Legal Profession Blog

No Substantial Purpose

From the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and suspended Thomas Blumenthal (attorney registration number 15549) for one year and one day. The suspension takes effect November 2, 2023. To be reinstated to the practice of law in Colorado after his suspension, Blumenthal must prove by clear and convincing evidence that he has been rehabilitated, has complied with all disciplinary orders and rules, and is fit to practice law.

Blumenthal represented a client in a criminal matter that was set for trial on December 1, 2021, the same day that Blumenthal’s suspension from another disciplinary case was scheduled to take effect. As the trial date approached, Blumenthal did not inform the presiding court or the deputy district attorney (“DDA”) in the case that he would be unable to appear for the trial. At the pretrial readiness conference on November 22, 2023, when the judge asked about the priority level of the case, Blumenthal deferred to the DDA, who announced ready for trial. Though Blumenthal had known the effective date of his suspension for seventy-five days, he did not directly notify the court or the DDA of his suspension until 4:32 p.m. on the eve of trial, when he moved to withdraw from the case and filed a notice of withdrawal due to his suspension. On December 1, 2023, no lawyer appeared on behalf of Blumenthal’s client, who told the court that he did not have any discovery and that he wanted to find another lawyer. The court continued the case.

In a different matter, Blumenthal represented a client in two criminal cases. In October 2021, at a pretrial readiness conference for both cases, Blumenthal aggressively leaned over the prosecution’s table, accused the DDA in the cases of lying to him or to the court about service on the victim, and stated that the DDA did not know what she was doing. The DDA feared that Blumenthal was going to physically harm her. The presiding judge, who felt that Blumenthal was completely out of control and “scary,” also feared that Blumenthal might strike the DDA and perceived that his was using his physical statute to intimidate the DDA. As Blumenthal left the table, he muttered under his breath “bitch” and said, “I thought you were a lawyer.” Later that day, when another case was on the record, Blumenthal returned to the courtroom and interrupted the same DDA to ask for her name. The cases were then transferred to another division under a different DDA.

Through this conduct, Blumenthal violated Colo. RPC 4.4(a) (in representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person); Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice); Colo. RPC 8.4(g) (in representing a client, a lawyer must not engage in conduct that exhibits bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process); and Colo. RPC 8.4(h) (it is professional misconduct for a lawyer to engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on the lawyer’s fitness to practice law). The case file is public per C.R.C.P. 242.41(a).

Jackpot

A big hit on a Deepwater Horizon claim led to an attorney's departure from his law firm, post-departure litigation and a remand of a decision favoring the law firm by the Mississippi Supreme Court

The Circuit Court of Washington County granted law firm Campbell DeLong, LLP, a declaratory judgment against a former partner of the firm, Britt Virden, who had alleged breach of contract, among other claims. Virden appealed, and the Court of Appeals affirmed. Virden v. Campbell DeLong, LLP, No. 2021-CA-00478-COA, 2022 WL 4478393, at *11(Miss. Ct. App. Sept. 27, 2022). On certiorari review, we find that Virden’s pre-withdrawal claims are not precluded by a signed agreement, which only comes into operation in the event of death, termination, withdrawal, or retirement of a partner.

                                            FACTS AND PROCEDURAL HISTORY

Britt Virden practiced law in Greenville, Mississippi, with Campbell DeLong, LLP, since 2001. Although Campbell DeLong, LLP, has operated as a law firm for nearly twenty-five years, it has never had a written partnership agreement that controlled the compensation paid to its partners. The only document signed among the partners was a Restated and Amended Memorandum Agreement, which governed the “withdrawal, termination, or retirement of any of the partners from the firm.”

According to Virden, Campbell DeLong never compensated its partners as a traditional partnership in which the partners share equally in all expenses as well as profits. Rather, Campbell DeLong practiced a partner compensation strategy of “eat what you kill,” meaning after an individual partner contributes from his revenue an equal share of the operating expenses of the law firm for calendar year, he or she keeps the remainder as his own personal income.

In 2018, Virden worked on a case for the Deepwater Horizon oil spill that settled for $12.3 million. Attorneys’ fees were $3.1 million. Virden emailed his partners about the settlement’s result, making his recommendation for distribution. The partners did not immediately respond to Virden’s request. When Virden asked the firm’s bookkeeper for a distribution of a special draw of his claimed portion to the fee, however, he was denied.

The partners then called for a meeting at which the allocation was discussed. The firm asserts that there is an implied contract between the partners that the firm’s compensation committee would decide how to split any profits. The firm allocated Virden $1.9 million and each of the five other partners $277,000. Virden immediately sent a written objection to the distribution and demanded the amounts be reconsidered and recalculated to allocate the fee pursuant to the normal and customary method.

A month later, Virden gave notice he was withdrawing from the firm. Virden then sued the firm for breach of contract, unjust enrichment, conversion, breach of fiduciary duties, violation of the Mississippi Partnership Act, and other claims. Virden alleged that the firm breached an implied contract among the partners by allocating to themselves a share of a significant fee that Virden generated.

The firm and its partners filed their answer and affirmative defenses, which included a motion for declaratory relief, a request to stay discovery, and a counterclaim. In the firm’s motion for declaratory judgment, it sought a ruling that all of Virden’s claims were encompassed by the Agreement Virden had signed in 2001.

After a hearing, the circuit court granted the motion for declaratory judgment, stating “that paragraphs 7, 12, 13 and 14 of the Agreement” controlled the outcome of the case.

The firm prepared an order, but the parties could not agree on the language. As a result, both Virden and the firm submitted proposed orders.

The order Virden drafted was brief, holding that the circuit court had jurisdiction over the parties, that the motion for declaratory judgment was granted, and that all discovery was stayed.

The firm’s order was lengthier and explained that the Agreement sets forth “[t]he payment obligations in paragraphs 7, 12, and 13 and are the only payment obligations that the [law firm] owed to Virden upon Virden’s voluntary withdrawal from the Firm on March 7, 2019.”

The firm’s order declared the Agreement was enforceable and said, “Virden is estopped from claiming entitlement to any monetary amount from the [law firm] for acts and/or events which occurred when Virden was a Partner in the Firm except to Virden’s entitlement to the amount of Virden’s Working Capital Account at the time of his withdrawal.”

Lastly, “Virden has a legal and binding contractual obligation to convey his entire interest in the Firm and in Campbell DeLong Properties, LLC, and in their respective assets to the Firm and Campbell DeLong Properties, LLC . . . .” 

The circuit court signed both orders, and both were then stamped filed by the circuit court clerk. Virden moved for reconsideration. The circuit court denied the motion, and Virden appealed. The Court of Appeals affirmed, and we granted certiorari review. Virden, 2022 WL 447893, at *11.

Majority holding

We reverse the judgments of the Court of Appeals and of the Washington County Circuit Court, and we remand the case to the circuit court to allow Virden an opportunity to maintain an action against his former firm for breach of an implied contract regarding partner compensation.

Difference of opinion

RANDOLPH, C.J., KITCHENS, P.J., CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION. KING, P.J., NOT PARTICIPATING.

Concurring in result only

I have read the pleadings, motions and responses, the transcript of the argument of counsel, the circuit court judgments, and the record. As a result, I tend to agree that Campbell DeLong, LLP, and the individual defendants may be entitled to a declaratory judgment that the agreement governs the compensation or amount owed to Britt Virden as a withdrawing partner. The circuit court, the Court of Appeals, and now this Court’s majority reach a similar conclusion.

There is a fundamental error with this type of cursory review. There is a fundamental error with the decisions of the circuit court, the Court of Appeals, and now this Court’s majority. This Court should not affirm a circuit court’s judgment on the merits based only on unsworn pleadings, documents attached to unsworn pleadings, and argument of counsel. This review is not based on procedure authorized by the Mississippi Rules of Civil Procedure. Therefore, I am of the opinion the circuit court judgment and the decision of the Court of Appeals should be reversed. I would remand this case for further proceedings consistent with the Mississippi Rules of Civil Procedure.

Dissent

I disagree that this case should be reversed and remanded. Instead, for the reasons set forth by the Court of Appeals in its opinion affirming the trial court’s judgment, I would affirm.

(Mike Frisch)

The Southern Reporter Shall Rise Again

The Florida Supreme Court has adopted a number of rule revisions proposed by the Bar Board of Governors but rejected this one

we decline to delete from rule 3-5.1(d) the requirement that public reprimands be published in the Southern Reporter. Publication in the reporter remains integral to ensuring that a public reprimand is indeed public. The Bar proposed deleting the requirement because in recent years this Court’s public reprimands of lawyers have not, as a matter of course, been published in the Southern Reporter. We thank the Bar for bringing this oversight to our attention, and we will take steps to ensure that publication of public reprimands in the Southern Reporter occurs.

Also

In rule 3-5.3, the Bar proposed the addition of new subdivision (h) (Diversion Before Formal Complaint is Filed). The subdivision the Bar proposed is essentially a mirror image of rule 3-7.9(a) (Consent Judgment; Before Formal Complaint is Filed) and would permit a lawyer and the Bar to enter into a consent judgment providing for diversion before a formal complaint is filed. However, we see no need to amend rule 3-5.3 to include a mirror image of a rule that already exists elsewhere. We, therefore, revise the Bar’s proposal to read:

(h) Diversion Before Formal Complaint is Filed. The procedures for approval of consent judgments provided elsewhere in these rules apply to diversion before the filing of a formal complaint.

Rule 3-6.1(a) is reorganized, and the rule’s scope is expanded to include persons who are suspended or have been disbarred in another jurisdiction. Also, under the amended rule, a person is now considered employed by an entity providing legal services if he or she “is engaged to provide services to the client arising from or related to the client’s legal representation at the recommendation of the entity or any of its members or employees.”

Rule 3-7.10(f) is amended to prohibit a referee from referring a petition for reinstatement to civil or grievance mediation. The Bar proposed amending subdivision (f)(4)(B) to establish when and for how long Florida Bar Examination and Multistate Professional Responsibility Examination scores are valid for reinstatement purposes. For added clarity, however, we revise the Bar’s proposal to read: “The results for both exams must be valid under the Rules of the Supreme Court Relating to Admission to the Bar when the petition is filed and will remain valid for at least 3 years after the filing of the petition.”

Lastly, we decline to amend rule 3-7.16(d) as proposed by the Bar.

(Mike Frisch)

Faithless Servant

A law firm is entitled to the referral fee paid to an employee, per a decision of the New York Appellate Division for the First Judicial Department

Plaintiff was entitled to summary judgment as a matter of law. The duty of loyalty, grounded in the faithless servant doctrine, is breached where the employee, "acting as the agent of the employer, unfairly competes with his employer, [and] diverts business opportunities to himself or others to the financial detriment of the employer" (Sullivan & Cromwell LLP v Charney, 15 Misc 3d 1128[A], 2007 NY Slip Op 50889[U], *7 [Sup Ct, NY County 2007]; see also Western Elec. Co. v Brenner, 41 NY2d 291, 295 [1977]). Defendant does not dispute that he referred a matter to another law firm without plaintiff's knowledge or consent and collected more than $140,000 in referral fees. A for-profit referral, without plaintiff's knowledge or consent, violates defendant's duty of loyalty and, at a minimum, entitles plaintiff to the referral fee (see Chun Ho Chung v Williams Schwitzer & Assoc., P.C., 200 AD3d 514, 515 [1st Dept 2021]).

The court's denial of the motion to reargue is not appealable.

(Mike Frisch)

Giuliani Brief Filed In D.C. Case

Rudolph Giuliani's brief of his exceptions to the findings and recommendation for disbarment was filed yesterday with the District of Columbia Board on Professional Responsibility.

He argues that the findings of misconduct are not supported by clear and convincing evidence. 

If the Board disagrees, he argues that a lesser sanction should be imposed in light of his "unblemished disciplinary history and his contributions to public service..." 

Link (click on Cases of Public Interest) here. (Mike Frisch)

N-Word By Former Judge Not Basis For Discipline

The Louisiana Attorney Disciplinary Board has dismissed ethics charges against a former judge for conduct in a private matter

Having reviewed and considered all of the evidence presented in this matter and for the reasons outlined above, the Board concurs in the Committee’s recommendation of dismissal. The Board finds that ODC has failed to carry its burden of proof by clear and convincing evidence that Respondent violated the Rules of Professional Conduct as charged and has failed to meet its burden of proving that Respondent engaged in misconduct that occurred when she was a judge which would have been grounds for lawyer discipline. Therefore, the Board orders that the charges filed against Respondent be dismissed.

Further

The Board finds that the Committee was correct in its analysis of Rule XIX, §6B and its conclusions that while Respondent’s conduct may have constituted violations of Canons 1 and 2A of the Code of Judicial Conduct, ODC did not meet its burden of proving violations of Rules 8.4(a) and 8.4(d) of the Rules of Professional Conduct which prescribe the misconduct for which discipline may be imposed upon lawyers in Louisiana. The Committee has aptly addressed the issues presented by ODC relating to the alleged rule violations and the Committee’s discussion distinguishing the legal decisions cited by ODC is correct.

The charges

The ODC investigation reflects that on July 22, 2020, Respondent submitted a Notice of Candidacy for City Judge, City Court, Division A, City of Lafayette. As a candidate for judge, Respondent was provided with an information packet that included a copy of the Louisiana Code of Judicial Conduct. Respondent signed for receipt of the packet on July 22, 2020.

On November 3, 2020, Respondent was elected City Judge of Division “A” in Lafayette, Louisiana. On November 6, 2020, as a newly elected judge, the Louisiana Supreme Court Judicial Administrator mailed to Respondent a packet of information; a copy of the Louisiana Code of Judicial Conduct was included.

During the early morning hours of December 11, 2021, Respondent arrived home with others in her vehicle. Upon arrival, Respondent observed a stranger who, apparently, had entered family vehicles. Respondent’s sons and their friend left Respondent’s vehicle, and the alleged perpetrator was tackled and detained until law enforcement arrived. Upon the arrival of law enforcement, Respondent identified herself as a judge, and an investigation ensued. The alleged perpetrator was taken into custody by the Lafayette Parish Sheriff’s Department.

Later that morning, while at home, Respondent and others viewed a home security video of the incident. This viewing also was videoed, with Respondent and others narrating the events that had occurred earlier that morning. In the video, a male voice states: “And mom’s yelling n****r, n****r.” Respondent then states:

“We have a n****r; it’s a n****r, like a roach.”

The video of Respondent’s use of racial slurs was posted on the internet and widely circulated. The incident drew local and national attention and media coverage.

(Mike Frisch)

Lawyer Ethics In Wartime Explored

Eric L. Muller, the Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at the University of North Carolina School of Law, has a new book Lawyer, Jailer, Ally, Foe

It is 1942, and World War II is raging. In the months since Pearl Harbor, the US has plunged into the war overseas—and on the home front, it has locked up tens of thousands of innocent Japanese Americans in concentration camps, tearing them from their homes on the West Coast with the ostensible goal of neutralizing a supposed internal threat.

At each of these camps the government places a white lawyer with contradictory instructions: provide legal counsel to the prisoners, and keep the place running. Within that job description are a vast array of tasks, and an enormous amount of discretion they can use for good or for ill. They fight to protect the property the prisoners were forced to leave behind; they help the prisoners with their wills and taxes; and they interrogate them about their loyalties, sometimes driving them to tears. Most of these lawyers think of themselves as trying to do good in a bad system, and yet each ends up harming the prisoners more than helping them, complicit in a system that strips people of their freedoms and sometimes endangers their lives.

In Lawyer, Jailer, Ally, Foe, Eric L. Muller brings to vivid life the stories of three of these men, illuminating a shameful episode of American history through imaginative narrative deeply grounded in archival evidence. As we look through the lawyers’ sometimes-clear and sometimes-clouded eyes, what emerges is a powerful look at the day-by-day, brick-by-brick perpetration of racial injustice—not just by the system itself, but by the men struggling to do good within it.

(Mike Frisch)

A Thing Of Value

The Washington State Supreme Court reversed the Court of Appeals on the definition of a "thing of value"

A jury convicted Vanessa Valdiglesias LaValle of two counts of criminal solicitation after she told her minor son, S.G., that he could be with her “forever” if he poisoned his father. The Court of Appeals reversed the conviction on the ground that Valdiglesias LaValle’s offer to live with S.G. “forever” if S.G. killed his father did not constitute a “thing of value” within the meaning of RCW 9A.28.030(1). State v. Valdiglesias LaValle, No. 101442-2.

We reverse the Court of Appeals. The plain meaning of “money or other thing of value” in RCW 9A.28.030(1) unambiguously includes both money and things that are not money but that, like money, possess utility, desirability, significance, and/or economic value. Nothing in the plain language or context of the statute indicates that “other thing of value” must be limited to things with a traditional economic or market value.

The plot

In June 2020, while at Valdiglesias LaValle’s house for visitation, 10-year-old S.G. heard her and J.G. talking in another room. VRP (Apr. 6, 2021) at 284. He decided to enter the room and secretly record the conversation because he heard Valdiglesias LaValle talking about “bad stuff” and “rat poison.” Id. at 284-85. In the recording, Valdiglesias LaValle told the children that she loved them and that they could decide when they were older whether they wanted to live with her. S.G. asked what Valdiglesias LaValle would do if she “gave food to dad.” State v. Valdiglesias LaValle, 23 Wn. App. 2d 934, 937-40, 518 P.3d 658 (2022). Valdiglesias LaValle responded that she would not put anything in Grady’s food, but that she would teach S.G. what to do. She told S.G. he could put rat poison in Grady’s wine, wait for Grady to drink it and collapse, “wait a long, long time,” then call the police. Id. at 939. Valdiglesias LaValle said that if S.G. did this, “we are forever (inaudible) live together (inaudible).” Id

S.G. sent the recording to his friend, and his friend’s mother contacted Child Protection Services and the police. VRP (Apr. 6, 2021) at 288, 313; VRP (Apr. 7, 2021) at 363-64, 372.

(Mike Frisch)

Withdrawal To Care For Ailing Mother Denied

The United States Court of Appeals for the Fourth Circuit affirmed a denied motion to withdraw as counsel

Elizabeth Peiffer, one of two lead attorneys representing David Runyon in this habeas proceeding, filed a motion to withdraw as counsel for Runyon on the ground that her mother was diagnosed with cancer and caring for her would distract from an appropriate representation of Runyon. The district court denied Peiffer’s motion, finding that it was “in the interests of justice for Ms. Peiffer to remain as counsel for” Runyon. Peiffer then filed this appeal. Because we cannot, in the circumstances presented, conclude that the district court abused its discretion, we affirm.

The trial court

Shortly after the hearing, the court issued a written order dated June 20, 2023, confirming its denial of Peiffer’s motion to withdraw. In its order, the court stated that even though Peiffer’s personal circumstances provided some difficulties, her withdrawal from the representation of Runyon “would not be in the ‘interests of justice.’” (Quoting Martel v. Clair, 565 U.S. 648, 652 (2012)). In particular, the court explained again that it was concerned with the prejudice to Runyon associated with the loss of institutional knowledge should Peiffer be permitted to withdraw. Peiffer was the only member of the defense team who had been present throughout the entire discovery process on the remanded claim. The court also noted prejudice to the United States, as the request came at the “eleventh hour” in the proceedings. In conclusion, at the hearing and as confirmed in its order, the court noted that Peiffer could “certainly take a lesser role” — she did not “have to do all the substantive work” and could proceed on “a limited basis.” But the interests of justice, nonetheless, required that she remain in the case for “continuity” purposes.

At the hearing and in its order, the court also expressed its intent not to grant pro hac vice admission to the six Covington & Burling lawyers, but it did not expressly rule on  this issue, as such motions for admission had not been filed. It explained that to admit six attorneys from Covington & Burling would “put the hearing out of control.” Nonetheless, it noted that the Covington & Burling attorneys were welcome to provide their time pro bono to assist Peiffer and Ali. 

Here

In view of the district court’s careful consideration of all of the factors, we cannot conclude that it abused its discretion in the circumstances. See Martel, 565 U.S. at 66364 (“Because a trial court’s decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion”).

On appeal, Peiffer presses the argument that her continued representation of Runyon violates the Virginia Rules of Professional Conduct because her personal obligations present a conflict of interest that prevents her from fully discharging her duties to Runyon and that the conflict requires reversal. In so arguing, however, she presents withdrawal as an “all-or-nothing” proposition — either she must be able to act as Runyon’s sole and fulltime counsel of record in the matter or she must recuse herself. But those are not the only alternatives in the circumstances of this case, and the district court specifically addressed Peiffer’s concern by noting that she was free to divide up responsibilities with Ali in the way she sees fit.

And

We note importantly that this is not a case where there is a threat that Runyon will be inadequately represented as a result of the district court’s order. Runyon has two counsel of record and six additional counsel assisting pro bono. While it is true that the district court indicated that it was unlikely to grant the six pro bono attorneys pro hac vice admission to the case if that were requested, the court nonetheless welcomed their assistance.

That last comment cuts two ways. (Mike Frisch)

Busy Attorney Receives Stayed Suspension

The Ohio Supreme Court imposed a stayed suspension of a sole practitioner for "grossly inaccurate" applications f or payment in court-appointed cases

In an August 2022 complaint, relator, disciplinary counsel, alleged that McCloskey engaged in dishonest conduct by submitting grossly inaccurate fee applications for legal services as court-appointed counsel in the Hamilton County Court of Common Pleas and Hamilton County Municipal Court. McCloskey waived a probable-cause determination. The parties submitted stipulations of fact and misconduct, including 47 exhibits, and the matter proceeded to a hearing before a three-member panel of the Board of Professional Conduct. Based on the parties’ stipulations and McCloskey’s testimony, the panel found that McCloskey committed the charged misconduct and recommended that he be suspended from the practice of law for one year, stayed in its entirety. The board adopted the panel’s report and recommendation, and the parties have jointly waived objections. After a thorough review of the record, we adopt the board’s findings of misconduct and the recommended sanction.

He was busy

The parties stipulated that McCloskey had routinely worked between 10 and 12 hours per weekday and an additional six hours per weekend. Prior to 2022, he had not taken a vacation in at least six years.

But an audit revealed

When McCloskey prepared his fee applications, he would attempt to “re-create” the time he had spent on each case by reviewing the case docket and the rough notes that he had made in the file. He would also estimate the date each task was performed. For example, if a body-camera video was at issue in a case, he would determine the hearing date based on the docket and would estimate the time that he believed he would have spent reviewing the video sometime in the week before the client’s hearing. During his testimony before the panel, he acknowledged that his notes were often incomplete and that he had done “a terrible job” of contemporaneously recording time as he performed work. As a result, the dates and hours he had recorded on his fee applications and had certified as “accurate” were often grossly inaccurate.

The audit exposed other billing discrepancies. For example, although the Hamilton County courts are open to the public for eight hours a day, in 20 fee applications containing entries for August 7, 2019, McCloskey certified that he had worked an aggregate of 27 hours and had spent 14.1 hours in court in Hamilton County on that date. Similarly, in McCloskey’s fee applications containing entries for September 23 and 26, 2019, he certified that he had spent more than 12 hours in court in Hamilton County on behalf of his clients each day.

On multiple occasions, McCloskey certified that he had spent the same amount of time in court for each of several clients, regardless of the nature of the charges against the clients, any overlap in court appearances, or the amount of time that he was actually in court. He typically did this by billing a standard halfhour of in-court time for each case. For example, McCloskey submitted fee January Term, 2023 5 applications for work he had performed on behalf of 21 different clients on June 24, 2019. He certified that he had spent a total of 11.4 hours in court that day, including a half-hour for each of 17 clients. In a similar manner, he certified that he had performed an aggregate of 22.2 hours of work on May 28, 2019, on behalf of 13 different clients, including 6.8 hours in court. The latter figure was derived from McCloskey’s billing a standard half-hour of in-court time for 12 of the 13 clients.

Sanction

We do not condone McCloskey’s conduct, and we remind all attorneys of the importance of maintaining accurate and contemporaneous records of the time spent and the work performed on behalf of their clients to ensure that their bills are fair and honest. Nevertheless, we agree that the facts of this case are most comparable to those of Agopian and that given the weight of more recent authority specifically disapproving the billing practices at issue in this case, a conditionally stayed one-year suspension is the appropriate sanction in this case.

(Mike Frisch)

Partially Stayed Sanction Accepted

The District of Columbia Court of Appeals has accepted a negotiated sanction of an attorney

In this disciplinary matter, the Hearing Committee recommends approval of a petition for negotiated attorney discipline. See D.C. Bar R. XI, § 12.1(c). Respondent Paul Haar voluntarily acknowledged that, in connection with representing Manuel Garza, he charged an illegal (and thus per se unreasonable) fee and seriously interfered with the administration of justice when he repeatedly failed to respond to Disciplinary Counsel’s inquiries regarding the illegal fee; and further that, in connection with representing Mariia Chuta, he failed to provide competent representation, serve the client with commensurate skill and care, adequately consult with the client, act with reasonable promptness, explain a matter to the client, and timely return an unearned and unreasonable (overbilled) fee. As a result, respondent admits that he violated D.C. R. Prof. Conduct 1.1(a)-(b), 1.2(a), 1.3(c), 1.4(b), 1.5(a) (x2), 1.16(d), 8.1(b), and 8.4(d). The proposed discipline consists of a 180-day suspension, stayed as to all but 90 days, with reinstatement conditioned on respondent providing a $5,000 refund to Mr. Garza and a $22,000 refund to Ms. Chuta. The parties clarified before the Committee that respondent had already fully refunded Mr. Garza and paid $1,000 to Ms. Chuta, and that the agreed-upon sanction was, in effect, a 90-day suspension that would continue indefinitely (i.e. no outer bound at 180 days) until respondent paid the remaining $21,000 to Ms. Chuta.

Having reviewed the Committee’s recommendation in accordance with our procedures in uncontested disciplinary cases, see D.C. Bar R. XI, § 12.1(d), we agree that this case is appropriate for negotiated discipline and that “the agreed-upon sanction is ‘justified,’”

(Mike Frisch)

Censure For Already-Suspended Attorney

From the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and publicly censured Peter D. Menges (attorney registration number 28750), taking into account the fact that Menges is already required to petition for reinstatement to the practice of law as a sanction in another disciplinary case. The public censure took effect September 25, 2023.

In April 2023, a Jefferson County Sherriff’s Office investigator saw Menges driving erratically, weaving over fog lanes, abruptly changing lanes without signaling, braking late, and narrowly missing a median. Menges was slow to pull over, and once he did pull over he was slow to place the vehicle in park. Menges had trouble following the officer's directions, smelled of alcohol, appeared drowsy, and had trouble making coherent statements. He refused roadside maneuvers and a blood or breath test. Menges ultimately pleaded guilty to driving while ability impaired as a first offense and was sentenced to probation.

Through this conduct, Menges violated Colo. RPC 8.4(b) (it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects).

(MIke Frisch)

Judicial Privilege

A lawyer against lawyer defamation suit has been dismissed by the United States District Court for the District of Columbia

This is a defamation action brought by one lawyer practicing before this Court, Timothy Parlatore, against another lawyer also practicing before this Court, Eric Montalvo. The case is only the most recent chapter in a dispute that has metastasized beyond recognition. What started as a whistleblower complaint alleging racial discrimination in a U.S. Navy fighter pilot training program; grew into an investigation of Lt. Steven Shaw, the Navy officer who assisted in filing that whistleblower complaint; then evolved into an investigation of the Navy officers who had investigated Lt. Shaw to determine whether they acted for retaliatory purposes and into a second investigation of Lt. Shaw; eventually led to a lawsuit that Lt. Shaw brought challenging the Navy’s actions against him, and a second lawsuit alleging that the Department of the Navy violated the Privacy Act and that the lawyer who represented the investigating officers, Timothy Parlatore, libeled Lt. Shaw; and finally led to the present dispute, which alleges that Lt. Shaw’s lawyer, Eric Montalvo, defamed Parlatore in an email exchange between lawyers involved in the Privacy Act/libel litigation.

The motion now before the Court seeks to close at least one chapter in this unfortunate saga. Defendant Eric Montalvo moves to dismiss Plaintiff Timothy Parlatore’s amended complaint for failure to state a claim and, in the alternative, moves to strike allegedly redundant, immaterial, impertinent, or scandalous material from that complaint. Dkt. 10; Fed. R. Civ. P. 12(b)(6), 12(f). For the reasons explained below, the Court will GRANT Defendant’s motion to dismiss and, accordingly, will not reach his motion to strike.

Judicial privilege

Parlatore’s sole response to this conclusion is unconvincing. He asserts, “[i]t is clear that Virginia’s judicial privilege only applies to statements ‘made in proceedings,’ not extra-judicial statements made in emails.” Dkt. 12 at 4. He, then, continues: “Although Defendant does acknowledge the Virginia standard, he makes no effort to explain how Virginia’s law should be extended to out-of-court statements, and certainly not to impertinent emails.” Id. Yet, if anyone, it is Parlatore who ignores the governing Virginia law. As the Virginia Supreme Court explained in Mansfield v. Bernabei, the “[a]bsolute judicial privilege clearly extends outside the courtroom,” and “‘we have extended the application of the absolute privilege well beyond the actual courtroom.’” 727 S.E.2d at 73 (quoting Lindeman v. Lesnick, 604 S.E.2d 55, 58–59 (Va. 2004). In short, Parlatore’s contention that the privilege does not apply to “out-of-court statements” is squarely foreclosed under controlling Virginia law.

(Mike Frisch)

Second Time Around

Dan Trevas reports on a decision of the Ohio Supreme Court

A Columbus attorney was suspended by the Supreme Court of Ohio today for two years, with 18 months stayed, for accepting fees for an adoption case but not following through with the work.

Ric Daniell was also found to have violated rules governing the use of client trust accounts and rules requiring attorneys to cooperate with disciplinary proceedings. This is the second time Daniell has been suspended from the practice of law for these types of ethics violations.

In 2014, Daniell received a fully stayed one-year suspension for similar misconduct. The Office of Disciplinary Counsel brought the current complaint against Daniell and recommended a fully stayed two-year suspension with conditions. The Board of Professional Conduct recommended that the Supreme Court impose a more severe sanction “because the prior sanction failed to serve the desired deterrent effect.”

In a per curiam opinion, a divided Supreme Court imposed the board’s recommended suspension, which includes other conditions Daniell must meet to resume practicing law.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the per curiam opinion. Justices Patrick F. Fischer and Jennifer Brunner stated they would impose the fully stayed suspension recommended by the disciplinary counsel.

Attorney Accepts Fee for Adoption Case
In November 2020, Joseph Camp hired Daniell to represent him and his spouse in an effort to adopt two children. Daniell was paid a $1,000 flat fee for legal services and $140 for a filing fee. The same day he deposited the check in his client trust account, he wrote himself a $1,000 check from that account even though he had only completed 1.2 hours of work on Camp’s case.

In December 2020, Daniell filed the two adoption petitions and some of the required documents in Franklin County Probate Court. The probate court set a June 2021 hearing date to consider the case.

Other than reviewing two notices related to the case, Daniell did not perform any additional work on the adoption case during the six months leading up to the hearing. In late April 2021, Camp emailed Daniell several times with questions about the hearing and other matters in the case. Daniell did not respond to Camp until May 26, less than a week before the hearing.

Just before the hearing, Daniell told Camp the hearing had been postponed, but he did not tell his client the probate court would conduct a pretrial conference in lieu of the originally scheduled hearing. Daniell told Camp that there were several forms Camp would need to complete for the next hearing and that he would need to be fingerprinted for a background check.

Camp again emailed Daniell to let him know he had been fingerprinted but had never received the forms Daniell promised to send. After several failed attempts to reach Daniell, Camp sent Daniell an email terminating his representation. Camp also requested a copy of his file, an itemized billing statement, and a refund of any fees Daniell had not earned.

Camp’s new attorney received the file from Daniell and noticed several required documents were missing. Daniell later admitted that he failed to obtain many of those documents. Despite multiple attempts, Camp never received an itemized bill, only a statement that Daniell performed 5.2 hours of work on his case.

Attorney Ignores Disciplinary Counsel’s Information Requests
In February 2022, the disciplinary counsel sent a letter to Daniell inquiring about his representation of Camp. Daniell responded three weeks later but failed to answer questions about his fees and his lack of response to Camp’s emails. Over the next several weeks, the disciplinary counsel made additional attempts to contact Daniell, but he did not respond.

The office cautioned Daniell that his failure to timely respond to its inquiries would be deemed as a failure to cooperate with a disciplinary investigation. Daniell was sent a subpoena by certified mail to appear for a deposition in June 2022, but he failed to appear at that deposition and a second one scheduled by the disciplinary counsel.

In October 2022, the disciplinary counsel filed a complaint with the Board of Professional Conduct, charging Daniell with several ethics violations. The board found that Daniell knowingly failed to respond to a demand for information during a disciplinary investigation.

Daniell and the disciplinary counsel stipulated, and the board agreed, that Daniell violated several rules while representing Camp, including one that required him to keep his client reasonably informed about the status of the client’s legal matter. He also violated a rule that required him to place a client’s fees paid in advance into his client trust account and only withdraw those fees for work that he performed on the case.

The board also found additional violations related to Daniell’s use of his client trust account. For example, the board found that by commingling personal and client funds in his client trust account and using that account as his personal checking account, Daniell violated a rule requiring clients' property to be held in a trust account separate from an attorney’s personal funds.

Supreme Court Considers Sanction for Violations
The disciplinary counsel recommended that Daniell be suspended from the practice of law for two years, that the entire suspension be stayed on conditions including a requirement that Daniell work with a monitoring attorney focused on the management of his client trust account. But the board recommended that he be suspended from the practice of law for two years with just 18 months stayed on conditions—and the Court majority agreed.

The board expressed concerns about Daniell’s wellbeing, noting that in his previous suspension, he admitted he suffered depression from his wife’s sudden death. The board also noted Daniell’s isolation during the COVID-19 pandemic, and his acknowledgment that he did not read all the emails from Camp or correspondence from the disciplinary counsel because he “might have been a little depressed during that period.”

Consistent with the board’s recommendation, the Court imposed, several conditions on the stay of  Daniell’s suspension and his reinstatement to the profession. He must commit no further misconduct and, within 60 days, he must pay Camp $500 in restitution minus any amount spent on filing fees. He must also complete three hours of continuing legal education focused on law office management; submit to an evaluation by the Ohio Lawyers Assistance Program or a qualified healthcare professional; and comply with any treatment recommendations that arise from the evaluation. If Daniell is reinstated to practice of law, he must serve 18 months of monitored probation and allow the monitoring attorney access to his business and client trust accounts. He also must pay the costs of the disciplinary proceedings.

2023-0468. Disciplinary Counsel v. Daniell, Slip Opinion No. 2023-Ohio-3383.

 View oral argument video of this case.

New Maryland Bar Counsel Announced

The Attorney Grievance Commission is pleased to announce that Thomas M. DeGonia, Esquire has been selected to serve as Bar Counsel for the Attorney Grievance Commission of Maryland. Mr. DeGonia's appointment was approved by the Supreme Court of Maryland, effective October 23, 2023.

Since 2011, Mr. DeGonia was a partner at Ethridge, Quinn, Kemp, Rowan & Hartinger, where he practiced primarily in the areas of criminal defense, civil litigation and family law and litigated in both state and federal courts. From 2007 to 2011, Mr. DeGonia was a senior associate at Venable, LL  where he managed teams of attorneys and paralegals on multijurisdictional investigations and discovery involving misappropriation of trade information and deceptive practices and served as Special Prosecutor in Maryland and as a Federal Court appointed member of a civil rights monitoring team. Prior to entering private practice, Mr. DeGonia served as an Assistant State’s Attorney for Montgomery County for eight years, the last four years of which he led a felony prosecution team. He also served in the Office of Counsel to the Inspector General for the U.S. Department of State where he advised on criminal investigations and foreign policy matters.

Mr. DeGonia is a magna cum laude graduate from the University of Missouri-Rolla where he also lettered in NCAA Division II football and studied abroad as a Jefferson-Smurfit Scholar. He graduated from the American University-Washington College of Law where he served as Student Bar President and received the Mooers Trophy in Trial Practice and an award for his Outstanding Contributions to the Law School. Mr. DeGonia served as President of the Bar Association of Montgomery County from 2020-2021 and President of the Family Justice Center Foundation from 2009-2021.

(Mike Frisch)

Illinois Decides Discipline Cases

Highlights of decisions announced yesterday by the Illinois Supreme Court

Mr. Prewitt was licensed in Illinois in 1995 and in Missouri in 1992. The Missouri Supreme Court indefinitely suspended him, with no leave to apply for reinstatement for two years, for threatening to file an ethics complaint against his potential opponent in a judicial election and to reveal details of the infidelity of his potential opponent's spouse in an attempt to dissuade her from running against him in the election. He also threatened to reveal a former client's confidences as part of that latter threat. The Supreme Court of Illinois imposed reciprocal discipline and suspended him for two years and until he is reinstated to the practice of law in Missouri. The suspension is effective on October 12, 2023.

Mr. Rollins, who was licensed in 2007, was suspended for five months. He attempted to defraud his fellow law firm members about the amount of capital he had contributed to their start-up law firm. The suspension is effective on October 12, 2023.

Ms. Motta, who was licensed in 2004, was suspended for 90 days, with the suspension stayed in its entirety by a one-year period of probation with conditions. In an Illinois criminal trial, she repeatedly interrupted the judge and muttered an obscenity in response to the judge overruling an objection. She also took photos during the prosecutor's closing argument despite a ban on photos in the courtroom. In a Nebraska criminal matter, she publicly disseminated DNA results from evidence to news outlets in violation of a previous protective order issued by the court.

Ms. Kowalski, who was licensed in 2007, was disbarred on consent. She was convicted of concealing assets from a bankruptcy trustee when she and her brother made fraudulent representations, claims and promises in her brother's bankruptcy petition and accompanying documents, and when she used her client trust account to conceal from her brother's creditors and the trustee hundreds of thousands of dollars that were part of her brother's bankruptcy estate.

That's What He Said

The Ottumwa (Iowa) Courier reports on a discipline matter scheduled for oral argument before the Iowa Supreme Court on October 11

Wapello County Attorney Reuben Neff is pushing back against claims of a hostile work environment within his office that led an Iowa disciplinary review board to recommend his law license be suspended.

In documents filed with the Iowa Supreme Court, which will rule on his appeal, Neff said the Iowa Attorney Discipline Commission was wrong to reprimand him for sexual harassment.

Charges with the commission were originally filed in August 2022. In April, the commission determined that Neff's license should be suspended for 60 days and said that a public reprimand or shorter suspension wouldn't be sufficient.

Neff appealed the decision to the Iowa Supreme Court. The sides have now submitted their briefs to the court, but it's not clear when the court will make a ruling.

The commission takes issue with comments Neff has made within the Wapello County Attorney's Office, including comments made about various judges.

Many of the comments outlined in filings with the commission are those that were also included in a battle by a former employee over unemployment benefits that were challenged. That former employee, Tanvi Yenna, also filed a complaint with the commission to initiate the disciplinary process for Neff.

Many of the statements have been acknowledged by Neff as having been said. He has argued the statements in question do not arise to the level of requiring disciplinary action, asserting either free speech rights or instances where additional context made Neff's original meaning more clear.

The stipulated comments range from derogatory language aimed at judges, or hopes that something bad would happen to criminal defendants.

Among the stipulated comments said by Neff include:

— In Sept. 2019, Neff told employees after losing a sexual assault trial that he wished the defendant would be "raped by antelopes and mauled by lions at the same time."

— While prosecuting a defendant, Neff commented that the individuals anus would be "this big" while indicating a circular shape by the time the defendant left prison, an apparent reference to being raped in prison.

— In Oct. 2019, Neff referred to Judge Shawn Showers as a "limp d---" after the judge acquitted a defendant of a sexual assault charge.

— Neff would occasionally refer to judges as "bitches" following an unfavorable ruling.

— The commission also stated that Neff would use other sexually-charged language, including telling inappropriate stories to staff.

Among the stipulated facts of the case, in which both Neff and the commission agree, are that the current staff of the attorney's office feel the office dynamics are the best they've been in a number of years.

An administrative law judge ruled for the county in Yenna's dispute over unemployment benefits, which first brought Neff's comments to the public eye. In his ruling, the judge found that Yenna had not properly notified the employee about unacceptable conditions.

No current employees have filed verbal or written complaints regarding sexual harassment and of 10 employees, nine are female and include one that is a member of the LGBTQIA+ community.

In briefs filed by Neff's attorney Matthew Sease, the prosecutor argues the commission made no attempt "in differentiating sexual harassment from general office vulgarity."

He argues that comments made were not made with sexual intent or meanings. Additionally he argues that there's not enough evidence to define the office workplace as being a hostile work environment.

However, if the Iowa Supreme Court still feels Neff is in violation of rules of contact, he also argues that the statements in question are protected by the First Amendment. The amendment, he argues, protects statements "of opinion relating to matters of public concern and/or statements that cannot reasonably be interpreted as stating actual facts about an individual, such as rhetorical hyperbole."

The commission in response argued that Neff isn't allowed to make certain statements within the practice of law.

“Neff is permitted to feel about criminal defendants any way he wishes, may express this ill will, and may even express himself in this exact manner — outside the practice of law," its brief reads. "When he is in the practice of law, however, he may not subject his employees to crude comments that would evoke pornographic imagery; even less may he vocalize a wish for sexual violence upon a defendant."

The commission further argues that Neff has created "an environment wherein he has been allowed to tell inappropriate stories, voice a wish of forced sodomy and bestiality upon criminal defendants, and use gendered insulting language.”

Neff continues to serve as Wapello County Attorney during the ongoing appeal.

From Respondent's initial brief

Sometime in early 2020, Respondent came to the office late due to taking time to snow blow his driveway. Upon entering the office Respondent explained that he spent time snow blowing five inches, though he did not believe his wife minded. After seeing a staff member smirk at this comment, Respondent did state “that’s what she said.” This was a reference to the TV show “The Office” and was a quote Ms. Yenna and Carly Schoemaker used frequently in the office.

From Respondent's reply brief

The Board also criticizes Neff for making a reference to a running joke on the wildly popular television show “The Office” that has been off the air for nearly 10 years. See IMDB “The Office” https://www.imdb.com/title/tt0386676/ (last visited July 26, 2023). To think that lawyers’ speech will not be chilled as a result of the Board’s interpretation of is unreasonable. It is unequivocal that the Board’s interpretation and application of Rule 32:8.4(g) would result in widespread punishment of protected speech.

That's what he said.

The briefs are linked here. (Mike Frisch)

Better Late Than Never

The Mississippi Supreme Court has reversed an order and directed that an $86,000 fee for legal services be paid out of the estate of the deceased client

The story

When Herbert died, he and Rebecca were entangled in divorce proceedings. Malouf was representing Herbert and had provided more than $86,000 in unpaid services. But Herbert’s Estate did not pay Malouf following the chancellor’s order accepting Rebecca’s offer “to pay the debts of the estate as submitted by [Rebecca]” in exchange for the assets. Instead, the estate matter dragged on. The chancellor retired. A special judge was appointed. And a substitute executor was agreed to.

The substitute executor at some point moved to declare certain unsecured claims against the Estate extinguished and time-barred. Malouf’s claim was included in this request. According to the substitute executor, by statute, Malouf had four years and ninety days from issuance of letters testamentary to file an action against the Estate for payment of its claim. Malouf countered that such an action was unnecessary because, during those four years, the original chancellor had entered the order directing the sale of assets. And in this order, the court accepted Rebecca’s offer “pursuant to its terms and conditions”—one such condition being that Malouf’s probated claim would be paid. The special judge sided with the substitute executor and denied Malouf’s probated claim as untimely.

In error

After review, we find the chancellor erred by ruling Malouf’s timely probated claim was barred by statute. Suggesting Malouf had to take further action against the Estate to protect its claim after the court had already ordered all timely probated claims be paid by the asset-sale proceeds defies logic. While the substitute executor now argues the parties never intended all probated claims be paid, that argument conflicts with the plain language of Rebecca’s offer, which was incorporated into the chancellor’s original order. Rebecca offered to buy the assets of the Estate for $8 million so that the Estate could pay the $8 million in probated claims. And this amount expressly included Malouf’s claim. So Malouf had no reason to pursue additional legal action to secure payment of this claim.

Therefore, we reverse the order denying Malouf’s claim. And we remand the case to the chancery court with instructions that Malouf’s probated claim be paid from proceeds of the purchase of the Estate’s assets.

Thus

We reverse the judgment denying Malouf’s claim, and we remand this matter to the chancery court with instructions to direct the Estate to pay Malouf’s claim with the proceeds from the asset purchase sale, just as the Estate was already ordered to do more than six years ago.

(Mike Frisch)

Playing Hooky

The Tennessee Board of Judicial Conduct has reprimanded a general sessions court judge who had appeared on a county school's Instagram page in judicial robes declaring his intent "to really crack down on truancy problems" in the school district.

He had a specific remedy that 

every unexcused school absence that a kid has in school they are going to do seven hours of community service at our local recycling center.

He went on to describe Friday nights there as a "highly unpleasent experience" and further indicated that a truant's parents might get 10 days of jail time.

The board found that the posts violated a number of provisions of the Rules of Judicial Conduct.

The judge took full responsibility and offered no excuses. (Mike Frisch)

The Treatment Difference

The Louisiana Supreme Court imposed a year and a day suspension for a DWI conviction

On November 22, 2017, at approximately 6:49 p.m., officers from the Baton Rouge Police Department responded to a hit-and-run vehicle crash on LA Highway 73. The victim had followed respondent’s vehicle to his home address and waited for police to arrive. As detailed in the police report and confirmed through videos taken by officers, respondent initially lied to the investigating officer about the accident and the extent of his alcohol consumption.

Approximately two hours after officers had arrived, respondent volunteered to give a breath sample. The test result showed that his blood alcohol concentration was .238%. Respondent was arrested for first offense DWI, hit and run, and failure to maintain control.

On April 6, 2021, respondent appeared in court with counsel. The charge of hit-and-run driving was dismissed. On the DWI charge, respondent withdrew his plea of not guilty and entered a plea of nolo contendre.

Sanction

Respondent committed a single DWI offense. However, due to his lack of cooperation with the disciplinary investigation, we do not know whether he suffers from a substance abuse problem. An actual suspension is therefore warranted. The sanction of a one year and one day suspension means respondent will have to file a formal application for reinstatement in the event he wishes to return to the practice of law. Prior to being reinstated, respondent will have to address the question of whether he has a substance abuse disorder, and, if so, show an effort at recovery.

Accordingly, we will adopt the committee’s recommendation and suspend respondent from the practice of law for one year and one day.

Two justices would impose a lesser sanction.

In an unrelated matter, the court stayed the same sanction with the requirement of participation in the bar's treatment program

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent improperly notarized a donation inter vivos and was arrested for DWI and possession of marijuana. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline.

The sanction provides that the attorney

be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period to coincide with the term of his recovery agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the terms of the agreement may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

(Mike Frisch)