Legal Profession Blog

Loose Lips

A former Cook County Circuit Court Judge has been charged with an ethics violation by the Illinois Administrator for comments he made when he thought he was not being live-streamed after a hearing where counsel had participated remotely

Respondent, mistakenly believing that the virtual feed of his courtroom had ended, then engaged in a conversation with the Assistant State’s Attorneys and Assistant Public Defenders physically present in his courtroom about the just concluded Myles matter, and, specifically, about Mr. Myles’s attorneys, Ms. Bonjean and Mr. Kennedy. During that conversation, Respondent, referring to Ms. Bonjean, stated: “Did you see her going nuts? Glasses off, fingers through her hair, the phone’s going all over the place. It’s insane.” Respondent further stated that Ms. Bonjean’s behavior “was entertaining” for him and inquired: “Can you imagine waking up to her every day? Oh my God.” Respondent further stated, “You know what? I couldn’t have a visual on that if you paid me. There you have it.”

During the conversation described...above, Respondent also mocked and ridiculed Attorney Sam Kennedy. When a question was raised regarding who Attorney Sam Kennedy was, Respondent stated, “That’s her [Ms. Bonjean’s] man child.”

Ms. Bonjean learned of Respondent’s comments...later in the day on January 11th. Ms. Bonjean then filed a motion to preserve the livestream recording of Respondent’s courtroom from January 11, 2022. On January 13, 2022, after Ms. Bonjean filed the motion, the presiding judge of the 5th District of the Circuit Court of Cook County, the Hon. Erica Reddick, reassigned Mr. Myles’s matter to the Hon. Carol Howard.

On January 17, 2022, in connection with the allegations above, the Judicial Inquiry Board charged Respondent in case number 22 CC 2 with conduct that was prejudicial to the administration of justice and that brought the judicial office into disrepute, in violation of the Code of Judicial Conduct, Illinois Supreme Court Rule 61, Canon 1; Rule 62, Canon 2(A), and Canon 3(A)(2), (A)(3), and (A)(9).

On January 18, 2022, the Chief Judge of the Circuit Court of Cook County placed Respondent on restrictive duties. On November 6, 2022, Respondent resigned from his position as a judge. On December 2, 2022, Illinois Courts Commission dismissed the pending case against Respondent, finding that it lacked jurisdiction to hear the matter as Respondent was no longer a sitting judge.

The disparaged attorney has had an interesting career as reflected on her web page biography

After college, Bonjean attended the Manhattan School of Music where she earned a Master’s Degree in Music in Opera Performance.

After the switch to law

Since 2014, Bonjean has successfully overturned the convictions of no fewer than thirteen individuals wrongly convicted of crimes they did not commit. Bonjean has also successfully tried or settled 1983 civil rights cases totaling over $20 million dollars.

Specifically, in 2017, Bonjean obtained the largest settlement for a civil rights case in the state of New Jersey in the case of Castellani v. City of Atlantic City, et. al., 13 CV 6667, a police brutality, malicious prosecution and Due Process case with a Monell claim. The case was settled at $3,000,000.

In 2019, a jury awarded $5.2 million to Plaintiff Stanley Wrice in the matter of Wrice v. Byrne, et. al., 14 CV 5934 after they found that he was beaten into confessing to a brutal rape by Area Two Detectives. Mr. Wrice spent 31 years in prison for a crime he didn’t commit.

Bonjean represented Bill Cosby on his appeal before the Pennslyvania Supreme Court. In June 2021, Mr. Cosby’s conviction was overturned when the Court found that Mr. Cosby’s due process rights were violated when a non-prosecution agreement with a previous prosecutor meant that Mr. Cosby should not have been charged in the first place.

Additionally, in September 2021, BLG client Armando Serrano and his co-Plaintiff Jose Montanez received a $20.5 million settlement after serving 23 years in prison for crimes they didn’t commit after being framed by a former Chicago police detective.

Respondent is charged with engaging in conduct prejudicial to the administration of justice in violation of Illinois RPC 8.4(d). (Mike Frisch)

Tracking

A complaint recently filed by the Illinois Administrator alleges that the Respondent engaged in criminal conduct

Between May of 2021 and June of 2022, Respondent and an individual identified in this complaint as J.Z. engaged in a romantic relationship. In April of 2022, J.Z. drove her car to visit Respondent at his law office in Chicago. While J.Z. was at his office, and unbeknownst to J.Z., Respondent placed an electronic tracking device underneath the front passenger seat in J.Z.’s car. Respondent placed the electronic tracking device in J.Z.’s car so that he could monitor J.Z.’s location and surveil her without her knowledge.

Prior to placing the electronic tracking device in J.Z.’s car, Respondent did not know the location of J.Z.’s residence. Using the information from the tracking device he placed in J.Z.’s car, Respondent discovered the location of J.Z.’s residence, and thereafter travelled to J.Z.’s residence multiple times, without J.Z.’s knowledge, to surveil J.Z. On two of those occasions, Respondent placed new electronic tracking devices on the undercarriage of J.Z.’s car. Respondent placed the subsequent electronic tracking devices on J.Z.’s car because he was concerned that the prior devices would run out of battery power, which would render him unable to continue his secret surveillance of J.Z.

On July 28, 2022, while cleaning the inside of her car, J.Z. found the electronic tracking device Respondent placed underneath the front passenger seat of her car, described...above. J.Z. contacted the police to report her discovery of the electronic tracking device.

The police investigation of cell phone data obtained through a warrant  revealed that Respondent was in the immediate area of J.Z,'s residence on nine occasions.

In the ensuing criminal case

On July 27, 2023, the Cook County State’s Attorney’s Office (“CCSAO”) voluntarily dismissed Count One (burglary) and Count Three (stalking). The CCSAO amended the stalking charge in Count Two to unlawful use of an electronic tracking device, a Class A misdemeanor, in violation of Chapter 720, Section 5.0/21-2.5-B of the Illinois Compiled Statutes. On the same day, Respondent pled guilty to the amended Count Two. Judge Martin sentenced Respondent to one year of court supervision and ordered Respondent to pay $437 in fines and costs. Judge Martin further granted J.Z. a three-year order of protection, scheduled to terminate on July 23, 2026, which prohibits Respondent from having any contact with J.Z.

(Mike Frisch)

Chesebro Charged With Election Interference

Kenneth Chesebro has been charged with ethics violations by the Illinois Administrator 

Between November 2, 2020 and January 6, 2021, Respondent chose not to accept that incumbent President Donald J. Trump (“Trump”) had lost the 2020 election to Joseph R. Biden (“Biden”), and joined in a scheme to unlawfully change the outcome of the election in Trump’s favor. Respondent’s participation in that scheme, first as a lawyer engaged by the Wisconsin Republican Party in recount efforts in that State and later as a lawyer working directly for the Trump Campaign, was wide-ranging and lasted over a period of two months. Through his participation in the scheme, Respondent attempted to unlawfully subvert the Electoral College process in seven different States where Trump lost the 2020 presidential election so that Trump could remain in power. The State of Georgia subsequently charged Respondent with multiple felony counts of fraud pertaining to his participation in the scheme, and Respondent pled guilty to one of those counts, admitting to felony offense of Conspiracy to Commit Filing False Documents.

The complaint lays out Respondent's contacts with several others post-election

In each of the legal theories and strategies Respondent communicated to individuals in the Trump Campaign, described...above, Respondent advocated to the Trump Campaign and to Trump’s personal lawyers that members of the Congress of the United States and various State legislators should take actions that exceeded their constitutional and statutory powers in order to prevent Biden being declared the winner of the 2020 presidential election. When Respondent advocated for these legal theories and strategies, he knew that they called for Members of the Congress and State legislators to assert powers they were not provided in either the Constitution of the United States or State constitutions.

Respondent’s role in the scheme was not limited to his advocacy in support of unlawful legal theories. He also executed those strategies by personally drafting fraudulent electoral ballots, organizing illegal meetings of purported Trump elector nominees, and arranging for those illegitimate slates of Trump elector nominees to be presented to Congress on January 6, 2021, as described below. In addition, Respondent attempted to keep those illegal meetings secret until the purported Trump elector nominees had cast their illegitimate ballots, as described below.

Consequences

Respondent’s advocacy for and coordination of lawless activity in the days and weeks leading up to January 6, 2021 had practical consequences. On January 5th and 6th of 2021, Trump made various public statements falsely asserting that then-Vice President Pence had the power to decline to count the electoral votes during the January 6, 2021 joint session of Congress. In making those statements, Trump in large part was repeating the arguments Respondent made to Giuliani in his December 13, 2020 “President of the Senate” email, described in paragraph 11, above.

Georgia criminal proceedings

On August 31, 2023, Respondent, through counsel, waived formal arraignment on the charges and pled not guilty to all counts alleged against him in the indictment. On October 20, 2023, Respondent appeared before Judge McAfee and entered a plea of guilty on Count 15 of the indictment, which charged that he had committed the felony offense of Conspiracy to Commit Filing False Documents in violation of Title 16, Section 16-4-8 of the Georgia Code. In exchange for Respondent’s plea of guilty to Count 15 of the indictment, the State of Georgia dismissed the remaining six counts against him. Judge McAfee sentenced Respondent to five years of probation as a first-time felony offender pursuant to Title 42, Section 8-60 of the Georgia Code. Special conditions of Respondent’s probation included that he perform 100 hours of community service, pay a fine of $5,000 to the Georgia Secretary of State, testify truthfully at all hearings or trials involving his codefendants, have no communication with co-defendants, witnesses, or media until all cases are closed, and write an apology letter to the State of Georgia. In accord with Title 42, Section 8-60 of the Georgia Code, Judge McAfee ordered that, upon fulfilment of his sentence or upon release of Respondent by the court prior to the termination of the sentence, Respondent will stand discharged of the offense without court adjudication of his guilt and shall be completely exonerated of guilt of the offense.

(Mike Frisch)

Scout's Dishonor

The July 2024 edition of the Oregon State Bar Bulletin reported that an attorney has resigned after self-reporting a felony conviction.

Oregon Live reported on the crimes

The case began in 2021 after a woman reported to the Washington County Sheriff’s Office that Bauer had abused her when she was a child.

She spoke briefly in court, telling Bauer that the abuse she withstood left her “damaged and broken.” She said he abused her in front of a younger girl and one time had drugged her.

 

After Bauer’s arrest was publicized in 2021, a former legal advisor for the Boy Scouts of America contacted the Washington County Sheriff’s Office and shared internal Boy Scouts documents that revealed that more than a decade before the girl’s abuse, Bauer had been kicked out of two different Boy Scout troops and placed on the “ineligibility” list for future volunteering in 1993 for inappropriate contact with two scouts, according to Senior Deputy District Attorney Marie E. Atwood and court records.

 

Bauer had exhibited “prolific grooming behavior,” exposing himself to scouts, inappropriately touching them and making sexualized comments, Atwood said.

 

Boy Scouts of America never reported Bauer’s conduct to police, even after kicking him out of the organization, she told the court. But the organization did turn over to Washington County investigators hundreds of pages of documents detailing the disciplinary proceedings Bauer faced.

 

The detectives used those records to identify eight additional victims, Atwood said. The statute of limitations has expired for charges in many of those cases, she said.

 

One former scout told the detectives that Bauer had repeatedly touched him when he was in seventh grade while he was in a sleeping bag, Atwood said.

 

Another said he was 10 when Bauer molested him and touched his genitals during an “unsolicited massage,” according to court papers. Another scout said Bauer had taken only him on a trip where Bauer molested him, according to the documents.

The Boy Scout records showed that when Bauer was dismissed from the organization, he told Paul Lorenzini, of the Boy Scouts of America’s Cascade Pacific Council: “I would like to continue to be involved in Scouting, but with restrictions that prevent me from doing things like this. I know you have other options, probation perhaps. It’s something I have had difficulty with, not just in Scouting.”

 

Investigators also learned that Bauer had been terminated from multiple volunteer jobs as a result of his inappropriate conduct around children, Atwood said.

According to Washington County investigators, Bauer had also volunteered with Alpenrose Dairyvill, Neah-Kah-Nie High School, Portland Revels, the Rockaway Beach Police Department and the Tillamook Association for the Performing Arts.

Investigators said they found allegations of Bauer’s misconduct dating back to the 1970s, although Bauer had never been convicted of a sexual offense in Oregon, according to the state’s online court case database.

 

While Atwood described the negotiated sentence as a “good result,” she said it still doesn’t “suffice in any way” for Bauer’s alleged repetitive child abuse.

 

“It’s not particularly satisfying to the state or to the victims,” she said.

Defense lawyer Steven J. Sherlag called the sentence an “appropriate” resolution of a “difficult situation for everybody.”

One of the documents that the Boy Scouts of America shared with investigators was an unsolicited short story titled “A Touching Problem,” that Bauer had submitted to Scouting Magazine, which described child sex abuse allegations “eerily similar” to those he had been accused of within the organization, according to court documents.

 

It’s about a scout who confides to his mother about a troop leader who touched him inappropriately at summer camp but then ends with the scout claiming to his mother that he loves the leader, according to court documents. The story closes with the troop leader kissing the scout while they cuddle by a campfire, according to court papers.

Bauer had repeatedly written his name in place of the troop leader’s name in the story “in what appear to be Freudian slips of sorts,” Atwood wrote in a memo to the court.

Along with the story he submitted, Bauer wrote a letter to the magazine detailing his frustration with the Boy Scouts of America’s rules against physical contact with children.

 

The story was never published but was cited as particularly concerning in the Boy Scouts internal investigation and decision to bar Bauer from any work or volunteering for the organization, according to Atwood.

 

If the case had gone to trial, Atwood said she intended to offer the Boy Scout evidence and testimony from other alleged victims.

 

(Mike Frisch)

 

Horse Races, Golf Outings And Threats To Fox News

Criminal convictions of former corporate officers and executives were upheld by the United States Court of Appeals for the Second Circuit

As charged in the Indictment, Defendants were officers and executives of the Connecticut Municipal Electric Energy Cooperative (“CMEEC”) who in 2015 misappropriated funds from CMEEC to pay for four personal vacations – to the Kentucky Derby in 2015 and 2016 and to the Greenbrier Resort in August 2015 and October 2015 –under the guise that those trips were for corporate “retreats.” In fact, the trips were primarily attended by guests with no business relationship to CMEEC, provided no legitimate benefit to CMEEC, and incurred lavish expenses wholly unrelated to CMEEC’s business, and Defendants largely hid those facts from CMEEC’s Board of Directors (the “Board”) while disguising the expenses in nondescript line items in CMEEC’s budget.

Appeal issues

Defendants raise four claims of error on appeal. First, Defendants challenge the sufficiency of the evidence to support the jury’s finding that CMEEC received “benefits in excess of $10,000” in the charged one-year period, as required by the jurisdictional element of that offense. See 18 U.S.C. § 666(b). Second, Defendants claim that the government offered a frivolous theory as to which entity owned or had control of the stolen funds in order to charge Defendants with misappropriations of funds during the 2016 calendar year as part of other counts, one of which was voluntarily dismissed and the other of which Defendants were acquitted of, and that the inclusion of those counts caused Defendants spillover prejudice during their trial. Third, Defendants argue that the conviction should be vacated and the Indictment dismissed because the government purportedly misled the grand jury to believe that the trips were not approved by CMEEC’s Board, despite the fact that three of the four trips were charged to a line item in CMEEC’s annual budget. Fourth, Defendants argue that the district court erred in ordering restitution for the expenses arising from those three trips, and that those expenses should be excised from their restitution obligation.

The court rejected each contention. 

For the reasons set forth below, we reject each of those challenges. First, in 2015, CMEEC received $864,154.20 as the primary awardee of a federal grant program, and those funds are “benefits” within the meaning of 18 U.S.C. § 666(b). Although CMEEC quickly disbursed all but $9,363.08 to its subgrantees, § 666(b) does not require the entity to have retained or have been the ultimate recipient of the benefits, nor does it require a valuation of how much the disbursed fees “benefit[ted]” the entity. It is sufficient that the funds were provided as benefits and the entity received them. Second, the challenged theory advanced by the government was not frivolous, nor did that theory cause any spillover prejudice. Finally, as to the third and fourth claims, we find no misconduct by the government before the grand jury or error by the district court in setting the restitution amount, as there was sufficient evidence at trial for a reasonable jury to conclude beyond a reasonable doubt that the budget allocation which contained the trips did not authorize Defendants’ misappropriation of funds to pay for what were, in fact and by design, personal vacations.

Nice work if you can get it

All told, Defendants spent $294,031.61 of CMEEC’s funds on the 2015 Derby trip, which in addition to the luxury ticket packages, included:
• More than $54,000 for a private jet to and from Kentucky. Gov. App’x 3155–65; see also id. 3145 (Rankin, writing to jet company that there was “[n]ot really a budget I am trying to hit, more of a number I can reconcile (if and when questioned :-))”).
• $10,827.51 on a group dinner at a restaurant.
• More than $2,300 for limousine services to drive trip attendees to a house party hosted by a friend of Sullivan’s.
• Separate flights for Rankin’s date and for Bilda’s and Sullivan’s family members.
• Nearly $200 to UPS so that Rankin’s date could separately ship her derby hat and glasses to Kentucky.

Greenbrier

Ultimately, the four-man group spent over $21,000 on the trip, including over $11,000 for hotel accommodations and golf fees, over $3,000 for plane fares, and over $2,000 for two dinners, all of which was charged to CMEEC. As Defendants concede on appeal, the trip was not approved by the Board in the annual budget, Def. Br. at 81 n.17, and there was no evidence that the Board otherwise approved the trip or was even aware that the trip had occurred.

Greenbrier redux

the trip participants spent over $109,000 for the October Greenbrier trip, all of which was charged to CMEEC from the Contra Margin account. Those costs included roughly $42,000 to charter a private jet, $2,200 to purchase scarves from the Greenbrier’s women’s store as gifts, and $58,000 in hotel fees, dining, and recreation expenses at the Greenbrier, including over $10,000 spent at various golf courses.

Let's do it again

One week after the 2015 Kentucky Derby Trip – months before CMEEC’s 2016 budget had been drafted, let alone approved – Rankin authorized a $101,820 expenditure from CMEEC to prepay for forty tickets to the 2016 Derby, which was followed by two additional prepayments, at $93,320 each, for those tickets later in 2015t...

And in another similarity to the 2015 Derby trip, the 2016 trip involved the same kind of lavish expenses for a private jet, limousines, high-end hotel accommodations, group dinner, and premium Derby tickets.

Party on dudes

Just days after the 2016 Derby trip, Rankin committed CMEEC to purchasing another forty-ticket package to the 2017 Derby for nearly $300,000. However, in the summer and fall of 2016, local reporters began gathering information about CMEEC’s lavish junkets...

Ultimately, news reports about the trips in late 2016 provoked a public outcry, leading CMEEC to cancel the planned trip to the 2017 Kentucky Derby. However, the tickets were not fully refundable, so CMEEC had to resell some of the tickets at a steep loss. Rankin himself purchased several of the tickets for his personal use.

After indictment

the Trial Defendants’ “core defense throughout the trial” was that they held a good-faith belief that the trip costs were “legitimate business” expenses. 

In an unrelated matter, the court affirmed a conviction that involved threats made to Greg Gutfield, Laura Ingraham, Senator Joe Manchin and Representative Lauren Boebert

Given the seriousness of the threats, Johnson was indicted on four counts. Counts One and Four charged Johnson with making threatening interstate communications in violation of 18 U.S.C. §§ 875(c) and 2; Counts Two and Three charged Johnson with threatening United States officials in violation of 18 U.S.C. §§ 115(a)(1)(B), (b)(4), and 2. During the five-day jury trial in February 2022, the district court dismissed three jurors: Alternate No. 2, Juror No. 7, and Juror No. 2. The district court dismissed Alternate No. 2 on the second day of the trial due to a medical emergency. It dismissed Juror No. 7 and Juror No. 2 on the final day of the trial—just hours before the jury retired to deliberate—due to a lack of childcare arrangements and a finding of bias, respectively. The three dismissals reduced the jury to eleven members.

Circuit Judge Chin dissented and would find structural error in a jury of less than twelve. (Mike Frisch)

Administrator Alleges Ethics Violations

The illinois Administrator has filed a complaint alleging ethics violations in Respondent's representation of a client in a federal court action and with respect to his words and deeds after his client retained new counsel in the underlying matter and sued him

Beginning in 2016, Respondent and an individual with the initials J.M. (“J.M.”) agreed that Respondent would represent J.M. in a civil rights matter alleging that DeKalb School District No. 428 (“District 428”) allowed non residents to enroll in school within the district and therefore violated the civil rights of the district’s taxpayers by requiring them to pay for the nonresidents’ education. On October 4, 2017, Respondent filed a lawsuit on behalf of J.M. The case was docketed in the United States District Court for the Northern District of Illinois, Western Division, as John Doe, et al. v. Community Unit School District No. 428, et al., case number 2017- CV-50307 (“District Matter”). 

When the case foundered, the client retained new counsel

On February 25, 2020, Keith Foster (“Foster”) of the firm Foster, Buick, Conklin, Lundgren & Gottschalk, LLC (“Foster Buick”) sent a letter to Respondent. In the letter, Foster informed Respondent that Foster Buick had been retained by J.M. to facilitate J.M.’s exit from the District Matter. Foster also informed Respondent that, while J.M. intended to fight any claims by District 428 for fees, J.M. also planned to pursue recoupment of fees paid to Respondent for the District Matter and any amount of District 428’s fees ordered by the federal court. Foster asked Respondent to “please notify your insurance carrier immediately … as we assume they will want to be, at a minimum, advised, and potentially even involved with the ongoing fee dispute in federal court.

On May 29, 2020, Respondent sent an email to J.M. and Foster. Respondent attached pages of typed case notes to his email, and those notes, quoted from the August 16th prehearing, claimed that the delays in the case “makes it look like the judge knows the school is wrong, and that the school attorney tried to ‘cook the books.’”

Respondent’s statements that Judge Johnston “knows the school is wrong, and that the school attorney tried to ‘cook the books’” were false or made with reckless disregard of the truth, because Respondent had no objectively reasonable factual basis for the statements that Judge Johnston “knows the school is wrong, and that the school attorney tried to ‘cook the books.’”

Then

On February 28, 2020, District 428 filed a petition for fees alleging that Respondent had filed frivolous pleadings in the District Matter.

On March 29, 2021, the court granted District 428’s petition for fees finding:

[Respondent’s] attempt to litigate state taxation issue in federal court was frivolous and without grounds from the outset.

This long history of jurisprudence should have alerted the plaintiffs before they ever filed suit that the doctrine of comity barred their claims from proceeding in a federal forum.

A suit alleging legal malpractice

On May 12, 2021, attorney Thomas Gooch (“Gooch”) filed a complaint on behalf of J.M. against Respondent in the Circuit Court of DeKalb County alleging legal malpractice and excessive fees. The clerk of the circuit court docketed the case as J.M. v. Michael P. Coghlan, case number 21 L 45 (“The J.M. Matter”). The case was assigned to Judge Bradley Waller.

Allegations in Respondent's defending the suit

On August 4, 2022, Respondent filed a reply to J.M.’s motion to strike and a response to J.M.’s motion to strike. Respondent also filed a “reply affidavit” and attached exhibits to his affidavit. Respondent’s attachments included, among other things, a police report of an incident involving J.M., a State Police Firearm Disposition Record for J.M., a copy of a Facebook post from Hinshaw and Culbertson with a photo of Judge Mary Rowland and Judge Pallmeyer at a reception at Hinshaw and Culbertson, transcripts, and a screenshot of a website entitled “corruptionpedia” discussing Hinshaw and Culbertson.

Respondent’s attachment of a police report involving J.M. and a State Police Firearm Disposition Record for J.M. served no purpose other than to embarrass, delay, or burden J.M.

Respondent handwrote notes purporting to be quotes from J.M. in the margins of his attachments. Respondent’s notes included the following:

[J.M.]: Fixes for favors rather than cash in envelopes

[J.M.]: “I told the judge five times that this had to be done before Aug 15th cost of millions of dollars”

[J.M.]: The next day order looks like a fix.

[J.M.]: The judge blocked my injunction without a hearing. The fix was in

[J.M.]: It cost $6.6MM to delay 1 day after school starts this was no accident. The fix was in.

Respondent handwrote notes in the margins of the October 29, 2018, transcript of proceedings before Judge Johnston. Respondent’s notes included the following:

Judge acknowledges exparte (extrajudicial) allegation? appearance of exparte Hinshaw claims to know the judges extrajudicial reasons for 248 days of postponement?

Judge blocking 8.3 reporting?

Judge acting as prosecutor and blocking the correction of the judges misstated evidence?

Judge again misstates the exhibit – Judge “testifying” falsely, and asking a false premise in his prosecution rule violating 455?

False statement by the judge? (Inside Joke)

There are further alleged false statements in open court.

Respondent’s statements that the judiciary repeatedly defied rules and laws to retaliate against him, that there was a pattern of judicial misconduct consistent with US v. Murphy and that Judge Buick used “extrajudicial influence to require her associate judges to defend her husband’s law firm,” were false or made with reckless disregard of the truth, because Respondent had no objectively reasonable factual basis for the statements that the judiciary repeatedly defied rules and laws to retaliate against him, that there was a pattern of judicial misconduct consistent with US v. Murphy and that Judge Buick used “extrajudicial influence to require her associate judges to defend her husband’s law firm.”

Concerning opposing counsel

Respondent’s statements in his pleading...were intended to embarrass, delay, or burden Foster, attorneys at Foster Buick, and attorneys at Hinshaw.

Opposing counsel filed a bar complaint

On February 24, 2023, Respondent filed a pleading entitled “Claims/Complaint Against – J.M. Properties.” In the pleading, Respondent claimed that J.M., judges, and lawyers all worked in concert to pursue a $450,000 fraudulent insurance claim against Respondent’s malpractice insurer. As exhibits, Respondent attached the February 25th letter from Foster and a diagram. In the diagram, Respondent accused Lester, Hinshaw, Judge Johnston, the Federal Court clerks, Judge Pallmeyer, the Executive Committee of Judges, J.M., J.M. Properties, Foster, Lundgren, Gooch, Judge Voilland, Judge Klein, and [ARDC attorney] Guzman of conspiring to violate federal and state law.

Respondent’s diagram served no purpose other than to embarrass, delay, or burden Lester, Hinshaw, the Federal Court clerks, J.M., J.M. Properties, Foster, Lundgren, Gooch, and Guzman.

Motion to dismiss

On June 22, 2023, Respondent appeared before Judge Klein in relation to case 21 L 45 for a hearing on motions to dismiss.

Allegations flowing from that hearing

Respondent’s statement that Judge Klein was engaged in a criminal enterprise was false or made with reckless disregard of the truth, because Respondent had no objectively reasonable factual basis for the statements that Judge Klein was engaged in a criminal enterprise.

At the time Respondent made the statement in court that Judge Klein was engaged in a criminal enterprise, he knew his representation was false or made with reckless disregard of the truth. When Respondent made the statements, he had no objectively reasonable factual basis to support such statements.

(Mike Frisch)

Conviction Of Former Capitol Hill Officer Affirmed

The United States Court of Appeals for the District of Columbia Circuit affirmed the obstruction of an official proceeding conviction of an on-duty Capitol Hill police officer

Michael Riley, an experienced former Capitol Police officer, appeals his conviction for obstruction of a federal grand jury investigation of the January 6, 2021, attack on the United States Capitol. The day after the attack, Riley tipped off one of the rioters that “everyone who was in the [Capitol] building is going to be charged” and urged him to “take down” a Facebook post acknowledging that he had been inside the building. When Riley learned his communication with that individual might be investigated, he tried to cover it up by deleting direct messages from his Facebook account and calls from his phone’s call log. A jury convicted Riley of one count of obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(1) based on the deletions but was unable to reach a verdict on another obstruction count based on the underlying tip. The court sentenced him to a period of probation and a fine.

Riley appeals his conviction. His central claim is that the government failed to establish that an official grand jury
proceeding was foreseeable or that he deleted his Facebook direct messages to affect any such proceeding. He asserts
various other trial errors that he links to those asserted shortcomings. We have considered each of Riley’s challenges and, because none succeeds, we affirm.

Circuit Judge Pillard authored the opinion, joined by Circuit Judges Childs and Garcia. (Mike Frisch)

Default Delay Supports Malpractice Claim

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a legal malpractice claim

The plaintiffs in this legal malpractice action are the estate and family members of Yael Botvin, who was killed in 1997 by Hamas suicide bombers. In 2005, the plaintiffs sued the Islamic Republic of Iran for helping Hamas orchestrate the attack. They won large default judgments and recovered about $2.8 million from a United States fund for victims of state-sponsored terrorism. But because it took nearly eight years to obtain the default judgments, the plaintiffs were unable to participate in a 2012 agreement that disbursed to victims of Iranian-sponsored terrorism a trove of Iranian assets seized in the United States.

According to the plaintiffs, their recovery would have been much larger had they been able to participate in that agreement. The plaintiffs sued their former lawyers for malpractice. They allege that the lawyers’ negligence delayed their default judgment against Iran and caused them to miss out on the larger settlement. On a motion to dismiss, the district court held the plaintiffs had adequately pleaded that the alleged negligence was a but-for cause of the lower recovery. But in addressing proximate cause, the court held that the plaintiffs had not adequately pleaded the requisite degree of foreseeability. We reverse that decision.

Foreseeability

The district court dismissed the Botvins’ complaint on the ground that, as a matter of law, the harm it alleged was not sufficiently foreseeable. In this procedural posture, the dispositive question is whether a jury could make a rational finding of foreseeability based on the facts as alleged. We do not consider whether the alleged facts would compel a finding of foreseeability, or even whether a wise jury should find foreseeability. We hold only that a jury could rationally find that the plaintiffs’ reduced recovery was a foreseeable result of the alleged negligence of their former lawyers.

Access to source of recovery

Given their actual knowledge of the Bank Markazi account, and their experience in dealing with collection challenges associated with suits against Iran, we think a jury could reasonably find that these lawyers would have “reason to believe that” the delayed entry of default judgments would cause a loss of enforcement opportunities against the attachable Iranian assets in the account. Seed Co., 961 F.3d at 1197.

Causation

this case involves no such speculation about hypothetical outcomes of longshot filings. The Botvin estate and family did obtain large default judgments against Iran, and all other plaintiffs with such judgments did obtain pro rata shares of the Bank Markazi account. Calculating what would have been the Botvin share of that account, had the estate and the family members obtained their default judgments without unusually long delays, is a simple matter of arithmetic. The only but-for question here is whether the complaint plausibly alleged that attorney missteps caused enough delay to make a difference. The district court correctly answered yes to that question. See Estate of Botvin, 2022 WL 4482734, at *10–11. And before this Court, the defendants do not even contest that ruling as to but-for causation.

The opinion authored by KATSAS was joined by PAN, Circuit Judges, and GINSBURG, Senior Circuit Judge. (Mike Frisch)

Touhy Letters And Prosecutor Testimony

Dan Trevas has an interestiing summary of a decision of the Ohio Supreme Court

An ex-federal prosecutor might get in trouble for testifying in a state criminal case without his former employer’s permission, but a court cannot exclude his testimony for that reason, the Supreme Court of Ohio ruled today.

In a 6-1 decision, the Supreme Court found that the Hamilton County Common Pleas Court improperly ruled to exclude the testimony of a former prosecutor who agreed to testify against Sontez Sheckles. Sheckles was charged with attempted murder and other crimes for a 2019 shooting at a Cincinnati bar. On the morning of the trial, the trial court excluded the former prosecutor’s testimony because he had not produced a “Touhy letter” from the U.S. Department of Justice permitting him to testify.

Writing for the Court majority, Justice Jennifer Brunner explained that since 1951, when a U.S. Supreme Court decision was issued involving a federal employee named Touhy, the federal government has a right to limit the information current and former federal employees are allowed to divulge. Without the Touhy letter, the former prosecutor could not be forced to testify, but Touhy does not supply a basis for a trial court to exclude the testimony of a former federal employee who willingly testifies without the letter, the Court ruled.

“Decisions by courts addressing federal employees’ refusing to testify or provide records have been upheld,” Justice Brunner wrote. “But we find no legal support for a judge to rely on Touhy in order to forbid a federal employee, who is willing to testify, from testifying.”

The Court’s decision reversed a First District Court of Appeals ruling that allowed the trial court to exclude the testimony. In a related matter, the Court reversed a decision to exclude video surveillance camera footage from the bar. The Court remanded Sheckles’ case to the trial court for further proceedings.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, and Michael P. Donnelly joined Justice Brunner’s opinion. Eleventh District Court of Appeals Judge John J. Eklund, sitting for Justice Joseph T. Deters, also joined the opinion.

In a dissenting opinion, Justice Melody Stewart wrote the case raises important questions, but the Hamilton County Prosecutor’s Office appealed the trial court’s decisions too early in the process. She also stated that the prosecutor’s office forfeited one of its three legal arguments before the Supreme Court because it did not raise the issue with the lower courts. She would dismiss the case as having been improvidently accepted.

Trial Court Excluded Evidence at Preliminary Stage
Sheckles was indicted for an alleged November 2019 shooting at the Chalet Bar in Cincinnati. Sheckles requested the names and addresses of the witnesses the prosecutor planned to have testify. The office declined to disclose most of the witness information because it believed releasing the information would compromise the safety of the witnesses or subject them to intimidation or coercion.

The prosecutor did provide Sheckles with the name of one witness, Zachary Kessler, in April 2022. Kessler was a former federal prosecutor who prosecuted Sheckles in a federal criminal case that appeared to be related to Sheckles’ alleged crimes at the Chalet Bar. Sheckles agreed to plead guilty to the federal charges.

The state charges against Sheckles were set for a May 2022 trial. Sheckles objected to using surveillance video from the bar’s security camera because the video was compiled and edited by a police officer using the raw footage from the bar’s video system. The court granted a 13-day continuance prior to trial so the prosecutor’s office could provide a witness who could swear to the video’s authenticity. The judge warned the footage could be excluded if the prosecutor did not supply a witness to authenticate it.

The video issue resurfaced on the morning of the newly scheduled trial, and there was also a problem with Kessler’s testimony. The Court conducted a preliminary hearing on the matters before starting trial proceedings.

Sheckles asked the trial court to prevent Kessler from testifying because Kessler had not obtained a Touhy letter from his former employer, the U.S. Department of Justice, permitting him to testify. While Kessler had a copy of the letter on his phone, the court set aside the matter to give the prosecutor’s office time to obtain the actual letter. The court then turned to the video surveillance issue, and the prosecutor called the bar owner to testify to the video’s authenticity. The prosecutor also told the judge that the police officer who compiled the edited video could authenticate it, but it would be about 30 minutes before the officer could make it to court to testify. Instead of waiting, the court ruled the bar owner could not authenticate the video because she had not compiled the raw video. The court excluded the footage from being used at trial.

Later, on the same day, the court returned to the issue of Kessler and the Touhy letter. The judge stated the prosecution had ample time to obtain the letter, and because it had not, Kessler’s testimony was excluded.

Prosecutor Appeals Exclusions
After both decisions to exclude evidence were made at the hearing before the trial, the prosecutor filed an appeal with the First District Court of Appeals. Citing the Ohio Rules of Criminal Procedure, the prosecutor’s office argued it could immediately appeal because the trial court’s exclusion had rendered the prosecution’s proof “so weak in its entirety that any reasonable possibility of an effective prosecution had been destroyed.”

The First District affirmed the trial court’s decisions, and the prosecutor appealed to the Supreme Court. The Court agreed to hear the prosecutor’s arguments against excluding Kessler’s testimony. The Supreme Court’s opinion today stated it expressed no opinion on the accuracy of the First District’s decision to exclude the video evidence.

Supreme Court Analyzed Testimony Exclusion
Justice Brunner explained that in its 1951 United States ex rel. Touhy v. Ragen decision, the U.S. Supreme Court ruled that the U.S. attorney general had the authority to regulate how federal agencies respond to subpoenas and requests for documents. The rules are often referred to as Touhy regulations.

One of the rules states that in any federal or state case, where the federal government is not a participant, no U.S. Department of Justice employee or former employee can produce any information from the department’s files without prior approval. The opinion stated the rule generally prohibits the release of information but allows the department to permit one of its current or former employees to testify or produce records.

The opinion noted the federal regulations indicate that the rules are only intended to guide the internal operations of the justice department and cannot be “relied upon to create any right or benefit” that can be enforced against the federal government.

Justice Brunner wrote that the Touhy rules are designed to provide a process for releasing requested information, but they do not govern the procedures used in state courts to determine whether evidence can be admitted. The rule does not give a criminal defendant the right to exclude the testimony of a federal government employee willing to testify without the approval of the justice department.

“Sheckles held no rights under Touhy that could be asserted in support of his request to exclude Kessler’s testimony. The trial court should not have excluded Kessler’s testimony on that basis,” the opinion stated.

The Court also explained that Kessler’s lack of a Touhy letter was not grounds for excluding it for a second reason. The opinion stated the Court applies the exclusionary rule when the trial court finds that admitting the evidence would violate a constitutional right. The Court noted that criminal defendants cannot generally seek to exclude evidence based on an alleged violation of a rule or statute. Because the Touhy letter requirement is a regulation, the prosecution’s failure to produce a Touhy letter cannot be a reason to exclude Kessler’s testimony, the Court concluded.

The Court noted that its decision permits the proceedings to resume in the trial court, and the prosecution can again seek to introduce the video evidence with the proper authentication and allow Kessler to testify.

State Forfeited Argument and Should Have Proceeded to Trial Before Appeal, Dissent Maintained
In her dissent, Justice Stewart wrote that the appeal raised important questions but should not have been considered because of procedural issues. First, she stated that the prosecutor’s office forfeited one of its three arguments.

Justice Stewart explained that while the prosecutor’s argued that the trial court unfairly placed the burden on the prosecution to prove that Kessler could testify without a Touhy letter in this appeal, the prosecutor did not make that argument to the First District. Rather, one of the First District judges raised the issue, and since the prosecutor did not raise the issue below, the state could not raise the issue with the Supreme Court, the dissent concluded.

Second, Sheckles raised the issue of the Touhy letter before the trial through a motion in limine. Those motions are preliminary in nature and inform the parties what the trial court would likely rule if the issue were made during the trial.

The prosecutor’s office argued it had no choice but to appeal to the First District and stop the trial from proceeding based on the pretrial motions to exclude the testimony and the video evidence. However, the state did not attempt to produce the evidence at trial or wait until the evidence was rejected at trial before appealing. She noted the prosecutor’s office did not even offer the copy of the letter on Kessler’s phone, despite the trial judge’s request to see it.

“Without more factual development and a final versus preliminary evidentiary ruling, I am reluctant to resolve the serious question raised in this case,” Justice Stewart wrote.

2023-0294. State v. Sheckles, Slip Opinion No. 2024-Ohio-3339.

(Mike Frisch)

 View oral argument video of this case.

Michigan Explores Racial Disparities In Judicial Discipline

The Michigan Judicial Tenure Commission has issued an Equity Report in respone to concerned expressed about racial disparities in judicial discipline

This report responds to concerns raised by the Association of Black Judges of Michigan that the Michigan Judicial Tenure Commission (JTC) grievance process results in disproportionately severe sanctions for Black judges, particularly regarding public complaints. In response, the JTC and the Michigan State Court Administrative Office (SCAO) contracted with the National Center for State Courts (NCSC) to perform an assessment of JTC grievances between 2008 and 2022. The assessment consists of a statistical review of key decision points and outcomes in the grievance process to determine if, and where in the process, disparities and/or disproportionalities exist. The contract also anticipated additional study of key decision points if statistically significant racial disparities were found. This report describes the methods, findings, and discussion from the initial assessment and recommendations for further study.

Findings

The findings presented in this report reveal two points in the grievance process that result in disparities in outcomes between Black and White judicial officers. First, grievances against Black judicial officers are significantly more likely to advance to full investigation compared to those against White judicial officers. Also, Black judicial officers are significantly more likely to receive a public outcome than White judicial officers following a full investigation. However, this disparity occurred only for judicial officers who remained in their position during the entire investigation process.

White judicial officers under full investigation are more likely to retire, resign, or to lose reelection than Black judicial officers under full investigation. According to the analysis, if White judicial officers who left office to avoid public outcomes had remained in office, there would be no significant disparities in public outcomes between Black and White judges. Understanding the decision to retire or resign when faced with a public outcome is beyond the scope of this phase of the review but will be important to investigate in the next phase.

While not a decision point in the JTC process, it is notable that there is a significant difference in the average number of grievances per judicial officer. For every Black judicial officer in Michigan, there are 6.43 grievances in the review period. For every White judicial officer, there were 5.36 grievances. Additional efforts to more comprehensively evaluate this and other decision points in the judicial grievance process could offer a more holistic understanding of judicial officers’ experiences with grievances and provide insights about practical equity interventions within the court’s purview to address.

Next steps

The association between race and disparate outcomes at certain phases of the grievance process was established in the current analysis. This phase of the analysis found one mediating factor; the inclusion of judicial officers who left office during the grievance process eliminated racial disparity at that decision point. However, there are several more as-yet unexplored variables in the grievance process that may mediate the effect between race and grievance outcomes. Further, it will be necessary to further explore why White judicial officers are more likely to leave office during the grievance process than Black judicial officers.

The decision to explore these mediating variables in a later phase of the project was purposeful. The intent of this first phase of the project was to diagnose if there were any racial disparities in outcomes at each decision point in the grievance process and, if so, where they occurred. The next phase is to investigate the factors that may contribute to the differences in outcomes.

For example, annual reports from the JTC show that most grievances received have underlying criminal and domestic relations cases. It is possible that, for a variety of reasons, there is a difference in the race of judicial officers that handle these case types. Other variables that may play a role include (but are not limited to) grievant type, reason for grievance, grievance severity, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and past grievances. Further statistical analysis will evaluate if disparities in racial groups remain when controlling for these additional variables at various points of the grievance.

When the effects of all potentially mediating variables are accounted for, the unexplained differences between White and Black judicial officers may be attributed to the effects of bias or discrimination on the part of the decision-making entity.  In order to investigate how bias and discrimination operate to affect the grievance process outcomes, additional statistical analyses should be supplemented with interviews and file reviews to explore and comprehensively identify all potential reasons for the disparities. Even if there are no indications of explicit bias among JTC decision-makers, it is possible that implicit biases contribute to observed racial disparities in decision outcomes.

Implicit biases arise and are expressed contextually; they are influenced by systemic, cultural, institutional, organizational, and interpersonal factors and are more likely to manifest in certain situations or under certain conditions. Interventions that target these conditions in the decision-making environment and/or the decision-making process can be productive approaches to addressing concerns about implicit bias. Interviews and in-depth file review can provide the information needed to identify processes or practices that could be targeted for this kind of intervention.

Additional research can also help to understand the disparity in judicial officers’ choice to leave office during a full investigation when facing likely public outcomes. Communications with the JTC on the grievance process indicate that at any time following the decision to move to a full investigation—generally the point at which the judicial officer is made aware of the grievance—the judicial officer can offer to retire or resign. The communication exchange between the JTC and the judicial officer about this option to negotiate an agreement to retire or resign merits further study to identify factors contributing to the observed disparity at this decision point.

For example, in other sectors, research has documented that women and people of color are less likely to negotiate and, when they do, often face penalties. Moreover, structural and institutional factors, such as labor-market discrimination, may contribute to the decision whether to resign prior to the conclusion of an investigation.  Interviews with these judicial officers in the proposed next phase of study will provide insight into the options they believed were realistically available to them when they were faced with a likely public outcome stemming from the JTC’s investigation. This additional research to understand the factors contributing to the observed disparity at this decision point will help determine whether procedural improvements could be implemented in the grievance process to promote equity.

In summary, these analyses identified three points in the process where racial disparity occur and therefore need more in-depth analyses: number of grievances filed per judicial officer, grievances proceeding to full investigation, and factors influencing a judicial officer’s likelihood of remaining in or leaving their position when facing a likely public outcome. This further investigation can be accomplished using a variety of research methods to best understand the sources of disparity. Specifically, advanced statistical techniques can be used to examine factors such as grievant type, reason for grievance, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and number of past grievances.

(Mike Frisch)

Interlocutory Review Denied To Jeffrey Clark

The District of Columbia Court of Appeals has dismissed Jeffrey Clark's petition for interlocutory review of orders entered in his disciplinary case, in effect, denying his attempt to circumvent the Board on Professional Responsibility's review of the hearing committee recommendation of a two year suspension.

Mr. Clark does not cite, and we are not aware of, any authority supporting the idea that there is a right to immediate judicial review in such circumstances, whether in the context of disciplinary proceedings or otherwise.

The order issued yesterday was entered by a panel consisting of Associate Judges McLeese and Deahl and Senior Judge Steadman, with Judge McLeese indicating that he would favor full briefing and review of the petition.

The Board in turn entered an order today setting the briefing schedule and page limits.

Links to orders here. (Mike Frisch)

Wynn Some, Lose Some

The Nevada Supreme Court upheld the dismissal of a defamation claim under the Anti-SLAPP statute

This appeal arises out of a defamation claim brought by appellant Steve Wynn—a prominent figure in Nevada gaming and politics—against respondents the Associated Press and one of its reporters, Regina Garcia Cano (collectively, AP Respondents).  Following national reports alleging years of misconduct by Wynn, Garcia Cano obtained from the Las Vegas Metropolitan Police Department (LVMPD) redacted copies of two separate citizens' complaints alleging sexual assault by Wynn in the 1970s. She wrote an article describing the allegations in the complaints, one of which alleged that Steve Wynn had raped the complainant three times at her Chicago apartment between 1973 and 1974, resulting in a pregnancy and the birth of a child in a gas station bathroom under unusual circumstances (the Chicago complaint).  The Associated Press published the article.

Public interest

Here, the article and its surrounding context point to an issue of clear public interest. The article discusses two new allegations of sexual misconduct by Wynn on the heels of national reports alleging a pattern of misconduct spanning decades. In the weeks preceding publication of this article, Wynn resigned as CEO of Wynn Resorts and as Finance Chair of the Republican National Committee due to the national reports of alleged misconduct; and contemporaneously, Wynn Casinos, the Nevada Gaming Control Board, and other regulators launched investigations into his conduct. The allegations undoubtedly affected his public business and political affairs, and additional reports of sexual misconduct would be of concern to a substantial number of people, including consumers, voters, and the business and governmental entities investigating precisely this kind of behavior. The public had an interest in understanding the history of misconduct alleged to have been committed by one of the most recognized figures in Nevada, and the article directly relates to that interest.

Success on the merits

We therefore hold that to demonstrate by prima facie evidence a probability of success on the merits of a public figure defamation claim, the plaintiffs evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice. In other words, while the plaintiff at this prong must prove only that their claim has minimal merit, a public figure defamation claim does not have minimal merit, as a matter of law, if the plaintiff s evidence of actual malice would not be sufficient—even if credited—to sustain a favorable verdict under the clear and convincing standard.

Conclusion

Nevada's anti-SLAPP statutes were designed to limit precisely the type of claim at issue here, which involves a news organization publishing an article in a good faith effort to inform their readers regarding an issue of clear public interest. AP Respondents met their burden under the first prong to establish, by a preponderance of the evidence, that their article was a good faith communication in furtherance of the right to free speech in direct connection with an issue of public concern. Wynn, on the other hand, did not establish with prima facie evidence a probability of prevailing on the merits of his defamation claim because he failed to meet the clear and convincing evidence standard under the second prong that is applicable to his public figure defamation claim. We therefore affirm the district court's order granting the renewed special motion to dismiss the complaint.

The case is STEVE WYNN, AN INDIVIDUAL, Appellant, vs. THE ASSOCIATED PRESS, A FOREIGN CORPORATION; AND
REGINA GARCIA CANO, AN INDIVIDUAL, Respondents. (Mike Frisch)

Surcharges And Other Charges

An associate attorney's report of misconduct led to findings that drew a censure from the New Jersey Supreme Court.

The misconduct was described by the Disciplinary Review Board

First, in eight client matters (Elite Transcripts, Inc.; the Estate of Rochelle Lewis; the Estate of Iannoaccone; the Walker Guardianship; the Walker Foreclosure; the Estate of Paylor-Koffi; the Estate of Franklin Anthony; the Estate of Shaughnessey; and in connection with the representation of Jim Steiner), respondent admittedly imposed a prohibited, two-percent surcharge on billed fees for “costs incurred and not otherwise billed. Respondent conceded that, pursuant to ABA Comm. on Ethics and Professional Responsibility, Formal Op. 93-379, (December 6, 1993) (entitled “Billing for Professional Fees, Disbursements and Other Expenses”), such a surcharge is prohibited and constitutes a per se violation of RPC 1.5(a). Moreover, the OAE’s investigation revealed that, in some client matters, the Firm billed clients for actuals costs and further billed clients the two-percent charge “for costs incurred and not otherwise billed.”

Respondent’s fee overreaching did not, however, occur solely in connection with the improper, two-percent surcharge. He also committed fee overreaching in the Kaczala matter; the Estate of Rochelle Lewis matter; the Walker Guardianship matter; the Paylor-Koffi matter; and the Rauch matters by engaging in “omnibus” billing without supporting billing records.

Next, respondent committed fee overreaching, by other means, in two client matters. In the Concetta Hagel matter, he improperly applied Concetta’s retainer to her son Matthew’s matter without written authorization to do so. In the Dorothy Dobak matter, he improperly retained the client’s $610 retainer balance without her written authorization.

Respondent committed final acts of fee overreaching in the Estate of Doris Krisa matter, the Estate of Eda Sharenow matter, and the Estate of Nancy Mamis-King matter by improperly charging legal fees in addition to receiving an executor’s commission, contrary to N.J.S.A. 3B:18-6.

Sanction

Given respondent’s violations of RPC 8.4(d), as exacerbated by his further violations of RPC 1.4(b) and (c), the baseline censure could be enhanced to a short term of suspension. However, to craft the appropriate discipline in this matter, the Board considered the application of aggravating and mitigating factors.

The Board found no aggravating factors independent of the volume of client matters in which respondent overreached and failed to communicate. However, the breadth of that aspect of respondent’s misconduct was considered in setting the baseline discipline and, thus, was not further weighed in aggravation.

In respect of mitigation, the Board accorded substantial weight to respondent’s unblemished disciplinary record since his 1988 admission to the bar. Moreover, respondent stipulated to his wrongdoing and consented to discipline. Years have passed since respondent committed the misconduct under scrutiny, and respondent has not engaged in any other misconduct. Respondent has already made restitution in all three estate matters in which he improperly billed legal fees following his appointment as executor. He further agreed with the Board’s request that he refund to the affected clients the improper two-percent surcharge within sixty days of the Board’s decision in this matter. Proof that those refunds have been remitted and the checks honored shall be provided to the OAE within that same sixty-day period. The Board determined that a term of suspension, thus, is not necessary to protect the public and preserve confidence in the bar.

Audio Recordings Are Work Product And Not Discoverable

Recorded interviews created by defense counsel in a criminal case are work product and are not subject to disclosure to the prosecution, according to a decision of the Utah Supreme Court reversing a trial court order

In 2021, Derek Willden was charged with several counts of physical and sexual assault. While preparing for Willden’s trial, the State asked the district court to order Willden to disclose certain information pursuant to Utah Rule of Criminal Procedure 16(b). One category of items that the State sought—audio recordings of interviews that Willden’s counsel had conducted with witnesses—is relevant to this appeal.

Work product trumps discovery rule

Given our interpretation of rule 16, the determination that the interview recordings are work product resolves this appeal. Because these witness recordings are attorney work product, they are protected by rule 16(b)(4). And because rule 16(b)(4)’s protection of work product trumps the discovery obligations that may be created by the other subparagraphs of rule 16(b), the district court erred by ordering Willden to disclose the recordings under rule 16(b)(1). Accordingly, we reverse the district court’s discovery order and remand this case for further proceedings.

Concurrance by Justice Hagen

Anyone wishing to propose a potential rule change may petition this court to refer the matter to our Advisory Committee on the Rules of Criminal Procedure or may contact the committee directly. That committee consists of members appointed by this court to represent a cross-section of interests and is charged with studying proposed rule changes, gathering input from various stakeholders, considering public comment, and making recommendations to this court. That is the appropriate forum in which interested parties can advance policy arguments for and against adopting a “reverse Jencks” requirement. And that process will enable this court to make the most informed decision as to whether an amendment to rule 16(b) is warranted.

Washington State Sanctions

The Washington State Bar News has a summary of recent sanctions

Justin C. Osemene (WSBA No. 28082, admitted 1998) of Mill Creek, WA, was reprimanded, effective 3/12/2024, by order of the chief hearing officer. Chris Chang acted as disciplinary counsel. Anne I. Seidel represented respondent.

The lawyer’s conduct violated the following Rules of Professional Conduct: 3.5 (Impartiality and Decorum of the Tribunal).

Osemene stipulated to reprimand for violating the Rules of Professional Conduct by communicating ex parte with three Washington Supreme Court justices regarding a case pending before the Washington Supreme Court.

Decision documents: Order Approving Stipulation; Stipulation to Reprimand; and Notice of Reprimand.

Respondent had filed a wrongful foreclosure complaint against his homeowners association. After losing below, he had mailed packages to Chief Justice Gonzales and Justices Whitener and Yu asking that they intervene to prevent a miscarriage of justice.

He did not copy opposing counsel due to his "good faith but erroneous belief" that he was not obligated to do so as a pro se litigant.

Hugo Cornelius Johnson IV (WSBA No. 45342, admitted 2012) of Seattle, WA, resigned in lieu of discipline, effective 5/16/2024. The lawyer agrees that they are aware of the alleged misconduct in disciplinary counsel’s Statement of Alleged Misconduct and rather than defend against the allegations, they wish to permanently resign from membership in the Association. Claire Carden acted as disciplinary counsel. Hugo Cornelius Johnson IV represented themselves.

The Statement of Alleged Misconduct reflects the following violations of the Rules of Professional Conduct: 8.4(b) (Criminal Act), 8.4(g) (Discriminatory Act), 8.4(i) (Moral Turpitude, Corruption or Disregard of Rule of Law), 8.4(j) (Violate a Court Order), 8.4(n) (Conduct Demonstrating Unfitness to Practice Law).

Hugo Cornelius Johnson IV’s alleged misconduct includes: 1) committing the crime of attempted hate crime in violation of RCW 9A.28.020 and 9A.36.080(l)(a)-(c); 2) committing assault in the fourth degree – sexual motivation in violation of RCW 9A.36.041 and RCW 9.94A.030(48); 3) committing simple assault in violation of 18 U.S.C. §113(a)(5); 4) willfully violating a court order directing respondent not to consume alcohol.

Decision document: Resignation Form of Hugo Cornelius Johnson IV (ELC 9.3(b)).

The decision document recounts that the simple assault involving a guilty plea and that charges of interference with a flight crew members and attendants were dismissed.

The attempt hate crime "occured immediately after a firm sponsored social event" and that the victimes were all law firm employees. (Mike Frisch)

"Voluminous And Well Documented"

The Washington State Supreme Court has disbarred an attorney

In this attorney discipline proceeding, Thi Anh Huynh was charged with numerous counts of misconduct, including false representation, theft, and other misconduct involving dishonesty. The hearing officer recommended disbarment, and the Washington State Bar Association (WSBA) Disciplinary Board (Board) unanimously affirmed. Huynh challenges the disbarment recommendation, arguing a number of the hearing officer’s findings of fact and conclusions of law lack adequate support and his due process rights were violated. Huynh asks this court to reverse the Board’s decision and reject the disbarment recommendation. We adopt the Board’s recommendation and disbar Huynh. The hearing officer’s findings of fact are supported by substantial evidence, the conclusions of law are supported by those findings, and Huynh waived his right to raise a statutory defense to theft. On the record as a whole, Huynh misappropriated client and investor funds, attempted to conceal the thefts, and engaged in other intentional conduct involving dishonesty; thus, disbarment is a proportionate sanction.

The allegations related to three transactions; Respondent was admitted in 2006 and had no prior discipline.

He made a number of challenges to the findings of fact

In sum, all of Huynh’s challenges to the findings of fact fail. Some of his challenges are unsupported by argument and therefore those findings of fact are verities on appeal. Marshall, 160 Wn.2d at 330. Those findings that are actually challenged with argument are nevertheless supported by substantial evidence sufficient to persuade a fair-minded, rational person of their accuracy.

And the same conclusion on the rules violated

In sum, all of Huynh’s challenges to the conclusions of law fail because he has not shown that the challenges are unsupported by the findings of fact. Behrman, 165 Wn.2d at 422 (citing Marshall, 160 Wn.2d at 330). We therefore uphold all of the hearing officer’s conclusions of law.

Defense to theft charges

Huynh was charged with violating RPC 8.4(b) by committing theft as defined by RCW 9A.56.020 in counts 3, 6, and 11, which correspond with the hearing officer’s conclusions in COL 73 and 78. DP at 2-3, 19-20. RCW 9A.56.020(2)(a) sets out a statutory defense to theft, where “[t]he property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable.”

Huynh raises for the first time on appeal that he was deprived of the opportunity to raise a defense to theft under this statute.

The failure to raise this issue below waived the contention.

Sanction

Huynh violated numerous rules against mishandling client funds and misrepresenting those actions. The evidence against Huynh is voluminous and well documented, and he demonstrates no mitigating factors for his behavior. Consequently, this is a case where the most serious disciplinary sanction is not only called for but, frankly, demanded by the record. Therefore, we affirm the hearing officer’s findings of fact and conclusions of law, reject Huynh’s due process claims, and adopt the Board’s recommendation to disbar Huynh.

(Mike Frisch)

Ohio Hears Bar Discipline Cases

The Ohio Supreme Court web page lists the bar discipline hearing scheduled for this month.

September 11-12
Disciplinary Counsel v. Ryan Richard Black
Case No. 2024-012
Respondent’s counsel:  Alvin E. Mathews, Jr., Columbus
Hearing location: Moyer Judicial Center, Hearing Room 106, 65 S. Front St., Columbus

September 13 (11:00 a.m. start time)
In re Reinstatement of William Terry Washington, Petitioner; Disciplinary Counsel, Relator
Case No. 1997-036
Petitioner’s counsel: None
Hearing link:
https://us06web.zoom.us/meeting/register/tZIudOmvqzguHNTzgOqXARkHgK5gChThS-1a-

September 16-17
Disciplinary Counsel v. Jeffrey Dwight Hunter
Case No. 2023-035
Respondent’s counsel: None
Hearing location: Moyer Judicial Center, Hearing Room 106, 65 S. Front St., Columbus

September 25
Disciplinary Counsel v. Hon. Russell Dee Kegley
Case No. 2024-014
Respondent’s counsel: Charles J. Kettlewell, Columbus
Hearing location: Moyer Judicial Center, Hearing Room 106, 65 South Front Street, Columbus

13 News WOWK  covered the allegations in the Judge Kegley case

According to the complaint, Judge Russell D. Kegley is accused of violating judicial codes and abusing his power by interfering with a domestic violence case involving the arrest of his son, Case Kegley. It claims the judge did not act in a manner that promotes public confidence and abused the prestige of judicial office, as well as allegedly allowed family relationships to influence judicial conduct.

We reported on the allegations in the Black case

Ohio Disciplinary Counsel has filed a complaint charging the elected prosecutor of Hocking County with creating a hostile work environment "through his unprofessionalism."

In the process of hiring two victim witness advocates, he allegedly asked if it was permissible to say "fuck" in the office and if they would accept "dogshit pay" and hired them both when they answered in the affirmative.

He is charged with erratic behavior, screaming outbursts and keeping a gun in his office which "made staff members afraid of [his] volativity."

He is charged with inappropriate sexual behavior towards an assistant prosecutor, saying as she left a grand jury that her dress made him  "want [her] wrap her legs around his face until she orgasmed." 

There are further allegations of conduct that led that assistant prosecutor to resign.

With respect to one of the victim advocates he hired and could fire, he allegedly "began grooming [her] to engage- in a sexual relationship with him by sending her increasingly sexual text messages."

There is a lot more of this type of conduct alleged in the 30-page charging document.

Scioto Valley Guardian reported that he has resigned effective April 19.

Black is also accused of having a sexual relationship with a client; county commissioner Jessica Dickens.

• • The encounter between Black and Jessica Dickens, a Hocking County Commissioner, occurred on August 2, 2023, and indicates a consensual sexual relationship occurring while Dicken was serving as a client of the county.
  • This behavior violates professional conduct rules prohibiting lawyers from engaging in sexual activity with clients unless a pre-existing consensual relationship existed before the client-lawyer relationship commenced, the board said.

Black is accused of abusing his powerful office for gain:

• • Black’s interactions with Mark Stout, the Hocking County IT Director, demonstrate an abuse of power and misuse of his position as a prosecutor.
  • In on instance, Black was threatening Stout with legal action and attempting to coerce him into prioritizing the prosecutor’s office’s computer issues reflect behavior that adversely reflects on respondent’s fitness to practice law. Black said he was going to criminally charge Stout if he did not stop everything he was doing to focus on the Prosecutor’s office.

The Logan-Hocking Times reported on the controversy 

The Hocking County Republican Party voted unanimously to seek removal of Hocking County Prosecutor Ryan Black from office on behalf of the Republican Party and the citizens of Hocking County.

The discussion for the removal of Black was brought up during Monday night’s monthly meeting demanding his resignation for misfeasance, malfeasance and gross misconduct, which brought disrepute to his office, the criminal justice system, and the citizens of Hocking County who elected him into office four years ago.

The demand for the removal of the Prosecutor comes at the heels of a federal lawsuit filed by two former employees who claim Black used his power and position for sexual favors from women in his office.

Kate Ricketts and Kelsey Vanscyoc, former employees of the Hocking County Prosecutor’s Office, have filed a suit against Hocking County and Prosecutor Ryan Black, alleging loss of wages; loss of pension benefits; loss of insurance benefits; loss of other fringe benefits; loss of the opportunity to be able to continue the gainful employ in which they have been engaged for prior years; loss of future earnings and front-pay; loss of reputation; humiliation, embarrassment and loss of self-esteem; adverse health affects; unequal pay on the basis of their gender; and loss of time and money in endeavoring to protect themselves from the Defendants’ unlawful retaliation, including costs and reasonable attorney fees of the action.

The two women allege that they, along with other women in Black’s office were subjected to “demeaning, degrading, sexist and offensive comments and conduct,” which created a hostile environment. The case was filed in Federal Court at the beginning of February.

Allegedly Ricketts, Vanscyoc and another female co-worker complained on several instances to superiors including Olen Martin, Cynthia Ellison and Justin Townley regarding Black’s inappropriate comments, harassment and actions that created a hostile work environment; however, nothing was resolved.

Ellison has since moved on and is working for the Ohio Attorney General’s Office; and Martin is now the Police Chief in Great Falls, South Carolina.

Monday night, the Hocking County Republican Party took action with the unanimous vote to remove Black from office. Republican Chair Mike Harris and Executive Committee Chair Ray Elzey served Black with a letter demanding his resignation on Tuesday. Black was not in his office but Harris and Kernen delivered the letter at 9:38 a.m.

In the letter signed by Chairman Harris, he said, “Your inability to lead, your abuse of power, and your blatant disregard for your staff, public officials whom are your statutory clients, victims of crime, and the general public, have caused irreparable damage to your reputation as Prosecuting Attorney, and the office which you hold.

You’ve managed to disgrace our entire county. Our citizens cannot pick up a newspaper or watch the news without being reminded of your misdeeds. These are not the values of a true professional, an ethical and moral attorney, or a Republican. Instead of stopping corruption, you perpetrated it.

“We demand that you immediately withdraw your candidacy for Prosecuting Attorney, and tender your resignation to the Board of Commissioners of Hocking County no later than March 20, 2024. If you fail to do so, we, as the Republican Party, supported by many members of our beloved community will seek your removal from office for neglect and misconduct pursuant to Ohio Revised Code Section 309.05.

Whereas, the members of the Hocking County Republican Central and Executive Committees are elected, and appointed, to serve the best interests of the Republican Party, and the citizens of Hocking County, Ohio;

And whereas, the members of the Hocking County Republican Central and Executive Committees shall submit a letter to Ryan Black, the Prosecuting Attorney of Hocking County, demanding his resignation for misfeasance, malfeasance, and gross misconduct, which have brought disrepute to his office, the criminal justice system, and the citizens of Hocking County, whom he wore an oath to serve.

And whereas, the seriousness of his alleged offenses undermines the integrity of his office, which adversely affects the functioning of his office, and adversely affects the rights and interest of the public;

And whereas, timely and official action must be taken to seek removal action as outlined in Section 309.05 of the Ohio revised Code if Mr. Black does not resign immediately;

Now therefore be it resolved, that the Central and Executive Committee of the Republican Party of Hocking County, Ohio, hereby authorize, and sanction, Chairman Michael D. Harris to pursue, by whatever means necessary, removal action as outline in 309.05 of the Ohio Revised Code on behalf of the Republican Party and the citizens of Hocking County, Ohio.

The resolution was signed by Michael D. Harris, Chairman of Central Committee; Janet Conrad, Secretary Central Committee; and Ray Elzey, Chairman Executive Committee.

According to the ORC 309.05, the written complaint, signed by one or more taxpayers, containing distinct charges and specifications of wanton and willful neglect of duty or gross misconduct in office by the prosecuting attorney, supported by affidavit and filed in the court of common pleas, the court shall assign the complaint for hearing and shall cause reasonable notice of the hearing to be given to the prosecuting attorney of the time for the hearing.

If it appears that the prosecutor has willfully and wantonly neglected to perform his duties or has been found guilty of gross misconduct in office, the court at that time, according to ORC 309.05, shall remove the prosecutor from office.

The Republican Party has taken the proper steps for removal of Black, but it is uncertain how long the process will take to remove him from office; however, the Party is hoping for a speedy response.

In July 2023, the Hocking County Prosecutor Ryan Black and Hocking County Sheriff Lanny North announced the formation of a joint agency Public Anti-Corruption Initiative to focus on allegations of misconduct and corrupt activities within Hocking County.

In a press release concerning the Initiative, Prosecutor Black stated, “Our agencies have recognized the need to cooperatively work together, and the recent complaints have made it clear that collaborative investigative efforts in conjunction with aggressive prosecution is appropriate and necessary.”

Seven months has passed since the formation of the Initiative, and now Prosecutor Black is in the news with a suit being filed against him in the U.S. District Court Southern District of Ohio Eastern Division.

According to the press release, the Initiative was formed because — “the residents of Hocking County deserve public servants who act with transparency, impartiality and above all with integrity.”

How ironic is it that the public official who formed the Anti-Corruption Initiative along with Sheriff North, now has a lawsuit filed against him in Federal Court?

Hocking County has certainly seen its fair share of alleged corruption within its public offices from elected officials — Hocking County Commissioner Jessica Dicken is accused of wrongdoings while acting as the Hocking County Fair Board Secretary. She is facing six felony charges including election falsification, theft and money laundering. Dicken is scheduled for a pretrial in April, followed by a jury trial in August. She is currently being paid by the county although she is not serving in the capacity of Commissioner.

And now Prosecutor Black is being accused of using his power and position for sexual favors from certain employees.

Although he is NOT an elected public official, former Hocking County Sheriff Chief Deputy Caleb Moritz has also made the news since last July when he was indicted on felony charges of intimidation and theft in office.

As a reminder, and this has been said many times — ALL are presumed innocent until proven guilty in a court of law.

What’s next for Hocking County? Will there be more corruption uncovered?

(Mike Frisch)

Impregnated With A Prohibited Substance

A Michigan Tri-County Hearing Panel has imposed a 45-day suspension

Based on the evidence presented at hearings held in this matter in accordance with MCR 9.115, Tri-County Hearing Panel #6 found that respondent committed professional misconduct when he participated in discussions and activities that culminated with him transporting documents purportedly impregnated with a prohibited substance into a Michigan correctional facility, as set forth in a one-count formal complaint filed by the Grievance Administrator.

(Mike Frisch)

Naming Names

The United States District Court for the District of Columbia (District Judge Cooper) granted summary judgment to the Department of Justice in a FOIA request of Judicial Watch

In this Freedom of Information Act (“FOIA”) case, Judicial Watch seeks from the United States Department of Justice (“DOJ”) employee rosters for the office of Special Counsel Jack Smith. DOJ identified two such rosters and withheld them in full under FOIA Exemptions 6, 7(A), and 7(C).

Law

Judicial Watch does not dispute that the Special Counsel’s investigations can fairly be characterized as enforcement proceedings. Instead, it argues that the withheld records do not relate to the investigation because they are mundane lists of employees that all employers maintain regardless of whether they are investigating potential criminal conduct. Judicial Watch Opp’n Summ. J. & Cross-Mot. Summ. J. (“Judicial Watch Opp’n”) at 3–6. Judicial Watch may be correct that employee rosters are common, and that most employee rosters are not related to ongoing enforcement proceedings. But the fact remains that these employee rosters describe everyone working on active criminal investigations and were created to facilitate those investigations. They therefore relate to enforcement proceedings. Another court in this district reached the same conclusion in Citizens for Responsibility and Ethics in Washington v. DOJ (“CREW”), No. 20-cv-212 (EGS), 2022 WL 4598537 (D.D.C. Sept. 30, 2022), holding that a spreadsheet tab listing the names and salaries of investigators in a different Special Counsel’s office was compiled for law-enforcement purposes because DOJ “needs to track the identities of its members . . . to maintain an organized investigation.” Id. at *2, *4.

Threats

First, it appears logical and plausible that disclosing the rosters would expose SCO employees to threats and harassment. The Special Counsel is investigating the former President of the United States and events surrounding one of the most fraught elections in recent American history. The SCO has attracted “unprecedented public scrutiny and partisan political attacks[.]” First Brinkmann Decl. ¶ 22. “Since the SCO began its work, harassing, vulgar, and/or threatening communications have been received by SCO staff, even including harassing physical mail sent to one SCO staff member’s private residence[.]” Id. SCO employees have also been targeted by “swatting” attacks at their homes, including both the Special Counsel himself and at least one other member of the office. Second Declaration of Vanessa Brinkmann (“Second Brinkmann Decl.”) ¶ 6. An attorney in the SCO was also doxed, meaning that the attorney’s home address was publicly revealed without the attorney’s consent. See id. These threats and harassment are unlikely to end while the Special Counsel’s investigations continue, as harassment of SCO employees “has, if anything, only increased with time and with developments in the SCO’s activities.” Id. ¶ 7.

These threats make it harder for the SCO to do its work by distracting employees and disrupting their work.

The court rejected the various legal contentions of Judicial Watch in support of disclosure.  (Mike Frisch)

Density Be My Destiny

The Montana Supreme Court reversed the grant of a preliminary injunction to homeowners potentially aggrieved by legislation

The 2023 Montana Legislature passed several pieces of legislation in an effort to address Montana’s affordable housing problem, including SB 323 and SB 528 (collectively, the “challenged laws”).

The injunction was sought by a group called Montanans Against Irresponsible Densification LLC

MAID is a limited liability company consisting of homeowners in single-family neighborhoods in Whitefish, Bozeman, Billings, Missoula, Great Falls, Columbia Falls, and Kalispell. On December 19, 2023, MAID filed an amended complaint seeking declaratory and permanent injunctive relief prohibiting the State and its municipalities from implementing the challenged laws and two other measures not at issue in this appeal. MAID requested a declaratory judgment that the laws “may not be used by any person or governmental entity to invalidate or displace covenants that are more restrictive than those developed by Montana’s municipal governments.” Though it noted that “[a]s a matter of statutory interpretation, [the laws] do not purport to displace or supplant private covenants which are more restrictive[,]” MAID alleged that “[a]ny attempt to displace or supersede restrictive covenants, through application of [the laws] is unconstitutional as an impairment of the obligation of contracts . . .

Injunctive relief inappropriate

MAID, in contrast, offered only generalized fears and supposition about the potential effects of SB 323 and SB 528. The only evidence MAID submitted prior to the District Court’s ruling was Monahan’s affidavit alluding to “the possibility” of finding “a multi-unit building or a duplex, or an accessory dwelling unit” going up next door. Monahan’s additional alleged harms regarding public notice and participation stem from such a “possibility,” which the United States Supreme Court in Winter expressly advised is not enough to support a preliminary injunction.

(Mike Frisch)