Friday, February 3, 2023

I Read The Sun-News Today Oh Boy

The New Mexico Supreme Court has publicly censured a judge for failure to recuse herself after a newspaper article had called her conduct into question.

The judge had appointed a parenting coordinator in a child custody case.

Three years later, the father retained new counsel who filed two motions. One sought recusal; the other sought removal of the monitor and revocation of his quasi-judicial immunity.

 One week after Father’s counsel filed these motions and before a hearing was held, the Las Cruces Sun-News published an article reporting many of the allegations contained in the two motions—that Dr. Smith was not a qualified parenting coordinator and that Judge Rosner recommended and issued an order appointing Dr. Smith despite his purported lack of qualifications. The article criticized the Third Judicial District’s parenting program, along with Judge Rosner and her involvement in that program and her subsequent order appointing Dr. Smith.

The judge read the article and felt "personally attacked" but did not recuse herself

Following the hearing on the two motions, Judge Rosner issued an Order Denying Respondent’s (Father’s) Motion to Recuse for Cause, and Order Denying Respondent’s (Father’s) Motion to Remove Parenting Coordinator and Revoke Parenting Coordinator’s Quasi-Judicial Immunity. In paragraph 17 of the order, Judge Rosner stated:

Rather than bring to [the c]ourt her claims of alleged misconduct by Harold Smith and this [c]ourt, [Father’s counsel] took her motions to the Las Cruces Sun News, without input from anyone other than herself. At the hearing, on her two motions . . . her client, [Father], testified under oath, that he had never had any contact nor had he made any statement to any reporter of the Las Cruces Sun News. The article, which appeared on the front page of the Las Cruces Sun News on July 21, 2020, sought to damage Harold Smith and this [c]ourt by implying an inappropriate relationship between Harold Smith and the undersigned judge, and bias by this [c]ourt and Harold Smith against [Father]. Noteworthy, is the failure of [Father’s counsel] to attack Dr. Caplan’s report which is the most damaging report against her client . . . . At the request of [Father’s counsel], Dr. Caplan’s report has been sealed.

Three days later, the judge granted a renewed recusal motion.

The judge admitted violations of judicial canons

Based on these admitted violations, Judge Rosner agreed to (1) enroll in and successfully complete, at her own expense, Ethics and Judging: Reaching Higher Ground, a National Judicial College Course and (2) receive a public censure to be published in the State Bar of New Mexico Bar Bulletin.

The court

While we commend Judge Rosner for recusing when she realized she could not be impartial, her use of the order denying Father’s motions, a tool used to carry out her official judicial duties under Article VI, Section 1 of the New Mexico Constitution, to respond to criticism was inappropriate. It was also inappropriate to reference the conclusion of the sealed doctor’s report, not only because it was sealed, but also because it had no bearing on the disposition of Father’s motions. While judges may respond to public or personal criticism, they may not do so in carrying out their official judicial duties. Rule 21-300 NMRA (“A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”). Having misused the order denying Father’s motions to respond to public criticism, we conclude that Judge Rosner violated Rule 21-204(A)-(B) and Rule 21-201(A), (E).

We recognize the challenges faced by district court judges, often presiding over emotionally charged cases involving litigants and lawyers who might challenge their authority, insult their integrity, impugn their good names, and even attempt to bait them into losing control. In those instances, district court judges, no matter how egregious the behavior by counsel or clients, must remain above the fray in order to carry out their official duties. Judges are equipped with tools to address inappropriate behavior on the part of the parties and counsel, in the form of sanctions and contempt powers, which should be used as needed. Judges must always remain cognizant that an essential function of their role in the judiciary is to be a neutral arbiter even in the throes of highly adversarial proceedings. By adhering to these responsibilities, the judge may effectively avoid any appearances of impropriety, as well as actual instances of impropriety.

While Judge Rosner’s admitted conduct violates several of the Rules of Judicial Conduct, this Court looks at various factors when deciding to impose judicial discipline including “the nature of the misconduct and patterns of behavior[,] . . . the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.” Schwartz2011-NMSC-019, ¶ 25 (internal quotation marks and citation omitted).

Censure was deemed appropriate. (Mike Frisch)

February 3, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sodom And Steam

An Illinois Hearing Board proposes a six-month suspension for client-related and other misconduct

Respondent failed to respond to a motion for summary judgment, did not communicate with his clients about the motion, and did not inform them that a judgment was entered against them. In another matter, Respondent received and held 13 garnishment checks owed to a client but did not deposit them in a client trust account. He did not timely respond to his client’s inquiries about the checks, provide an accounting, or promptly deliver the garnishment funds owed to the client. While representing a client in a domestic relations matter, Respondent made gratuitous comments of a sexual nature to opposing counsel and a paralegal.

The Hearing Panel found that Respondent failed to act with reasonable diligence and promptness; failed to promptly inform the client of a decision or circumstance that required the client’s informed consent; failed to reasonably consult with the client about the means by which the client’s objectives were to be accomplished; failed to keep the client reasonably informed about the status of the matter; failed to promptly comply with reasonable requests for information; failed to hold property of clients or third persons separate from the lawyer’s own property; failed to promptly notify the client of his receipt of funds in which the client had an interest, deliver funds the client was entitled to receive, and provide a requested accounting; and, in representing a client, used means that had no substantial purpose other than to embarrass, delay, or burden a third person. The Hearing Panel recommended that Respondent be suspended for six months and until he makes restitution or provides proof of a settlement with his former clients and his consistent compliance with such settlement.

Gratuitous comments

In 2021, Respondent and attorney Kristen Fischer represented opposing parties in a domestic relations matter. Fischer’s law office and the office of Rincker Law, where Respondent was employed, were on the same floor of an office building in Champaign. Fischer shared office space with another attorney, Sami Anderson. Stephanie Schnepper worked as a paralegal for both Fischer and Anderson. (Tr. 23, 24).

Schnepper testified that, in August 2021, Respondent entered the Fischer/Anderson office space. Schnepper greeted him and asked, “How are you today?” Respondent replied that “he was great, he had just been naked in his office.” After he said this, Respondent went into Anderson’s office. (Tr. 26). Anderson heard Schnepper’s exchange with Respondent and heard him say “he had been naked on his couch in his office.” (Tr. 59). Both Schnepper and Anderson denied that they misheard Respondent. (Tr. 62). Respondent denied saying he had been naked on his couch in his office and testified that he did not have a couch in his office. (Tr. 78).

According to Anderson, the manner in which Respondent speaks “can come off as crude,” so she did not have a reaction to his comment. (Tr. 59). Anderson acknowledged that she and Respondent had used profanities in conversation in the past and that Respondent did not have a couch in his office. (Tr. 64).

The other statements at issue were made on October 4, 2021. That morning, Fischer and Respondent met in the Rincker Law office to attempt to reach a settlement in a domestic relations matter in which they represented opposing parties. (Tr. 38-40). During this meeting, while discussing that the matter had been difficult and frustrating, Respondent said he thought the solution with respect to his client was to “butt f**k her with sand put on it.” (Tr. 41). Later that day in Fischer’s office, Respondent repeated this statement to Fischer and Schnepper, saying his client “needed to be butt f***ed and for some added torture some sand put on it.” (Tr. 27, 42).

Schnepper testified she was disgusted and taken aback by Respondent’s statement. She felt his language was violent. (Tr. 28). In Fischer’s view, Respondent’s statements negatively impacted the integrity of the settlement process by putting everyone in a difficult position. She felt it was disrespectful for Respondent to speak about his client that way. (Tr. 44).

According to Respondent, his actual words were that “[the client] should be involuntarily sodomized, and just for her I would throw in some sand.” (Ans. at par. 51). Fischer denied that Respondent used the word “sodomized.” (Tr. 49). Respondent testified that his client was the most difficult client he ever had, and he made the statements about her to “blow off steam.” (Tr. 80).

Also on October 4, 2021, while in Fischer’s office discussing the domestic relations matter, Respondent brought up a proposal that Fischer had previously rejected. When Fischer told Respondent she did not want to revisit that issue, Respondent replied, “Would you just let me finish, I promise I won’t get any in your hair.” Fischer, Schnepper, and Anderson heard Respondent make that statement. (Tr. 28-29, 45-46, 60). According to Respondent, he said, “I will get out of your hair.” (Tr. 78-79). Fischer, Schnepper, and Anderson denied that Respondent said, “I will get out of your hair.” (Tr. 33-34, 52, 64).

Schnepper was mortified by Respondent’s remark and went to speak to Respondent’s employer, Cari Rincker, but Rincker was not in her office. (Tr. 29). Schnepper was so upset by Respondent’s disrespect toward Fischer that she cried. (Tr.30).

Fischer was stunned by Respondent’s remark but did not react because she wanted to focus on her client. (Tr. 46). She testified that Respondent’s behavior caused a strain on the working relationship between her office and the Rincker Law office. (Tr. 47). Respondent’s employment at Rincker Law was terminated as a result of his statements to Fischer and Schnepper. (Tr. 76-77).

Proposed sanction

Having carefully considered the proven misconduct, relevant circumstances, applicable case law, and purposes of the disciplinary process, we recommend that Respondent be suspended for six months and until he has made restitution to the Prestons or provides proof that he has entered into and is consistently complying with a settlement agreement with them. This recommendation accounts for Respondent’s neglect of the Preston and Unique Homes matters as well as his vulgar remarks to Fischer and Schnepper. We determine that this sanction is necessary to make the Prestons whole, protect the public and the profession, and impress upon Respondent and other attorneys the importance of protecting client interests and conducting oneself in a respectful and ethical manner.

(Mike Frisch)

February 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Resignation Accepted

The Oklahoma Supreme Court has accepted an attorney's resignation in the face of pending allegations

The complaint was based upon the Respondent's representation of Dawn Fambrough. The Respondent was hired to represent Fambrough in a class action lawsuit. Upon settlement of the lawsuit, Respondent was accused of not paying the correct amount to the client. He was also accused of not properly safeguarding funds, providing false and misleading documents regarding his case, dishonesty in his representation of his client, making misrepresentations to the Oklahoma Bar Association, and failure to communicate properly with his client. The Respondent was licensed to practice law in both Oklahoma and Texas. A complaint had also been filed in Texas concerning the same client and issues. A hearing in SCBD 6960 was stayed pending the Texas disciplinary proceedings. The Respondent was ultimately suspended from the practice of law in Texas for ten years, beginning on June 24, 2021 (Commission for Lawyer Discipline v. Kenneth Shane Walker, Case No. 201803859, District 6 Grievance Committee of the State Bar of Texas). The Respondent appealed the suspension on August 20, 2021. On October 4, 2021, the Respondent's name was stricken from the roll of attorneys in Oklahoma due to failure to pay bar dues. His Texas appeal was later dismissed on August 24, 2022. The Respondent did not notify the Complainant about his Texas suspension as required by Rule 7.7, RGDP. Thereafter, on September 23, 2022, the Complainant filed a Notice of Disciplinary Action in Another Jurisdiction, case number SCBD 7327, pursuant to Rule 7.7, RGDP. The two disciplinary matters, SCBD 6960 and SCBD 7327, were consolidated into SCBD 6960 on October 26, 2022, by order of this Court. On November 17, 2022, this Court ordered the Professional Responsibility Tribunal to hold a combined hearing and to issue a single report. Prior to any hearing, the Respondent executed an affidavit regarding resignation pending disciplinary proceedings on January 10, 2023. The Complainant filed the affidavit along with its Application for Order Approving Resignation Pending Disciplinary Proceedings on January 17, 2023, pursuant to Rule 8.2, RGDP.

He may apply for reinstatement after five years. (Mike Frisch)

February 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Choosing Sides

A remarkable oral argument yesterday before the Maryland Supreme Court involves a matter in which Bar Counsel opened an investigation of a judicial candidate who was challenging incumbent judges 59 minutes after receiving information from the campaign manager of those judges.

While the principal allegations involve statements made by the Respondent in her effort to unseat sitting judges, Bar Counsel also filed, pursued and prevailed before the Circuit Court on charges relating to her 1999 application for admission to the New York Bar. 

There is sharp questioning - particularly but not exclusively from Justice Watts - suggesting concern that Bar Counsel may have engaged in a conflict of interest by inserting herself in an ongoing judicial election for the benefit of the incumbent candidates.

The viewer is free to judge whether there were satisfactory answers to these questions.

Respondent's counsel also suggested that inaccurate/untrue statements made by or on behalf of the incumbents went uninvestigated and unpunished.

In a 2005 law review article, Professor James Moliterno warned about the use of bar sanctions as a political tool of the powerful and entrenched establishment to punish those who take on such interests. 

The court dismissed similar charges in a 2015 decision

This case arose out of a hotly-contested primary election campaign for a position on the Circuit Court for St. Mary's County. An experienced prosecutor in the County sought to unseat a newly-appointed judge who, during the course of his career, had represented defendants in criminal cases in the County. As in many election campaigns, each candidate touted, with some exaggeration, his own experience and credentials. And each candidate disparaged, in various ways and without absolute accuracy, those of his opponent. The question before us is whether there is clear and convincing evidence that a statement in the challenger's campaign flyer was made with knowledge that it was false or with reckless disregard of its truth or falsity and therefore violated the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”).

The Attorney Grievance Commission (“Commission”) charged Respondent Joseph M. Stanalonis with violating MLRPC 8.2(a) (false statement as to qualification or integrity of a judge, public legal officer, or candidate for such office), MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice) by virtue of three statements about his opponent in a campaign flyer circulated on his behalf. Pursuant to Maryland Rule 16–752(a), this Court designated Judge Melanie M. Shaw Geter of the Circuit Court for Prince George's County1 to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law.

Following a hearing at which Mr. Stanalonis was present and represented by counsel, the hearing judge issued findings of fact and recommended conclusions of law. The hearing judge concluded that two of the statements did not violate the MLRPC, but that the third statement violated all of the cited rules, although Mr. Stanalonis had a “demonstrable basis” for making that statement. Mr. Stanalonis excepted to the conclusion that he had violated the MLRPC. We sustain that exception, and, as a result, shall dismiss the charges.

Our earlier coverage of this case is linked here.

It will be interesting to see what the court does with this important case. (Mike Frisch)

February 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 2, 2023

Macon Place

The Missouri Supreme Court ordered a suspension without reinstatement for at least two years for a former  judge's misconduct in an unsuccessful reelection campaign in Macon County

A reprimand was imposed on these charges in November 2015

The misconduct stemmed from four counts: (1) engaging in a text message exchange with a candidate for circuit clerk that threatened Prewitt’s involvement in the circuit clerk’s campaign if she did not remove his opponent’s signs from her yard; (2) maintaining a Facebook account identifying Prewitt as an associate circuit judge through which he made 11 postings encouraging others to attend certain charitable events or make donations to certain charities; (3) criticizing other judges in a Facebook post by stating “unlike many other judges, I am very open about decisions I make in cases because I am proud of the work I do”; and (4) questioning a prosecutor during an arraignment about the strength of a case, advising that he did not want to unnecessarily prevent the defendant from playing football and that the prosecutor should dispose of the case.

The present charges

The current information OCDC filed against Prewitt contains two counts that remain before this Court. Both counts relate to Prewitt’s campaign for associate circuit judge against Burks in the course of the 2018 election. One count encompasses threats made to Burks. The other involves Prewitt’s speech at a campaign event. Prior events and interactions between Prewitt and Burks set the context for this Court’s findings.

Prewitt and Burks previously opposed each other in the 2014 election for associate circuit judge. Prewitt, the incumbent, ran as a Republican. Burks ran as a Democrat. Directly before the election, Burks sent out a mailer disputing several of Prewitt’s campaign claims. The top of the mailer stated: “PREWITT…WORKING TO MISLEAD VOTERS.” Prewitt defeated Burks in the election.

Burks intended to run in 2018; the opponents had an encounter

The details of the encounter are in dispute. According to Burks, Prewitt inquired whether she intended to run against him in the election. Burks responded she was still undecided. Prewitt purportedly stated, if she were to run against him that he would file an ethics complaint premised on the mailer sent before the 2014 election and that he knew about Burks’ husband’s conduct. Prewitt denies making any statement beyond asking Burks about her intention to run.

While it was not publicly known, Burks' husband had strayed

At some point prior to the 2018 election, at a prayer event on the grounds of the local courthouse, Prewitt informed Pastor Bray that, if Burks were to run for the associate circuit judge position, it would cause a rift within the church. Pastor Bray was a friend of Burks’ husband. Prewitt provided Pastor Bray with details of Burks’ husband’s infidelity, noting the husband had broken up marriages in town. Pastor Bray relayed information about Prewitt’s comments to Burks’ husband. Prewitt, in his testimony before the disciplinary panel, confirmed it was possible he discussed the affairs with Pastor Bray in passing. When Burks learned of the conversation, she was upset Prewitt was interfering with her family’s church-related life.

There was evidence of Prewitt's discussions with others but nonetheless

Burks entered the 2018 election as an Independent candidate. She won the election and took office in January 2019. Prewitt did not follow through on publishing advertisements detailing the affairs of Burks’ husband or publicly stating Burks was supporting a predator. Prewitt could not unequivocally say he did not ever bring up the topic of Burks’ husband’s infidelity himself. He testified, “It was very surprising to a vast number of people given that she would be putting herself in the public eye.” He admitted one of the reasons he did not disseminate campaign information discussing the affairs was due to the complaint pending with the Judicial Commission.

Threats against Burks

Prewitt’s briefing acknowledges he “sought to dissuade [Burks] running for the office he held.” In accord with the panel, this Court finds Prewitt was doing more than warning his political opponent about topics that could emerge during the course of the campaign. Rather, Prewitt was attempting to coerce Burks into not running against him. First, he threatened that Burks’ filing would result in him filing an ethics complaint against her based on the previous campaign. Second, he threatened to give speeches and send out fliers in which he would call her husband a “predator.” Intertwined in this threat was Prewitt’s intention of making a point that Burks’ children, who were unaware of the affair, would be certain to learn of it.

A judge’s threat to file an ethics complaint against a lawyer, if and only if that lawyer decides to oppose him in an election, is impermissible.

In the discipline hearing

In his testimony before the panel, Prewitt refused to characterize as threats the prospect of sending out a flier labeling Burks’ husband as a “predator” and making known the information concerning the affairs. Prewitt believed Burks’ husband’s affairs to be relevant to Burks’ campaign because, if elected, Burks would oversee divorce cases and exercise her discretion in those cases. Even if this background information were relevant, a position merely assumed here, no legitimate purpose, other than to convince Burks to back out of the contest, can be discerned from Prewitt’s threat to ensure Burks’ children found out about the affairs. Prewitt responded he was “backed … into a corner” when Burks questioned whether he stated he would make sure her kids found out about their father’s extramarital relationships. Prewitt also did not deny characterizing the upcoming campaign as a “bloodbath.”

Prewitt's knowledge of an affair was a client confidence and not generally known

The extent of knowledge of the affair between Burks’ husband and BM is of relevance here. BM testified at Prewitt’s disciplinary hearing. Prewitt represented BM in her divorce, which was filed in 2009. BM testified she told a handful of friends about the affair but that “[n]ot everyone” in town or in Macon County knew about it. Several of OCDC’s witnesses answered questions about the extent of knowledge of the affairs. Pastor Bray was aware Burks’ husband had an affair before Prewitt approached him with the information. He learned of the information from his duties as a pastor, but he acknowledged he had also heard about it through the community. Olinger, the former police chief, did not hear the affairs discussed in 2018 by anyone other than Prewitt. He did not know about the affairs. In his experience as police chief, the affairs were not generally known in the community, although he admitted it would have been easily possible that others would have known about an affair even though he did not. Holman learned of the affairs sometime between 2013 to 2015. AL, one of the women with whom Burks’ husband had an affair, was the wife of a friend of Holman. Holman learned of the affair “just in passing around town” and confirmed it with his friend. He testified the affairs were not widely known in the Macon County community at first but “it got a little louder as the divorce [of BM] . . . started to take hold.” Meisner was aware Burks’ husband had one affair—the affair with AL. At some point before the 2014 election, Burks told Meisner her husband had been unfaithful. Meisner did not learn of the second affair—the affair with BM—until counsel for Prewitt took his deposition in this matter. According to Meisner, no one in the community was discussing the affairs.

Not "generally known"

While allowing that salacious details may travel quickly in a small town, as was often referenced in testimony, this Court does not find the information that BM engaged in an affair with Burks’ husband was generally known. It may be that rumors of an affair were generally known, and it could be the case that the affair with AL was generally known, but this Court finds from the record that the affair with BM was not generally known. The information was not widely recognized by members of the public in the relevant geographical area.

The court rejected the claim that the information was not confidential

Even if Prewitt discovered additional details of BM’s affair afterwards, in the course of their social engagements, use of these details would still have “relat[ed] to the representation” of BM and would have violated Rule 4-1.9(c).

Sanction

When mitigating and aggravating factors are weighed, the presumptive discipline of a suspension is not ameliorated. The abundance of factors in aggravation, in combination with the seriousness of the Rules violated and that the wrongdoer was a judge at the time of the transgressions, further moves this Court to impose a suspension...

For the foregoing reasons, this Court orders Prewitt be suspended indefinitely with no leave to apply for reinstatement for two years.

(Mike Frisch)

February 2, 2023 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Use Of Inadvertently Disclosed Discovery Does Not Mandate Disqualification

The Washington State Court of Appeals Division Three affirmed a conclusion that use of inadvertently disclosed electronic discovery did not require disqualification of counsel

Electronically stored information is ubiquitous in contemporary law practice. When an attorney responds to a discovery request by sending electronically stored information to opposing counsel, care must be taken to avoid inadvertent disclosure of embedded information that might be subject to a claim of privilege. Nevertheless, if an inadvertent disclosure happens, the receiving attorney must take corrective action, including notifying the sender. Sanctions must be imposed if an attorney fails to take corrective action, with the most severe sanction being disqualification.

Counsel for Lloyd & Williams, LLC, and its members, Dewight Hall Jr. and Tod W. Wilmoth (collectively L&W), inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel that had been partially redacted but not scrubbed of embedded text. Instead of notifying counsel for L&W and sequestering the documents, opposing counsel cited portions of the embedded text in support of a summary judgment motion. This prompted L&W to move for opposing counsel’s disqualification.

The failure of opposing counsel to take corrective action violated rules of civil procedure and professional conduct. Nevertheless, the trial court ruled disqualification was not an appropriate sanction because counsel’s rule violations were not intentional. Having accepted discretionary review of this matter, we find no abuse of discretion in the trial court’s choice of sanction. Accordingly, we affirm.

The story

Patty Hur is embroiled in a contract dispute with L&W. Responding to a discovery request, L&W’s lawyer, George Ahrend, sent more than 1,000 pages of e-mails to Ms. Hur’s lawyer, Heidi Urness. The discovery was sent electronically and was accompanied by a notice stating privileged information had been redacted. Mr. Ahrend later explained he redacted the purportedly privileged e-mails by blacking out the substantive content, leaving the header information (i.e., date, sender, recipient, and subject) visible in lieu of
a privilege log.

More than one year after receipt of the discovery responses, Ms. Hur moved for partial summary judgment. Attached to Ms. Hur’s declaration in support of the motion were two exhibits taken from Mr. Ahrend’s discovery materials. The exhibits are screenshots, and each image has a left-hand column and a right-hand column. The left-hand columns display the results of keyword searches. The search results are sentence fragments containing the search terms “Maggie” and “rent,”  accompanied by a denotation of how many “matches” had been found in the searched documents. Clerk’s Papers (CP) at 71-74. Alongside each set of search results, in the images’ right-hand columns, appears a visual of e-mail headers followed by completely blacked out text.

Mr. Ahrend reviewed Ms. Hur’s summary judgment submissions and recognized the e-mail fragments as content he had intended to redact. Upon further investigation, Mr. Ahrend discovered his attempt at redaction had been only partially successful. Although portions of the discovery had been blacked out, the metadata3 associated with the redacted portions had not been removed from the documents produced. As a result, the content of the blacked-out text was discoverable upon performing a word search of the document.

L&W moved to disqualify Ms. Urness from the case, alleging her receipt and retention of privileged materials violated ethical and discovery court rules. Ms. Urness denied any wrongdoing. She provided various explanations for her conduct, including assertions that she did not understand metadata and that she had received at least some of the information from a third party. Ms. Urness also argued the e-mails were not privileged and that they revealed L&W had engaged in its own ethical violations by withholding information and making misstatements to the court.  Ms. Urness was adamant she had not tried to uncover privileged information, but had simply performed a word search of the discovery materials.

The court considered both civil and ethics rules

Taken together, these rules require a recipient of inadvertently disclosed information subject to a claim of privilege to notify the sender and either return, sequester, or destroy the materials. Under CR 26(b)(6), the attorney can share the materials with the court in camera if privilege is disputed. But until the issue of privilege is resolved, the attorney should not disclose the materials to others, including the public by way of a nonconfidential court filing.

L&W contends Ms. Urness violated the foregoing rules by reading its privileged e-mails. This is incorrect. The rules do not prohibit a lawyer from reading inadvertently disclosed information that is subject to a claim of privilege. The only proscription is of the failure to take corrective action.

L&W also claims Ms. Urness somehow purposefully “looked behind the redactions” to view privileged materials. Pet’rs’ Opening Br. at 20. Had this occurred, it would have been a significant ethical breach. See Wash. State Bar Ass’n (WSBA) Rules of Prof’l Conduct Comm., Advisory Op. 2216 (2012). But the record does not support L&W’s claim. When Mr. Ahrend’s office produced the discovery responses, his staff advised Ms. Urness that information subject to a claim of privilege had been redacted. Proper redaction means taking reasonable steps to prevent disclosure of confidential metadata.

The court found that the use violated the rules but that disqualification was not required in light of the relevant factors

Our court has identified four factors trial courts must consider in determining whether disqualification is an appropriate remedy for an attorney’s access to privileged information: (1) prejudice, (2) counsel’s fault, (3) counsel’s knowledge of the claim of privilege, and (4) the possibility of lesser sanctions.

The trial court properly exercised its discretion

We affirm the trial court’s order denying L&W’s motion for disqualification. This disposition is without prejudice to any future case developments. For example, Ms. Urness represented to this court during oral argument that the only redacted materials she accessed were the two e-mail excerpts referenced in Ms. Hur’s motion for summary judgment. Wash. Court of Appeals oral argument, supra, at 24 min., 45 sec. to 25 min., 10 sec. We expect that, as a licensed attorney, Ms. Urness’s representation to this court was truthful. In the unlikely event this was not the case, a new motion for sanctions may be appropriate.

(Mike Frisch)

February 2, 2023 | Permalink | Comments (0)

A Changed Man

A petitioner who had been permanently disbarred in New Jersey has been conditionally reinstated by the New York Appellate Division for the Third Judicial Department.

By March 2013 order, respondent was permanently disbarred in New Jersey by the Supreme Court of New Jersey due to his involvement in a fraudulent real estate transaction, his repeated misrepresentations to his former business partners and his attempt to conceal his misconduct by creating and submitting fictitious documents to disciplinary authorities.

Reciprocal disbarment was imposed in New York.

Here

Following the hearing, the three-member subcommittee filed a report in July 2022 which unanimously recommended that respondent's motion for reinstatement be denied.

The court

our analysis does not conclude with a consideration of the facts giving rise to respondent's disciplinary sanction, and we instead must also consider respondent's conduct and circumstances over the intervening decade since his disbarment...

During his personal statement before us at argument, respondent accepted full and total responsibility for the conduct which gave rise to his disbarment and reflected on his "hundreds of hours" of subsequent introspection and contrition concerning his actions. Notably, respondent's disbarment coincided with a host of additional challenges which beset respondent and his family, including the loss of his home to Hurricane Sandy and his adult child's debilitating illness. The confluence of these multiple challenges ultimately led respondent to embrace sobriety, eliminate unhealthy relationships and influences from his life and to seek therapeutic intervention. In sum, respondent claims that the challenges of the last decade have left him a changed man, and the papers submitted in support of his application evidence that he has since reconciled with formerly estranged family members, reembraced an athletic discipline which has afforded him focus, friendships and mentoring opportunities, and has generally conducted himself in a lawful manner. Character references submitted on respondent's behalf also demonstrate his philanthropic endeavors and his trustworthy reputation within his community, even amongst those who are aware of his past professional misconduct.

Subject to conditions

While we have concluded that respondent has established the requisite character and fitness for the practice of law and that his reinstatement would be in the public's interest, in light of the concerns expressed by the Character and Fitness subcommittee, and mindful of the nature of the misconduct which gave rise to respondent's disbarment, we deem it appropriate to condition respondent's reinstatement upon certain probationary requirements.

Among the conditions are participation in the Bar's counseling program and mentoring relationship with an attorney. (Mike Frisch)

February 2, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Insurance Claim And Recusal

The Florida Judicial Ethics Advisory Committee has issued an opinion

Civil judge who presides over insurance-related cases and who filed an insurance claim following Hurricane Michael should 1) disclose to all insurance-related litigants in their division of the judge’s filing of a hurricane-related insurance claim; and 2) recuse themselves from any cases involving the same insurance company with whom the judge’s claim is pending.  If the judge’s claim settles, there should be disclosure of the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company. If the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the representation ends.

Issue

Issue 1: Under what circumstances must judges disclose and/or recuse themselves from hurricane-related cases when they have filed an insurance claim with an insurance company that also has cases coming before them?

ANSWER: Pursuant to Canon 3E and its commentary, the inquiring judge(s) should 1) disclose that they have a filed a pending hurricane-related insurance claim to all parties or their attorneys with  hurricane-related insurance claims in their division; and 2) recuse themselves from any cases involving the insurance company with whom the judge has filed their claim.

Issue 2: What if the case settles?

ANSWER: If the case settles, the inquiring judge must disclose the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company.

Issue 3: What if the insurance case proceeds to litigation?

ANSWER: If the case proceeds to litigation, and the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the litigation ends.

(Mike Frisch)

February 2, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, February 1, 2023

Only Disbarment

The Louisiana Supreme Court has disbarred an attorney who made false representations to secure access to over $200,000 held by a court pending resolution of a dispute with his former law partner and practiced law after an interim suspension

The record establishes by clear and convincing evidence that respondent made multiple misrepresentations in connection with the filing of an ex parte motion to withdraw more than $200,000 in disputed funds from the registry of the court. Specifically, respondent represented to the trial court that his former law partner had no opposition to the withdrawal of the funds, when respondent knew this was not the case. Furthermore, respondent did not serve a copy of the motion on his former law partner or his counsel of record, contrary to his representations to that effect in the certificate of service. Respondent then filed two additional pleadings – an opposition filed in the trial court and a writ application filed in the court of appeal – in which he made additional misrepresentations of fact. Finally, respondent repeatedly engaged in the unauthorized practice of law after he was placed on interim suspension. Under these circumstances, respondent violated the Rules of Professional Conduct as charged in the formal charges.

Sanction

Respondent acted intentionally, and violated duties owed to his clients, the legal system, and the profession, causing both actual and potential harm. The applicable baseline sanction is disbarment. The aggravating and mitigating factors found by the board are supported by the record.

Respondent’s misconduct was undoubtedly egregious. However, we see no compelling reason to deviate from the baseline sanction in this matter. Accordingly, we will impose disbarment, retroactive to September 28, 2018, the date of respondent’s interim suspension. 

Justice  Crichton would make it permanent

As the majority’s opinion reflects, respondent prepared an ex parte motion to withdraw disputed funds amounting to over $200,000 deposited in the court registry and represented to the court that the motion was unopposed when, in fact, respondent had no personal knowledge that the motion was unopposed. Moreover, respondent included with his motion a certificate of service certifying he had served the motion on all counsel of record. This certification was also patently false. Based upon respondent’s false representations to the court, the court released the deposited funds to respondent, who immediately deposited the check and spent the money. Upon receiving a later-filed opposition to the motion to withdraw, respondent again represented to the court that his original motion to withdraw was unopposed.

Respondent also verified under oath that, following the trial court’s refusal to continue a hearing on his opponent’s Motion for New Trial regarding restoration of the funds to the court registry, he had emailed and mailed a copy of his writ application to the court of appeal to all counsel of record. Again, this representation was false. Opposing counsel only received a copy of the application in the mail after the appellate court had granted supervisory relief and ordered the trial court to select a new hearing date. When ultimately confronted about these repeated falsities, respondent consistently attempted to shift blame to others, primarily his non-lawyer support staff. As the Disciplinary Board noted, respondent’s intentional corruption of the judicial process in this regard most certainly qualifies under our amended rule as well as the guidelines for permanent disbarment.

Further, despite respondent’s 2018 suspension as a result of this serious misconduct, In re: Evans, 18-1433 (La. 9/28/18), 253 So. 3d 133, respondent continued to communicate with opposing counsel in several pending matters, engaged in settlement negotiations, and received, disbursed, and otherwise handled client funds by way of his trust account (upon which he was the only signatory) during his suspension. Although respondent claimed his unauthorized practice of law was based upon “an honest misunderstanding of the terms of his suspension,” I find his behavior falls within the guidelines for permanent disbarment (unauthorized practice of law) and demonstrates that there is no reasonable expectation for a rehabilitation of respondent’s character in the future.

Respondent’s continued lack of remorse for his egregious behavior, his multiple intentional misrepresentations to the trial court and the court of appeal, and his flagrant disregard for this Court’s authority by continuing to practice law after being prohibited from doing so demonstrate a clear lack of ethical and moral fitness to practice law. Accordingly, I find the only appropriate sanction under these circumstances is permanent disbarment from the practice of law. I therefore dissent.

(Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

The Proof Is In The Tweets

A District of Columbia Hearing Committee recommends a 60-day suspension with fitness for an attorney's misconduct in civil litigation and failure to respond to the bar investigation.

On January 21, 2015, Respondent filed a civil suit on behalf of Brittany Cobb against the Washington Metropolitan Area Transit Authority (“WMATA”) in D.C. Superior Court. DCX 8 at 0092-98. The complaint alleged, inter alia, that Ms. Cobb had been a passenger on a Yellow Line metro train earlier that month, and that she had suffered damages when her train became disabled and filled with smoke while inside a tunnel.

The client died and her mother, representing her estate, retained new counsel

On February 20, 2019, with Respondent’s authorization, Mr. Regan substituted himself as plaintiff’s counsel in the Cobb case.

After a confidential settlement had been reached

On or about July 30, 2019, Respondent posted on Twitter in a single, public Tweet under the username @DJacksonNBRC, with the associated name “Darlene Jackson, GOP”:
a. Unredacted portions of the court’s sealed order, including the case caption, as well as additional details discussed in the attached Confidential Appendix, ¶ 33(a);
b. Emails between Respondent and [plaintiff's counsel]Mr. Trebach regarding provisions of the sealed settlement order;
c. A picture of Mr. Trebach;
d. A news article regarding Ms. Cobb’s death; and
e. The words “Where’s MY CA$H [sic].” Tr. 95-102, 108-11 (Trebach); DCX 6 at 0030 (indicating date); DCX 25; DCX 26.

The Tweet mentioned the accounts of several high-profile personalities, including @realDonaldTrump, @FLOTUS, @cabinet, @WhiteHouse, @MarshaBlackburn, as well as several major news outlets, including @ABC, @nbc, @CBS, @CNN, @washpost, and @thehill. DCX 25.

Mr. Trebach learned of the tweet and reported it to the judge, who held a show cause hearing

...Ms. Jackson then proceeded to speak in a rambling and somewhat incomprehensible manner about how a woman is the sole purpose of why we have a universe. In support of this position she cited to the process of child birth, James Brown’s “It’s a Man’s, Man’s Man’s World,” and Maxwell’s “This Woman’s Work.” At other times in the hearing she invoked the “me too” movement.

The matter was referred to Disciplinary Counsel, who sought a response

On August 18, 2020, one day after Disciplinary Counsel notified her of its investigation, Respondent posted a Tweet that included images of the District of Columbia Bar’s logo, the words “Office of Disciplinary Counsel,” and the question “Where you At [sic]?”

No response but

Between September 17 and 26, 2020, Respondent posted four separate Tweets, all of which included images explicitly referencing the Office of Disciplinary Counsel, juxtaposed to phrases such as “Lying and Stealing,” “Just Ask Becky,” “Smooth Criminals,” and “Investigate the Investigators.” Tr. 194-99 (Matinpour); DCX 32, 33, 34, 35, 36, 37, 38, 39. “Becky” is the first name of the Senior Assistant Disciplinary Counsel who notified Respondent of Disciplinary Counsel’s investigation and who sent the September 17, 2020, follow-up letter.

Misconduct

The Hearing Committee concludes that Disciplinary Counsel has demonstrated, by clear and convincing evidence, that Respondent violated Rule 3.4(c) when she knowingly disclosed portions of the court’s sealed order through a Tweet that Respondent posted on or about July 30, 2019. There is no question that Respondent was aware that the order was sealed, as it was explicitly identified as such in the order. See DCX 24 at 0204. The post plainly shows unredacted portions of the order. FF 33. The Tweet also displays what appear to be copies of emails between Respondent and Mr. Trebach, and the Tweet “tagged” his law firm.

Failure to respond

there is ample evidence to demonstrate that Respondent was fully aware of Disciplinary Counsel’s investigation. For example, on August 18, 2020, one day after Disciplinary Counsel sent its first letter to Respondent, she posted on Twitter an image of the District of Columbia Bar’s logo and the words “Office of Disciplinary Counsel.” FF 49. Second, during the September 17-26, 2020 time period, Respondent posted four separate Tweets that explicitly referenced the Office of Disciplinary Counsel, and also referenced the first name of the attorney in its office who sent Respondent the Office’s second letter.

Fitness

First and foremost, as explained above, Respondent’s misconduct almost resulted in dismissal of her client’s case. Along the way, Respondent violated the court’s stay order by issuing an improper subpoena for discovery. Respondent again violated a court rule and acted in a wholly unprofessional manner, by posting portions of the court’s sealed order on Twitter. Finally, the Hearing Committee cannot ignore Judge Chutkan’s first-hand observations concerning Respondent’s proffered explanations for her misconduct. See FF 44.

Nor has Respondent acknowledged the seriousness of her misconduct. Respondent wholly disregarded her obligation to cooperate with Disciplinary Counsel. Respondent never replied to its inquiries, even though it is clear that she
was properly served with them. Moreover, Respondent’s Tweets showed that she knew about that investigation.

The Hearing Committee does not know if Respondent is currently engaged in the practice of law. But Disciplinary Counsel’s proposed fitness requirement is amply supported by the pattern of Respondent’s wrongdoing.

(Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Sealed With A Suspension

The Arkansas Professional Conduct Committee Panel D ordered a six-month suspension for violations of Rules 3.1 and 8.4(d)

In a case assigned to Judge Magness, [attorney] Boyd filed a Petition seeking Appointment of Emergency Ex Parte Temporary & Permanent Guardianship of the Persons relating to minor children who were not related to her, in Sebastian County Circuit Court, Fort Smith District. That matter is sealed, and therefore the full account of the underlying case is not included in this Findings & Order.

After Boyd's filing, Judge Magness ordered the case to be sealed because the nearly two hundred (200) page petition identified the minor children by name, listed their home address, included a picture of their unredacted likenesses, contained detailed descriptions of irrelevant sensitive information; and included many unsupported conclusions of serious alleged abuse. After the case had been sealed, Boyd delivered a copy of the Petition to the children's school principal. The case proceeded to trial. After multiple hours of testimony, Judge Magness found that Boyd's allegations were not supported by evidence, as Boyd failed to present any evidence of the alleged abuse.

Both parents of the minor children at issue filed motions for Attorney's Fees and/or Sanctions. Judge Magness entered an Order Granting Motions for Sanctions against Boyd. Judge Magness found that Boyd violated Ark. R. Civ. P. 11(b)(3) and ordered Boyd to pay $4,835.00 in attorney's fees to counsel for the parents.

40/29 News reported on the attorney's announced candidacy for the 2020 Democratic nomination for President of the United States . (Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Florida Summaries

From the February 2023 Disciplinary Summaries of the Florida State Bar

Anton Aggrey Gammons, P.O. Box 682048, Orlando, suspended for six months, effective immediately. (Admitted to practice: 2011) Gammons engaged in sexual conduct with a client he was representing in a dependency court matter. (Case No: SC22-1667)

Bert Edward Moore, P.O. Box 1622, Crestview, suspended for one year, effective 30 days following a January 26 court order. (Admitted to practice: 1980) Moore was retained to file a claim on behalf of a client who alleged that sexually explicit photos were posted on the internet without her knowledge or consent. Moore filed the claim timely but miscalculated the 30-day deadline for filing the complaint in probate court, thereby resulting in the dismissal of the client’s probate complaint. He also failed to properly communicate with his client throughout his representation in probate court. In an attempt to rectify his mistake, Moore paid the client $15,000 over the period of a year before any Bar complaint was filed. The client then demanded another $3,000 and harassed Moore for several months with texts threatening to file a complaint, which she did after Moore refused to pay the additional funds. (Case No: SC21-1132)

Hanna Mary Renna, P.O. Box 188, Elmira, NY, suspended for 90 days and ordered to attend ethics school and a professionalism workshop, effective 30 days following a January 4 court order. (Admitted to practice: 2010) Renna, during the representation of a criminal defendant, conducted a deposition of a minor witness who had previously identified her client from a photo pack as the perpetrator. Prior to the deposition, Renna printed copies of the photo pack and renumbered them. Unbeknownst to the state and the witness, Renna used a photograph of a different person than who was identified by the witness when questioning the witness about identification. Renna then relied in part on identification made during the deposition to file a motion to suppress. (Case No: SC22-1484)

(Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 31, 2023

PLEASE PLEASE PLEASE

An attorney's failure to provide an invoice for billed services in a divorce matter drew a censure from the New Jersey Supreme Court.

As described by the Disciplinary Review Board

In summary, for more than one year, from May 2017 through November 2018, respondent repeatedly failed to provide Sweeney with an invoice for his legal services, despite the requirements of R. 5:3-5(a)(5), the terms of their retainer agreement, and her numerous requests that he do so. As of the date of the ethics hearing – more than three years after Sweeney’s first documented request for an invoice – respondent still had failed to provide Sweeney with a single invoice.

The clients pleas (and pleases) did not help

PLEASE PLEASE PLEASE address my concerns! Ihave the utmost respect for you and think you are a great guy, but I cannot believe I have to beg you for assistance. I feel as though I have been beyond patient. I understand I am an old case (ALMOST A YEAR SINCE DIVORCE FINAL) and not a priority to you now, but if you could just provide me with the information that is rightfully due to me, I promise not to bother you.

Priors

In June 2020, respondent received a reprimand for his violations of RPC 1.1(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.4(b); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). In re Nussey, 242 N.J. 153 (2020) (Nussey I).

Less than two years later, in November 2021, we censured respondent for his violations of RPC 1.15(a) (negligent misappropriation of client funds), RPC 1.15(d) (failure to comply with the recordkeeping requirements of R. 1:21-6), and RPC 8.1(b), for misconduct that occurred between August 2018 and July 2019. In the Matter of David Ryan Nussey, DRB 21-065 (November 8, 2021) (Nussey II). Our decision in Nussey II remains pending with the Court.

Respondent also had initially failed to respond to the complaint

Respondent also failed to cooperate with disciplinary authorities by ignoring the DEC’s October 18, 2018 written request for a reply to Sweeney’s grievance. Although he eventually filed an answer to the complaint, that answer came in August 2019 – ten months after the DEC’s initial request that he reply to the grievance. Similarly, respondent failed to produce a copy of Sweeney’s file as directed until January 2020 – another five months later. The fact that respondent’s answer ultimately was provided, fifteen months later, does not cure his initial failures to cooperate and to respond, in writing, to requests for information “within ten days of receipt,”

(Mike Frisch)

January 31, 2023 in Bar Discipline & Process | Permalink | Comments (0)

A Defeat For Consent Dispositions In D.C.

On review of a question posed by the District of Columbia Court of Appeals, the Board on Professional Responsibility recommends that the court reject a negotiated discipline

Hearing Committee Number Ten recommended that the Court of Appeals approve the parties’ agreed-upon resolution of this matter: that Respondent failed to maintain complete records of his handling of entrusted funds in violation of Rule 1.15(a), and should be suspended for thirty days with proof of fitness prior to reinstatement, all stayed in favor of probation. On January 3, 2023, the Court requested “the Board’s views . . . on the appropriateness of the proposed sanction in light of this [C]ourt’s precedents.” The Court explained that “the Hearing Committee expressed reservations as to whether the proposed sanction was justified because respondent’s misconduct may have constituted misappropriation (deeming it a ‘close question’)."

We have reviewed the stipulated facts set forth in the Hearing Committee Report and we conclude that the Hearing Committee’s reservations were well founded. The Board recommends that the Court reject the parties’ negotiated disposition because the stipulated facts support the conclusion that Respondent engaged in misappropriation in addition to the stipulated record-keeping charge. Because the parties believed that Respondent’s conduct did not involve misappropriation, consideration of the sanction requires further factual development, including facts regarding Respondent’s state of mind or intent. See Hearing Committee’s Report and Recommendation at 4 n.2 (“[O]ur consideration of this Petition would be different if Respondent engaged in misappropriation.”).

The facts involve a $256.81 overdraft of an estate account

The account was overdrawn, in part, because Respondent did not factor in the withdrawn bank fees when calculating the distribution of the Estate funds to the legatees. But the bank fees do not explain the total shortfall. Despite the overdraft, the bank paid the check, and then closed the account. Thus, all of the legatees received the amounts due to them.

The parties agreed that Respondent had violated Rule 1.15(a) by failing to maintain sufficient records of his handling of entrusted funds. Disciplinary Counsel represented that its investigation did not reveal evidence that the overdraft involved misappropriation.

The BPR

because the current record has not been fully developed on the misappropriation issue, we cannot be sure that Disciplinary Counsel has not offered an unduly lenient sanction.

As a result of this ill-founded decision, the parties are consigned (in all likelihood) to a multi-year process that will usurp limited resources and more than likely yield the same result. 

See here.

I hope the Court nonetheless accepts the consent.

If your Disciplinary Counsel says that their investigation does not find misappropriation, trust him. If your Hearing Committee agrees after its independent review, trust them. (Mike Frisch)

January 31, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Inactivity

The New Jersey Supreme Court has imposed a reprimand as reciprocal discipline for an attorney's six-month suspension in Pennsylvania.

The Disciplinary Review Board described the violation

Respondent earned admission to the New Jersey bar in 1993 and to the Pennsylvania bar in 1994. She has no prior discipline in New Jersey. Court records reflect that she is currently employed as in-house counsel for Integra LifeSciences, in Princeton, New Jersey. During the time relevant to this matter, she was employed as in-house counsel for Ricoh USA, Inc. (Ricoh), in Malvern, Pennsylvania.

Respondent worked as in-house counsel for Ricoh from September 2013 through January 2020. She initially served as assistant general counsel, handling employment law matters, until her August 2014 promotion to vice-president and assistant general counsel. In September 2017, she was promoted to senior vice president, general counsel, and secretary for Ricoh, a position she occupied until January 2020. As general counsel, respondent oversaw Ricoh’s “overall legal issues, ethics, compliance, corporate and information security, and regulatory affairs in the United States, Canada and Latin America.”

Beginning on July 1, 2008 and continuing during her employment with Ricoh, respondent maintained her license status in Pennsylvania as “inactive.” According to the definition provided on the Pennsylvania Disciplinary Board’s website, inactive status is defined as “an attorney who is a member of the  Pennsylvania bar and who has elected to transfer to this status while not engaged in the practice of law.” To maintain inactive status, the attorney must register
annually and is prohibited from practicing law in Pennsylvania.

On September 26, 2017, the Supreme Court of Pennsylvania administratively suspended respondent, effective October 26, 2017, for failure to pay her annual registration fee, in violation of Rule 219 of the Pennsylvania Rules of Disciplinary Enforcement.

She was restored to inactive status in January 2020.

Sanction

The OAE correctly asserted, in its brief to us and during oral argument, that, based upon New Jersey disciplinary precedent, respondent’s unethical conduct warrants lesser discipline than the six-month term of suspension imposed in Pennsylvania. The OAE relied on New Jersey disciplinary precedent, discussed below, to conclude that respondent’s misconduct warranted a reprimand.

The OAE emphasized, in mitigation, that respondent has no prior discipline in New Jersey in her twenty-seven years at the bar; she accepted responsibility and cooperated with the Pennsylvania disciplinary authorities; and she expressed remorse for her misconduct.

In aggravation, the OAE noted that respondent failed to notify the OAE of her Pennsylvania discipline, as R. 1:20-14(a)(1) requires.

(Mike Frisch) 

January 31, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 30, 2023

Kramer V. Not Kramer

An interesting argument scheduled for this Thursday at 10 am before the Maryland Supreme Court

AG No. 42 (2021 T.) Attorney Grievance Commission of Maryland v. Marylin Pierre
Justice Battaglia (Retired Justice, Specially Assigned) will sit in place of Justice Gould.

Attorney for Petitioner: Lydia E. Lawless
Attorney for Respondent: Irwin R. Kramer

The Washington Post reported on the charges

The 22-page “Petition for Disciplinary or Remedial Action,” which accuses Pierre of misstatements going back to 1999 and could cost Pierre her law license, shows that the controversy over her candidacy remains. She appears to be gearing up for another run for judge, according to her campaign Facebook page and website. It would again play out amid the complicated way Maryland chooses judges that involves a mix of local vetting committees, governor appointments and what amounts to voter-approval elections that can include candidates who weren’t nominated but want to be judges.

Pierre declined to comment on the allegations.

But Irwin Kramer, a Maryland attorney who has represented lawyers in disciplinary cases for more than 25 years, said the state’s highest court has previously declined to penalize judicial candidates for statements made during campaigns that would be accepted in other political races. This should hold true even for exaggerations or relatively minor misstatements, Kramer said.

“The court has long held that this is core political speech and should be subject to the highest protections of the First Amendment,” Kramer said.

Pierre, who for years has unsuccessfully sought judgeships, said that attacks on her were part of the legal establishment’s desire to keep outsiders off courtroom benches.

“Every time they say I am not qualified,” she said last year, according to a video posted on her campaign Facebook page, “what they’re actually saying is that they are the ones who are the gatekeepers, and they do not want me to get past the gate. . . . So I am hoping that the voters will see how important this race really is and allow me in.”

Many of them tried — with an initial outcome that rattled Montgomery County’s legal community that revolves around two courthouses in Rockville. In total, there are approximately 36 judges.
In the 2020 primary, there were four open slots for Circuit Court judges. Six people ran — four incumbent judges who had earlier been appointed and two outsiders, including Pierre. She finished high enough to make the general election, which was trimmed down to five choices for the four slots.

The four incumbent judges — or “sitting judges” — banded together as a slate, stressing how they had been vetted through the traditional nominating process. In the general election, on Nov. 3, 2020, they captured the most votes, besting Pierre, who remained a lawyer

Her campaign had been built in part on touting her courtroom experience and criticizing the incumbent judges for not appreciating how inherently unfair the system can be
 
But according to the Bar Counsel and the Attorney Grievance Commission of Maryland — which regulates lawyers in Maryland — Pierre and her campaign took things way too far. Citing professional rules of conduct, the Bar Counsel wrote: “An attorney shall not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualification or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
The Pierre campaign’s view on the incumbent judges and diversity constituted one such violation, according to the counsel’s petition.

“The Respondent’s statements that ‘[m]ost of [the sitting judges] have worked at the same law firm, go to the same church, and are related by marriage’ were knowingly and intentionally false or made with reckless disregard as to their truth or falsity and impugned the integrity of the sitting judges,” it said.

The Bar Counsel said in its petition that during the campaign, Pierre exaggerated her legal and courtroom experience, including claims that she “represented clients in hundreds of ­cases in state and federal trial and appellant courts” and that “some of my cases have established precedents in the State of Maryland and are regularly cited by courts in others states.”
In fact, the Bar Counsel alleged, Pierre “never represented any client in any federal appellate court and never represented a client in any Maryland appellant court resulting in a reported opinion.”

The counsel’s petition also accused Pierre of “knowingly and intentionally” misrepresenting statements made by incumbent Judge Bibi Berry at a virtual forum hosted by AfriqueToday when Berry was asked about the high incarceration rates for Black men in Maryland.

“What we do is, there are a lot of correctional options other than incarceration,” Berry said. “We’re not incarcerating people who are nonviolent offenders for long periods of time or anything like that. There is home detention, there’s inpatient residential treatment, there’s problem-solving courts, there’s work release or weekend incarceration. There are a lot of things you can do. So, we’re not — certainly, I understand that it is an issue — but it’s not as much of an issue as being portrayed by the other two candidates [Pierre and the other outside challenger, Thomas Johnson].”
The next day, according to the Bar Counsel, Pierre’s campaign sent a text message to Montgomery County voters that read:

“Hi [voter], this election matters. When a sitting judge says ‘it’s not much of an issue’ that Black males are jailed at a higher rate in MD it’s clear we need Marylin Pierre, who understands restorative justice. Can we count on your support?”

The Bar Counsel complaint addresses matters beyond the recent election. It accuses Pierre of knowingly making false statements on her New York state bar application in 1999 and knowingly failing to disclose information on Maryland judicial applications from 2013 to 2017.

According to published Bar Counsel rules, after allegations are filed in the Court of Appeals, which is the state’s highest court, the court assigns the case to a local judge for a fact-finding hearing. The matter is then transmitted back to the Court of Appeals, and it decides on any punishment.

Kramer, the attorney who often represents lawyers who are subjects of disciplinary cases, said allegations related to Pierre’s campaign statements would deter outsiders from challenging for judge slots.
“If a judicial candidate’s statements made during a political forum can cost attorneys their law license, no one in their right mind would ever challenge an incumbent judge,” Kramer said.
 
(Mike Frisch)

January 30, 2023 in Bar Discipline & Process | Permalink | Comments (0)

A Literal Text

A stipulated 30 month suspension has been approved by the Colorado Presiding Disciplinary Judge

In February 2020, Hicks settled a lawsuit on behalf of his clients. The settlement involved three defendants, and each agreed to pay Hicks’s clients $10,000.00, for a total of $30,000.00. In March 2020, Hicks paid his fee from the first $10,000.00 payment even though he had not yet received the full settlement amount, violating the terms of his fee agreement. By late June 2020, Hicks had received the entire $30,000.00. Due to his insufficient recordkeeping, he believed that only $20,000.00 had been paid. When his clients pressed Hicks for the remaining money, he falsely told them that he was waiting on a final payment from one of the defendants. In March 2021, Hicks moved to enforce the settlement even though the defendants had already paid the settlement in full. Opposing counsel notified Hicks that the settlement was paid but Hicks continued telling his clients that he was waiting on the full settlement to pay them.

Hicks had not reconciled his trust account from June 2020 to November 2021. Had he done so, he would have discovered the “missing” $10,000.00. During that time, the balance in his trust account dipped below what he should have held for his clients.

In another matter, Hicks began representing a client in October 2021 in a civil case against the client’s ex-boyfriend. After the representation began, Hicks and his client developed a sexual relationship. During that time, Hicks and his client exchanged texts in which Hicks called the ex-boyfriend a “literal faggot.” In a subsequent lawsuit, Hicks asserted defamation claims against the ex-boyfriend’s parents based on statements they made to disciplinary authorities.

Among the violations

Colo. RPC 8.4(g) (in representing a client, a lawyer must not engage in conduct that exhibits bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process).

The attorney had been censured in 2018.

Hicks was hired in a defective flooring case. He and his client signed a contingency fee agreement on June 16, 2016. Ten days later, Hicks and the client kissed. They first had sex on July 4, 2016. Their intimate relationship continued until April 2017.

Hicks sent a demand letter in the flooring case in August 2016, and the case settled later that month for $15,000.00. The client was satisfied with Hicks’s representation.

During Hicks’s relationship with this client, he disclosed to her confidential client information regarding a number of his other clients. He occasionally forwarded to her emails from clients or opposing counsel, and he also sent her draft settlement demands and other draft documents. There is no evidence that the client disseminated or acted on any of this information

(Mike Frisch)

January 30, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Couch Fee Proposal Draws Resignation

The Indiana Supreme Court has accepted an attorney's resignation in order to immediately remove him from practice and spare further harm to his victim

A disciplinary complaint against Respondent was filed on November 9, 2022, alleging he hugged and kissed a potential client and solicited sexual favors from her in exchange for a discount on his attorney fees. Later, the complaint alleges, Respondent offered to represent her for free if she did not report his misconduct. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that the material facts alleged are true and that Respondent could not successfully defend himself if prosecuted.

Respondent’s admitted misconduct is egregious, a flagrant abuse of his position, and a betrayal of the trust the public places in members of Indiana’s bar and the profession. Respondent would likely face disbarment if the allegations were tried and proven. It is only in the interest of more immediately removing Respondent from practice and sparing his victim from having to testify in these disciplinary proceedings that we accept Respondent’s resignation. Moreover, absent a request from the Commission, the Admission and Discipline Rules do not provide a mechanism for this Court to sua sponte order an interim suspension to protect the public while seeking disbarment here.

Any disciplinary proceedings are dismissed as moot. (Mike Frisch)

January 30, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 27, 2023

A Backyard Hockey Rink

The Manitoba Law Society Discipline Hearing Panel will permit an attorney who had misappropriated significant sums to resign from the Bar

 From June, 2009 and into 2015, Mr. Rabb misappropriated in excess of $360,000.00 from the trust accounts for a number of his managed properties for services, supplies, and products which they did not receive. These diversions of funds were accomplished in several ways, namely:

(a)            manually altering invoices for work done on personal residences and other properties owned by himself and other closely-related individuals and companies to indicate that the work was done on one of the managed properties, and then paying the invoice from the trust accounts for those properties;

(b)            asking the owners of companies providing various services to change the job site locations on invoices from personal residences to managed properties such as apartment blocks;

(c)            asking the owner of a company providing various services to issue a fake invoice for work not done, then presenting the invoice to the owners of two managed properties for payment;

(d)            telling a service provider to include hours spent working on personal residences on invoices rendered by it for work done on two managed properties, and then charging the entire amount to the owners of those properties;

(e)            paying an invoice for work done on the residence of a close friend from trust funds properly belonging to the owners of a managed property;

(f)              paying the same invoice on multiple occasions using funds from different trust accounts; and,

(g)            paying for the construction of a backyard hockey rink using funds from multiple different trust accounts.

The beneficiaries of all of this largesse included relatives, associates, and employees of Mr. Rabb whose personal residences and vacation properties were repaired or upgraded at no cost to themselves.

The Panel notes that these methods of misappropriation were not overly sophisticated and, by requiring as they did the collusion (or at least acquiescence) of many other individuals, were not likely to remain undetected for long. Indeed, it is rather surprising that Mr. Rabb was able to continue his pattern of deceptions for as long as he did (about 5 years and 4 months).

(Mike Frisch)

January 27, 2023 in Bar Discipline & Process | Permalink | Comments (0)

The Subject Was Roses Roses

The Nebraska Supreme Court affirmed the grant of summary judgment against a lawyer who had sued for an allegedly defamatory Google review

An attorney filed two separate lawsuits alleging that he and his law firm were defamed by a negative review posted on the law firm’s Google business page. The district court granted summary judgment in favor of the defendants and dismissed both lawsuits. On appeal, the attorney assigns multiple errors, including that the district court erred in relying on the single publication rule to determine when the defamation claim accrued. We moved these appeals to our docket primarily to address that issue.

We conclude the district court properly applied the single publication rule, and we find no merit to the remaining assignments of error. We therefore affirm the judgments of the district court.

The underlying representation involved two accident claims

In November 2018, Ashford emailed Antonio and Andrea to inform them he was ending his representation. At that point, none of the claims arising from the collisions had been resolved. Ashford provided Antonio and Andrea with notice of attorney liens totaling approximately $5,900.

A bar complaint followed

Counsel for Discipline sent a copy of the grievance to Ashford and requested a response. Our appellate record does not disclose the current status of this grievance.

The review

On March 20, 2019, Roses Roses posted a review on Ashford’s Google business page that stated, in its entirety, “If you’re looking for a disheveled, unorganized, unreliable attorney with questionable ethics he’s your man . . . .”

On May 9, 2019, Ashford sent a letter to Andrea demanding that she “immediately remove the unsubstantiated review posted by Roses Roses aka Andrea Tate to the Timothy Ashford Google Business Review.” Ashford’s letter included a draft complaint and indicated he would file the complaint and “seek damages for the defamatory statement” if the post was not immediately removed.

Andrea responded that 

she had not posted a Google review of either Ashford or his business.

The attorney filed two lawsuits

Roses Roses filed an answer alleging her actual name is Rose Thompson, and she is a resident of Texas. For ease of reference, this opinion will use “Thompson” when referring collectively to Roses Roses and Rose Thompson. Thompson’s answer denied liability for the various claims and alleged several affirmative defenses, including that the complaint failed to state a claim upon which relief can be granted and the claims were barred by the statute of limitations.

Thompson is Andrea's aunt.

At the District Court

the court found that publication of the unfavorable Google review occurred on the date it was originally posted to the internet—March 20, 2019. Because Ashford’s defamation action against Thompson was not filed until August 2020, the court concluded it was time barred.

The court also entered summary judgment on Ashford’s claim of intentional infliction of emotional distress. On the evidence adduced, it found the undisputed facts were not sufficient, as a matter of law, to support recovery on such a claim because Thompson’s conduct in posting the Google review was not sufficiently extreme or outrageous.  The court therefore entered an order granting summary judgment in favor of Thompson in the 2020 lawsuit and dismissing it with prejudice. In the same order, the court overruled Ashford’s motion  for summary judgment, and any other pending motions.

On appeal, the attorney contended that the trial judge should have granted recusal

On this record, Ashford has not overcome the presumption of judicial impartiality. As we read the district court’s order, the only ground Ashford asserted for recusal was that he had previously sued the trial judge in a federal lawsuit challenging the appointment process for criminal defense counsel in Douglas County. Because that lawsuit had been resolved several years earlier on procedural grounds and was no longer pending, the judge found there was no reason to recuse himself. On this record, we cannot find the judge abused his discretion. Ashford does not direct us to any evidence suggesting the trial judge was biased against him as a result of the prior litigation,  and we see nothing that would cause a reasonable person who knew the circumstances of the federal lawsuit to question the judge’s impartiality to preside over an unrelated matter involving Ashford several years later.

As a matter of first impression, the court adopted the single publication rule and applied the rule to Internet postings

Ashford’s single cause of action accrued on March 20, 2019, the date Roses Roses first posted the Google review. Thus, by the time Ashford filed the defamation action against Roses Roses in August 2020, it was time barred. The district court properly dismissed it on that basis.

The court rejected the attorney's other contentions

Ashford’s “civil extortion” claim sought to recover damages based on Andrea’s letter expressing her intent to report alleged attorney misconduct to the Counsel for Discipline. Because reports of alleged attorney misconduct and grievances are absolutely privileged and no lawsuit may be predicated on such a report, it was not error for the district court to dismiss Ashford’s extortion claim for failure to state a claim on which relief can be granted. This assignment of error is meritless.

The case is TIMOTHY L. ASHFORD, PC LLO V. ROSES Cite as 313 Neb. 302 (Mike Frisch)

January 27, 2023 | Permalink | Comments (0)