Saturday, June 15, 2024

Car Trouble

A conflict of interest drew a one year suspension with fitness from the Kansas Supreme Court.

The misconduct conduct involved Respondent's representation of a defendant in a criminal matter

On May 6, 2016, a vehicle occupied by B.B. and T.A. struck another vehicle, killing two occupants and seriously injuring the other occupants. B.B. was charged in Sedgwick County District Court criminal case number 2016-CR-001428 with two counts of involuntary manslaughter, severity level four felonies; three counts of aggravated battery, severity level five felonies; one count of aggravated battery, a severity level eight felony; and one count of driving while license is suspended, a class B nonperson misdemeanor.

T.A. was designated as a victim

When the respondent's representation of B.B. began in May 2016, the respondent also represented T.A. On April 11, 2016, T.A. hired the respondent to represent her in a Sedgwick County traffic case. That representation concluded on February 16, 2017. The respondent had also represented T.A. in previous criminal cases.

Adversity

On May 5, 2017, a motion hearing was held, during which the respondent disclosed to the district court his previous representation of T.A. The respondent said that he had signed waivers from both T.A. and B.B. The court encouraged the respondent to file the waivers; however, the respondent did not do so.

During the motion hearing, the respondent moved to suppress T.A.'s testimony. The respondent stated, '[e]ven through [sic] I have a written waiver and I don't represent her—I have represented her in the past. I felt sort of residual, needed [sic] to kind of protect her.' The motion to suppress was denied.

Respondent "thoroughly" cross-examined T.A. at the trial

B.B. testified at the jury trial that he had pulled the vehicle over and moved to the backseat of the car prior to the crash. B.B. further testified that while he was in the backseat, he felt the car accelerate and assumed T.A. had moved into the driver's seat.

B.B. was found guilty of all counts and sentenced to 728 months in prison and 6 months in jail.

B.B. appealed the conviction. During the appeal, B.B. moved to stay appellate briefing and remand the matter to the district court for a Van Cleave hearing to determine if the respondent provided ineffective representation based on the conflict of interest. The Court of Appeals granted the motion.

While the district court found the conflicts waivers effective

On December 10, 2021, the Court of Appeals reversed the district court's Van Cleave ruling and remanded the matter for a new trial. In its unpublished memorandum opinion, the Court of Appeals held that: 'While [T.A.] was not a codefendant, Maughan acted like she should become one. Maughan presented a theory of defense which directly inculpated his former and current client, thereby making his representation of [B.B.] directly adverse to [T.A.]. See KRPC 1.7(a)(1).'

Further, the Court of Appeals held, 'We also cannot say the predicament Maughan entered did not objectively create a substantial risk that his representation of [B.B.] would be materially limited by his responsibilities to [T.A.]. See KRPC1.7(a)(2).'

The Court of Appeals further held that B.B.'s written waiver was insufficient on its face and that:

'[B.B.] did not waive his right to a conflict-free attorney. [Citation omitted.] Based on the record before us, we cannot find [B.B.] was informed and aware of the risks associated with Maughan's representation, nor can we find [T.A.'s] waiver sufficiently freed Maughan to provide conflict-free representation to [B.B.].'

Before the court a missed appearence

The Clerk states in his affidavit that, at approximately 10:15 a.m. on the morning of May 10, 2024, the respondent called the Office of the Clerk of the Appellate Courts advising that he knew he was scheduled to appear on the 10:30 a.m. docket but was having car trouble an hour away from Topeka. The respondent ultimately failed to appear for the argument on May 10, 2024. The court determined it was appropriate to proceed without respondent's appearance, as respondent had actual notice of the charges pending against him, as evidenced by his stipulation to the underlying facts and the alleged violations, and actual notice of oral argument in his case scheduled for Friday, May 10, 2024, at 10:30 a.m., as evidenced by the return receipt of certified mail and the information provided by the respondent to the Clerk on the morning of the scheduled argument.

Sanction

At oral argument, however, the Deputy Disciplinary Administrator changed the Disciplinary Administrator's initial recommendation. Instead of a 6-month suspension stayed pending successful completion of a 12-month probation plan, the Deputy Disciplinary Administrator recommended a 1-year suspension with a required reinstatement hearing. In withdrawing the recommendation of probation and recommending an extended term of suspension with a reinstatement hearing, the Deputy Disciplinary Administrator highlighted the respondent's failure to comply with Supreme Court Rule 227(f)(2) (2024 Kan. S. Ct. R. at 281). This rule requires a respondent seeking probation to file with the Supreme Court and serve the Disciplinary Administrator—at least 14 days before oral argument—a copy of an affidavit describing the respondent's compliance with each condition of the respondent's proposed probation plan to date. We have reviewed the docket sheet in this matter and, as alleged, we find the respondent failed to file his affidavit certifying compliance with the terms of the proposed probation plan.

We have carefully considered the panel's factual findings and legal conclusions, to which the respondent stipulated. We also have considered the respondent's failure to comply with Supreme Court Rule 227(f)(2) (2024 Kan. S. Ct. R. at 281). In light of this evidence, as well as the ABA Standards for Imposing Lawyer Sanctions, we order the respondent's license be suspended for one year and that the respondent undergo a reinstatement hearing under Supreme Court Rule 232 (2024 Kan. S. Ct. R. at 290) before his petition for reinstatement will be considered by this court.

The Kansas City Star reported on additional recent events

When Topeka police arrested state Rep. Carl Maughan on suspicion of driving while drunk in March, officers found inside his vehicle a loaded semi-automatic handgun, an empty bottle of Fireball whiskey and a case of beer with several cans missing, court records show.

In an unsealed affidavit, an arresting officer said they could smell alcohol on the Colwich Republican’s breath when he was arrested in early March on suspicion of possessing a loaded handgun and traffic violations while under the influence. Colwich is in Sedgwick County.

(Mike Frisch)

June 15, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 14, 2024

Kick In The Balls: The Most Uncomfortable Class Of Their Lives

A stayed suspension of two years and probation has been imposed by the Kansas Supreme Court for an attorney's behavior as a substitute teacher.

The court recited findings of the Hearing Panel

On April 28, 2021, Respondent Mark Samsel substitute taught in art class at Wellsville High School. Respondent, then working as an attorney and state representative, had also obtained his emergency substitute teaching license on May 12, 2020.

During fifth hour art class, Respondent started the class by playing music as the students entered the classroom and telling the students that he 'had the floor' unless someone else raised their hand and was recognized, and that it was going to be 'the most uncomfortable class of [their] life.' He then proceeded to do many things throughout the class period that made some students uncomfortable.

Respondent talked about God, the devil, suicide, and mental health. He told the class that God was speaking through him. Some students later reported feeling uncomfortable, to the point that some of them left the room for a break.

Respondent seemed focused on one student in particular: T.E. Respondent acknowledges this and states that he had known T.E. for many years. Respondent stated T.E. was disrupting the classroom without being recognized and repeatedly disregarded Respondent's requests, including to leave the classroom and calm down or go to the principal's office. At one point, Respondent grabbed T.E. from behind and lifted him up.

During the class period, Respondent also pushed T.E. against the wall. T.E. reported this caused him to get a mark(s) on his back.

Respondent also kicked or kneed T.E. in the groin area. T.E. laid on the ground after Respondent kicked him.

Respondent asked T.E. if it hurt and told T.E. he could go to the nurse to have her check 'it' for him. Respondent also told D.W., a classmate, he could 'check [T.E.'s] nuts for him.'

In an interview with law enforcement, T.E. stated that Respondent grabbed him by the shoulders and shoved him against the wall. T.E. stated he did not want to be touched and was scared by what had happened. He stated that about ten minutes later, Respondent approached him and told him he was going to kick him in the 'balls.' T.E. stated that another ten minutes went by when Respondent kicked T.E. in the groin with his right foot. T.E. winced over in pain and felt confused.

J.G. stated that during the class period, Respondent bent over and grabbed J.G. by the shoulders, asking her whether she had mental health problems. J.G. stated she felt scared because she had PTSD and did not like people grabbing her. She thought Respondent was going to hurt her.

While the class period progressed, one of the students texted her mom, who was a teacher at the middle school, stating that Respondent was 'crazy,' and that he had 'just hardcore kicked [T.E.] in his balls.' Even though the student's mom was teaching, she alerted administration.

As a consequence

Law enforcement arrested Respondent and he was charged with three counts of misdemeanor battery, all class B person misdemeanors. The criminal complaint listed the victims of the batteries as T.E. (two counts) and J.G. Both victims were [minors].

Following the incident in the classroom, Respondent posted a story on SnapChat, stating the entire incident was planned to send a message about mental health and teenage suicide. The message stated that God planned it and that many of the kids were in on it. However, according to interviews conducted by law enforcement, none of the students interviewed knew about any 'plan' or staged the event ahead of time.

Then

Respondent pled guilty on September 13, 2021, to an Amended Complaint that contained three counts of disorderly conduct, all class C nonperson misdemeanors.

On that same day, the district court placed Respondent on 12 months' probation with a 90-day underlying sentence. As conditions of probation, Respondent could not have contact with the victims and had to write them apology letters. He was also ordered to comply with mental health treatment and to take all prescribed medications.

His explanation

In Respondent's response, dated October 29, 2021, he stated he was suffering from 'a manic episode with psychotic effects (break from reality) in the classroom caused by the stress, agitation, and pressure of both the events leading up to that day in the classroom and the day of.' Due to this, he believed he was supposed to 'stage an outrageous event to bring attention to mental health, especially for kids.' He continued: 'After asking the student to stop several times and even backing away from him, the agitation and stress continued and created a grandiose scheme in my mind that I—working along with these kids—was supposed to stage an outrageous event to bring attention to mental health, especially for the kids. Because I told the student exactly what I was going to do before I did anything . . . , and then he continued to step at me to push me in the chest again, my mind interpreted all this as part of the grandiose plan.'

The court on sanction

The remaining issue is deciding the appropriate discipline. The parties jointly recommend a one-year suspension of Samsel's license, and that the suspension be stayed and Samsel be placed on probation for one-year. But an agreement to proceed by summary submission is advisory only and does not prevent us from imposing discipline greater or lesser than the parties' recommendation. Rule 223(f).

After full consideration, we hold that a two-year suspension is the appropriate discipline under the circumstances. We acknowledge respondent's mental health was a contributing factor to his misconduct, and he has made significant progress in this respect upon diagnosis and adherence to a successful treatment protocol. But given the nature of the underlying conduct, we believe a suspension of more than one year is warranted. Cf. In re Harrington, 296 Kan. 380, 394, 293 P.3d 686 (2013) (imposing two-year suspension on attorney convicted of battery, driving under the influence, and obstruction of official duty); In re Frahm, 291 Kan. 520, 531, 241 P.3d 1010 (2010) (imposing three-year suspension on attorney convicted of driving under the influence and two counts of aggravated battery). Respondent's license is thus suspended for two years.

The suspension is stayed conditioned on respondent's successful performance and completion of two years' probation, subject to the terms and conditions of the probation plan and KALAP monitoring agreement. Additionally, to ensure that respondent is best positioned to succeed and that the public is adequately safeguarded while respondent practices law in a solo practice setting, the two years' probation is also subject to a practice supervision plan approved by the Disciplinary Administrator's office.

(Mike Frisch)

June 14, 2024 in Bar Discipline & Process | Permalink | Comments (0)

"Difficult To Imagine"

The Quebec Disciplinary Board has ordered the immediate provisional suspension of an attorney facing criminal charges 

Let us also add that it is difficult to imagine that a member of the public would be represented by the respondent when she is facing allegations of criminal offenses. The lawyer is the custodian of public trust and supervision must ensure that this is preserved.

The charges

This request follows a criminal offense brought against the respondent, as appears from the arrest warrant of May 1, 2024, which mentions the following:

Concerning Noémi TELLIER

  1. Between May 7, 2019 and November 10, 2023, in Repentigny, district of Joliette, in Blainville, district of Terrebonne and other places in Quebec, was an accessory after the fact to the murder of Francis Turgeon, thus committing the criminal act provided for insection 240of the Criminal Code .

Montreal Gazette reported

A defence lawyer who has worked often at the Montreal courthouse was arrested Thursday and is charged with being an accessory after the fact to a murder carried out in 2019.

Noémi Tellier, 35, of Longueuil was charged at the Joliette courthouse and her case will return to court later this month. The charge carries a maximum life sentence. According to the arrest warrant issued in the case, Tellier, a lawyer since 2012, is alleged to have been an accessory to the homicide from the day before it was carried out on May 8, 2019 to Nov. 10, 2023.

The victim of the homicide was Francis Turgeon, 33, a man described as a prolific methamphetamine dealer in a court decision delivered in 2020 in an unrelated case. He was killed at his home in Repentigny.

Two men — Kevin St-Pierre, 34, and James Patrice Mardy, 33 — were arrested in November and are charged with first-degree murder. Their case returns to court on the same day as Tellier’s on May 29.

Another man named Wesley McKenzie was arrested days after Turgeon was killed, but the murder and conspiracy charges filed against him were later dropped.

According to La Presse, St-Pierre is Tellier’s former partner and they had a child together. In 2022, the pair were involved in a civil court case together in Joliette that challenged how some items were seized when a search warrant was carried out in the Sûreté du Québec’s investigation of the homicide.

On April 24, Tellier pleaded guilty at the Longueuil courthouse to impaired driving. She entered the plea on the same day she made her first court appearance on the charge and received a $2,000 fine.

(Mike Frisch)

June 14, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Close But No Cigar

The Kentucky Supreme Court publicly reprimanded an attorney

Lisa Mead is the sole member of L&J Development, LLC (L&J) and was a member of the now defunct Paducah Cigar Company, LLC (PCC) with fellow members Megan and Kip Kessler. In March 2019, Mead hired Byers to “wind down,” or dissolve, the failing PCC, beginning with evicting PCC from a building owned by L&J. In return for the services he would render, Byers accepted a $3,000 retainer payment from Mead, however, Byers failed to execute an agreement outlining the scope of his representation or the hourly rate he would charge Mead. Mead’s husband, Joaquin Hilton, was actually the individual who had first consulted Byers and delivered the $3,000 retainer check to Byers on Mead’s behalf.

For the next eight months, Byers engaged in work on behalf of Mead and Hilton in an effort to dissolve PCC. Byers sent a demand letter to PCC instructing it to vacate L&J’s premises, initiated eviction proceedings, and engaged in settlement negotiations with counsel for the Kesslers, the other members of PCC. Byers’s representation related to the dissolution of PCC ended on June 1. Byers provided a billing statement that he had earned $2,607.50 of the $3,000 retainer between March 16 and June 1, leaving a balance of $392.50 owed to Mead. However, Byers did not return that unearned portion of his retainer to Mead.

In August 2019, Mead’s husband, Hilton, contacted Byers to explore the operation of a new business, a cigar bar, in the building owned by L&J. At the time, Paducah city ordinances prohibited tobacco use and alcohol sales by the drink at the same location. Byers gave Mead and Hilton a proposal of several services he could offer in assisting them in the new venture, as well as accompanying price points. At one point, Byers offered to perform services and receive payment in the form of equity in the proposed new company.

Eventually, Mead hired Byers to assist in changing the local ordinances to allow for the proposed cigar bar. Byers accepted payment in the form of a check for $5,000, without a written advance fee agreement, and deposited the sum in his operating account rather than his escrow account. Ultimately, the representation was successful; the Paducah City Council passed the necessary ordinances to allow for the operation of Mead and Hilton’s cigar bar. Byers later drafted and filed the proper documents with the Kentucky Secretary of State to incorporate the Old Fashioned Cigar Bar, LLC (OFCB). By agreement, Byers retained a 40% interest in OFCB, however, he failed to advise Mead or Hilton to consider consulting independent counsel before entering into a business relationship with him. Nor did Byers obtain documentation of Mead or Hilton’s informed consent to the terms of the transaction.

The business relationship between the parties soon deteriorated and, in August 2020, Byers sent Mead a letter informing her that he wished to terminate their partnership in OFCB. In October 2020, OFCB sought an injunction against Byers, and Byers then filed suit against Mead, Hilton, and L&J two months later. Both cases were dismissed by agreement in September 2021. Mead later filed a bar complaint against Byers, and in March 2023, the KBA Inquiry Commission charged Byers with violations [of a number of Rule violations]

He admitted most of the violations

Michael Gary Byers is found guilty of violating SCR 3.130(1.5)(f), SCR 3.130(1.8)(a), SCR 3.130(1.15)(e), and SCR 3.130(1.16)(d) and is hereby publicly reprimanded for his unprofessional conduct.

(Mike Frisch)

June 14, 2024 in Bar Discipline & Process | Permalink | Comments (0)

The Simpsons

An indefinite suspension has been ordered by the Kentucky Supreme Court

Edmundson was appointed as the Guardian ad Litem in three cases in Jefferson Family Court which involved Brad Simpson as a biological father. On June 7, 2023, Edmundson filed an incomplete one-page motion to suspend all visitation between Simpson and his children. In support of the motion, Edmundson stated, “At the outset of this case, Respondent Father had a nonexistent[.]” Nothing else was offered in support. Edmundson subsequently mailed a copy of the order granting the motion to Simpson and thereafter failed to respond to any of Simpson’s phone calls or emails.

Simpson, who had, in fact, been active in his children’s lives, filed a Bar Complaint which was served by certified mail on July 13, 2023. Edmundson contacted Bar Counsel on July 17, 2023, to determine if a response to the Complaint was necessary. No response was forthcoming. Bar Counsel then attempted to have Edmundson served by a Jefferson County Constable. The Constable was unable to locate Edmundson at his bar roster address and was told Edmundson did not maintain an office at that location. The Constable ultimately contacted Edmundson by text message and personally served him on September 9, 2023, at the Jefferson County Courthouse. No answer was filed, prompting the Inquiry Commission to issue a formal Charge on December 20, 2023. Edmundson was personally served by the Jefferson County Sheriff’s Office on January 25, 2024. He failed to file an answer to the Charge.

Edmundson has not participated in the Complaint stage or the formal Charge stage of these disciplinary proceedings. Due to Edmundson’s failure to timely respond, the KBA requests this Court indefinitely suspend him pursuant to SCR 3.167(1). Upon examination of the KBA’s petition and supporting documents, we agree Edmundson’s conduct warrants suspension.

Two justices would order the attorney to show cause why he should not be indefinitely suspended. (Mike Frisch)

June 14, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Pay To Play

The Kentucky Supreme Court imposed reciprocal discipline for a Nevada sanction and publicly reprimanded an attorney

The violations stemmed from Hale’s representation of two, unrelated, automobile accident personal-injury clients. In preparation for arbitration and trial, Hale Injury Law (HIL) employed a doctor as a medical expert to opine on these clients’ injuries and provide expert reports for them. The doctor charged fees of $12,760 to one client and $17,125 to the other client for his services as an expert witness. Hale was in a longterm relationship with the doctor while HIL represented the two clients. Hale did not disclose the relationship, explain the potential harm, and did not obtain their informed consent regarding the conflict of interest.

Later, one of HIL’s associates left HIL. The two clients transferred their cases with that associate. HIL then filed liens against the recoveries in both cases, which included reimbursement for expert fees to the doctor. Hale further directed her bookkeeper to issue a check from her IOLTA to pay the doctor for these two cases and other cases in which he had provided expert services and had treated clients of HIL on a lien basis. Hale did not have money in her IOLTA at any time for one of these cases and had insufficient money in her IOLTA for the other case. Although Hale directed her
bookkeeper to transfer money from the cost account to the IOLTA account to cover the check to the doctor, the bookkeeper did not do so.

As to RPC 1.7(1)(a)(2), the [Nevada Disciplinary] Board concluded that Hale’s relationship with the doctor posed a significant risk of materially limiting her responsibilities to the two clients, creating a conflict of interest; that the relationship could have influenced her treatment of the doctor, such as using client funds to pay him instead of advancing her own funds to do so; and Hale failed to obtain informed consent from the two clients regarding this conflict as required by RPC 1.7(b). As to RPC 1.15(a), which mandates that lawyers keep client funds and other property safe and separate from their own, the Board concluded that Hale’s act of paying the doctor from her IOLTA for the two clients placed other clients’ monies at risk.

(Mike Frisch)

June 14, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 13, 2024

Do It!

The Arkansas Supreme Court affirmed a contempt imposed on an attorney

On July 8, 2022, Benton County District Judge Chris Griffin, who sat in the capacity of a circuit judge pursuant to Administrative Order No. 18, presided over Arkansas Rule of Criminal Procedure 8.1 hearings involving felony first appearances in a Benton County jail courtroom. Comstock, a lawyer, arrived to observe the Rule 8.1 hearings. A glass window separated the courtroom area from the public-viewing area. According to Comstock’s pleading, he was sitting “behind [the] glass window where he could see—but could not hear—the proceedings.” Comstock stated that the sound system for the public-viewing area was either malfunctioning or was not turned on, so he could not hear the proceedings. Comstock admitted that he “attempted to make Judge Griffin aware of the violation of the constitutional guarantees of open court proceedings at a level of voice calibrated to get the judge’s attention.” Judge Griffin advised Comstock that he “had no control over the sound system” and that he “should take it up with the Sheriff’s office.”

During a break in the Rule 8.1 proceedings, Judge Griffin asked Comstock to come inside the courtroom. They engaged in a conversation about whether Comstock had a right to hear the proceedings. Specifically, Judge Griffin submitted a statement recounting the following:

When Mr. Comstock was brought into the courtroom[,] I said to him[,] “Jon, this isn’t the Jon Comstock show, it’s bond hearings and if you can’t act appropriately, you can leave. [Comstock] then said angrily, “What does that mean?” I explained that I don’t control the jail[’]s IT department and, as I began to explain his behavior and the issues I listed above, he became louder and louder as he explained how “rights were being violated,” and how he had a “right to participate.” He continued to loudly speak “over” me while this occurred. I tried to explain again that he was not there to “participate” as he didn’t have any clients but he, quite loudly, cut me off and said “you invited me here!” I told him sternly that I did not invite him there, that it was open to the public but only for observation. I then began to start my explanation of the above items again but he again interrupted me speaking loudly. I raised my voice and told him it was “time to go.” I believe I motioned to the door. He refused to leave. He continued to speak over me and I said “leave now.” He refused to leave. I then explained that this was a court proceeding and I would hold him in contempt and it would be in a Circuit Capacity (due to Supreme Court Orders. A.O. 4 and A.O. 18(6)(c)) and he’d be stuck there. He then motioned towards me, shook his hands, and even more loudly exclaimed “Do it!”

I then held him in Direct Contempt and sentenced him to 5 days in Benton County Jail. The Deputies took custody of him and, although he initially resisted the deputies, he ultimately cooperated and was taken into custody. [That day,] I later filed the Contempt Order and suspended 4 ½ days of the 5 days he was sentenced to initially. He ultimately served 12 hours in the Benton County Jail.

The attorney appelaed the contempt

Here, Comstock’s recitation of the facts in his motion, the statements from Judge Griffin, and the narratives of the two court deputies provide substantial evidence to support the circuit court’s direct criminal-contempt finding. Comstock committed in the presence of the circuit court the egregious conduct of disrupting the Rule 8.1 proceedings, interrupting Judge Griffin, repeatedly refusing to leave when asked, and yelling “DO IT!” when told that he could be held in contempt. Under its inherent power to punish Comstock for his contemptuous behavior, the circuit court clearly found Comstock guilty of direct criminal contempt and immediately sentenced him.

...viewing this record in the light most favorable to the circuit court’s decision, we hold that substantial evidence supports the circuit court’s order finding Comstock in direct criminal contempt. Because we affirm the circuit court’s finding, we decline to reach Comstock’s recusal argument.

CODY HILAND, Justice, concurring in part and dissenting in part.

Based on Judge Griffin’s written order, this court cannot determine what “direct orders were given” or how Comstock “willfully refused to comply.” We, likewise, cannot assess whether Comstock’s actions interfered with the court’s business or determine the ways in which Comstock disobeyed the court’s orders. While it is true that a much more detailed statement from Judge Griffin is attached to a pleading submitted by the State, it is not an affidavit, and the statement is not sworn or verified. The same can be said regarding the hearsay statements submitted by both Deputy Deppner and Deputy Wilke––statements given by witnesses whom Comstock had no opportunity to confront or cross-examine. In his brief, Comstock states that he “disputes a substantial portion of Judge Griffin’s rendition” of the facts. This court is not a fact-finder. Because Comstock’s recitation of the relevant events is not presently before us, ending the analysis here without affording Comstock the opportunity to create a record effectively deprives him of due process and his right to appeal.

Arkansas Times reported on the incident

Comstock, a former circuit judge and twice an unsuccessful Democratic candidate for the legislature, has been active in the Arkansas Justice Reform Coalition. He’s joined in its criticism of a proposed Benton County jail expansion and the absence of public defenders for people appearing in district court for bond hearings.

According to accounts of others, Griffin found Comstock in contempt of court for repeatedly objecting to being seated behind glass where he couldn’t hear the bond proceedings, though he’d given advance notice he planned to attend. Griffin sentenced him to five days in jail, with all about 12 hours suspended. He was to be released about 7:30 p.m. today.

(Mike Frisch)

June 13, 2024 in Bar Discipline & Process | Permalink | Comments (1)

A Choice

The Oregon Supreme Court reversed a criminal conviction and remanded for a new trial over the defendant's right to be represented by retained counsel

The record in this case reveals that: (1) defendant retained attorneys Mackeson and Hall to represent him after he was indicted on criminal charges; (2) on the first scheduled trial date, the court granted defense counsel’s request to postpone the trial so that they could investigate photographs that had been anonymously delivered to Hall’s office; (3) on the next scheduled trial date, the trial court granted defense counsel’s request to withdraw due to an ethical conflict that would likely arise from the prosecutor’s plan to cross-examine defendant about those photographs; (4) nine days later, at the next court appearance, the same attorneys appeared and asked to be allowed to represent defendant; and (5) the trial court noted that the ethical conflict “may or may not have resolved itself,” but it denied defendant’s request due to its “concerns” about the ethical obligations that had been previously raised.
 
Although that record shows that the trial court gen-erally understood that defendant’s right to be represented by retained counsel of his choice could be qualified by ethical or efficiency concerns, it does not demonstrate that the trial court weighed the relevant considerations and acted within the permissible range of its discretion in denying defendant’s request to be represented by Mackeson and Hall. This record does not reveal whether there was a sufficient risk that allowing that representation would unduly delay or disrupt the trial, or whether Mackeson and Hall’s representation of defendant at trial would have violated any ethical or professional standards of conduct.
 
Record insufficient
 
Contrary to the state’s assertion, characterizing the ethical conflict that led Mackeson and Hall to withdraw in the first place as “significant” is not enough to support the trial court’s exercise of discretion, especially considering the court’s acknowledgment that the original conflict “may or may not” have been resolved. Instead, to show that its decision was a permissible exercise of discretion, the court itself needed to explain the nature of its concerns, why it determined that those concerns were justifiable under the circumstances, and why it determined that they might unduly delay or disrupt the trial. Making an adequate record does not mean that trial courts must invade the attorney-client privilege or pressure a defendant to waive that privilege, and it may require the court to address the defendant or defense counsel on the record but outside the presence of the prosecutor, and to seal the record to preserve confidentiality.The record in this case does not demonstrate that the trial court’s denial of defendant’s constitutional right to be represented by the attorneys he retained to represent him at trial was a permissible exercise of its discretion. Accordingly, as in Stanton and Hightower, the appropriate result is to reverse and remand for a new trial.
 
(Mike Frisch)

June 13, 2024 | Permalink | Comments (0)

Not A Federal Case

The United States Court of Appeals for the Second Circuit returned a legal malpractice  case that had been removed to federal court to the state court

Link Motion Inc. (“LKM”), a Chinese company incorporated in the Cayman Islands, brought this legal malpractice action against the law firm of DLA Piper LLP (US) and one of its attorneys (hereafter referred to collectively as “DLA Piper”) in the New York State Supreme Court for New York County. After DLA Piper removed the case to the United States District Court for the Southern District of New York (Victor Marrero, Judge), that court entered a judgment of dismissal on May 26, 2023, finding LKM’s action to have been untimely filed. On this appeal, LKM challenges both that timeliness determination and the district court’s earlier denial of LKM’s motion to remand the case to state court. For reasons explained in this opinion, we conclude that the case must be returned to state court for lack of federal jurisdiction over LKM’s state law claim. The federal law standing question that the district court identified as embedded in LKM’s malpractice claim does not fall within the narrow category of “disputed and substantial” questions of federal law permitting the exercise of federal jurisdiction over a state law claim. Gunn v. Minton, 568 U.S. 251, 258 (2013); see Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 316 (2005). Accordingly, we vacate the judgment of dismissal without considering the question of timeliness, and we remand the case to the district court with instructions that it return LKM’s malpractice action to the New York Supreme Court.

Facts

In July 2018, LKM engaged DLA Piper for “corporate advice,” both generally and specifically in connection with a stock offering. LKM Compl. ¶ 12, J. App’x 22. Later that year, Wayne Baliga, a holder of LKM’s American Depositary Receipts (“ADRs”), sued LKM; its chairman, Vincent Shi; and other executives and directors by filing what was styled as a “Verified Shareholder Derivative Complaint” in the United States District Court for the Southern District of New York. See Compl., Baliga v. Link Motion Inc., No. 1:18-cv-11642 (S.D.N.Y. Dec. 13, 2018), Dkt. 1 [hereafter “Baliga Compl.” and “Baliga Dkt.”].  In that action—also assigned to Judge Marrero—Baliga asserted common law claims for breach of fiduciary duty and unjust enrichment, and federal securities law claims. Id. ¶¶ 36–54. LKM’s present malpractice action arises out of DLA Piper’s purported negligent representation of LKM in the Baliga action. 

The underlying representation

On March 1, 2019, DLA Piper sought leave to withdraw from the Baliga action, citing LKM’s failure both to pay the firm’s overdue legal fees and “to cooperate in the [firm’s] representation by failing to respond to [counsel’s] inquiries.” Letter at 3, Baliga Dkt. 28. The district court granted the request the same day.

Federal jurisdiction

The question of federal jurisdiction here depends on whether the asserted claim “aris[es] under the Constitution, laws, or treaties of the United States.” Id. § 1331.7 A claim most directly “arises under federal law when federal law creates the cause of action asserted.” Gunn v. Minton, 568 U.S. at 257. Nevertheless, the Supreme Court has identified a “‘special and small’ category of actual state claims that present significant, disputed issues of federal law.” NASDAQ OMX Grp., Inc. v. UBS Sec., LLC, 770 F.3d 1010, 1019 (2d Cir. 2014) (quoting Gunn v. Minton, 568 U.S. at 258). For a state law claim to fall within this “slim category,” the embedded federal issue must be “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. at 258; see Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. at 314. While the first two factors here support the exercise of federal jurisdiction, the third and fourth do not.

Left to the state

In sum, DLA Piper has not adduced the “something more” required by Gunn v. Minton to view the federal law standing issue in LKM’s state malpractice claim as anything other than backward-looking and hypothetical. 568 U.S. at 264. The claim looks backward to ask whether the district court would have denied Baliga’s motions for a TRO, preliminary injunction, and appointment of a receiver if, hypothetically, DLA Piper had timely challenged Baliga’s standing under federal securities law. Thus, because the federal issue raised by LKM’s state malpractice claim “is not substantial in the relevant sense,” id. at 260, the district court was without jurisdiction to hear the claim.

(Mike Frisch)

June 13, 2024 | Permalink | Comments (0)

Burned In Memory

A British Columbia Law Society Hearing Panel found that an attorney had engaged unwelcome sexual conduct with a client

The Complainant testified that in late 2022 she read a news article reporting on the Respondent and his inappropriate conduct toward another woman, and it was this article that prompted her to come forward, initially to the reporter who had written the article, about her experience with the Respondent. The Complainant said that the reporter referred her to the Law Society.

The Complainant also testified that since events occurred six years earlier, there were some things she could not remember and other things that were “burned” in her memory. 

June 2016 office visit

The Complainant recalled attending the Respondent’s office for the first time by herself, and that when she arrived at his office there was no one sitting at the reception desk. The Complainant testified that a man she later identified as the Respondent came up behind her and put his arms around her upper chest and pressed her body against the front of his body. The Complainant said at that point the Complainant “froze” with fear. After a period described by the Complainant as approximately one minute, she said the Respondent chuckled, released her and asked her to come into his office.

The Complainant said that the Respondent was wearing a suit but looked “disheveled”, and despite the fact she was nervous about being alone with him she followed him to his office where he collected information related to the Family Law Services.

The Complainant said that as she sat in a chair opposite the Respondent in his office, the Respondent started rubbing his socked foot against her feet and leg under the Respondent’s desk. The Complainant said that she could not remember what the interview was about or what information she provided to the Respondent, but she did remember being “petrified”.  

As an exception to her statement that she could not recall what she discussed with the Respondent during the June 2016 Office Visit, the Complainant said that the Respondent asked her if she planned on having any more children, and after she responded in the negative, the Respondent said how lucky he would be if she was the mother of his children. This struck the Complainant as unusual, as framed photographs of what the Complainant assumed were the Respondent’s wife and children were sitting on the Respondent’s desk.

At the end of the visit

The Complainant testified that after the interview was over, and as she was leaving the Respondent’s office the Respondent leaned into her as if he was going to give her a kiss or hug. The Complainant said she panicked and turned her head away and ran down the staircase out of the building. According to the Complainant, after she got into her car she sat and cried for a few minutes before going home, and that she also cried sitting in her car in the driveway of her home.

October 2016 court appearence

According to the Complainant, during the October 2016 Court Appearance the Respondent looked “very disheveled”, “smelled bad”, and appeared to be drunk. She recounted that at one point when they were all sitting on a bench outside the courtroom, the Respondent put his hand on her thigh, her arm, and back. The Complainant said that at that time, she was sitting in between the Respondent and TW.

TW's evidence

TW said that at some point she, the Complainant and the Respondent were sitting together on a bench, when TW observed the Respondent putting his hand on the Complainant’s upper thigh. TW also said she observed the Complainant become noticeably uncomfortable when this happened.

TW said that after observing the Respondent touching the Complainant, she felt bad because she felt she had not been a good friend to the Complainant because TW had assumed that the Complainant had been exaggerating when the Complainant had previously informed her the Respondent had touched her inappropriately. TW said she apologized to the Complainant for not taking her seriously before.

Respondent

The Respondent gave limited evidence and did not provide any evidence about the June 2016 Office Visit or the October 2016 Court Appearance, nor did he address the Complainant’s evidence or TW’s evidence about those events.

Finding

 Having found that all three parts of the Janzen test for sexual harassment are satisfied on the evidence, the Panel finds that the Respondent sexually harassed the Complainant, contrary to rule 6.3-3 of the BC Code.

The Respondent’s actions were sexual in nature, unwelcome and resulted in adverse consequences to the Complainant. The Panel finds that the Respondent’s actions constitute sexual harassment contrary to the BC Code.

June 13, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Failure To Supervise

The District of Columbia Court of Appeals approved a petition for negotiated discipline

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 John P. Mahoney voluntarily acknowledged that in six client matters he failed to both take reasonable steps to ensure that two subordinate attorneys complied with their ethical duties to clients and take reasonable remedial action to avoid or mitigate the consequences of the subordinates’ conduct of which he knew or reasonably should have known; in four of the six matters, respondent personally failed to respond to reasonable requests for information from the clients (and one of those matters involved a proceeding pending before a Maryland tribunal); and in three of the six matters, respondent personally failed to protect the clients’ interests as the representation was ending. As a result, respondent admits that he violated D.C. R. Pro. Conduct 1.4(a), 1.16(d), 5.1(b), and 5.1(c)(2), and Md. R. 19-301.4(a)(3). The proposed discipline consists of a sixty-day suspension, stayed as to all but thirty days, followed by one year of probation with conditions.

(Mike Frisch)

June 13, 2024 in Bar Discipline & Process | Permalink | Comments (0)

No Protection

The Oklahoma Supreme Court reversed an order of protection brought against a "pastor" who engaged in anti-gay posts and activities

Penkoski is a public figure who holds himself out as a pastor, activist, and street preacher. Petitioners are also public figures; Morgan Lawrence-Hayes is President of Oklahomans for Equality and Sheena Hayes is Vice President of Oklahomans for Equality. Hayes is also the outreach committee chair for Petitioners' church, Disciples Christian.

On September 9, 2022, Penkoski created a post on Facebook. See Pet'rs' Ex. 2. The post said: "This is NOT a church!! This is a satanic recruitment center to groom and indoctrinate children while they pervert the Word of God[.]" Id. The post also contained two photographs, the first was a collaboration of photos of individuals with the overlying text "DISCIPLES CHRISTIAN CHURCH" in bold and below that in italics the text "Happy Pride Month[.]" Id. The photograph cuts off halfway through the second line of text. The second photograph depicts a group of adults and children holding what appears to be photos or pieces of art. No text indicated the identity of the individuals in either photo. Petitioners testified that they and their minor child were pictured in both of the photos. Tr. of Procs. 35:6--22, Feb. 15, 2023. The photographs were available on the church's public page. Tr. of Procs. 57:14--16, 72:25--73:3.

The next day, on September 10, 2022, Penkoski attended the Bartlesville Pride Event in Bartlesville, Oklahoma. Penkoski allegedly stood on the street corner and yelled into a bullhorn for several hours, shouting slurs across the street toward the children's bouncy house. Penkoski testified that he stayed where the police asked the protesters to assemble during the Pride Event. Penkoski had no direct interaction with Petitioners and Penkoski did not mention Petitioners' names or Petitioners' church by name.

On November 7, 2022, both Petitioners and Penkoski chose to attend and speak at the Bartlesville City Council meeting. At the meeting, Penkoski did not speak directly to the Petitioners, mention them by name, or have any direct interaction with them. No videos or photos of the city council meeting were submitted into evidence.

On November 11, 2022, Penkoski again posted on Facebook. See Pet'rs' Ex. 4. This post consisted of the text "Liar, liar, pants on fire!!" and a video. Id. The thumbnail of the video in the post showed a woman standing at a lectern with a microphone. The woman had dark colored, long hair which covered most of her face making her virtually unrecognizable in the photo. No text in the post identified the woman in the video. Petitioners testified that the video showed Lawrence-Hayes speaking at the City Council meeting but did not submit a copy of the posted video into evidence. See Tr. of Procs. 16:14--16.

On November 12, 2022, Penkoski again posted on Facebook. See Pet'rs' Ex. 5. This post had the text "Oklahomans for Eqaulity [sic] in Bartlesville OK caught lying about sexualizing children... See more" and a video. Id. The thumbnail of the video in the post was almost identical to the previous one, showing a woman standing at a lectern with a microphone, with her long, dark hair covering most of her face making her virtually unrecognizable from the photo. No text in the post identified the woman in the video other than that they were associated with Oklahomans for Equality. Petitioners testified that it was also an image of Lawrence-Hayes. 

Court majority

The definition of stalking requires "willful, malicious, and repeated following or harassment of a person." Section 60.1(10), both prior to November 1, 2022, and as amended effective November 1, 2022, gives a list of examples of uninvited contact or course of conduct which would be considered stalking. Every example concerns contact or conduct toward an "individual." Penkoski's actions were not directed toward an individual person, but rather were public Facebook posts that named two organizations, not individuals. Penkoski spoke neither of Petitioners' names at the parade or the city council meeting. Penkoski did not send electronic communications to Petitioners, or contact them directly by any means, including directing a message, comment, or other content toward them. Penkoski did not photograph, videotape, or otherwise record Petitioners' activities. Penkoski created Facebook posts that included photos or videos he obtained from other sources which, while they depicted one or both of Petitioners, did not name either Petitioner or direct his message toward either Petitioner. The district court's decision was clearly against the evidence, and based on the court's mistaken finding that Penkoski "made specific references to [Petitioners] personally and their family personally" and that he targeted his posts to specific people and "called them out by name." The district court abused its discretion when it found that Penkoski directed his posts or comments toward the Petitioners.

We need not address all of Penkoski's or Petitioners' arguments, including Penkoski's First Amendment arguments, because regardless of protected speech status, the district court abused its discretion in issuing the order of protection.

Gurich, J., concurring in part and dissenting in part:

The majority correctly points out that Penkoski's conduct, as a matter of law, did not constitute harassment. However, the record in this case contained sufficient evidence to support the decision of the trial court finding Richard Penkoski engaged in behavior which met the statutory definition of "stalking," as codified in the Protection from Domestic Abuse Act, 22 O.S. 2022, § 60.1(9).

Although some of Penkoski's commentary appeared to be directed toward Oklahomans for Equality, in truth, his oppressive and intimidating conduct was directed toward Morgan Lawrence-Hayes and Sheena Hayes (Appellees) as individuals. It is important to note that the trial court only considered issuing a protective order to the Appellees as individuals; the judge did not consider an order on behalf of the organization or community at-large. Judge Thomas specifically explained, "I only have the jurisdiction at this point to deal with whatever individual harm you might be referring to." As such, I respectfully dissent from that portion of the majority opinion which concludes the evidence did not establish stalking of the Appellees in their individual capacities.

Evidence of stalking

Penkoski's social media posts and intimidation tactics were not isolated incidents; rather they were an ongoing "course of conduct" designed to intimidate/harass Appellees and potentially incite violence toward the couple. He even testified that the Appellees, as parties to a same-sex relationship, were "worthy of death," according to his interpretation of the Bible. Considering the testimony and exhibits, it is clear Penkoski's actions were directed toward Appellees as individuals. In addition, the record supports the trial court's legal determination that Penkoski's repeated bullying (both in person and via social media) and incendiary rhetoric toward Appellees satisfied the definition of stalking. Because the trial judge did not abuse her discretion, I would affirm the finding that Penkoski engaged in stalking of Appellees.

(Mike Frisch)

June 13, 2024 in Current Affairs | Permalink | Comments (0)

Oklahoma Denies Legal Recourse To Tulsa Race Massacre Survivors

The Oklahoma Supreme Court affirmed the denial of relief to survivors of the Tulsa Race Massacre

Plaintiffs, survivors of the Tulsa Race Massacre, brought suit against Defendants seeking abatement of the public nuisance caused by Defendants' unreasonable, unwarranted, and/or unlawful acts and omissions that began with the Tulsa Race Massacre of 1921 and continue to this day. Plaintiffs also sought recovery for unjust enrichment for Defendants' exploitation of the Massacre for their own economic and political gain. The district court granted Defendants' motion to dismiss finding Plaintiffs' Petition failed to state a justiciable public nuisance claim and failed to allege a legally cognizable abatement remedy and dismissed Plaintiffs' unjust enrichment claim for failure to cure a defective pleading. Plaintiffs appealed, asserting the district court erred in dismissing both claims. We retained this matter on Plaintiffs' motion and hold that Plaintiffs' grievances do not fall within the scope of our state's public nuisance statute and Plaintiffs' allegations do not support a claim for the equitable doctrine of unjust enrichment.

The court noted

 The destruction inflicted upon the Greenwood community by the mob was staggering, including the killing of between 100 and 300 people, predominantly African Americans, and the destruction of more than 1,200 homes, schools, churches, and businesses. 74 O.S. § 8000.1(3).

Even after the initial violence subsided, local officials engaged in actions that exacerbated the harm. State and local officials participated in the mass arrests and detention of Greenwood residents, and black detainees could only be released upon the application of a white person. When Greenwood residents attempted to rebuild their community, they were met with frustration. In one notable example, local officials "attempted to block the rebuilding of the Greenwood community by amending the Tulsa building code to require the use of fire-proof material in rebuilding the area thereby making the costs prohibitively expensive . . . ." 74 O.S. § 8000.1(3).

Public nuisance claim

Accepting as true that the Massacre is a continuing blight within all property in the Greenwood community--and that the pall of the Massacre continues to envelop the Greenwood community over one-hundred years later--Plaintiffs' claim does not present a conflict resolvable by way of abatement. And even accepting as true Plaintiffs' claim that the lingering economic and social consequences of the Massacre still, to some extent, endanger the comfort and repose of the Greenwood and North Tulsa communities, those lingering consequences over one-hundred years later, standing alone, do not constitute a public nuisance, as that term has been construed by this Court. The continuing blight alleged within the Greenwood community born out of the Massacre implicates generational-societal inequities that can only be resolved by policymakers--not the courts.

Today's holding is consistent with our recent public nuisance jurisprudence: expanding public nuisance liability to include lingering social inequities from historical tragedies and injustices runs the risk of creating a new "unlimited and unprincipled" form of liability wherein both State and non-State actors could be held liable for their predecessors' wrongdoing, in which current actors played no part. To hold otherwise would place Oklahoma courts in the unorthodox position of fashioning remedies for these claims or venturing into the realm of outright policymaking--both of which we decline to do. As we said in Johnson & Johnson, "[t]his Court defers the policy-making to the legislative and executive branches . . . ." Johnson & Johnson, ¶ 39, 449 P.3d at 731.

Today we hold that relief is not possible under any set of facts that could be established consistent with Plaintiffs' allegations. "When a trial court is considering [its] ruling on a § 2012(B)(6) motion [it] should not ask whether the petition points to an appropriate statute or legal theory, but whether relief is possible under any set of facts that could be established consistent with the allegations." Ind. Nat'l Bank1994 OK 98, ¶ 4, 880 P.2d at 375-76. Plaintiffs' grievance with the social and economic inequities created by the Tulsa Race Massacre is legitimate and worthy of merit. However, the law does not permit us to extend the scope of our public nuisance doctrine beyond what the Legislature has authorized to afford Plaintiffs the justice they are seeking. Accordingly, we affirm the District Court's dismissal of the public nuisance claim.

Unjust enrichment

Accepting Plaintiffs' allegations as true and applying general principles of common justice and equity to the facts before us, we decline to extend our unjust enrichment jurisprudence beyond its recognized bounds necessary to encompass Plaintiffs' claim. On review, we hold that Plaintiffs' allegations do not sufficiently support a claim for unjust enrichment, nor do the allegations sufficiently support a claim for the unauthorized use of name and likeness under 12 O.S. § 1449. Accordingly, we affirm the District Court's order dismissing Plaintiffs' unjust enrichment claim.

(Mike Frisch)

June 13, 2024 in Current Affairs | Permalink | Comments (0)

Sanction Reduced

The Tennessee Supreme Court reduced an order of disbarment to a three-year suspension to run concurrently with a previous sanction for misconduct in his own child custody matter

This is a direct appeal of a disciplinary proceeding involving a Knoxville attorney who filed four motions containing pejorative statements about the trial judge in a child custody case involving the attorney’s minor child. A hearing panel of the Board of Professional Responsibility determined that the attorney violated multiple Rules of Professional Conduct and imposed a three-year suspension as punishment. The attorney appealed to the trial court. The trial court affirmed the hearing panel’s judgment in all respects with the exception of the attorney’s punishment. The trial court held that the hearing panel erred in imposing a suspension, and it increased the punishment to disbarment. The attorney appealed to this Court. We affirm the judgment of the trial court on all issues with the exception of the issue regarding the attorney’s punishment. We hold that the trial court erred in increasing the punishment to disbarment, and we reinstate the three-year suspension imposed by the hearing panel but modify it to take effect upon the filing of this Opinion.

The opinion recites the statements at issue

The hearing panel then considered applicable aggravating and mitigating factors to determine the appropriate discipline against Mr. Justice. The panel found that the following aggravating factors justified an increase in the degree of discipline to be imposed: (1) Mr. Justice’s prior disciplinary history—specifically, Mr. Justice’s disbarment from the practice of law on July 2, 2019, in a separate disciplinary matter; (2) a pattern of misconduct; (3) refusal to acknowledge the wrongful nature of his conduct; and (4) substantial experience in the practice of law. The panel did not find any applicable mitigating factors.

The hearing panel ultimately recommended that Mr. Justice be suspended from the practice of law for three years “from the date, if any, when he is reinstated to practice law, pursuant to [Tennessee Supreme Court Rule] 9, [section] 12.2

Respondent appealed

The trial court also found an aggravating circumstance not considered by the hearing panel—that Mr. Justice’s actions were dishonest and selfishly motivated. The trial court ultimately held that Mr. Justice’s sanction should be disbarment.

He then appealed to the Supreme Court, claiming First Amendment protection

In reviewing the statements Mr. Justice made that impugned Judge Ash’s integrity, it is clear that the statements went far beyond the bounds of what an objectively reasonable attorney would make. Even considering the nature of the statements and the context in which they were made, see Parrish, 556 S.W.3d at 165-66, there was no reasonable factual basis for making the statements.

For example, Mr. Justice made several statements implying that Judge Ash ignored alleged attempts by the Plaintiff to sell time with the minor child and hold the minor child hostage for ransom. These statements are a mischaracterization of a proposed settlement agreement in the child custody case that the parties advised the trial court they had reached. Under the terms of the proposed settlement agreement, which ultimately fell through, Mr. Justice would have paid $200,000 in child support and $200,000 for the Plaintiff’s attorney fees. Mr. Justice equates this agreement to the Plaintiff holding the minor child hostage for money and alleges that Judge Ash ignored this despicable behavior.

...In sum, after assessing Mr. Justice’s statements under the Gentile balancing test and the objective reasonable attorney standard, we hold that none of Mr. Justice’s statements were constitutionally protected.

Chief Judge Holly Kirby concurred

Even though I would apply ABA Standards that identify disbarment as the presumptive sanction, and even though Mr. Justice has several aggravating factors and no mitigating factors, I agree with the majority’s conclusion. As in Beier, based on the comparative cases cited by the majority, I agree with the majority’s decision to impose a suspension in this case.

In sum, I disagree with the majority’s reasoning and conclusion on whether Mr. Justice engaged in the misconduct with intent to secure a personal benefit and with the majority’s holding that ABA Standards identifying disbarment as the presumptive sanction do not apply. Nonetheless, based on the comparative cases cited by the majority, I concur in its decision to impose a three-year suspension on Mr. Justice as the sanction for the misconduct in this case. Therefore, I concur in the decision of the majority with slightly different reasoning.

(Mike Frisch)

June 13, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 12, 2024

California Expert May Be Able To Opine On Wyoming Malpractice

The Wyoming Supreme Court reversed the grant of summary judgment in favor of law firm defendants in a legal malpractice case

Victoria Loepp appeals the district court’s summary judgment order that dismissed her legal malpractice claims and all other claims she brought against her former counsel (Appellees). The district court’s summary judgment decision was based on its concurrent order striking her malpractice expert. Because the district court did not fully analyze the proffered expert’s reliability and fitness under W.R.E 702, and because we find no other basis on which to affirm the court’s summary judgment order, we reverse and remand.

Issue

The issue presented is whether an out-of-state expert may provide opinion testimony about the standard of care in legal malpractice actions in Wyoming.

The underlying case involved an inheritance dispute between sisters over their late mother's house

Ms. Loepp hired attorney Ryan Ford of Williams, Porter, Day & Neville, P.C. to help. Mr. Ford sent Ms. Scott a demand letter. He also initiated an eviction by serving a Notice to Quit. He ultimately negotiated with Ms. Scott’s attorney to settle the dispute by Ms. Loepp selling the house to Ms. Scott for $90,000. On March 22, 2019, the title company managing the closing of the transaction received the funds from Ms. Scott. The next day, Ms. Loepp notified Mr. Ford that she would not accept the money or settlement terms. Ms. Loepp declined Mr. Ford’s advice to abide by the settlement agreement, and Mr. Ford withdrew from representation.

Scott Murray replaced Mr. Ford as Ms. Loepp’s counsel. He prepared a complaint to file against Ms. Scott for a declaratory judgment and to quiet title. However, before that complaint was filed, Ms. Scott sued Ms. Loepp for breach of contract and related claims, seeking specific performance of the agreement to sell her the house. In April 2020, the district court entered summary judgment in favor of Ms. Scott. The remainder of Ms. Scott’s suit settled when Ms. Loepp agreed to transfer the property to Ms. Scott in exchange for the $90,000.

Loepp pursued the malpractice case pro se and retained a California attorney as her expert.

Mr. Watters based his opinions on his knowledge and experience as a trial attorney, as a practice group leader and managing partner in his firm, as a torts professor, and as a frequent expert witness in fee disputes. To support his assertions that the Appellees misapplied contract law, Mr. Watters included a legal memo which cited Wyoming case law and referenced the Restatement of Contracts.

The district court

After hearing argument on both motions, the district court acknowledged that Mr. Watters brought experience, finding it “nothing short of impressive,” but found Mr. Watters did not speak with any Wyoming attorneys and that his research of legal standard  consisted only of comparing some rules between states. Accordingly, the court granted the motion to strike, concluding there was an insufficient showing that Mr. Watters had knowledge of “what a prudent Wyoming lawyer would have done.” Having stricken Ms. Loepp’s expert, the court then granted summary judgment on all claims. Ms. Loepp timely appealed.

Out of state does not necessarily mean out of luck (and court)

We therefore instruct the court on remand to analyze the reliability of Mr. Watters’s opinion under W.R.E. 702, considering the nature of each of Ms. Loepp’s malpractice claims and whether those claims are so state-specific that Mr. Watters could not assist the trier of fact.

Conclusion

Having determined that W.R.E. 702 governs the admissibility of expert opinion in legal malpractice cases and that where a proffered malpractice expert is licensed or practices is just one factor to consider in the W.R.E. 702 analysis, we reverse and remand for further proceedings on the motion to strike. Because we find no other basis on which to affirm the related summary judgment decision, we also reverse and remand the court’s summary judgment order for further proceedings consistent with this opinion.

(Mike Frisch)

June 12, 2024 in Clients | Permalink | Comments (0)

Remedies

A trial court decision that granted summary judgment against relief sought for the denial of plaintiff's law degree was affirmed by the Idaho Supreme Court

This appeal concerns a lawsuit arising from Appellant Laurie Barton’s violations of the University of Idaho, College of Law’s honor code. During her third year, Barton was charged with violating the honor code after committing academic misconduct during a final examination. Barton denied the allegations during subsequent Honor Court proceedings, but she was ultimately sanctioned with degree denial. After Barton exhausted her administrative review options, including an appeal to the Idaho State Board of Education, she petitioned for judicial review. The district court denied her petition after a hearing. Barton later stipulated to dismiss an appeal of the petition’s denial. Instead, Barton sued the Board of Regents of the University of Idaho and Idaho State Board of Education, alleging nine causes of action, all of which the district court dismissed at summary judgment. The district court also denied Barton’s subsequent motion for reconsideration. For the reasons below, we affirm the district court’s decision.

The conduct 

The complaint alleged that, during the Remedies final exam, Barton had documents open on her computer that were related to that class and that she conducted internet searches for specific topics on her exam. 

Merits hearing

the Honor Court found by clear and convincing evidence that Barton “acted with gross negligence by not logging into Examsoft after she received her password, by using her laptop computer to access a Remedies outline at 9:22 a.m., and then by performing internet searches at 10:33 am. and 11:44 a.m., all the while the hard copy of the exam was in front of her.” The final exam was a closed book examination. Barton testified, among other things, that: (1) “the browsers opened when [Barton] opened her computer”; (2) “[Barton] did not recognize the Remedies outline and did not use it”; and (3) “the browser reopened with [Barton’s] searches from the night before.” The Honor Court did not find this testimony credible.

Degree denial imposed

The Honor Court found that Barton’s “actions demonstrate[d] either an inability or an unwillingness to meet the ethical standards of the legal profession.”

The student filed suit in addition to internal appeals

Separately, Barton sued the Board of Regents of the University of Idaho and Idaho State Board of Education (collectively “University”). Barton’s complaint claimed nine causes of action, to wit: (1) breach of express contract; (2) breach of implied contract; (3) breach of implied covenant of good faith and fair dealing; (4) unjust enrichment; (5) promissory estoppel; (6) specific performance; (7) negligence; (8) defamation per se; and (9) defamation. Each of these claims stemmed from the College of Law’s decision to allow Barton “to reregister for classes after two honor [c]ode violations had been discovered,” and its decision to deny Barton a law degree.

The court here found summary judgment was properly granted.

Fees

This appeal was also pursued despite Barton’s own acknowledgment that she committed academic misconduct and stipulated to dismiss the appeal denying her petition for judicial review in that regard. As a result, we conclude that Barton’s appeal was pursued frivolously, unreasonably, and without foundation. Accordingly, we award the University attorney fees pursuant to section 12-121.

(Mike Frisch)

June 12, 2024 | Permalink | Comments (0)

Captain Hook And Peter Pan

The Idaho Supreme Court has denied an application for bar admission but will permit reapplication in two years

The Idaho State Bar has filed a petition with this Court requesting permission to reject a bar application from “John Doe” and seeking an order prohibiting him from filing future applications for either (1) a period of five years, or (2) until the applicant receives written permission from this Court. Doe filed a response and cross-petition seeking immediate admission to the Idaho State Bar (the “ISB”). For the reasons explained below, we deny the ISB’s request to impose a five-year ban on Doe filing future applications and, instead, impose an alternative remedy. However, we grant the ISB’s petition in part, concluding that it is not required to process Doe’s third application, which was filed just 36 days after the denial of his second application became final, because Doe has failed to show a substantial change in his fitness and character from the two prior denials for admission. For these same reasons, we deny Doe’s cross-petition for admission.

Applicant

Doe is 34 years old and a May 2019 graduate of Concordia University School of Law, in Boise, Idaho. In July 2019, he applied for admission to the Delaware State Bar Association after passing the Delaware Bar Examination. A passing score is a prerequisite in Delaware to apply for admission. Although Doe received a passing score on the exam, Delaware denied his application on character and fitness grounds.

Doe then applied to take the Idaho Bar Exam twice and was denied both times. The ISB cited character and fitness grounds as the basis for both denials. A little over a month after the second denial, Doe applied a third time, without showing any substantial change in circumstances.

He initiated litigation

Doe filed three lawsuits in the United States District Court for the District of Idaho against the ISB, the Board of Commissioners of the ISB (“the Board”), certain personnel of the ISB, and others, primarily raising constitutional and ADA claims. [Doe] v. Idaho State Bar, No. 1:22-cv00090-REP (D. Idaho March 1, 2022) (hereinafter “Doe I”); [Doe] v. Idaho State Bar, No. 4:22-cv-00253-REP (D. Idaho June 19, 2022) (hereinafter “Doe II”); [Doe] v. Idaho State Bar, No. 1:22-cv-00478-REP (D. Idaho Nov. 19, 2022) (hereinafter “Doe III”). He has also filed federal litigation in Delaware to raise constitutional challenges to certain attorney admission requirements of the Delaware Bar after being denied admission on character and fitness grounds. [Doe] v. Seitz, No. 1:21-CV-01637 (D. Del. Nov. 22, 2021).

Delaware inquiry into character and fitness

The investigation revealed multiple instances of omitted records and disclosures. These omissions included the following: the suspension of Doe’s security guard license; his participation in administrative hearings; various employment terminations and Doe’s troubles maintaining steady employment; disciplinary incidents and behavioral problems at multiple educational institutions; and Doe’s efforts to hide the fact that he “committed fraud” in claiming unemployment benefits while working a summer job. The investigation also reported a 2009 incident Doe had at a technical college in Delaware where, as part of a class practicing listening skills, he said, “I want to talk about how I think about hurting people. I can’t stop thinking about ways to hurt people that have hurt me. I think about it so much that I can’t sleep."

Idaho application

In the case of Doe’s application, the Committee recommended, and the Board agreed, that Doe failed to prove he was qualified for and entitled to admission to legal practice in Idaho under multiple eligibility requirements listed under Idaho Bar Commission Rules 201 and 210(a)(3). This was due in large part to Doe’s application omitting information of past misconduct and misstating his history, as he had in his Delaware application. These events include, but are not limited to:
• Doe’s failure to disclose to the ISB that the Delaware Board of Bar Examiners denied his bar application on character and fitness grounds.
• While employed by Delaware Animal Care and Control in 2011, Doe used the agency’s access to a criminal justice database to perform unauthorized searches of individuals. This conduct resulted in his termination. Doe initially reported to the ISB that he was terminated due to “downsizing,” but later explained that he had “cherry picked” the explanation that “portrayed him in the most favorable light.”
• Doe was terminated from another job with a security company in 2012 after misusing company equipment and “inappropriately engaging a troublemaker by challenging him to ‘meet up after work.’ ” Doe failed to disclose this termination.
• In 2015, Doe was terminated from his employment with the Delaware Office of Animal Welfare after an inappropriate interaction with a female coworker where, in his own words, Doe “made a sexual comment about ‘blowing;’ ” and “made inappropriate commentary about another employee’s sex life.” Doe later filed a lawsuit against this employer for discrimination and retaliation.

• In 2015, Doe illegally collected unemployment benefits in Delaware while employed, by continuously reporting income “that was close to, but never exceeded the cap on earnings that would trigger a reduction in [Doe’s] unemployment insurance benefits.” He challenged the Delaware Department of Labor’s determinations on this matter at each stage by personally “attacking the decision-maker,” filing a civil rights action against the decisionmaker “based upon the manner in which she treated him during the appeals hearing,” and accusing a federal judge of “misstating evidence” to benefit the opposing party.
• When engaged in litigation against the Delaware Department of Labor’s referee, Doe proceeded to have default entered against the referee even though he knew she had not been properly served. He later argued before the federal district court, the appellate circuit court, and in his petition for en banc review, that service was properly effectuated, repeating false statements to each tribunal.
• Doe initially failed to disclose that he had been a party to civil suits he filed against Delaware Animal Care and Control and the administrative proceedings concerning his unemployment benefits.
• Doe failed to disclose a 2014 incident in Delaware where he was disciplined at Wilmington University and placed on probation.
• Doe failed to disclose several informal investigations into his conduct by Concordia Law School between 2016 and 2019, including an incident of vandalism to his study carrel he committed by affixing a memorial plaque to the carrel outlining “highlights” of his academic career at Concordia and describing himself as “Concordia’s Original Overzealous Objector.” The plaque falsely listed several academic awards that Doe never received.

Also

In addition to this frivolous litigation, Doe filed a complaint with Delaware’s attorney discipline authorities (the Office of Disciplinary Counsel, “ODC”) against his then-attorney, John Brady. The complaint was dismissed by ODC attorney Jennifer Aaronson, who “found that the complaint did not warrant discipline.” In response, Doe then filed a disciplinary complaint against Aaronson. Doe later summarized his own actions:

when then ODC Counsel Jennifer-Kate Aaronson was kind enough to call me—as a courtesy—to tell me why she was dismissing the complaint against Mr. Brady, I became very hostile to her, told her she was lazy, corrupt, and incompetent, and then hung up on her. I then proceeded to file an ODC complaint against her because I did not agree with the statements she made to the court.

His multiple Idaho application proceedings - and his communications with and about bar officials - is recounted in detail.

The court here

while this is an unusual petition—with equally unique forms of relief sought by both the ISB and Doe—this Court has inherent constitutional authority to address and resolve these issues, particularly as concerns Doe’s present eligibility to practice law in Idaho.

Concerns

In the proceeding currently before this Court, Doe has continued to demonstrate an inability to be honest and candid by incorrectly representing the results obtained in his federal litigation against the Bar. For example, he claimed that “the federal court forced the schoolyard bullies [the Board] to finally issue a decision” on his second application, when, in fact, Doe was never granted any declaratory or injunctive relief from the federal court...

We conclude that there is substantial evidence indicating Doe’s continued inability to be honest and candid with clients, lawyers, courts, the Board, and others as required under Idaho Bar Commission Rule 201(a). Accordingly, Doe has failed to prove eligibility under Idaho Bar Commission Rule 201(a).

Judgment

This conduct has continued as Doe persists in exhibiting the exact behavior summarized by Justice Horton in reviewing Doe’s first application: a “pattern of demonizing those who make decisions adverse to his interests. He ascribes improper motivations, ethical lapses, and ineptitude to such individuals.” For example, in his cross-petition in this action, Doe made inappropriate statements impugning the integrity and professionalism of members of this Court, further demonstrating an ongoing pattern of attacking decision makers. In this case, he did so even before they rendered a decision.

Doe specifically accused one justice of improper conduct in another proceeding in which Doe had no involvement, stating that the justice’s comments to counsel during a particular oral argument rose “to the level of heated gratuitous–insults [sic] where [he] proceeded to passionately rail against [an attorney’s] conduct.” (Emphasis in original)...

Of particular concern are his tendencies to use unprofessional language and aim reckless attacks at attorneys and judges involved in both his state and federal lawsuits. Thus, he has failed to prove eligibility under this prong.

Disregard for the rights of others

Being disrespectful, rude, petty, defamatory, or vindictive does not constitute “reasonable advocacy” or ethical conduct. Doe’s conduct and language have consistently shown a lack of civility, extreme unprofessionalism, and a level of vindictiveness that goes beyond mere zeal. Such behavior indicates that Doe is in desperate need of correction, not commendation.

For example, Doe’s personal email communications with Bar Counsel and the Board are equally overzealous, inappropriate, and, at times, bizarre. For example, Doe has made statements like: “I am not about to let your evil and wickedness (as well as your dishonesty) change the person I am.” In one late night email, Doe stated:

You need to learn by this point that I am not just going to walk away like all the others you guys screw over; you are not going to get rid of me no matter how hard you try. I will be around for many years to come to grace you with my presence and keep you guys in check. Deep down, Joe [Bar Counsel], you know your life would be boring without me in it. You are like Captain Hook I am your Peter Pan.

This email is surprisingly similar to a statement Doe made in an earlier show cause hearing, when he described former Dean Ben Cramer of Concordia Law School as Captain Hook: “the wonderful memories I have of that law school, it’s like Neverland and he’s Captain Hook. He’s a necessary evil, and the story wouldn’t be the same without him.”

The record also demonstrates that Doe too often crafts his arguments in a religious light, and with a troubling tendency to literally “demonize those who make decisions adverse to his interests.” For example, in his briefing before this Court, Doe repeatedly described the Board’s actions, personnel, and decisions as “evil and wickedness,” “evil people,” “twisted,” “immoral,” and accused them of “cruel, wicked, and antagonizing ad-hominem attacks.” This tendency is also present in one of Doe’s recent emails:

Since I moved back to Idaho in June of 2021, I chose to dedicate my life to Christ and become baptized and I am a child of the King. I am not scared of you guys, I am not flustered by your bullying, and I am not about to let your evil and wickedness (as well as your dishonesty) change the person I am. It is so twisted because I am a person of paramount character and integrity and I am being blocked from my calling by persons who are (by all objective evidence available to me) immoral people who are trying to keep me out of my calling by trying to allege—falsely—that I lack requisite moral character and fitness.

In short, we find that the pattern of “demonizing” behavior found by Justice Horton three years ago persists in Doe’s conduct today. Accordingly, we conclude that Doe’s conduct continues to exhibit a disregard for the rights and welfare of others. He has failed to establish this eligibility requirement under Idaho Bar Commission Rule 201(f)

Request for immediate admission denied

Doe’s previously denied admissions were based on his conduct and moral fitness to practice law, not his pursuit of a redress of grievances in federal court. The ISB has an obligation to determine whether an applicant is fit to practice law in the state of Idaho, and that includes examining an applicant’s speech insofar as it is demonstrative of his eligibility to practice law in this state. This petition was filed in furtherance of that obligation and is not an infringement on Doe’s free speech. In sum, if Doe wishes to become an Idaho lawyer, his fitness will continue to be judged by examining his conduct.

As to ISB's sought preclusive relief

In this instance, given Doe’s track record, we conclude that a reasonable period of rehabilitation is necessary for Doe to demonstrate a meaningful change in character and fitness, and to document his rehabilitation. Thus far, Doe has hardly allowed any time for rehabilitation, much less shown any demonstrable changes in his fitness to practice law. Indeed, as Doe has filed successive applications, the same character and fitness shortcomings have continued to occur and remain unaddressed. While we cannot say that five years is necessary to make such a showing, based on the totality of the circumstances before us, we conclude that two years may be sufficient. Accordingly, we hold that Doe may not submit a fourth application to sit for an Idaho bar examination for a period of two (2) years from the issuance of this Opinion. If Doe submits a fourth application, it remains his burden to demonstrate that he can meet the standards to practice law at that time pursuant to the Idaho Bar Commission Rules. It is our hope that by turning his focus to rehabilitation and accountability for a season, Doe can make this a reality.

(Mike Frisch)

June 12, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Minnesota Disbarment

The Minnesota Supreme Court has disbarred an attorney admitted in 2011

The petition alleged that Bradley committed numerous acts of professional misconduct, including misappropriating client funds, committing fraud on the court, neglecting—and ultimately abandoning—his role as a court-appointed parenting consultant, failing to maintain trust account books and records, and failing to cooperate with the disciplinary investigation. Bradley received a copy of the petition via certified mail but did not respond, so we deemed the allegations admitted and allowed the parties to file memoranda on the appropriate discipline. Bradley did not file a memorandum or appear at oral argument. The Director asserts that the appropriate discipline is disbarment. We agree.

Misconduct

Bradley misappropriated funds from one client, violating Minn. R. Prof. Conduct 8.4(c). The client was entitled to an $8,442.23 judgment following a marital dissolution proceeding, which Bradley received from counsel for the client’s former spouse and deposited into his firm’s trust account. Bradley did not disburse any of these funds to the client and instead used the funds for purposes unrelated to the client’s representation, including for his own personal benefit. Bradley also failed to properly maintain trust account books and records for his law firm, violating Minn. R. Prof. Conduct 1.15(h). Due to Bradley’s failure to maintain all required books and records, the Director was unable to fully audit the trust account and could not determine precisely when Bradley transferred this client’s money out of the trust account and the exact amount of client funds that were misappropriated.

In addition, Bradley committed fraud on the court during his own marital dissolution proceeding by making false statements related to a judgment and decree and defying district court orders, violating Minn. R. Prof. Conduct 3.3(a)(1),3 3.4(c),4 and 8.4(c) and (d). Bradley also failed to adequately communicate with the parties in a family law matter after becoming a court-appointed parenting consultant, and he abandoned that appointment without notice, violating Minn. R. Prof. Conduct 8.4(d). And Bradley failed to cooperate with the Director’s disciplinary investigation, violating Minn. R. Prof. Conduct 8.1(b)6 and Rule 25, RLPR.

(Mike Frisch)

June 12, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Presently Fit

The Ohio Supreme Court has approved an applicant to sit for the bar exam

Applicant, Zachary Charles Daubenmire, of Thornville, Ohio, is a 2011 graduate of the Case Western Reserve University School of Law. In November 2013, we found that Daubenmire failed to carry his burden of proving that he possessed the requisite character, fitness, and moral qualifications to practice law in Ohio because of his 2007 felony conviction for pandering obscenity involving a minor and his continuing duty to register as a sexually oriented offender until February 2017. In re Application of Daubenmire, 137 Ohio St.3d 435, 2013- Ohio-4977, 999 N.E.2d 669, ¶ 1-3, 19-20. We therefore disapproved his application to register as a candidate for admission to the practice of law and authorized him to reapply as a candidate for the July 2018 bar exam. Id. at ¶ 3, 20

In November 2022, Daubenmire applied to register as a candidate for admission to the practice of law in Ohio by completing a National Conference of Bar Examiners questionnaire.

Two members of the Licking County Bar Association Admissions Committee interviewed Daubenmire in April 2023. In each of their reports to the admissions committee, the interviewers stated that Daubenmire did not possess the requisite character, fitness, and moral qualifications for admission to the practice of law. Specifically, the interviewers were concerned that Daubenmire tended to minimize his criminal conduct and that he failed to appreciate that his felony offense was not victimless. Citing several incidents that occurred from 2015 through 2017 and Daubenmire’s admission to drinking alcohol frequently, the interviewers also expressed concern that Daubenmire exhibited signs of potential alcohol abuse, a pattern of poor anger management, and a pattern of disregard for Ohio laws. Based on the interviewers’ reports, the admissions committee issued a final report recommending disapproval of Daubenmire’s character, fitness, and moral qualifications to practice law.

The applicant appealed

The matter is before this court pursuant to Gov.Bar R. I(13)(D)(5)(a) and (b), because Daubenmire’s conviction was for a second-degree felony under Ohio law. Because we find that Daubenmire has established that he presently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio, we approve his pending registration application and permit him to sit for the July 2024 bar exam.

Felony conviction

His sexual-health therapist opined in a June 2012 letter to the Office of Bar Admissions that Daubenmire’s interest in pornography “was not motivated by a sexual deviance disorder or a psychological pathology. Rather, it was the product of complicated sexual conflicts of a young man whose conservative religious background suppressed normal sexual drive.”

Alcohol use

The board found, and we agree, that Daubenmire has presented clear and convincing evidence that his alcohol use is not a character-and-fitness issue that should result in disapproval of his pending application.

Anger issues

On November 22, 2015, Daubenmire called the Hebron Police Department to report that three men had assaulted him at a bar near his home. According to the police report, Daubenmire told police that he entered the bar after the Ohio State University football team had lost a game and that to tease his acquaintances at the bar, he said, “How about them Buckeyes?” He stated that sometime thereafter, a man approached him and asked if he was a registered sex offender. Daubenmire claimed that after he answered that question in the affirmative, the man got mad, stated that he had a child, and then grabbed Daubenmire and took him to the ground. Daubenmire further stated that he was then punched and kicked by that man and two others until other people stepped in to break up the fight.

According to the police report, one of the men admitted that he had asked Daubenmire if he was a sex offender but told the officer that Daubenmire had elbowed him in the stomach before he took Daubenmire to the ground in selfdefense. The two other men purportedly involved in the incident told police that they never touched Daubenmire. No charges were filed against Daubenmire or any of the three men over the incident.

During his 2023 character-and-fitness interview and at his 2024 hearing, Daubenmire also described an incident in which he and his cousin got into a shouting match on a golf course sometime in 2016. He testified that there was no violence and that his father stepped in to calm him and his cousin down.

On October 15, 2016, at a Dollar General store, Daubenmire attempted to return or exchange a pair of earbuds that did not work. The store clerk called the Hebron Police Department and reported that Daubenmire got mad when she would not accept the return without a receipt, cursed at her, and threw the earbuds at her face. She stated that the earbuds struck her, and the officer who responded to the call observed a scratch on the right side of her face. Daubenmire told the officer that he had ripped up the earbuds and threw them into the air before leaving the store.

He pled to a minor misdemeanor.

Simce then

There was no evidence presented at the 2024 hearing that Daubenmire had engaged in any other angry outbursts since the incident with the store clerk in October 2016—a period of more than seven years—or committed any alcohol-related offenses since his July 2017 open-container offense.

The court

Daubenmire has testified candidly about each of the incidents discussed above and acknowledged the wrongfulness of his conduct. He participated in several years of mental-health counseling to address his sexually oriented misconduct and voluntarily sought and committed himself to almost two years of additional mental-health treatment to address his subsequent angermanagement issues. And most recently, he has participated in marital counseling with his wife to help with managing the everyday stresses of marriage and parenting two young children. He has demonstrated his growth and maturation through his willingness to seek help when his stress begins to affect his mental health. He also wisely delayed his second application to register as a candidate for the bar exam until he was able to demonstrate that his anger-management issues had been under control for an extended period. Moreover, in his sworn application to take the July 2024 bar exam, Daubenmire answered “no” to all questions about various types of conduct or actions that could have been taken against him since he filed his registration application. He has therefore indicated that he has no new information, conduct, or behavior to report that could call into question his ability to practice law in a competent, ethical, and professional manner.

In addition, Daubenmire has found a dedicated mentor in Weaver and demonstrated his commitment to the profession by working competently, diligently, and professionally as a law clerk at Weaver’s firm for about 12 years. In short, Daubenmire has accepted responsibility for his past actions, made efforts to learn from those actions and avoid repeating them, and has successfully demonstrated his rehabilitation.

Upon consideration of the record and the applicable rules, we find that Daubenmire has carried his burden of proving that he currently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law.

KENNEDY, C.J., and FISCHER, J., dissent and would not allow Daubenmire to take the July 2024 bar exam. (Mike Frisch)

June 12, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 11, 2024

"Dude I Ate A Big Ass Weed Brownie..."

The Tennessee Court of Appeals affirmed and remanded a Chancery Court decision in a law firm dispute

The plaintiff, a founding member of a law firm, filed this action against other members. The trial court found that the defendant members violated their duty of good faith and fair dealing, breached their contract with the plaintiff, violated their fiduciary duty toward the plaintiff, engaged in a conspiracy, and committed conversion. We affirm the ruling of the trial court.

This appeal arises from disagreement over the management of a new law firm. Matthew Ooten, Linda Betz, and Jason Baril, attorneys licensed to practice law in Tennessee, previously worked together at the Knoxville law firm of Ogle, Elrod and Baril (“OEB”) until they left OEB to start a new law firm, a separate disability practice, a supporting call center, and a holding company. They are the founding members of Ooten Betz & Baril, PLLC (“OBB”); Disability Advantage Group, LLC (“DAG”); Summit Conversions, LLC (“SC”); and Summit Partners, LLC (“SP”) (collectively the “LLCs”). OBB, DAG, SC, and SP were formed as limited liability companies through the Tennessee Secretary of State on December 1, 2018, with delayed effective dates: DAG, December 14, 2018; SP, SC, and OBB, January 1, 2019. Each LLC is member managed. Of these four entities, only OBB is a law firm.

At their former firm

The disability group that Ooten managed at OEB was very profitable, growing from essentially nothing in 2014 to roughly $1.6 million in 2018. Around this time, Baril approached Ooten about leaving OEB with him. Ooten understood that the entire disability practice would be moving from OEB. He thereafter approached [case managers] Freers and Cozart, his team at OEB, about leaving to start the new venture with Betz and Baril.

Initial agreements

Betz, Baril, and Ooten executed four separate documents titled “Partnership Agreements” referencing the LLCs.

But trouble ensued

Betz, who had managed the personal injury practice at OEB, was tasked with implementing the personal injury case management system for OBB. According to Ooten, however, Betz failed to make the personal injury system operationally sound and opposed his efforts to assist her. He claims that she became increasingly hostile, aggressive, and combative toward him when he suggested improvements. Ooten contends that he made good faith efforts to avoid conflict with her by outlining how the ownership of the LLCs could be restructured among the members to avoid interaction between Betz and Ooten.

As set forth below, there was ongoing interaction between Betz and Baril. 

Ooten sought to restructure the agreements

On March 20, 2019, Ooten and Baril were scheduled to go to Las Vegas for the NCAA basketball tournament. That morning, however, Baril texted Freers to ask if she wanted to meet for lunch at Calhoun’s, a Knoxville restaurant. Freers met with Betz and Baril for lunch, at which time Baril inquired if she would stay at DAG and assume the disability practice responsibilities if Ooten departed the firm. Freers informed them that she and Ooten were not a package deal; she would make a decision that was best for her and her family. She indicated, nonetheless, that she hoped things would work out. They discussed a raise if Freers assumed Ooten’s responsibilities. Freers mentioned that Cozart was a vital member of DAG’s leadership team and that she would like to see her remain with the firm. Betz and Baril subsequently invited Cozart as well as Freers to a second meeting. Cozart testified that Betz and Baril informed her that they were planning to meet with Ooten because the members were not all getting along and that Ooten would not be working there anymore. Betz and Baril expressed to Cozart their belief that she was a valuable employee at DAG and their desire for her to stay. As with Freers, an increase in Cozart’s salary was addressed. According to Cozart, she was to make close to six figures when the proposed profit sharing was included. As to Ooten, instead of meeting up with him in Las Vegas as planned, Baril texted him on March 21, 2019, at 10:48 a.m., stating “Dude I ate a big ass weed brownie and just woke up I think so I missed my flight[.] I’ll call you in a couple of hours to talk[.]”

Baril directed his attorney to advise Ooten by letter that the computer passwords and the locks on the doors had been changed at OBB, he had been removed from all partnership bank accounts, and that if he came around the physical premises, law enforcement would be notified. Upon Baril approving the letter, it was hand-delivered to Ooten on April 2, 2019. The letter outlined that if Ooten chose to litigate and/or request a formal market valuation of his vested partnership interest, Betz and Baril, pursuant to the Partnership Agreements, would hold a meeting and vote their majority interest to choose an appraiser to set the market value for the entities.

Two days after Ooten received the letter, the record reflects that Betz and Baril began making draws and distributions from DAG based on a 70/30 split—i.e., 70 percent to Baril and 30 percent to Betz, diminishing Ooten’s interest in the entities to zero. In July 2019, Betz filed for divorce, and she and Baril formally announced that they were a couple to firm personnel. Ooten opines that it can be reasonably inferred that the relationship existed before he was shutout on April 2, 2019.

Upon Ooten’s departure, Freers’ salary increased from $55,000 to $115,000, and Cozart’s salary increased from the low $40,000s to approximately $93,000. Freers took over most of Ooten’s role, and Cozart stepped into Freers’ shoes. Initially, Freers was granted access to Ooten’s emails in order for her to utilize Ooten’s vendor contacts and services as well as to see whether any matters needed to be addressed. Around December 2019, however, she no longer had access to Ooten’s account. Upon notifying Betz and Baril that the account had become unavailable to her, she was advised to ask them if she needed something.

In the inevitable litigation initited by Ooten

Dismissed were claims for punitive damages, intentional interference with business relationships, and a derivative action by Ooten on behalf of DAG. The trial court ordered that Ooten should recover from Betz and Baril, jointly and severally, the amount of $897,913 plus prejudgment and post-judgment interest at the maximum rate allowed by law and reasonable and necessary attorney fees. On January 10, 2023, the court further awarded Ooten discretionary costs pursuant to Rule 54.04 of the Tennessee Rules of Civil Procedure in the amount of $12,039.05. Additionally, on February 28, 2023, the court awarded Ooten attorney fees in the amount of $255,892.50 and expenses (not otherwise recoverable as discretionary costs) in the amount of $28,610.41.

Baril and Betz appealed; Betz's was dismissed on procedural grounds

Merits and non-applicablity of ethics rule of sale of law practice

Ooten was not selling his disability practice in an arm’s length transaction and leaving the industry—a requirement of Rule 1.17. The disability practice was continued as a going concern without interruption. Further, only one entity involved in this matter was a law firm, OBB. Rule 1.17 would have no application to the other three non-law firm entities.

Ooten's expert

Harvey demonstrated that he was qualified to testify about the “fair value” of law practices and his opinions were generally accepted in the financial community. His testimony established that he has degrees in accounting and business administration. He is a certified public accountant and accredited in business valuation. Harvey has conducted more than 1,000 business valuations since approximately 1999 and has experience as a broker applying the appropriate valuation approaches to businesses. Harvey observed that he had valued approximately five law practices, the last being three or four years prior to the January 2022 trial.

Conclusion

the judgment of the trial court is affirmed, and the case is remanded for enforcement of the court’s judgment.

Oral argument linked here. (Mike Frisch)

June 11, 2024 in Law Firms | Permalink | Comments (0)