Legal Profession Blog

Not Fade Away

The Oklahoma Supreme Court has publicly censured a prosecuting attorney for facilitating unauthorized practice during a period of short staffing

Throughout the summer and fall of 2018, Tulsa County District Attorney Steve Kunzweiler was engaged in a contested reelection campaign. Concerns over a change in leadership, and consequently job security related to the campaign, prompted a number of assistant district attorneys to seek employment elsewhere. This exodus left the Tulsa County District Attorney's office shorthanded and forced the remaining assistant district attorneys to take on additional responsibilities. At that time, Respondent was employed as an Assistant District Attorney and serving as the Director of the Traffic and Misdemeanor Division. In that role, Respondent had direct supervisory authority of lawyer and non-lawyer employees in the division.

Five individuals appeared in court without a license on the attorney's watch per this example

Despite not having a legal intern license, Sweeney began representing the State of Oklahoma in criminal proceedings shortly after her employment began. In the period from August 1, 2018 to November 13, 2018, Sweeney made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On October 12, 2018, Sweeney represented the State in a non-jury trial in Tulsa County, during which she cross-examined witnesses and presented arguments to the court. On November 6, 2018, Sweeney, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Sweeney questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented closing arguments.

Mitigation

Respondent has practiced law for approximately 20 years and has not previously been the subject of any formal discipline. Respondent has been removed from her supervisory role, and since her misconduct came to light, the District Attorney's office has implemented various safeguards to ensure that unlicensed individuals do not engage in the practice of law in the future. The office has instituted a color-coded badge system that clearly identifies which individuals are licensed to practice law, and that system has been communicated to the courts in Tulsa County. The office has abandoned the designation of "Provisional Assistant District Attorney" for new hires who have not yet been admitted to practice. Finally, the  office has updated their handbook for legal interns to more clearly identify the scope of tasks that unlicensed individuals are allowed to perform.

For purposes of mitigation, we must also note that responsibility for the misconduct in question does not lie exclusively with Respondent. While she was the primary supervisor of her division, the office was generally supervised by First Assistant District Attorney Erik Grayless and District Attorney Steve Kunzweiler. During his testimony before the tribunal, Grayless acknowledged his responsibility for the five individuals in question but stated that he had little involvement in their daily activities. While we recognize the need for delegation in large offices like that in the Tulsa County District Attorney's office, Respondent was a supervisor who was nonetheless subject to supervision herself. Furthermore, each of the five unlicensed individuals were at the time of the alleged misconduct seeking admission to the Oklahoma Bar. As such, they must have--or should have--understood on some level the significance of admission to the Bar, namely that one cannot practice law prior to admission, absent special permission from this Court.

COMBS, J., with whom Darby, C.J. and Gurich, J., join, concurring:

I concur in the imposition of discipline for Ms. Jack's violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A and the Rules Governing Disciplinary Proceedings (RGDP) 5 O.S. 2011, ch. 1, app. 1-A. I write to emphasize the complicity of others within the district attorney's office for Tulsa County, specifically First Assistant District Attorney Erik Grayless. Ms. Jack was not the only supervisor responsible for the actions of the five individuals who intentionally violated the rules authorizing the practice of law in the State of Oklahoma. Mr. Grayless was in charge of the intern program in the office. Mr. Grayless was the person listed as the supervising attorney on any licensed legal interns paperwork. Ms. Jack relied on Grayless and the "interns" to know what they could or could not do. She did not receive any paperwork confirming the employees licensing status but only relied upon her First Assistant Grayless and the Human Resources director. Ms. Jack's first mistake was relying on her supervisor, Mr. Grayless. For Ms. Jack to take the entire blame for the office failure to supervise is unfortunate and fundamentally unfair. From this record, Mr. Grayless should bear blame as well. Ultimately the buck must stop with the District Attorney himself, Steve Kunzweiler; none of the leadership of the Tulsa County District Attorney's office should be allowed to escape blame.

The five individuals practicing without a license, Kelly Sweeney, Randall Young, Christopher Deane, Michael Shouse and Johnnie James, each have begun their legal careers in Oklahoma by committing fraud upon the courts they appeared before. As to each of them, this fraud cannot be ignored, allowed to fade away or be forgotten.

(Mike Frisch)

Authority Not Boundless

The South Carolina Supreme Court has affirmed in part and reversed in part a conviction obtained after the state Attorney General recused himself

Appellant James H. Harrison, a former state legislator, was convicted and sentenced to eighteen months' imprisonment in a public corruption probe. The case was prosecuted by David Pascoe, Solicitor of the First Judicial Circuit, who was serving as the acting Attorney General. As recognized by this Court in Pascoe v. Wilson, Solicitor Pascoe's authority to pursue the corruption probe was bestowed on him by South Carolina's current Attorney General, Alan Wilson. The extent of the power granted to Solicitor Pascoe lies at the heart of this appeal. Appellant contends Solicitor Pascoe's authority did not grant the solicitor the power to investigate or prosecute him (Appellant). Conversely, Solicitor Pascoe dismisses any suggestion that his authority was limited, for he contends he had the authority to prosecute public corruption wherever the investigation led. For the reasons we will explain, Solicitor Pascoe had the authority to prosecute Appellant for perjury, but did not have the authority to prosecute Appellant for misconduct in office. Consequently, we affirm Appellant's conviction and eighteen-month sentence for perjury, but reverse the statutory and common law misconduct in office charges and remand to the presiding judge of the State Grand Jury for further proceedings.

This is a difficult case, one that has resulted in a sharply divided Court. This is the lead opinion of the Court. With the Court's three separate writings in this case, there are:

(1)four votes to affirm Appellant's perjury conviction (Chief Justice Beatty, Justice Kittredge, Justice Hearn, and Justice Few); and
(2)three votes to reverse and remand the misconduct charges (Justice Kittredge, Justice Few, and Justice James).

Justice Hearn, joined by Chief Justice Beatty, would affirm all of Appellant's convictions, thus adopting Solicitor Pascoe's position that our decision in Pascoe granted him boundless authority to pursue and prosecute public corruption in South Carolina. Justice James would reverse and remand all of Appellant's convictions based on Solicitor Pascoe's clear lack of authority beyond that spelled out in Pascoe. Despite the fact that both separate writings are concurring dissents, we will refer to Justice Hearn's writing as the dissent and Justice James's writing as the concurrence, because Justice James's writing most closely resembles the lead opinion.

(Mike Frisch)

Disclosure Violations Draw Proposed Suspensions

The District of Columbia Board of Professional Responsibility proposes a six-month suspension of two prosecutors for disclosure violations

Prosecutors have ethical requirements that apply only to them. Important among these is a requirement – found in Rule 3.8(e) – to timely provide defense  information or evidence that tends to negate the guilt of the accused.

Respondents were prosecuting several inmates at the District of Columbia Jail for assault stemming from a fight in the jail. One important witness about the identity of the inmates was D.C. Jail correctional officer Lieutenant Angelo Childs. Roughly six weeks before trial, Respondents received a report that described several kinds of misconduct by Childs. The report was written by a Department of Corrections (DOC) Office of Internal Affairs (OIA) Investigator named Benjamin Collins. The Collins Report determined that Childs maced an inmate in the face who was handcuffed, then filed a false incident report about it and filed a false disciplinary charge against the inmate alleging the inmate assaulted an officer.

All of this information should have been disclosed to the defense under Brady v. Maryland, 373 U.S. 83 (1963). In a long line of cases under Giglio v. United States, 405 U.S. 150 (1972), courts have held that a prosecutor has a duty to disclose information and evidence that could be used to impeach the credibility of a government witness, commonly called Giglio information. The Collins Report contained such information.

Instead of providing the report to the defense, however, Respondents filed it ex parte and under seal with the Court and filed a motion in limine that purported to describe the Giglio information in the Collins Report. The summary of the Collins Report in that motion was defective; while it did include some of the impeachment evidence, it did not include all of it. Specifically, the motion in limine did not disclose the determination that Childs filed a false disciplinary charge against the inmate alleging that he assaulted an officer and it dramatically misconstrued the adverse finding about Childs’ credibility that was made in the report. The motion in limine said that the Collins Report “may have made potentially adverse credibility findings regarding Officer Child’s [sic] statement regarding when Inmate A was handcuffed,” DX 17 at 4, when it should have disclosed that Officer Childs filed a false disciplinary charge saying Inmate A assaulted an officer.

The record is clear that both Respondents read the Collins Report before writing the motion in limine and, while Dobbie wrote the motion, Taylor reviewed it before it was filed. The motion in limine includes a great deal of detail about theCollins Report, yet scrupulously avoids mention of the false disciplinary charge. Indeed, the motion includes a block quote from the Collins Report that ends right where the Report discusses the false disciplinary charge.

In drafting the motion, Respondent Dobbie testified that she “started with the findings” at the back of the Collins Report and then wrote the motion to include “the facts that pertain to those particular findings.” HC Rpt. at 22. The false disciplinary charge was not included in the findings.

Rule 3.8(e) states, in principal part, that it is a violation of the D.C. Rules of Professional Conduct for a prosecutor to:

[i]ntentionally fail to disclose to the defense . . . any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused . . .

Though a fuller discussion is set out below, we conclude that the elements of a Rule 3.8(e) violation have been proven. The Collins Report’s conclusion that Childs filed a false disciplinary charge was Giglio information and needed to be disclosed. While Respondents did not include it because it was not in the findings section of the Collins Report, a reasonable prosecutor would know that the false disciplinary charge was Giglio information. And Respondents intentionally made a disclosure, through the motion in limine, that did not include that Giglio information.

For the reasons set out below, we also find that Respondents violated Rule 8.4(c), by engaging in conduct involving dishonesty, and violated Rule 8.4(d) because their conduct seriously interfered with the administration of justice. We recommend a suspension of six months.

The board rejected a  number of charges but nonetheless concluded that suspension was appropriate

The Rule 3.8(e) violation is the central violation in this case; however, the determination that Respondents violated Rule 8.4(c) is a substantial aggravating factor. As Disciplinary Counsel acknowledged at oral argument, with respect to sanction on the Rule 3.8(e) violation, there is little to guide us; there is limited caselaw concerning the appropriate sanction in matters involving prosecutorial misconduct in violation of Rule 3.8(e).

Disciplinary Counsel is surely right that , as a general matter, a violation of Rule 3.8(e) undermines our entire system of criminal justice. Prosecutors are not merely advocates; they are called upon to make sure that criminal trials are fair to the accused and that the machinery of prosecution is credible. At its most severe, a violation of Rule 3.8(e) can mean that an innocent person languishes in prison –which would surely be an aggravating factor.

...we conclude that a sanction much more significant than that inKline is warranted. We believe that a six-month suspension is the appropriate sanction

Authored by a former student of mine. (Mike Frisch)

Not A Shining Moment: The Power Of Power Point

The New Jersey Supreme Court reversed a criminal conviction for a dramatic closing argument by the prosecutor

In this appeal, the Court considers whether the prosecutor’s comments and use of a particular PowerPoint slide in her closing at the trial of defendant Damon Williams amounted to prejudicial error.

In 2014, defendant entered a Bank of America branch. He approached the window of Maria Cervantes, a bank teller in her early twenties, bent down until the two were at eye level, and leaned toward the bars above the counter separating tellers from customers. Defendant then passed Cervantes a note that said, “Please, all the money, 100, 50, 20, 10. Thank you.” Cervantes opened her cash drawer and gave defendant about $4,600. When she tried to include a pack of $20 bills containing a GPS tracker and a device that would trigger a silent alarm, defendant instructed her not to. During the encounter, defendant did not produce a weapon or threaten the use of a weapon, nor did he verbally threaten violence if Cervantes did not comply with his request. Defendant then walked out of the bank and another teller triggered the alarm.

The central trial issue was whether defendant committed second-degree robbery -- theft using force or the threat of force, purposely putting Cervantes in fear of immediate bodily injury -- or third degree theft -- exercising unlawful control over the movable  property of another with purpose to deprive him thereof.

Throughout the trial, the State repeated the theme “actions speak louder than words.” During her summation, the prosecutor displayed to the jury a PowerPoint slide with the heading “ACTIONS SPEAK LOUDER THAN WORDS.” The slide contained a still-shot from the movie The Shining, depicting Jack Nicholson in his role as a violent  psychopath who used an ax to break through a door while attempting to kill his family. The slide featured the words spoken by Nicholson in the movie as he stuck his head through the broken door -- “Here’s Johnny!” The prosecutor commented that the character was “saying some very unthreatening words, ‘Here’s Johnny.’ But if you have ever seen the movie The Shining, you know how his face gets through that door. So, again, I just point that out to illustrate. It’s not just the words; it’s what you do before and what you do after the words that matters. And that’s what makes this a robbery.”

After the prosecutor concluded her summation, defense counsel objected to the photo’s use. During a colloquy, the trial judge offered a curative instruction, but stated, “If I do that though, I’m underscoring again, the prosecution’s arguments.” Defense counsel ultimately agreed that “it may be best left alone.” Thus, the court did not give a curative instruction. The jury convicted defendant of second-degree robbery.

The court found the comments led to prejudicial error.

Visual aids such as PowerPoint presentations must adhere to the same standards as counsels’ spoken words. In that regard, we agree with guidance the Delaware Supreme Court provided in Spence v. State:

This Court does not seek to discourage the use of technology in closing arguments to summarize and highlight relevant evidence for the benefit of the jury. But slides may not be used to put forward impermissible evidence or make improper arguments before the jury. A PowerPoint may not be used to make an argument visually that could not be made orally. While prosecutors are given latitude in making closing arguments, [their] comments must be limited to properly admitted evidence and any reasonable inferences or conclusions that can be drawn therefrom. 129 A.3d 212, 223 (Del. 2015).]

The PowerPoint here fell short of that standard.

(Mike Frisch)

Indecent Proposal

The Medina (Ohio) County Bar Association has filed a complaint alleging misconduct against an attorney admitted in 1987 who has no prior discipline.

Two counts involve the same client who had retained him in October 2017; they allegedly began a sexual relationship shortly thereafter.

He handled several legal matters including her divorce which created an alleged conflict of interest.

He allegedly hired her to be his legal assistant "at no or virtually no pay" and failed to supervise her work.

After they began living together, the attorney "solicited [the client] to perform surrogate mother services for a fee to

fashion a super race of professionals such as himself

Editors note: yes really

He allegedly "intimidated and threatened [her] with severe bodily harm, including death."

He accused her of theft of checks from his office.  She pleaded guilty to criminal trespass of his office and was ordered to stay away from him.

She then filed the bar complaint.

Count Two involves a civil stalking protection order that he filed against her on behalf of his wife.

After a temporary protection order was granted, the attorney and his spouse took pictures of the client in the Walmart parking lot across from  his office.

He called the police and she was arrested and incarcerated.

When the matter was heard

the Magistrate, who presided over the Hearing on the Petition for the Civil Stalking Protection Order, sent a grievance to the Office of Disciplinary Counsel of the Ohio Supreme Court. The grievance, that reported Respondent’s conduct, was subsequently transferred to the Medina County Bar Association.

The alleged misconduct involves a current client conflict and misuse of information obtained in confidence against a former client. (Mike Frisch)

Ex-State Trooper Suspended For Four Years

An agreed four year suspension has been imposed by the Michigan Attorney Discipline Board for a conviction described by the Detroit Free Press

A judge told former Michigan State Police trooper Mark Bessner on Monday that people like him have caused “the distrust of police officers that plagues our community in Detroit, the state of Michigan and throughout the country.” 

Then she sentenced Bessner to 5 to 15 years in prison for the death of 15-year-old Damon Grimes.

The Detroit teen was driving his ATV in August 2017 on the city’s east side when Bessner — a passenger in a moving patrol car — fired his Taser at the teen during a chase. Grimes slammed into the back of a parked truck and died soon after from his injuries.

Last month, a Wayne County jury convicted Bessner, 45, of involuntary manslaughter. He has been locked up since.

“I’m truly sorry," Bessner said as he addressed the packed courtroom. “I think about it every day.”   

If there was a time machine and he could change the outcome, he would, Bessner said.

He went on to say it is a “no-win situation” for police, adding that police try to make the best decisions.

Wayne County Circuit Judge Margaret Van Houten said Bessner’s actions contradicted his training. Then, as prosecutors had requested, Van Houten went above the sentencing guidelines, which recommended no more than 38 months as a minimum sentence. Van Houten's minimum sentence was 60 months. 

The judge said the guidelines hadn't given enough weight to Grimes’ age and Bessner’s police training.

She told Bessner, who has a law degree, that he had abused the public trust placed in police officers.

"Your actions make it more difficult for the thousands of men and women who put on a uniform and a badge every day to go out and perform their duties," Van Houten said.  

During his trials, the defense said Bessner believed Grimes was reaching for a gun in his waistband during the incident. Grimes did not have a weapon.  

Van Houten said if Bessner truly believed Grimes was armed, he would have searched Grimes for a weapon immediately after the crash and told his partner.

She recounted Bessner saying on his police radio right after the incident: “He slowed down. We tased him. Check that, I tased him.”  

“That statement is very telling,” Van Houten said. “That is the obvious time Mr. Bessner would have stated that he thought Grimes was reaching for a weapon.”  

Helen Stinson, Grimes’ aunt, spoke during sentencing and said because of Bessner’s actions, their family member was taken from them.

“A child is a terrible thing to lose,” she said.

Prosecutors have argued Bessner had a history of using his Taser to punish those who opposed him and said, in this case, Bessner deployed his Taser without legal justification, causing Grimes to crash.

Bessner’s first trial ended with a hung jury last year. In both trials, he was charged with second-degree murder and involuntary manslaughter. This time, a jury convicted him on the lesser charge.

Bessner resigned from the State Police after the incident amid the criminal probe. He had been reprimanded before for using his Taser inappropriately.

Michigan State Police were patrolling in the city as part of the Secure Cities Partnership, an initiative launched in 2012 to bring additional police resources to high crime areas of Detroit, Flint, Saginaw and Pontiac.

Ex-FBI Attorney Suspended

The Michigan Attorney Discipline Board has imposed an interim suspension of a former FBI attorney for his guilty plea to a federal false statement offense.

Politico reported

Prosecutors are asking for a prison sentence for a former FBI lawyer who admitted altering an email sent to a colleague working on the investigation into alleged Russian influence on Trump campaign affiliates.

Kevin Clinesmith pleaded guilty to a felony false-statement charge in August, soon after he became the only person charged in connection with the investigation Attorney General William Barr ordered last year into the origins of the Trump-Russia probe. Barr earlier this week appointed the veteran prosecutor leading that review, Connecticut U.S. attorney John Durham, as a special counsel, empowering him to continue the investigation into President-elect Joe Biden’s term.

In his plea, Clinesmith admitted adding words to an email used to bolster the case for a surveillance warrant on Carter Page, a former Trump campaign adviser. The alteration was one of a series of errors, omissions and inaccuracies identified by the Justice Department inspector general that sharply undercut the FBI’s treatment of Page, who was monitored from October 2016 until late 2017 under orders from the secretive Foreign Intelligence Surveillance Court.

 

Clinesmith faces a maximum possible sentence of five years in prison, but is likely to be sentenced in accordance with federal guidelines that call for a term of zero to six months in custody in his case

 

His attorneys are asking that he be spared any prison time. They say he has suffered enough, with his career “in shambles” and his reputation ruined.

 

Prosecutors, on the other hand, are seeking a jail term of “at least” three to six months for Clinesmith, contending that his offense was so serious that he deserves incarceration.

 

(Mike Frisch)

Relationship Status

The North Carolina State Bar has filed a complaint alleging that an attorney engaged in misconduct in the course of representing a domestic relations client.

The complaint alleged that the attorney went to the client's home to have her sign a consent order. He suggested a mutual attraction and asked for a kiss.

After "making out," she said she could not "go any further " and they did not have sex.

When Hurricane Florence hit Wilmington, the attorney allegedly stayed with the client at her mother's house and they had sex.

He then filed the divorce action and handled the matter until its conclusion.

It is alleged that the attorney was married and "gave [the client] various excuses about why he hadn't separated from his wife."

He then allegedly falsely told the client that his wife had discovered the affair and threatened to sue her for alienation of affection.

He allegedly lived with the client after he had separated from his spouse but "decided that the relationship wasn't going anywhere."

She found out it was over when she visited his Facebook page and saw he listed his "relationship status" to a relationship with someone else. (Mike Frisch)

Missing Evidence

The Tennessee Supreme Court ordered a three-year suspension with all but eight months suspended and probation.

According to the summary on the web page of the Board of Professional Responsibility

He admitted to taking controlled substances from an evidence room while he served as an assistant district attorney.

He pled guilty to official misconduct, theft under $100 and simple possession.

He received diversion in the criminal case. (Mike Frisch)

Maryland (Not) My Maryland

The New Jersey Supreme Court imposed a three-month suspension of an attorney in an original discipline case brought for misconduct in Maryland.

As described by the Disciplinary Review Board, the attorney took and passed the Maryland Bar but was never admitted there. 

In 2007, he was alleged to have practiced in Maryland without a license. The matter was resolved on his promise to stop until admitted.

He was warned that the inquiry would be reopened if he again engaged in unauthorized practice.

The attorney continued the violations after a 2009 consent decree.

A Maryland divorce client filed a bar complaint against him in 2012.

The complaint was dismissed on jurisdictional grounds because he had no Maryland license.

In these proceedings, he contended that the dismissal was a favorable adjudication on the merits.

Not, said the DRB. Rather, they relied on the testimony of Maryland Deputy Bar Counsel that his office had concluded that New Jersey should handle the situation.

The DRB further rejected the argument that the attorney could practice in Maryland on a "temporary basis."

The DRB found that the attorney had engaged in a number of rule violations beyond the unauthorized practice. (Mike Frisch)

Former State Senator Sanctioned

A one-year and until further order suspension has been ordered by the New York  Appellate Division for the Fourth Judicial Department

With respect to the facts underlying respondent’s conviction, from January 2015 through December 2016, respondent served as a New York State Senator representing Senate District 60. Respondent admits that, in January 2016, he traveled to New York City with a staff member of his Senate office to engage in fundraising activities for his 2016 reelection campaign. Respondent admits that, when they returned to their hotel after attending the fundraising event and engaging in related social activities, respondent visited the staff member’s hotel room to address matters related to the fundraising event, whereupon respondent made unwanted verbal and physical sexual advances toward the staff member. Respondent admits that the staff member asked him to leave her hotel room, which he did. In February 2016, the staff member submitted to respondent a letter of resignation from her position in respondent’s Senate office, citing, inter alia, respondent’s conduct following the fundraising event. Respondent immediately reported the former staff member’s allegations to the Senate Personnel Office, and the matter was eventually referred to the New York State Joint Commission on Public Ethics (JCOPE) for further investigation.

Respondent admits that, after he became aware of the JCOPE investigation, he was concerned that it would negatively affect his 2016 reelection campaign. Respondent admits that he subsequently arranged for an employee of his Senate office to offer the former staff member a financial payment or new employment in exchange for her agreement to refuse to participate in the JCOPE investigation. Respondent admits that, at his direction, the employee of his Senate office met the former staff member in March 2016, at which time the former staff member recorded the conversation. Approximately one week later, respondent publicly announced that he would not seek reelection to the Senate. The FBI commenced an investigation into respondent’s conduct and, in June 2018, respondent executed a plea agreement and entered a plea of guilty in District Court to the above-referenced federal misdemeanor. In December 2018, respondent was sentenced in District Court to incarceration for a period of two months, supervised release for a period of one year, and payment of a fine in the amount of $9,500. Respondent thereafter entered into a settlement with JCOPE wherein he acknowledged that the conduct set forth in his federal plea agreement violated certain provisions of the Public Officers Law,  and he agreed to pay a civil fine in the amount of $10,000.

He played NFL football with the Buffalo Bills. (Mike Frisch)

"Private" Criminal Conduct A-OK For Georgia Lawyers

I was surprised to read in Law.com a statement attributed to the General Counsel of the Georgia State Bar to the effect that a lawyer admitted there could not be sanctioned for "private" criminal behavior absent a conviction.

Of course, that would not be remotely accurate in a jurisdiction that followed the ABA Model Rules.

I was again surprised to the learn of Georgia's careful narrowing of the class of lawyers who engage in criminal conduct that can be sanctioned.

RULE 8.4 MISCONDUCT

1. It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to:
   1. violate or knowingly attempt to violate the Georgia Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
   2. be convicted of a felony;
   3. be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law;
   4. engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation;
   5. fail to pay any final judgment or rule absolute rendered against such lawyer for money collected by him or her as a lawyer within ten days after the time appointed in the order or judgment;
   6. 
      
      1. state an ability to influence improperly a government agency or official by means that violate the Georgia Rules of Professional Conduct or other law;
      2. state an ability to achieve results by means that violate the Georgia Rules of Professional Conduct or other law;
      3. achieve results by means that violate the Georgia Rules of Professional Conduct or other law;
   7. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
   8. commit a criminal act that relates to the lawyer's fitness to practice law or reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer, where the lawyer has admitted in judicio, the commission of such act.
2. 1. For purposes of this Rule, conviction shall include any of the following accepted by a court, whether or not a sentence has been imposed:
      1. a guilty plea;
      2. a plea of nolo contendere;
      3. a verdict of guilty; or
      4. a verdict of guilty but mentally ill.
   2. The record of a conviction or disposition in any jurisdiction based upon a guilty plea, a plea of nolo contendere, a verdict of guilty or a verdict of guilty but mentally ill, or upon the imposition of first offender probation shall be conclusive evidence of such conviction or disposition and shall be admissible in proceedings under these disciplinary rules.
3. This Rule shall not be construed to cause any infringement of the existing inherent right of Georgia Superior Courts to suspend and disbar lawyers from practice based upon a conviction of a crime as specified in paragraphs (a) (1), (a) (2) and (a) (3) above.
4. Rule 8.4 (a) (1) does not apply to any of the Georgia Rules of Professional Conduct for which there is no disciplinary penalty.

The maximum penalty for a violation of Rule 8.4 (a) (1) is the maximum penalty for the specific Rule violated. The maximum penalty for a violation of Rule 8.4 (a) (2) through (c) is disbarment.

The ABA version is linked here and pertinently provides that it is misconduct to

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation...

 Whenever a jurisdiction departs from an ABA Model Rule, I wonder as to the motivation.

I respectfully find it hard to fathom a rule departure that makes it more difficult to sanction criminal (and dishonest) behavior by a member of the legal profession.  (Mike Frisch)

Show Me

The Missouri Supreme Court has disbarred an attorney, rejecting mitigation claims without supporting evidence

The parties agree that, over a period of approximately five years, Eric F. Kayira repeatedly failed to notify clients he had received funds belonging to them, engaged in a pattern of depleting his clients’ funds—frequently to make payments owed to other clients—and misappropriated client funds to pay for personal and firm expenses. As Mr. Kayira acknowledges, disbarment is the baseline sanction for knowingly converting client funds and is the sanction recommended by the disciplinary hearing panel (“DHP”) and the office of chief disciplinary counsel (“OCDC”).

But, Mr. Kayira argues, this case presents the kind of unusual circumstance in which consideration of mitigating factors should result in imposition of the lesser sanction of indefinite suspension. He notes that, at the time of his conduct, he had serious personal problems, including—he claims without providing any medical support—alcohol abuse and depression. He also was recently divorced. The DHP considered this information but  found it did not sufficiently mitigate Mr. Kayira’s wrongful conduct so as to lessen the appropriate sanction from disbarment to suspension.

Mr. Kayira asserts the DHP was unaware he also suffered from bipolar disorder because he did not discover it himself until after his disciplinary hearing and Rule 5.285 did not permit him to raise this mental disorder as a basis for mitigation of the sanction once he had filed his answer. If he had been permitted to raise it, he argues, it would have resulted in a lesser sanction, citing In re Belz, 258 S.W.3d 38 (Mo. banc 2008).

Mr. Kayira is incorrect. Unlike in Belz, Mr. Kayira offered no medical evidence to support his claim of a mental disorder, and an unsupported allegation of such a disorder is inadequate to invoke the mitigation features of Rule 5.285. And contrary to Mr. Kayira’s assertion that one cannot offer such evidence after the answer is filed, Rule 5.285(b) expressly permits an attorney to raise the issue of a mental disorder out of time if good cause is shown. Not only did Mr. Kayira fail to provide any proof of good cause, he failed
to even seek permission to raise this defense or offer any evidence in support of it. Finally, unlike in Belz, he did not show additional mitigating factors such as self-reporting and voluntary restitution before the information was filed.

In light of Mr. Kayira’s pattern of mishandling and misappropriating client funds, and the lack of sufficient mitigation evidence, this Court disbars him.

I use the court's Belz decision in my teaching. (Mike Frisch)

COVID- Denying Sheriff Faces Recall For Incitement

The Washington State Supreme Court has held that an elected sheriff  is subject to recall for inciting disobedience of a COVID order

Fortney argues that the incitement charge is legally and factually insufficient because his refusal to enforce the law does not constitute inciting others to violate the law. Appellant’s Opening Br. at 36. Fortney underestimates both the significance of his words and the power of his office. Fortney unambiguously proclaimed that the Stay Home – Stay Healthy proclamation was unconstitutional and that the governor’s judgment should be questioned, and he advocated that residents had the right to work. Fortney specifically directed his message to Snohomish “business owners,” declaring that  “it is time to open up this freedom [to work]” for “small business owners,” and it was “time to lead the way.” 2 CP at 395-96.

Fortney insists that he encouraged individuals only to contact their representatives. Appellant’s Opening Br. at 36. However, the record indicates he said much more, and Fortney’s words can be reasonably interpreted as an exhortation for people to return to work. Moreover, petitioners provided evidence that Fortney’s words had such an effect on a small business owner who opened the doors of his barbershop to a line of unmasked customers. We agree with the trialcourt’s determination that a voter could reasonably conclude that Fortney’s specific words “incit[ed] folks to violate the stay-at-home order.” 1 VRP at 85.

He also will face recall for rehiring dismissed deputies.

But not for an alleged failure to investigate an incident involving the arrest of a black jaywalker.

Justice McCloud

I part ways with the majority because I cannot agree that Fortney’s public statements show complete “refusal to enforce the law” or countywide incitement to violate the law. Id. at 8-9. Instead, taken as a whole, his statements show that he disagrees with the law, that he encourages people to oppose the law—especially by writing to elected officials—and that he chooses to enforce the law through education rather than arrest. Finally, and most critically for the “incitement” charge, Fortney’s statements also show that he chose to make that enforcement decision public and transparent by posting it on social media.

I would therefore reverse the superior court’s decision to allow the incitement charge to move forward. Accordingly, I concur in part and dissent in part.

The court also unanimously  approved the recall petition of a different sheriff in an unrelated matter

The recall petition alleges 26 separate charges that, assuming, as we must, the truth of the allegations, illustrate a toxic and authoritarian culture that Sheriff Hatcher has created since his appointment in 2017.

(Mike Frisch)

No Stone Left Unturned

The Utah Supreme Court has disbarred an attorney

The saga of the discipline of Brian W. Steffensen has continued for nearly a decade, now coming before this court for the third time. Though the matter has revealed numerous legal complexities over the years, it returns to us today primarily on the straightforward issue of the appropriateness of the district court‘s order disbarring Steffensen. We agree with the district court‘s analysis and affirm the disbarment order.

The court sets out the history of proceedings leading to a remand

Following our order of remand, the district court solicited proposed findings of fact and conclusions of law from each party to aid in the court‘s determination of the appropriate sanction. This is when the maxim that no good deed goes unpunished kicked in. The district court‘s apparent effort to "be  [and] give all [parties] an opportunity to respond" with their own proposed findings and conclusions quickly "mushroomed," as the district court aptly noted, "into something that seems to be far beyond what the Supreme Court ever intended."

The court on sanction

The district court recognized that the conduct amounting to Steffensen‘s 8.4(c) violation was not simply that Steffensen failed to remit tax monies but rather that, in doing so, he breached his fiduciary duty to his employees. It was this breach in particular that called for presumptive disbarment under rule 14-605(a)(3), which applies when a lawyer "engages in . . . intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer‘s fitness to practice law."

...With this opinion, we bring to a close this decade-long adjudication of Steffensen‘s conduct, comfortable in having left no legal or factual stones unturned in reaching this ultimate resolution. We affirm the district court‘s order of disbarment.

(Mike Frisch)

Computer Glitch

The Minnesota Supreme Court has revoked the conditional readmission of an attorney who was suspended for a minimum of 30 days and conditionally readmitted subject to a requirement that he take and pass the MPRE.

The attorney did not demonstrate that he met the requirement to timely pass the exam.

Rather, he filed a motion to extend the time to permit him too do so.

Having failed the exam twice, he asserted good cause to extend the time

[He] contends he did not receive a passing score because the exam was administered on a computer and, having never worked on one before, he was unable to properly operate his computer.

He had also offered a supporting letter from his doctor.

The court noted that he could have sought an accommodation but ad not done so.

The sanction imposed is an indefinite suspension. (Mike Frisch)

Numba One

The New Jersey Supreme Court has disbarred an attorney.

 

The Disciplinary Review Board recommended that sanction for the attorney's involvement in a complex series of arrangements that involved conflicts of interest, business transactions with clients and other misconduct that included the misuse of entrusted funds.

 

The board noted that an attorney-client relationship was not required to find disbarment -worthy misuse of other people's money.

The circumstances are set forth in an opinion of the court in the attorney's bankruptcy

When this unfortunate series of events commenced, Michael Attardi ("Attardi") was a screen writer and an aspirant film producer who had authored and attempted to finance several film scripts. Joseph Anselmo ("Anselmo") was a commercial finance broker who offered to assist Attardi with funding his film scripts and further offered to introduce him to the Defendant for legal representation. In or around June 2006, Anselmo introduced Attardi to the Defendant. Attardi retained the Defendant's law firm Klafter & Mason, LLC ("K&M"), to represent Attardi's businesses in exchange for a two percent equity interest in his various companies. Attardi began working on a film entitled, "Numba One," which was to be a live-action, mafia comedy starring Federico Castelluccio. Numba One, LLC ("Numba One") was a Florida limited liability company, formed for the purpose of producing the movie. Attardi and the Defendant were identified as the original managers of Numba One, and Attardi was the registered agent. Subsequently, Attardi learned that The Writers Guild of America would not permit him to be paid for his script as manager of the production company. Therefore, Attardi resigned as a manager of Numba One, and Andy VanRoon ("VanRoon") became a manager of Numba One. At all times thereafter, VanRoon and the Defendant acted as the two co-managers of Numba One.

In or around the later part of 2010, the Plaintiffs invested a total of $690,000 in Numba One with the understanding that the money was being placed in an escrow account until the total budget amount of $3,000,000 could be raised, further providing that the money would be  returned if the $3,000,000 could not be raised by September 2, 2011. The Plaintiffs' $690,000 was deposited under the name of Numba One into K&M's trust account. There can be no question, as confirmed by the credible testimony of Bade, Scire and Phillips, as well as the operative documents, that Plaintiffs invested their money with the understanding and assurances that not a single dollar would be released until the entire $3,000,000 raise had been achieved. In this regard, the Court notes the operative language appearing in Numba One's Operating Agreement and Confidential Private Offering Memorandum. Pursuant to the Operating Agreement, "[t]he monies shall be placed into a dedicated escrow bank account and will be released to [Numba One] only when the total budget amount of Three Million Dollars ($3,000,000) has been achieved." Plaintiffs' Exhibit 25. Similarly, the Confidential Private Offering Memorandum states that, "[a]ll funds received will be deposited into a dedicated bank escrow account until the Total Minimum Offering being offered hereby is obtained." Plaintiffs' Exhibit 32. These restrictions on the release of the invested funds confirmed the representations included in certain promotional literature prepared by Numba One and shown to potential investors. See Plaintiffs' Exhibits 26 and 35.

(Mike Frisch)

False Statements To Help Spouse Draws Consent Disbarment

The Virginia State Bar Disciplinary Board has accepted an attorney's consent to disbarment.

The attorney recently entered a guilty plea to a federal conspiracy charge by misrepresenting that his wife "had alcohol addiction issues when she did not."

The false statement were made to get his spouse into a prison treatment program and reduce her sentence.

The United States Attorneys Office for the Western District of Virginia had a press release on the cases.

According to court documents, on October 27, 2015, Stacey Pomrenke was arrested based upon the return of an indictment alleging multiple violations of federal law resulting from the federal investigation of Bristol Virginia Utilities Authority. When interviewed by a probation officer for the United States District Court for the Western District of Virginia, Stacey Pomrenke denied any history of substance abuse. Following her conviction for multiple federal offenses, Stacey Pomrenke was again interviewed by probation officers for the United States District Court. During this interview, Stacey Pomrenke again denied any history of substance abuse and stated she was a “social drinker.” Stacey Pomrenke remained on release until September 26, 2016.

On August 11, 2016, Stacey Pomrenke was sentenced to 34 months in federal prison and ordered to self-report to the Bureau of Prisons facility at Alderson, West Virginia. The Bureau of Prisons operates an intensive drug and alcohol abuse treatment program known as the Residential Drug Abuse Program (RDAP). In order to gain entry to RDAP, a federal inmate must meet certain criteria, including having a diagnosable and verifiable drug or alcohol abuse disorder. By successfully completing RDAP, an inmate can qualify for early release from custody.

Beginning on or about August 19, 2016, Stacey and Kurt Pomrenke were solicited by and began corresponding with Tony Pham a.k.a. Anh Nguyen, the operator of RDAP Law Consultants LLC, a business that solicited prospective and current federal inmates through telephone calls and emails offering assistance in applying for, and qualifying for, RDAP. For a fee, RDAP Law Consultants coached and advised prospective and current inmates on how to gain admission to RDAP by lying to the Bureau of Prisons about the existence, duration, and extent of a qualifying substance abuse disorder.

On August 22, 2016, Stacey Pomrenke entered into a consulting agreement with RDAP Law Consultants, agreeing to pay $7,500. The agreement was revised by Kurt Pomrenke and signed by Stacey Pomrenke and Anh Nguyen. Shortly after entering into the agreement, Nguyen began coaching Stacey and Kurt Pomrenke regarding the steps they would need to take to defraud the Bureau of Prisons to secure Stacey Pomrenke’s admission to RDAP.

In one of the first discussions with Nguyen, Stacey and Kurt Pomrenke made it clear that Stacey Pomrenke only drank a glass or two of wine a week and did not have an alcohol abuse problem or addiction.

Based on the advice of Nguyen, on August 31, 2016, Stacey Pomrenke made an appointment with her physician and falsely stated that over the last three years she had been drinking more and going from one glass of wine up to three glasses of wine at night. As a result of the false statements, Stacey Pomrenke’s physician prescribed her Ativan to prevent physical complications from alcohol withdrawal when she reported to prison.

On September 18, 2016, Nguyen sent an email to Stacey Pomrenke with the subject line “Show Withdrawal Symptoms.” In the email, Nguyen detailed a series of withdrawal symptoms Stacey Pomrenke should show within the first 24 hours of reporting to prison.

Between August 31, 2016 and September 25, 2016, Nguyen continued to work with Stacey Pomrenke and Kurt Pomrenke through telephone calls and emails to develop a false, but plausible story of alcohol abuse and the need for treatment.

On September 26, 2016, Stacey and Kurt Pomrenke traveled to the Bureau of Prisons facility at Alderson, West Virginia. When Stacey Pomrenke reported to the facility, she was intoxicated and under the influence of alcohol. During her initial health screen, Stacey Pomrenke told officials she “had been drinking at least a bottle of wine daily since 2008.” At the time she made the statement, Stacey Pomrenke knew that statement to be false.

As a result of her false statements and fraudulent claims of alcohol abuse and addiction, Stacey Pomrenke was admitted to RDAP on November 2, 2016 and began the program on December 2, 2016.

(Mike Frisch)

Current Events

The Delaware Superior Court entered an order yesterday revoking the pro hac vice admission of L. Lin Wood in the case of Carter Page v. Oath Inc.

The court noted and details conduct that "albeit not in my jurisdiction, exhibits a toxic stew of mendacity, prevarication and surprising incompetence."

The court did not impose Rule 11 sanctions.

The complaint in the litigation is linked here.  (Mike Frisch)

Disbarment Sought For Teacher Who Became Lawyer

An oral argument before the Ohio Supreme Court on January 12 is summarized by Dan Trevas

Disciplinary Counsel v. Anthony J. Polizzi Jr., Case No. 2020-0740
(Lake County)

In March 2018, Anthony Polizzi Jr. pleaded guilty to eight counts of gross sexual imposition and sexual battery based on relationships he had with two teenage students when he was a high school teacher from 2006 to 2010. Between the time he was asked to leave Cornerstone Christian Academy and the date of his conviction, Polizzi earned a law degree, passed the bar, and practiced law until he was indicted for the sex crimes.

The Board of Professional Conduct proposes disbarring Polizzi not only because of the convictions, but also for not being truthful about the incidents once he became a lawyer and for not taking full responsibility for his actions. Polizzi, 42 years old at the time of his disciplinary hearing, is asking the Ohio Supreme Court to indefinitely suspend him with the hope of regaining the ability to practice law again once he completes his 28-year prison sentence. Because of the COVID-19 pandemic, the Court will hear arguments by videoconference, which will be livestreamed.

Teacher Abuses Two Students
Polizzi began teaching at Cornerstone in 2006. Two girls, identified as E.L. and N.M., were both students of Polizzi’s at Cornerstone. E.L.’s mother also taught at Cornerstone and was in the process of divorcing E.L’s father, who was an alcoholic. She asked Polizzi if he would help E.L. by talking her through the family’s issues.

Polizzi met privately in his classroom with E.L about 10 to 15 times. Between April 2008 and October 2009, he then began having illegal sexual contact with E.L., who was 17 or 18 at the time and still a student at Cornerstone. N.M. was in Polizzi’s history class in both 11th and 12 h grades, and he was also her mock trial coach. Polizzi began having sexual contact with N.M. between February and March 2010.

Driving separately, Polizzi would meet the girls at a nearby park near the school. In 2010, someone saw Polizzi and N.M. drive back to school in close proximity and reported this observation to the school superintendent. Polizzi admitted to the superintendent that he met with N.M. at the park, and the superintendent informed Polizzi that his contract with Cornerstone wouldn’t be renewed. Polizzi admitted that he did not inform the superintendent about his sexual contact with E.L. or N.M.

Former Teacher Attends Law School
After leaving Cornerstone, Polizzi attended the University of Akron School of Law and began working for the Cuyahoga County Prosecutor’s Office. He didn’t disclose the sexual contact with the girls in his bar application and didn’t disclose he had been terminated by Cornerstone. After passing the bar exam, he worked for the Kisling, Nestico & Redick law firm for three years until he was fired when indicted for the sex crimes.

Polizzi had further contact with E.L and N.M. as they became young adults. In 2012, Polizzi sent N.M. an email that he eventually conceded was obscene.

In July 2017, a Lake County grand jury indicted Polizzi on one count of gross sexual imposition and 24 counts of sexual battery based on his relationship with N.M. In December 2017, the grand jury added 33 counts of gross sexual imposition and 22 counts of sexual battery regarding his contact with E.L. Polizzi agreed to plead guilty to one count each of gross sexual imposition for E.L. and N.M. and three counts of sexual battery for each.

The trial judge sentenced him to a total of 33 years in prison and classified him as a Tier III sex offender. On appeal, the sentence was reduced to 28 years in prison. The Ohio Department of Education revoked his teaching license because of the conviction, and the Office of Disciplinary Counsel filed a complaint against him with the Board of Professional Conduct.

After a December 2019 hearing, a board panel found he violated the rules governing the professional conduct of Ohio lawyers by committing illegal acts that reflected adversely on his honesty and trustworthiness and his fitness to practice law. The board adopted the hearing panel’s recommendation to disbar Polizzi.

Lawyer Seeks Lesser Sanction
In his objections to the board’s decision, Polizzi asks the Court to reject the recommendation and impose an indefinite suspension. He notes the board’s report indicates that, in general, the Court has imposed indefinite suspensions in the few cases where a lawyer was convicted of sexual crimes against children.

Polizzi stresses that his conduct occurred prior to becoming a lawyer and that he has never been accused of inappropriate sexual conduct as an attorney. He maintains the board dismissed his expressions of remorse and instead chose to focus on statements he made during his criminal sentencing hearing and his poor choices of words when he attempted to explain his misconduct.

Polizzi asserts the board’s rationale for elevating the sanction from an indefinite suspension to a disbarment is based on the board’s perception that his testimony and behavior do not demonstrate that he acknowledges his wrongdoing. Polizzi maintains he apologized for his conduct throughout his disciplinary hearing and is ashamed and truly sorry for his actions.

Polizzi asks the Court to give him an opportunity to grow and change and to have the ability to practice law after he is released from prison. He notes that his only chance to apply for an earlier reinstatement date requires the approval of the trial judge, which Polizzi is certain will not happen. He argues that his conduct over the next 30 years should determine whether he can meet the standards to practice law in Ohio, and that he be allowed to seek reinstatement at that time.

Disbarment Appropriate, Disciplinary Counsel Argues
The disciplinary counsel agrees there is little precedent in Ohio where a lawyer is sanctioned for sexual crimes against children, but notes that in other states the lawyers have been disbarred. The disciplinary counsel notes that Polizzi points to Ohio cases where lawyers were indefinitely suspended for having “sexual communications” with minors. Polizzi deserves a more severe sanction for having sexual contact, the office asserts.

The disciplinary counsel explains the rule violations relate totally to the convictions for the crimes, and that Polizzi isn’t being punished solely for his behaviors regarding his lack of remorse and failure to be candid about his acts. The disciplinary counsel argues that Polizzi has had multiple opportunities to admit wrongdoing, “but when faced with crossroads, he consciously chose the wrong path.” The office notes Polizzi failed to tell the school about his misconduct, didn’t disclose it in his bar exam application, and initially misled a court-appointed psychologist.

The disciplinary counsel asserts that Polizzi took advantage of vulnerable teenage girls, and his conduct with E.L. was “especially egregious” because her mother trusted Polizzi to counsel her daughter while her parents were going through a divorce. The office notes both victims made emotional, impactful statements at Polizzi’s criminal sentencing regarding the harm he inflicted on them.

(Mike Frisch)