handled entrusted funds

 Commingling is the least serious level of culpability and occurs when an attorney fails to keep client and attorney money in separate accounts. Mayes2003 OK 23, ¶ 18, 66 P.3d at 404. Respondent has admitted that he is guilty of commingling and "sloppy bookkeeping." He regularly commingled his trust account -- making earned fee deposits into it, transferring money directly to his personal account, and making cash withdrawals.

When an attorney uses client funds for a purpose other than that for which they are intended, he or she reaches the second level of culpability: simple conversion. Taylor2000 OK 35, ¶ 17, 4 P.3d at 1250. Respondent argues that he is not guilty of simple conversion. Rather, at most, he argues the money was simply missing and there is no evidence to establish what it was used for or that he used it. A thorough review of the client trust account records, however, shows that Respondent used client money to make loan payments on two occasions -- clear examples of simple conversion at a minimum.

Finally, the most serious level of culpability is misappropriation. Id. ¶ 17, 4 P.3d at 1250. Misappropriation occurs when a lawyer purposefully deprives a client of money through deceit and fraud. Id. Respondent argues that he is not guilty of misappropriation because there was neither evidence of intent nor did the clients suffer grave economic harm. Misappropriation may be found without grave economic harm occurring when an attorney understands that he is utilizing money that belongs to a client. Mayes2003 OK 23, ¶ 22 n.26, 66 P.3d at 405-06 n.26. The focus of the test is intent and whether the deprivation occurred through deceit or fraud. State ex rel. Okla. Bar Ass'n v. Farrant1994 OK 13, ¶ 8, 867 P.2d 1279, 1284. A repeated pattern of behavior over time can show intent to misuse funds. State ex rel. Okla. Bar Ass'n v. Wilson2008 OK 42, ¶ 25, 187 P.3d 708, 716. Respondent's pattern of withholding funds while making personal use of those funds by means of cash withdrawals and loan payments, especially after completing trust class and after the grievance was filed, is evidence of intent. There is, however, no evidence of Respondent's deceit or fraud.

Respondent's misconduct in this case was deplorable. He failed to ensure that the money for the minor children was placed into separate trust accounts for their benefit. Instead, he egregiously commingled the children's funds with his business and personal account. Respondent also committed simple conversion when he made two loan payments out of his client trust account -- a clear use of money for purposes other than that for which they were entrusted to him. Based on clear and convincing evidence, we hold that Respondent acted without competence or diligence, failed to safeguard client property or expedite litigation, and brought discredit upon the legal profession in violation of RGDP 1.3 and ORPC 1.1, 1.3, 1.15, and 3.2. We do not find clear and convincing evidence of misconduct involving dishonesty, fraud, deceit, or misrepresentation under ORPC 8.4(c).


Few breaches of ethics are as serious as commingling and conversion of a client's money. State ex rel. Okla. Bar Ass'n v. Raskin1982 OK 39, ¶ 14, 642 P.2d 262, 267. Respondent neglected clients for over two-and-a-half years while engaging in egregious commingling of client trust account funds and using those funds to make loan payments twice. This abuse of entrusted funds is especially deplorable considering the funds were intended for minor children after their mother's untimely death. State ex rel. Okla. Bar Ass'n v. Drummond2017 OK 24, ¶ 24, 393 P.3d 207, 216.

This Court will not tolerate attorneys who show total disregard for court mandates, particularly orders directing attorneys to safeguard moneys intended for minor children. Additionally, we will not tolerate attorneys who fail to keep client money and property safeguarded in a trust account, completely severed from the lawyer's operating account.

Id. While we did not find clear and convincing evidence of misappropriation in order to mandate disbarment, we found clear and convincing evidence of egregious commingling, simple conversion, and extended neglect. Because Respondent's actions extended over such a long period of time and were so extensive in nature, especially after his completion of the diversion program classes and the filing of the grievance, we find the appropriate discipline is suspension for two years and one day.

(Mike Frisch)

November 25, 2019 in Bar Discipline & Process | Permalink | Comments (0)