Thursday, December 31, 2009

Judge Censured For Improper Recusals

The New York State Commission on Judicial Conduct has censured a Cattaraugas County judge for recusing himself in 11 matters not because of a legitimate basis in law but rather as a "tactic" and "weapon" to further his interest in obtaining legislative approval for a judicial pay raise.

The commission concluded that the misconduct was exacerbated by the judge sending a series of blast emails to other judges by hitting the "reply all" response to e-mail sent from a court web server. The e-mails encouraged judges to similarly recuse themselves and chided those who would not as "gutless" and "wimp[s]." The judge said that such judges needed to "grow some stones." Another e-mail called city judges "wusses." He also had referred to the state Assembly Speaker, a party to the pay raise litigation, as a "slug."

The commission's press release is linked here.   The censure and related documents may be found through the following link. (Mike Frisch)

December 31, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

Reinstatement Petition Denied

The Pennsylvania Supreme Court has accepted the recommendation of its Disciplinary Board to deny the reinstatement petition of an attorney disbarred by consent in 2002. The petitioner had misappropriated funds from two estates and engaged in related dishonest conduct. He had moved to Florida and accepted a position at Keiser University teaching paralegal studies that included ethics instruction. He did not advise the school of his disbarred status and sought reinstatement in order to keep the job. His witnesses in the reinstatement proceeding also were not aware of the circumstances of the disbarment.

One issue related to providing required notice to his clients at the time of the disbarment. The board accepted testimony of a law office tenant that the petitioner had a defiant attitude regarding this obligation, quoting him as follows: "f**k the Board. I don't gave any clients to notify. I've transferred them all." (Mike Frisch)

December 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Harboring Dog May Lead To Liability

If you live in Wisconsin and allow someone with a dog to live with you, you may well be liable for the dog's bite. The Wisconsin Supreme Court held yesterday that the owner of premises was the "harborer" or "keeper"of the dog in such circumstances and that summary judgment could not be granted to the defendant and her insurer:

In June or July of 2003, Ms. Seefeldt [the defendant] agreed to let Walter Waterman, an acquaintance of her daughter, move into her home when he was unemployed and needed a place to stay where he could keep his two dogs.  Ms. Seefeldt had three of her own dogs and a large fenced backyard.  Mr. Waterman never paid rent; they apparently had an informal arrangement that Mr. Waterman would help with some home repairs and housekeeping. 

Ms. Seefeldt reported that when Mr. Waterman moved in, she was told that the dogs, Boo and Diesel, were friendly, but she also acknowledged that Mr. Waterman told her that Boo had recently nipped a six-year-old girl on the arm and frightened her.  Ms. Seefeldt stated she was not told of any other incident in which Boo injured anyone. 

On the afternoon of October 26, 2003, as Colleen Pawlowski walked in front of Ms. Seefeldt's home, she heard a sound like a door opening and saw Mr. Waterman's two unleashed dogs jump off the porch and charge her.  Mr. Waterman chased the dogs and shouted to stop them but was unable to bring them under his control.  Boo jumped up on Colleen Pawlowski and tried to bite her left shoulder, tearing her coat.  The dog then bit at her left thigh and finally punctured her calf, causing Ms. Pawlowski to fall to her knee before Mr. Waterman was able to control both dogs.  Although her shoulder and thigh were uninjured, Ms. Pawlowski did suffer puncture wounds to her calf.

Mr. Waterman then grabbed the dogs and held them as he offered to give Colleen Pawlowski a ride home, which she declined.  Colleen Pawlowski observed that the skin was broken and told Mr. Waterman she would need to go to the emergency room.  She then walked to the end of the street, to the home of a neighbor whom she knew, and asked the neighbor for a ride

At the time the attack occurred, Ms. Seefeldt was at home.  She did not see the attack and did not learn of it until a police officer came to her door to investigate later that day.  Following the attack, Mr. Waterman apparently proceeded to the grocery store, taking his dogs with him.  When he returned to the house, Ms. Seefeldt asked him about the attack and Mr. Waterman relayed that when he had opened the door to leave for the grocery store the dogs had run into the street, toward Colleen Pawlowski, instead of running to the car.  He told her that Boo bit Colleen Pawlowski and that he had offered Ms. Pawlowski a ride home or to the doctor, but that she declined the offer.  Ms. Seefeldt told Mr. Waterman that Boo should be put to sleep, but she apparently did not seek further information about the incident.  One to two weeks later, Ms. Seefeldt asked Mr. Waterman and his dogs to leave her home. 

The court concluded:

...we conclude that Ms. Seefeldt was a statutorily defined owner of the dog under Wis. Stat. § 174.02 at the time of the dog bite.  She was a person who harbored the dog.  Her status as a harborer of the dog was not extinguished when the dog's legal owner took momentary control of the dog.  We also conclude that the traditional public policy factors that may preclude tort liability do not bar recovery in the present case.

(Mike Frisch)

December 30, 2009 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Charges Against Suspended Judge

The web page of the Indiana Supreme Court recently reported:

The Indiana Commission on Judicial Qualifications has filed disciplinary charges against suspended LaPorte Superior Court Judge Jennifer L. Koethe.  The Commission alleges Judge Koethe deliberately omitted and misrepresented facts to police about a December 2008 shooting at her home.  The Commission also alleges that she asked a police officer to destroy evidence relevant to the official investigation into the shooting.  The Commission alleges those actions violate numerous canons of the Indiana Code of Judicial Conduct and the Rules of Professional Conduct.

The Commission’s investigation into Judge Koethe’s actions surround a December 22, 2008 shooting at her home where she received a superficial wound to the scalp. At the scene, Judge Koethe told police she accidently shot herself and did not know the location of the gun.  Officers located two guns inside a laundry basket in the bedroom closet.  Lab tests later showed one gun had been fired.  At the hospital, Judge Koethe told detectives she and her husband had been arguing and she had retrieved the handgun because she wanted her husband to believe she was contemplating suicide.  She maintained the shooting was accidental and said she thought the gun was unloaded. After speaking to detectives, she told a different police officer whom she knew well about a note she had written to her husband before the shooting.  She then asked the officer, words to the effect of, “Can you make this go away? or “Get rid of it.”  The note was later found by police in the bedroom closet.

During the police investigation of the shooting, Judge Koethe gave two taped statements.  In the first statement, Judge Koethe deliberately omitted the fact that she wrote the note to her husband.  She also claimed she thought the gun was unloaded because she had removed the magazine.  However, in the second taped statement, Judge Koethe altered her account to track her husband’s initial statement to police.  She stated that the gun had been unloaded when she first picked it up because the couple had unloaded the household guns several days earlier in anticipation of being out of the home.  During her second statement, Judge Koethe denied any knowledge regarding the whereabouts of the gun and note after the shooting.  Judge Koethe’s husband, Stephen Koethe, later admitted to police that he hid the gun and note in the bedroom closet at a time when Judge Koethe was in the room.

In May 2009 a grand jury returned a felony indictment against Judge Koethe for Attempted Obstruction of Justice.  When the felony indictment was filed, the Indiana Supreme Court suspended Judge Koethe with pay.  Having investigated the incident, the Commission has now filed three counts of judicial misconduct against Judge Koethe.  These counts are separate from any criminal charges filed in an Indiana trial court.

The Commission’s “Notice of the Institution of Formal Proceedings and Statement of Charges” was filed with the Indiana Supreme Court on December 10, 2009.  The seven-page Notice and Charging document is attached.  The 2008 and 2009 Indiana Code of Judicial Conduct can also be found in attachments accompanying this press release.  The charging document provides the circumstances and specific charges against Judge Koethe; generally, they include the following: 

  1. Count I centers on Judge Koethe’s conduct in deliberately withholding or misrepresenting pertinent information during her taped statements.  It alleges Judge Koethe violated Canon 2A of the 2008 Code of Judicial Conduct and Rule 1.2 of the 2009 Code of Judicial Conduct which requires judicial officers to avoid impropriety and to act in a manner promoting the public’s confidence in the judiciary.
  1. Count II centers on Judge Koethe’s request to a police officer that he destroy a handwritten note that was potential evidence in the investigation.  It alleges Judge Koethe violated Canons 1 and 2A of the 2008 Code of Judicial Conduct, committed willful misconduct unrelated to the judicial office that brings the office into disrepute, and engaged in conduct prejudicial to the administration of justice.
  1. Count III centers on Judge Koeth’s request to a police officer that he destroy a handwritten note that was potential evidence in the investigation. It alleges Judge Koethe violated Rules 8.4 (b), (c), and (d) of the Rules of Professional Conduct.  The rules require attorneys not to engage in criminal acts reflecting adversely on their honesty and not to engage in conduct involving deceit or misrepresentation.

Judge Koethe has the opportunity to file an Answer to the charges with the Supreme Court within twenty days of receiving the charges.  After the Answer is filed or twenty days has passed, the Indiana Supreme Court will appoint three Masters (Judges) to conduct a public hearing on the charge that Judge Koethe committed judicial misconduct. 

The Commission on Judicial Qualifications is the 7-member group that investigates alleged ethical misconduct by judges.  Chief Justice Randall T. Shepard chairs the Commission.  The Indiana Supreme Court has final authority over judicial discipline.

The court's suspension order is linked here. (Mike Frisch)

December 30, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

"Drive Safely"

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today suspended the license of [a] Cincinnati  attorney...for two years, with the second year of that term stayed on conditions, for neglecting the cases of three different clients, failing to respond to repeated inquiries from those clients about the status of their cases or to refund their unearned fees upon request, and failing to cooperate with disciplinary authorities during the investigation of his misconduct.

The Court voted 6-1 to adopt findings by the Board of Commissioners on Grievances & Discipline findings that [the attorney] accepted fee advances from three clients but subsequently failed to perform promised legal services, file documents  or appear at scheduled court proceedings, causing harm or prejudice to those clients including the issuance of warrants for the arrest of two clients.

The Court agreed with the disciplinary board’s findings that [his] conduct violated, among others, the state attorney discipline rules that prohibit failure to carry out a contract for professional employment; causing harm or damage to a client in the course of a professional relationship; failure to promptly pay or return funds that a client is entitled to receive; and engaging in conduct involving fraud, deceit, dishonesty or misrepresentation. The Court also found that [he] violated the state bar governance rule that requires attorneys to cooperate with all disciplinary investigations.

The Court’s per curiam opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Thomas J. Moyer dissented, stating that because Larson engaged in a pattern of serious misconduct that exposed his clients to possible arrest, loss of driving privileges and fines, he would impose a two-year license suspension with no time stayed.

One matter involved a client who retained the attorney to assist her with a traffic citation. The attorney failed to address the matter and the client had her license suspended. The attorney's advice: "Drive safely."

The opinion is linked here. (Mike Frisch)

December 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 29, 2009

"A Highly Fluid, Rapidly Changing, And Perhaps Confusing Situation..."

An attorney who had exercised self-help in a dispute over fees with his former law firm was suspended for 90 days by the Wisconsin Supreme Court. The court accepted the referee's findings of the following facts:

These disciplinary proceedings arise from Attorney Maynard's billings and payments received for services he performed as a shareholder with his former law firm from August 1, 2005, through June 30, 2006.  On August 1, 2005, Attorney Maynard joined with Attorneys Bruce McIlnay, James Button, and James Schmitt in the law firm of Maier, McIlnay, Schmitt & Button, Ltd.  Soon after, the firm became known as Maynard, McIlnay, Schmitt & Button and used the acronym of MMSB or MMS&B.  The referee found that the individuals understood the firm to be a corporation and regarded one another as shareholders.  The referee found that when Attorney Maynard became a shareholder at MMS&B, he entered a highly fluid, rapidly changing, and perhaps confusing situation with little discussion among the other shareholders regarding their rights or obligations to the firm.  The firm's shareholders testified generally that the money received from clients was "firm income"; the question of how the money would thereafter be divided was never discussed. 

The referee found the shareholders intended to practice law in an arrangement through which expenses were to be incurred and paid by the corporate entity and revenues were to be paid to and distributed by that entity.  The referee found:

In particular, [Attorney] Maynard did understand that, during the period of his association with the Firm, invoices for legal services were to be transmitted under the Firm's name, and paid to, and then distributed by the Firm, to its creditors and shareholders, in a manner to be determined.

Attorney Maynard's compensation plan was similar to the other shareholders' plans, consisting of a draw plus a monthly bonus.  On or about January 1, 2006, Attorney Maynard's monthly compensation was substantially reduced.  When Attorney Maynard announced in the spring of 2006 he would be leaving the firm, he was offered, and agreed to, the opportunity to remain with the firm "of counsel."  The referee found that despite the absence of a formal signed agreement, from at least July 1, 2006, until the final parting of ways in February 2007, Attorney Maynard and the firm both understood he was no longer a shareholder but was to have "of counsel" status. 

As of July 2006 there remained some open matters on which Attorney Maynard had worked as a shareholder but had not yet been billed.  From July 2006 through October 2006 Attorney Maynard transmitted invoices to three clients for legal services he had rendered while he was a shareholder.  The invoices all stated, "PLEASE MAIL YOUR PAYMENT TO: MMS&B, P.O. BOX 253, GRAFTON, WI 53024 IN THE ENVELOPE PROVIDED."

Without informing anyone connected with the law firm, Attorney Maynard applied for a post office box, inscribing the form with "John R. Maynard Principal" as the applicant and "MMS&B" as the name to which the box number was to be assigned.  The address he gave for the box holder was apparently that of his personal residence.  Other firm members did not know Attorney Maynard had opened this post office box.  The referee found the invoices were misleading in that they indicated MMS&B would be receiving the money, while only Attorney Maynard knew of and had access to the post office box.

In response to the misleading invoices he sent, Attorney Maynard personally received and deposited into his personal checking account payments from clients totaling $7,776.84.  Attorney Maynard did not inform the firm he had received these funds and the firm did not receive any of these funds.  The firm did not learn of the post office box or of Attorney Maynard's receipt of the funds until much later as a result of its own efforts.

One check that Attorney Maynard received had been made out to the firm.  Although no longer a shareholder but "of counsel," he endorsed the check and kept the proceeds.  He had no express authority from the firm to do so; he made the endorsement and kept the money without the firm's knowledge.  The referee found that by his testimony, Attorney Maynard acknowledged and understood the money billed for the work he performed as a shareholder was firm income to be divided among all the shareholders after the payment of overhead.  The referee concluded that by receiving the funds for services performed while a shareholder, but not notifying the firm about the receipt of those funds and not delivering those funds to the firm or at least to a trustee, the court, or an arbiter, Attorney Maynard violated former SCR 20:1.15(d)(1), as charged...

The referee rejected the proffered defense that the attorney had been "drastically underpaid" and that the fees related to work he had done for his clients. (Mike Frisch)

December 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Misuse Of Trust Account

The web page of the Ohio Supreme Court notes:

The Supreme Court of Ohio today imposed a 24-month suspension against the license of  [a] Cleveland  attorney...for engaging in a pattern of misconduct in which [he] commingled his own funds with client funds on deposit in his law office trust account, and improperly used the trust account as a personal bank account and operating account for an extended period in order to avoid collection actions by his creditors for unpaid judgments and delinquent taxes.

In a 6-1 decision, the Court voted  to adopt findings by the Board of Commissioners on Grievances & Discipline that [the attorney] engaged in fraudulent trust account practices and deliberate deceptions between January 2006 and May 2007.  Specifically, he] violated the rules of professional conduct that require an attorney to maintain a trust account in which only client funds are held, to avoid commingling of his personal funds with monies held for clients, and to keep full and accurate records of all funds deposited to and withdrawn from his trust account. The Court also found violations of the disciplinary rules that prohibit attorneys from engaging in conduct prejudicial to the administration of justice and conduct that adversely reflects on an attorney’s fitness to practice law.

The Court adopted the disciplinary board’s recommended sanction of a 24-month license suspension, and imposed as pre-conditions for reinstatement the requirements that [the attorney] complete six additional continuing legal education hours in law-office management and accounting and fully pay or provide evidence that he has entered into settlements of 12 court judgments currently outstanding against him totaling nearly $25,000.

The majority opinion, authored by Justice Judith Ann Lanzinger, was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp. Justice Paul E. Pfeifer dissented, stating that he would impose a two-year suspension with the second year stayed on conditions.

The court's decision is linked here. (Mike Frisch)

December 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


An Arizona Hearing Officer has concluded that an attorney violated provisions of probation that required him to participate in the Bar's MAP (member assistance), TAP (trust account assistance) and LOMAP (law office management assistance) programs. The lawyer had served a 60 days suspension with probation on reinstatement.

The hearing officer recommends a 90 day suspension followed by probation. When the attorney is reinstated, he must get with the various programs.

The attorney owes $13,100 in parking fees and fines to the City of Tucson. The probation had included a payment obligation on this debt. The hearing officer recommends that the attorney make "reasonable efforts" of at least $100 per month on this obligation. (Mike Frisch)

December 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Very High Probability

The Indiana Supreme Court has imposed a 30 day suspension of an attorney for participating in an court-approved divorce agreement that the client's husband was not the father of her child notwithstanding DNA testing that showed a "very high probability" that he was. When the attorney drafted an agreement that the husband would have no rights as to the child, the husband's lawyer proposed that the agreement deny paternity. The attorney agreed. The husband's lawyer has been suspended for his role in the proceedings.

The matter came to light when the client applied for public benefits and the county attorney moved to intervene in the divorce. The court considered as mitigation the absence of a selfish motive and cooperation with the disciplinary proceeding. (Mike Frisch)

December 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Timely Steps

A case decided last week by the District of Columbia Court of Appeals involved charges against an attorney who practices principally in California. The charges involved his handling of an immigration matter. The court adopted the recommended sanction of the Board on Professional Responsibility of a 60 day suspension with a conditional stay of a portion of the suspension, but rejected the board's interpretation of the duty to return the client file when the representation ends.

The board had found no violation because the file had been returned in five days. The court disagreed. Rather, the attorney had "repeatedly denied requests and actively obstructed the efforts of his former client and successor counsel to obtain the file." The client need only ask for the file once. As to the question of a Rule 1.16 violation:

it cannot be said that respondent took "timely steps" to do anything but further hinder his former client from securing alternative representation in this pressing matter.

The court also held that an expert called by Bar Counsel must identify "specific instances of deficiencies" in the representation to sustain a charge of incompetent representation.

The attorney will serve an actual suspension of 30 days, 30 days stayed with probation that will require CLE courses. The attorney was ordered to pay restitution of $4,500 to the former clients, with interest from the date of the deportation order.

The case is In re Thai, No. 08-BG-868, decided December 24 and can be found through this link. Mike Frisch)

December 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, December 28, 2009

First Amendment And Jury Questionnaires

In the criminal case involving O.J. Simpson, the Nevada Supreme Court has held that there is a limited First Amendment right to public (i.e. media) access to information about the jury pool. The court held:

This petition for extraordinary writ relief challenges the district court’s denial of petitioners’ motion to intervene in a criminal trial for the limited purpose of accessing juror questionnaires.  In reviewing this petition, we must address two issues of first impression.  First, we must resolve whether petitioners’ motion to intervene in a criminal case to seek access to juror questionnaires is procedurally proper.  Second, we are asked to determine whether juror questionnaires used in jury selection are subject to public disclosure.  This second inquiry requires an analytical balance between two equally important constitutional rights: the First Amendment right of the public and the press to access criminal proceedings, and the Sixth Amendment right of criminal defendants to receive a fair trial.

 After weighing all relevant interests, we conclude that limited intervention by the public or the press is an appropriate procedural mechanism by which the public or press may assert its First Amendment interests in a criminal case.  We determine that the district court committed error in denying petitioners’ motion to intervene.

We further conclude that juror questionnaires used in jury selection are, like the jury-selection process itself, presumptively subject to public disclosure. The presumption of openness may be overcome, however, only if the district court identifies a countervailing interest to public access and demonstrates, by specific findings, that closure is necessary and narrowly tailored to serve a higher interest.  Because we conclude that the district court neither articulated specific findings to show that concerns about juror candor superseded the First Amendment’s presumption of open proceedings in jury selection nor considered reasonable alternatives to a complete closure of the questionnaires, we grant petitioners’ petition and direct the district court to release all blank and completed juror questionnaires to petitioners.

 We recognize that because the underlying criminal trial concluded and the jury rendered a verdict, this remedy might be considered moot.  Nonetheless, we consider this petition because the primary issue—whether juror questionnaires used in jury selection are subject to public disclosure—is of a type that is capable of repetition but evading review.

(Mike Frisch)

December 28, 2009 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Spoon River Anthology

The Illinois Administrator has filed a disciplinary complaint alleging that an attorney improperly communicated with a represented party. The representation involved a property dispute that resulted in a shift in the course of the Spoon River:

In Fulton County, Illinois, the Spoon River formed the boundary line between a parcel of land owned by the Chatterton Family Trust ("the Chatterton Trust") on the west side of the river and adjoining parcels of land owned by the Estate of Wilhelmina E. Morey and the Wilhelmina E. Morey Testamentary Trust (collectively "the Morey Estate") and the N. Grace Johnson Trust ("the Johnson Trust") on the east side of the river.

As of 2005, the above-described portion of the Spoon River had shifted its channel eastward.

As a result of the Spoon River shifting its course, a dispute arose as to the boundary line between the property of the Chatterton Trust and the properties of the Morey Estate and the Johnson Trust. In or about October, 2005, Respondent agreed with Marilyn G. Riley, who was the executor and the trustee for the testamentary trust of the Morey Estate, and Judith A. Montgomery, who was the trustee for the Johnson Trust, to jointly represent the Morey Estate and the Johnson Trust in attempting to resolve the dispute. At or about that time, Respondent learned that attorney Andrewe W. Johnson represented the Chatterton Trust and its trustees, including Greg Chatterton, in the matter.

On November 18, 2005, Respondent sent a letter on the subject of the boundary line issue to Greg Chatterton at his home address. In the letter, Respondent proposed changes to the legal description of the Chatterton Trust’s parcel, and she enclosed a survey and other material. Respondent also sent a copy of the letter to Johnson.

At no time did Respondent obtain the prior consent of Johnson to communicate with Greg Chatterton or any trustee of the Chatterton Family Trust on the subject of the boundary line issue.

As a matter of interpretation of the charged rule, the sending of a copy to counsel does not negate the violation. Rather, it simply provides proof that the sending lawyer was aware that the party had a lawyer. (Mike Frisch)

December 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Will, Two Suspensions

An attorney went to the hospital to visit a 95 year old client who had suffered a broken hip. The client wanted to have a will drawn that would make the lawyer his sole beneficiary and name the lawyer's son as contingent beneficiary. The lawyer consulted another lawyer (respondent) to draft the will. Respondent did so without by inserting the information provided by the lawyer into a form will without consulting with the client or ascertaining competence. Respondent's paralegal met the lawyer at the hospital with the will, which the client executed in the paralegal's presence after the lawyer met privately with the client. Shortly after the will was signed, the lawyer instituted guardianship proceedings based on claims that the client was incapacitated. The client later consulted independent counsel and left his estate to Indiana University.

The Indiana Supreme Court imposed a 120 day suspension of the respondent. The court expressed concern about respondent's attitude after the charges were brought, noting that he displayed a "troubling lack of insight into his duty of undivided loyalty to the client." Respondent claimed that his decision not to meet the client was in order to minimize legal fees.

The lawyer who had procured the will has been suspended for three years.(Mike Frisch)

December 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Details Required

An attorney appointed to represent a client in a post-conviction proceeding may withdraw from the matter based on her assertion that continued representation would involve violation of disciplinary rules without filing an Anders-type pleading that details the problem, according to a 3-2 majority opinion of the Vermont Supreme Court. The motion to withdraw had cited rules relating to frivolous claims ans candor to the court. The court holds:

An Anders-type explanation justifying counsel’s withdrawal is not required in the PCR context.  The withdrawal prerequisites called for in Anders are designed to vindicate a defendant’s constitutional right to counsel, 386 U.S. at 744, and, as the United States Supreme Court has recognized, a petitioner has no constitutional right to counsel in civil PCR proceedings.  See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (rejecting notion that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions).  Absent an underlying constitutional right to counsel in state post-conviction proceedings, there is “no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.”  Id. (“Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.”); see also People v. Breaman, 939 P.2d 1348, 1351 n.2 (Colo. 1997) (en banc) (citing FinleyAnders brief). 

Rather than being grounded in the constitution, petitioner’s right to counsel is created, defined, and limited by statute.  See In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act sets forth statutory right to counsel in PCR proceedings even though providing such assistance is not constitutionally compelled).  Before 2004, the PDA guaranteed an indigent litigant the right to representation in any post-conviction proceeding “that . . . the needy person considers appropriate.”  13 V.S.A. § 5233(a)(3) (1998) (enacted 1971, No. 161 (Adj. Sess.), § 6).  In light of this language, we held that the state was obligated to provide PCR counsel upon the litigant’s request, regardless of the merit of the claims raised in the PCR or the fact that representation was not constitutionally compelled.  Gould, 2004 VT 46, ¶ 13.

There are two dissents. From Associate Justice Johnson:

To provide petitioner with competent and effective assistance of counsel and to preserve this Court’s role as protector of his right to counsel, this Court should deny counsel’s motion to withdraw and require her to file a brief on petitioner’s behalf.  Neither the majority’s solution of rubber-stamping the attorney’s conclusion that the case lacks merit, nor Justice Dooley’s suggestion to require an Anders-type affidavit from counsel adequately resolves the conflict between indigent petitioner’s need for effective and zealous representation and counsel’s own professional obligation to refrain from bringing frivolous cases.  While I concur with the majority’s conclusion that an Anders-like procedure is not constitutionally required or particularly effective in protecting an indigent litigant’s rights, I cannot agree with the majority’s holding that assigned counsel may withdraw at any point in the course of representation based solely on counsel’s own, unreviewable conclusion that the case is not warranted by existing law or nonfrivolous argument.  The grave consequences of a post-conviction proceeding and the critical requirement of robust representation at this proceeding require more.  To solve this problem, I would instead require counsel, once appointed, to remain in the case and to advance her client’s claims notwithstanding that she deems them to be without merit.  Because I would deny counsel’s motion to withdraw, I dissent.

(Mike Frisch)

December 28, 2009 in Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

CLE Suspensions In Ohio

From the web page of the Ohio Supreme Court:

The Commission on Continuing Legal Education today issued sanctions against 356 attorneys who failed to comply with the continuing legal education requirements for the 2009 reporting period.

Included in today’s sanctions were 68 attorneys who were also suspended from the practice of law for failing to comply with their continuing legal education requirements.

Attorneys are required to complete a minimum of 24 hours of continuing legal education every two years. Judges are required to complete a minimum of 40 hours of continuing legal education every two years.

Ohio’s attorneys are split in two groups according to the alphabetical listing of their last name for reporting purposes, with one group required to report by the end of every even-numbered year and the other required to report by the end of every odd-numbered year. The sanctions issued today are for attorneys who were required to complete their hours by Dec. 31, 2008, and file their report by Jan. 31, 2009.

The Commission on Continuing Legal Education is created by Gov. Bar R. X and administers the continuing legal education requirements imposed on attorneys and judges pursuant to that rule and Gov. Jud. R. IV. The Commission also accredits programs and activities that satisfy Ohio's mandatory CLE requirements.

View the complete list of attorneys sanctioned today.

(Mike Frisch)

December 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 24, 2009

Failure To Grant Continuance Leads To Remand

The Supreme Court of Washington has rejected by a 5-4 vote a recommendation for disbarment and remanded the matter for a hearing. The attorney practices in Oregon and obtained admission in Washington in order to handle his mother's divorce from his father. The case led to disciplinary charges involving charges of instituting frivolous lawsuits disobeying court orders and related misconduct. On the day of the scheduled hearing, he sought a continuance for health reasons. The motion was denied and the matter proceeded in his absence. The court here found that the failure to continue the matter amounted to a violation of due process, requiring a new hearing.

A dissent would find no abuse of discretion in the denial the continuance under the circumstances:

Viewed in isolation, I would have sympathy for Fredric's plea that his health
prevented his appearance at his disciplinary proceeding and that he should be given another chance. Viewed in context, the hearing officer was fully justified in denying another frivolous motion brought only for the purpose of delay. This was Fredric's third request for a continuance on a hearing that had already been delayed two years. Fredric's attempt to delay was not limited to his own discipline case; the record (which the hearing examiner was well aware of when he denied the motion for a continuance) establishes a long standing pattern of delay through myriad tactics, including the filing of frivolous motions for reconsideration and appeal, failing to properly serve documents, refusing to appear for depositions, refusing to produce documents pursuant to orders, and numerous other excuses for his or his client's failure to comply with rules and orders of the courts. These excuses have included automobile collisions, office moves, press of existing motions, a sick mother, and the birth of a child.
Any one of these excuses might deserve judicial sympathy. But Fredric has
an unprecedented record of engaging in abusive and vexatious practices by filing baseless lawsuits and endless motions and appeals (often in direct violation of court orders) in courts up and down the West Coast.

The dissent quotes two judges who were involved in the litigation. The first judge calls the behavior an "indescribable abuse of legal process." The second judge laments that "the unwarranted grief and expense it has spawned, are an outrage." The dissent notes that the lawyer has not challenged by findings of misconduct. (Mike Frisch)

December 24, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Remand In Litigation over Fees

The District of Columbia Court of Appeals has issued its decision in the litigation between Douglas Rosenthal and his former firm Sonnenschein Nath & Rosenthal. The case involves a dispute primarily over fees for representation against Libya arising out of the destruction of Pam Am 103 over Lockerbie. The trial court had awarded Rosenthal $3.7 million in compensatory damages. The firm won an award against Rosenthal and his new firm for tortious interference.

At issue were claims for compensatory damages for two periods of time. The court held that the jury was presented with sufficient evidence that the firm had been "unevenhanded and thus unreasonable" in setting compensation for the second period. Rosenthal's retirement did not preclude him from suing the firm. The evidence was insufficient to award punitive damages against the firm. 

The court remanded for a new trial on compensatory damages for the second time period. and reversed the award to the firm on the  tortious interference claim. Rosenthal was given the option of a new trial on compensatory damages or accepting an award as reduced by the court's opinion.

The decision can be accessed through the court's web page (Rosenthal v SNR) and was decided today. (Mike Frisch)

December 24, 2009 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 23, 2009

Cameron and Merchant-Ivory to Remake "Remains"

Stung by criticism that Avatar is "all effects" with pedestrian plot and dialogue, James Cameron announced today that he is joining forces with the Merchant-Ivory team on a 3-D remake of The Remains of the Day. In the new version, with a script to be written by Cameron and Ruth Prawer Jhabvala, Stevens, the repressed butler of the original, will become an android in service to Darth Darlington on a space station near Alpha Centauri, and like the original, struggling with an emerging consciousness.  Andy Serkis, who played Gollum in The Lord of the Rings, will play a computer generated Stevens, with a voice-over to be provided by Anthony Hopkins.  Helena Bonham Carter will reprise her Planet of the Apes tour de force, taking over the Emma Thompson role as Miss Kenton, a primate hired as housekeeper for Darth Darlington, to be played by Ian McKellen. 

The film will culminate in a typically Cameron-esque action sequence, with Stevens being subjected to the Turing test by the Klingons, Romulans, and Federation representatives who have gathered at Darlington Station to discuss the impending galactic war between the forces of foundationalism and those of post-modern indeterminacy.  Daniel Dennett, Roger Penrose, and Stanley Fish have been retained as script advisors.

Sets are currently being constructed in New Zealand, with the opening anticipated for summer, 2011.

[This parody was brought to you by Jeff Lipshaw, and has nothing to do with law, except that it represents one form of procrastination from grading, and reflects one habitual over-thinker's reaction to some of the over-thinking that has gone on with respect to a sci-fi movie, which the over-thinker happened to love.]

December 23, 2009 in Film, Games | Permalink | Comments (0) | TrackBack (0)

Right Of Way

From the web page of the Massachusetts Board of Bar Overseers is the following summary:

On June 19, 2008, the respondent was convicted in Dedham District Court of negligent operation of a motor vehicle in violation of G. L. c. 90, § 24. The respondent had been involved in a long-term dispute with his neighbors over a right of way, and the negligent operation arose from his driving his car on the lawn of one of the neighbors when a member of the household was in the yard. The respondent claimed the lawn was part of the disputed right of way. The respondent was sentenced to eighteen months of supervised probation with conditions that he not contact the neighbor’s family involved in the criminal conduct and complete an anger management program.

Bar counsel filed a petition for discipline alleging that the respondent’s conduct violated Mass. R. Prof. C. 8.4(b) and (h). The respondent filed an answer admitting to the allegations of the petition for discipline. The parties agreed that a public reprimand was the appropriate sanction. On October 19, 2009, the Board of Bar Overseers voted to sanction the respondent by a public reprimand.

The case is Matter of Simoni. (Mike Frisch)

December 23, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

You Need A Judge

The South Carolina Supreme Court has vacated and remanded a judgment in a home foreclosure matter. The problem? The presiding master was unable to attend the hearing and had signed the judgment presented by counsel later:

We categorically reject [noteholder] LaSalle's contention that the absence of the judge at the hearing was a harmless error.  The law recognizes two kinds of errors: trial errors and structural defects.  The former are subject to "harmless error" analysis while the latter are not.  In State v. Mouzon, this Court quoted a leading United States Supreme Court case, Arizona v. Fulminante, 499 U.S. 279 (1991), in explaining that "trial errors [] are subject to harmless error analysis"; however, "structural defects in the constitution of the trial mechanism [] defy analysis by harmless error standards."  326 S.C. 199, 204, 485 S.E.2d 918, 921 (1997). 

[Trial errors] occur during the presentation of the case to the jury, and may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.  Structural defects affect the entire conduct of the trial from beginning to end.  

Id. at 204, 485 S.E.2d at 921 (quoting Fulminante, 499 U.S. at 308-09) (internal citations and quotation marks omitted).  See also Sullivan v. Louisiana, 508 U.S. 275, 282 (1993) (explaining deprivation of the criminal defendant's right to a jury trial, "with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error'"). 

We hold that the absence of a judge at a court hearing is a structural defect.  The Court is troubled by LaSalle's trial counsel's efforts to proceed without a presiding judicial officer as well as the submission of the erroneous proposed order to the judge.  The purported hearing was a nullity, and the resulting order must be vacated.  The judge's absence from the hearing deprived the Davidsons of the opportunity to be heard and, thus violated their constitutional guarantee of procedural due process.

The same judge may hear the case:

The final matter we address is the Davidsons' request that we remand the case to a different judge.  We decline this request.  While the execution of LaSalle's counsel’s proposed order was unfortunate, we discern nothing in the record warranting mandatory disqualification of this Master.  Moreover, had the Davidsons filed a motion asking the Master to reconsider his order, we believe the Master would have vacated the order and conducted a proper hearing, as he attempted to do after jurisdiction had transferred to the appellate court.  While it may be difficult to understand how an order was issued from a hearing that never happened, we put the matter into context by recognizing the enormous caseloads handled by our state's excellent Masters, especially with respect to mortgage foreclosures. 

(Mike Frisch)

December 23, 2009 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)