Wednesday, July 31, 2013
An attorney who had been suspended by the Minnesota Supreme Court was ordered to refrain from practice before the United States Patent & Trademark Office.
However, the attorney failed to heed the order of suspension.
As a result, he is now disbarred in Minnesota:
[The attorney] committed contempt of court by practicing law after a suspension order, and he engaged in false and dishonest conduct by identifying himself as an attorney authorized to practice law despite being under suspension. He also disregarded his obligation to provide the required proof that he notified his clients of his suspension to to cooperate with the...disciplinary investigation. His conduct was serious and by its very nature harmed the legal profession.
The court found no mitigating factors. (Mike Frisch)
Tuesday, July 30, 2013
The New Jersey Supreme Court has held that a state prosecutor's office violated its post-indictment discovery obligations when its investigator destroyed his notes of a two-hour pre-interview of a defendant.
Further, the trial court "abused its discretion in denying [the] defendant's request for a charge that would have allowed the jury to draw an adverse inference from the destruction of the interview notes more than a year after the return of the indictment."
The court here affirmed the Appellate Division's reversal of the conviction of the defendant for the murder of his wife:
The danger of [the] investigator destroying his contemporaneous notes should be self-evident. The words in the interview report were filtered through an investigator who, understandably, has developed a distinct view of the case. The potential for unconscious, innocent self-editing in transferring wors, sentence fragments, or full sentences into a final report is a real possibility. So is the potential for human error in the transposition of words from notes into a report. By destroying his notes, [the investigator] made himself the sole judge of what was actually contained in the notes. If there were differences between the notes and the final report, [the defendant] had a right to present them to the jury.
Lawyers are obligated to comply with annual obligations such as bar dues and fulfilling CLE requirements in order to maintain an active law license.
The West Virginia Supreme Court ordered the suspension of 42 attorneys who had failed to provide proof of CLE compliance.
After 111 attorneys were directed to provide such proof, 69 attorneys responded and avoided the suspension. (Mike Frisch)
The Nevada Supreme Court has held that an attorney lacks authority to file a substantive motion on behalf of a deceased client when no personal representative has been substituted as a party to an appeal.
The client was convicted of conspiracy to commit kidnapping and murder, first-degree kidnapping and first-degree murder. He was killed in prison before his appeal was decided.
The attorney then filed a suggestion of death and motion to abate the conviction and remand with instructions to dismiss.
The court noted the procedures which require appointment of a personal representative to substitute for a deceased party. Further, the court allowed 90 days for substitution through a personal representative. If that does not occur, the appeal will be dismissed.
Brass v. State can be found at this link. (Mike Frisch)
Monday, July 29, 2013
Posted by Jeff Lipshaw
There is now a sequel to Memo to Lawyers: How Not to "Retire and Teach." That was a short essay I wrote in 2006 and 2007 about the odd experience of being somebody who practiced for twenty-six years and only then set out to join a law school faculty as a tenure track professor.
This summer I've been working on the look back - Version 1.0 predates the "Great Retrenchment. I've reflected on that change as well as examples of my earlier naivete or "I didn't know what I didn't know" in "Retire and Teach" Six Years On, a draft of which is now up on SSRN. Here's the abstract:
This is a follow up to a 2007 essay I wrote about what it might take for a well-seasoned practitioner to join a law school faculty as a tenure track professor. Having now wended my way up (or down) that track for six years plus, my intended audience this time includes the original one, those seasoned veterans of the law practice trenches who may think but should never utter out loud the words “I would like to retire and teach,” but now also my colleagues in academia who are facing what looks to be the greatest reshuffling of the system in our generation. Much of what I said in the earlier essay still holds. This essay, however, includes (a) a more nuanced look at the strange hybrid creature that is the scholarly output of academic lawyers; (b) a more respectful appreciation of what it takes to become a good teacher, with some notes about what worked for me, and (c) an attempt to reconcile the interests in scholarship and the interest in teaching after the “Great Retrenchment” of the legal profession and legal education, with some brief thoughts about the opportunities that may bring for the aging but not ossifying academic aspirant.
I suppose I ought to dedicate it to the Chief Justice because it gave me a chance to talk about the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria.
Photo credit (John Roberts): newyorker.com
Saturday, July 27, 2013
The Nebraska Supreme Court has reversed a conviction in a high-profile case involving charges of abuse of developmentally disabled adults in residential care.
The jury was permitted to review a document not in evidence --the prosecution's "road map"--a mistake that resulted in the reversal.
Huffington Post had noted the conviction:
A 31-year-old man has been convicted of abusing residents at a state-run center for developmentally disabled people in Nebraska.
Pangborn was charged with beating and choking residents when he worked at the Beatrice State Developmental Center last summer.
Sixteen employees were suspended after an investigation found that at least seven of the center's developmentally disabled residents were routinely slapped, shoved, violently pinched, punched, ridiculed and choked. Five workers were initially charged with abuse.
Pangborn is the only one to face trial, after the four others pleaded to reduced charges.
The Beatrice Daily Sun had this report on the sentencing. (Mike Frisch)
Friday, July 26, 2013
A complaint filed by the Illinois Administrator alleges that an attorney was convicted of DUI and battery in separate incidents and failed to report the convictions to disciplinary authorities.
On the evening of June 5, 2011, while at his home, Respondent became intoxicated. Marianna Gavlick ("Gavlick") and Karen Fischer ("Fischer"), who were Respondent's neighbors to the rear of his property, were outside cooking on Gavlick's patio, along with their children and other friends. Without provocation, Respondent, while standing at his door or window or in his yard, began to verbally harass and threaten Gavlick and Fischer and others. Respondent called Gavlick a "fucking idiot" and "dumb bitch," yelled other epithets, made obscene gestures toward them, and made shooting gestures in the direction of the children. Respondent bragged that he was a lawyer.
Gavlick called the police as a result of Respondent's above-described behavior. Normal police officers Kevin Ryan ("Officer Ryan") and Stephen Koscielak ("Officer Koscielak") responded. The officers arrived at the front of Respondent's home and Respondent, who was in his back yard continuing to harass Gavlick and others, did not notice their arrival. Respondent told Gavlick that he would hurt her "real bad" and he stepped in her direction. Officers Ryan and Koscielak witnessed the threatening words and gesture and placed Respondent under arrest.
Officer Ryan transported Respondent to the McLean County Jail in his patrol car. During the ride, Respondent repeatedly called the officer a "fucking idiot." Respondent also told the officer: "I'm a lawyer. Remember that. I dare you," "Wait till I get done with you," "I'll be a judge and you won't," "I'm a fucking lawyer that actually will fucking kick your ass. No, I will. Ask Judge Robb. Ask Justice Knecht," "Don't make me call you into court. Don't. Because I will."
On September 14, 2011, Respondent pled guilty to the charge of disorderly conduct...
The District of Columbia Court of Appeals has disbarred an attorney who engaged in misconduct in four matters.
The Court followed the recommendation of the Board on Professional Responsibility.
The misconduct that resulted in the ultimate sanction was a finding of reckless misappropriation.
The attorney had received checks in connection with a real estate/tax matter and deposited the checks into his trust account.
He "either thought the funds belonged to someone else or simply did not know to whom they belonged."
The attorney nonetheless used the proceeds as his own, writing at least 31 checks to himself or cash and overdrawing the account six times.
In another matter, he was dismissed as counsel in a probate matter but did not withdraw his appearance as counsel for two years. While dismissed but still as counsel of record, he sued his current client.
In the District of Columbia, the presumptive sanction for intentional or reckless misappropriation is disbarment. (Mike Frisch)
Thursday, July 25, 2013
An Illinois Hearing Board has proposed a 90-day suspension of an assistant public defender for misconduct described in the synopsis of the report:
The Administrator filed an eight-count Complaint against Respondent alleging Respondent failed to communicate plea offers to several clients, revealed confidential information, offered to post bond for a client, and engaged in conduct that disrupted the court. At all times alleged in the Complaint, Respondent was employed by the Cook County Public Defender's Office as an assistant public defender.
Respondent initially failed to participate in the disciplinary proceedings and the factual allegations and disciplinary charges of the Complaint were deemed admitted. Respondent appeared at the hearing and presented some evidence in mitigation.
The board related the attorney's background:
Respondent completed her undergraduate studies and law school while raising six young children. She was admitted to practice in Illinois and Indiana in 1981 and began working for the Lake County Indiana Prosecutor's Office. Three years later, Respondent began employment with the United States Department of Justice doing civil rights work. She then worked for the U.S. Attorney's Office in Chicago. In 1995, she went into private practice with Steven Shobat. She joined the Cook County Public Defender's Office in 2004. Respondent acknowledged she was fired from that office in 2012.
During the time of the conduct alleged in the disciplinary complaint, Respondent was grieving the loss of her mother. She was also newly assigned to the courtroom and was feeling overwhelmed. Her intentions were to help her clients; she did nothing for personal gain.
The "disruptive" behavior:
On May 18, 2011, Judge Calabrese appointed Respondent to represent defendant Monica Boyd, who was charged with theft, a Class A misdemeanor. Ms. Boyd appeared with Respondent before Judge Calabrese and the matter was set for trial later that same day. However, when the matter was called for trial, Ms. Boyd was not present. Respondent stated that Boyd had left the court to pick up her child.
Because Ms. Boyd was not present for her trial, Judge Calabrese issued a warrant for her arrest. At that time, the following exchange occurred:
MS. CESAR: Oh shit.
THE COURT: What did you say, Ms. Cesar?
MS. CESAR: Oh shoot, I said. Oh shoot. I'm sorry I didn't talk to her, Judge. I'm just - - it's my fault. I'm running around, talking to people.
THE COURT: I don't think that's what you said.
MS. CESAR: Whatever. I know the word you think I said. My mother never let me say that, and I'll tell you why. But I said shoot, darn it. (Adm. Ex. 5).
Respondent's conduct was disruptive to the court and had no purpose other than to disrupt the court.
"Although we recognize the gravity of displacing someone of his or her profession," the Supreme Court of Washington nonetheless disbarred an attorney who had "misrepresented the existence of a court order to a tribunal and then altered a filed court order to conceal his lie."
The misconduct took place the the representation of a client in alcohol-related criminal and license suspension proceedings. The attorney took the file from a court clerk and noted that the alcohol-content findings were suppressed when in fact the judge had not ordered suppression.
The order would have assisted the client in the license suspension matter.
The court clerk had noticed the attorney writing on the order and reported it to the judge.
The New York Appellate Division for the Second Judicial Department has disbarred an attorney based on a felony conviction.
The court set out the facts:
...the respondent stipulated that from January 2003 through December 2006, he was the chief paid political consultant to Alan Hevesi who, at the time, was the New York State Comptroller and the sole trustee of the New York Common Retirement Fund (hereinafter the CRF).
During that time, the respondent understood that David Loglisci, as Director of Alternative Investments, and then as Chief Investment Officer, was responsible for reviewing and recommending proposed investments by the CRF.
At or about that time, the respondent had financial interests related to certain alternative investments proposed by investment firms to the CRF. The respondent knew of and facilitated Loglisci's and Hevesi's recommendations and approvals of certain proposed alternative investments to generate, in part, fees to the respondent or others known to him. The respondent did not disclose those financial interests to any person other than Loglisci or Hevesi. The respondent stood to receive millions of dollars in fees from the proposed alternative investments Loglisci or Hevesi recommended and approved.
The respondent contemporaneously sought contributions to Hevesi's re-election campaign from, among others, those individuals whom the respondent knew were doing, or seeking to do, business with the CRF. The respondent knew that Loglisci or Hevesi recommended and approved proposed alternative investments for persons associated with those investments who contributed to Hevesi's campaign.
With respect to Count 19 of the Indictment, the respondent stipulated that "from in or about March 2005 through in or about February 2007, [he] intentionally engaged in fraud, deception, concealment, suppression, false pretense and fictitious and pretended purchase and sale, and made material false representations and statements with intent to deceive and defraud, while engaged in inducing and promoting the exchange, sale, negotiation and purchase within and from New York of securities . . . and thereby wrongfully obtained property . . . and fees related to the investment of CRF funds."
On February 17, 2011, the respondent was sentenced to an indeterminate term of imprisonment of 1⅓ to 4 years.
Wednesday, July 24, 2013
The North Dakota Supreme Court has concluded that a criminal defense attorney who charged a $30,000 minimum fee did not violate ethics rules:
In this case, there is no evidence that [attorney] Hoffman breached the contract for legal services with [client] Wetmore; rather Wetmore terminated Hoffman's representation after previously terminating another attorney's representation. Furthermore, the agreement between Hoffman and Wetmore was entered before this Court's decision in Hann, which should have put lawyers on notice that unlimited usage of nonrefundable "minimum fee" agreements may be in question. To the contrary, there was evidence presented at the hearing that these types of agreements are common among the criminal defense bar in North Dakota.
The court nonetheless concluded that the attorney, who was discharged prior to completing the case, was obligated to return nearly $25,000 in unearned fees. (Mike Frisch)
A criminal defense attorney who took the marketing of his legal services to a degree prohibited by ethics rules was suspended for one year by the Pennsylvania Supreme Court.
The suspension will be followed by a year of probation.
The attorney "reached out" by letter to clerical assistants assigned to bail matters, introduced himself as a "Philadelphia lawyer," and sought a "mutually beneficial business relationship."
He also went to the Criminal Justice Center in Philadelphia and requested that a court employee "take a stack of [his] business cards and keep them at the Information Center...to give...out to persons who needed a lawyer..."
He offered the court employee a payment fee for referrals.
As a result, he was struck from the court-appointed attorney list. (Mike Frisch)
An attorney who engaged in insider trading was suspended for three years by the New York Appellate Division for the Second Judicial Department.
The court applied collateral estoppel based on related civil proceedings in finding that
In or about 2000 and 2001, the respondent was associate general counsel to NBTY, Inc. (hereinafter NBTY), a nutritional supplement company that was publicly traded on NASDAQ. On or about March 2, 2006, the respondent was named as a defendant in Securities and Exchange Commission v Drucker, in the United States District Court for the Southern District of New York, under Docket No. 06 Civ. 1644.
The complaint in the foregoing matter alleged, in sum and substance, that, in or about October 2001, the respondent and his father, Ronald Drucker, engaged in unlawful insider trading by selling their shares of NBTY stock one day before NBTY made public a negative earnings announcement. It was alleged that, in his capacity as associate general counsel to NBTY, the respondent "routinely received sensitive and confidential information about NBTY. [The respondent] owed a duty to keep confidential, and not use for personal gain, any material, non-public information concerning NBTY." At the time of these sales, the respondent was alleged to have been "aware of material, non-public information" concerning NBTY's fourth-quarter earnings.
At the close of the stock market on October 19, 2001, NBTY publicly announced that its fourth-quarter earnings would be lower than expected. On the next trading day, the value of NBTY's shares fell approximately 27%. On October 18, 2001, one day prior to NBTY's public announcement, the respondent placed orders to sell his entire holdings of NBTY stock, consisting of 25,700 shares. At the same time, the respondent contacted his father, Ronald Drucker, and "tipped him." "Within minutes," Ronald Drucker sold his entire holdings of NBTY stock. Also at the same time, the respondent "directed the sale" of the entire NBTY holdings of his friend William V. Minerva. By trading in advance of the negative earnings announcement, the respondent, Ronald Drucker, and William V. Minerva avoided losses of approximately $200,000.
As to sanction:
...we note the absence of cooperation by the respondent with the SEC, as well as the absence of any admission by the respondent that he engaged in insider trading. As the District Court noted, the respondent "failed to cooperate . . . until . . . he could no longer conceal his transgression, thereby misleading his employer," and he failed to take responsibility for what he did. We find the absence of remorse to be an aggravating factor, consistent with the District Court's finding that the respondent was entitled to "no mercy" as a result of the "brazenness" of his conduct and his "cocky refusal to own up to it." Moreover, we note the District Court's description of the respondent as having "demonstrated utter indifference to the law and to his client," and of his conduct as "egregious."
Tuesday, July 23, 2013
An attorney convicted of aggravated vehicular assault and related offenses was disbarred by the New York Appellate Division for the First Judicial Department.
The New York Post reported on his "going away" party after he was sentenced to prison:
A “pretentious” Manhattan socialite hosted a swanky, “black tie optional” bash in January — where he sipped champagne with his fabulous friends and boasted of an upcoming years-long vacation to Europe he was about take.
Tabber Benedict bellied up to the bar at Chelsea’s Bungalow 8 — with a woman on his arm — and bent his friends’ ears about the planned jaunt and all the places he was going to visit.
But the finance lawyer was hiding the real, sinister reason he was saying his farewells.
He was going to prison for nearly killing a man.
About two years ago, the West Village denizen slammed his SUV into a Long Island dad after a night of hard partying in the Hamptons — and left his victim for dead, records show.
The Jan. 24 soiree was just four days before he was sentenced to as many as 10 years in the clink.
“He lied to everybody about going to Europe,” one of his friends said.
But throughout the party — which began at 11 pm — Benedict, 35, played it cool, some of the 150 attendees said.
The socialite, who often appears impeccably dressed at charity events, was recently featured in a New York Observer story about “Gatsbabies” — described as “preening prepsters” who “lure ladies, lucre and limelight” as a lifestyle.
“People look at me and they’re like, ‘That spoiled prick,’” Benedict, who says his financial law firm handled $25 billion in transactions, told the paper.
The scenesters scored the space at Bungalow 8 for free, because they know a woman who runs the door at the club, attendees said.
It wasn’t until later that one friend “heard that [Benedict] was making something up” and that only a few people “did know the truth.”
The truth was that Benedict was partying at a friend’s house in the Hamptons on July 4, 2011 when his girlfriend demanded he come see her in Manhattan, his lawyer said.
Benedict took to the road at 8 a.m. with a .28 blood-alcohol reading — more than three times over the legal limit, law enforcement sources said.
While driving along Montauk Highway in East Quogue, Benedict drunkenly plowed his GMC Acadia in to Steven Dorn, 45, a high school teacher and father of three daughters who was cycling, court records state.
The “Gatsbaby” then fled the scene as the dad lay severely injured along the highway, court records show.
This link provides some details about the attorney's professional background. (Mike Frisch)
A unanimous Wisconsin Supreme Court has affirmed the dismissal of ethics charges brought by the Office of Lawyer Regulation against a Racine County assistant district attorney for purported violation of her duty to disclose excuplatory information.
The court rejected the OLR's contention that a "prosecutor's ethical duty of disclosure [under professional conduct rules] is broader that the constitutional requirements identified in Brady."
The case involved a traffic stop and arrest of the driver for possession of marijuana. The driver was on supervision for a prior cocaine possession. Criminal and revocation proceedings ensued.
The passenger admitted that the marijuana was his. He told this to the police and prosecutors. The defense attorney for the driver also knew of the confession.
An unsworn note containing the admission to a prosecutor was not provided to the defense until four days before trial.
The court found no ethical violation:
The record is devoid of evidence that Attorney Riek's alleged delay in producing the Simpson Note and disclosing the fact of Simpson's discussion with D.A. Nieskes was intentional or done for any strategic purpose. Mindful of the voluminous caseloads managed by most prosecutors, we are unwilling to rule that Attorney Riek's disclosure of essentially duplicative information four days in advance of an apparently routine marijuana possession case ran afoul of her ethical and procedural obligations as a prosecutor.
We note, moreover, that even where a prosecutor does fail to disclose exculpatory evidence in violation of Brady, a single inadvertent failure does not necessarily constitute an ethical violation. Negligence and ethical misconduct are not necessarily synonymous. Most courts and official ABA policy agree that a single instance of "ordinary negligence" may trigger other adverse consequences and possible sanctions but does not usually constitute a disciplinary violation warranting public discipline.
The Ohio Supreme Court has denied admission on character and fitness grounds to a recent graduate of the University of Dayton Law School.
The applicant was convicted of a fifth degree felony while a senior in college. After suffering some financial setbacks, she and a friend were caught shoplifting designer jeans with the intent to resell.
The conviction was fully disclosed on law school and bar applications.
Another incident -- plagiarism from an internet source for a college academic paper --was not disclosed.
The applicant will be allowed to sit for the July 2014 Ohio bar exam. (MIke Frisch)
Monday, July 22, 2013
The Illinois Bar Journal noted the outcome:
[The attorney], who was licensed in 1987, was suspended for three months. He falsely reported to the Minimum Continuing Legal Education Board of the Supreme Court of Illinois that he had completed 20 hours of continuing legal education activity during the 2007 to 2009 reporting period. In fact, he had enrolled to take only 19.25 hours of CLE work and his secretary, at his direction, completed some of the online CLE classes that [he] claimed to have completed.
The summary was published in September 2011. (MIke Frisch)
A one-year consent suspension has been imposed by the Pennsylvania Supreme Court.
The attorney was consulted by a potential client in a driving under the influence matter.
He quoted a fee of $1,000 and was told that she did not have the financial resources to retain him.
He proposed and received an alternative fee in the form of oral sex.
There were two additional "payments" and the attorney completed the matter.
As you might expect, the arrangement was not reduced to writing, as required by the Pennsylvania ethical rules. (Mike Frisch)
In a matter that the single justice described as the first instance where a state prosecutor was subject to disciplinary sanction for ethics violations, the Maine Supreme Judicial Court ordered a 30 -day suspension.
The ethics violations were committed by an assistant district attorney in a criminal matter involving accusations of spousal rape.
The prosecutor admitted that she had given an improper closing argument and engaged in discovery violations.
Details may be found in the probable cause report of the Grievance Panel.(Mike Frisch)