Monday, June 30, 2014

Attorney Injured By Client Has Federal Claim Against State Mental Health Facility

The New Jersey Supreme Court reversed the dismissal of a federal civil rights claim brought by an attorney injured at a state-run mental health facility

Plaintiff Lorraine Gormley was an attorney employed by the Department of the Public Advocate, Division of Mental Health Advocacy, providing legal representation to clients involuntarily committed in state psychiatric facilities, including Ancora Psychiatric Hospital (Ancora). Each ward at Ancora contained a day room in which up to forty patients, including those who were involuntarily committed and classified as a danger to themselves or others, could congregate. Visiting attorneys and psychiatrists also were required to use the day rooms for professional interviews. Although frequent violence occurred in the day rooms, no security guards or cameras were posted there. From October 2003 through December 2005, Ancora reported almost 4,000 assaults, including 810 assaults against staff members and visitors, 200 of which resulted in injuries.

In September 2005, Gormley arrived at Ancora to interview clients. She sat in a day room with her back against the wall to prevent attacks from behind. One of her clients was B.R., who was suffering from a psychotic disorder with hallucinations and who had been assigned Continuous Visual Observation (CVO) status because she posed a safety risk to herself and others. Gormley, who was not informed that B.R. was on CVO status, sat near her in order to hear over the noise in the day room. As Gormley turned her head, B.R. hit her several times. Gormley tried to flee, but B.R. grabbed her by the hair, causing her to fall and strike her head on the concrete floor. When Gormley regained consciousness, B.R. was still attacking her. Gormley was out of work for about four months due to her physical and mental injuries.

For the majority

...the Court concludes that Gormley’s right to be free from state- created danger was clearly established at the time of the assault. In light of the history of violence at Ancora and the requirement that attorneys meet with clients in the chaotic day rooms, reasonable hospital administrators knew or should have known that the conditions they created breached the substantive-due-process guarantee of the United States Constitution.

The Appellate Division had found the federal claim barred by the doctrine of qualified immunity.

A dissent agreed with the Appellate Division and would dismiss on qualified immunity grounds. (Mike Frisch)

June 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: No "Horsing Around"

The Georgia Supreme Court has disbarred an attorney admitted in 1964 for this conduct with a client who was in his office to pick up a settlement check.

When the client asked what she owed him in fees, he responded

With or without a blow job?

He came around the desk and said

Now it's time for the blow job.

He then exposed himself to her and touched her breasts. She pushed him away and as she was leaving, he said

You're not going to give me a blow job. You're no fun.

She called the cops. He said he was "horsing around" and was impotent due to prostate cancer. He thought the client knew he was "just kidding."

The court ordered disbarment as the appropriate sanction. (Mike Frisch)

June 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Plea For Transparency

A District of Columbia Hearing Committee has recommended that an attorney be disbarred for misappropriation and other serious misconduct.

However, the committee had some harsh words for the Office of Bar Counsel

Before we address Respondent’s violations of his ethical obligations, we turn to
Respondent’s motion to dismiss based on Bar Counsel’s delay in bringing these charges. First, the delay in bringing this case is significant. The events in question took place eight years before Bar Counsel filed its Specification of Charges. By the time the Board on Professional Responsibility and the Court of Appeals will have an opportunity to act on this case, more than a decade will have passed. Bar Counsel should not wait eight years to bring a Specification of Charges, particularly given the seriousness of the violations; this is simply too long.

The committee notes that the bar complaint was filed in April 2005 and that the last communication in the investigation was in 2007. Nothing happened further until the matter was assigned to a newly-hired assistant bar counsel in 2011.

The case is In re Saint-Louis and can be accessed here.

This lack of diligence by Bar Counsel has become, lamentably, all too common over the past several years.

Equally lamentable is the fact that the Board on Professional Responsibility  (which has its own serious delay problems) and the Court of Appeals seem disinclined to address the issue in any meaningful way.

Recently, the Court of Appeals gently noted Bar Counsel's concession that it had been "less than diligent" in its handling of the investigation into serious misconduct.

The court accepted a consent to discipline in the case, where Bar Counsel's investigation had begun in 2003 and was not resolved until 2014. An eight-year investigation in a case that eventually result in a one-year consent suspension, with the court agreeing to treat the delay as a mitigating factor.

Legal Times reported that the conduct occurred in 1999 and that

[Attorney] Saito agreed to the discipline. In an interview, he said that given the amount of time it took the Office of Bar Counsel to prosecute his case, his age (he’s 73) and the difficulties he anticipated in tracking down witnesses so long after the events at issue, he thought it best to reach an agreement.

“It just took too long and took too much of my life,” he said.

The Office of Bar Counsel docketed a complaint against Saito in 2003. Not much happened in the case until 2011, when it was reassigned to a new assistant bar counsel “in an effort to resolve old, pending cases,” according to documents filed in Saito’s disciplinary case.

When a lawyer does little or nothing to advance a case for eight to ten years, we call that neglect and the lawyer/law office where this occurs is subject to bar discipline.

Who investigates and prosecutes such neglect?

The Office of Bar Counsel.

I shudder to think what might have happened to these cases if Phil Fox (the aforementioned new hire) had retired rather than signed up to be an assistant bar counsel.

If it were up to me (and it is not), all components of the D.C. attorney discipline system would be required to report on how long complaints and petitions take to resolve -- investigations, dismissals, diversions, informal admonitions and prosecutions.

How expeditious are the hearing committees and the BPR after charges are filed?

Without annual reports (common in many jurisdictions but anathema to D.C.), no one can begin to know.

These statistics would give the public real insight into whether attorney self-regulation works in D.C.

And then, maybe, there would be some long-overdue accountability for a system entrusted with upholding the integrity of the legal profession. (Mike Frisch)

June 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2014

To Embarrass And Burden

An Illinois Hearing Board has recommended a suspension of six months and a professionalism course for misconduct by an attorney in several matters.

Among the charges sustained were a series of Rule 4.4 violations.

One involved his treatment of opposing counsel

We...find Respondent violated Rule 4.4 when he  called Ms. Stevens derogatory names, such as "bitch, "asshole," and "slut," and  stated "you got a nice ass, too bad your head is up it." Although we recognize  Respondent was not positive whether he had called Ms. Stevens a "slut," we are  convinced he had given the persuasive testimony from both interested and  disinterested parties regarding his use of this word. Further, his failure to  deny that he had called her a "slut" when she accused him of doing so before  Judge Locallo on September 11, 2009, also supports our finding that he used this  word. These statements are not only unprofessional, but are derogatory, vulgar  and profane. There was credible testimony by more than one individual that  Respondent regularly made these and additional statements to and about Ms.  Stevens before she approached the bench so as to have an effect on her advocacy.  Given this credible testimony and Respondent's repeated use of derogatory  language, we find by clear and convincing evidence that Respondent violated Rule  4.4.

Additionally, Respondent's reference to Ms. Stevens  as "mommy dearest," "pervert," and "child molester," or other names insinuating  that she molested a child, served no substantial purpose other than to embarrass  and burden her. Even if Respondent believed Ms. Stevens had engaged in  inappropriate sexual contact with Cristina, "there were other equally effective  ways in which Respondent could have communicated the seriousness of his position  . . . without resorting to personal attacks, insults, and abuse."

In another matter opposing counsel got this

The evidence shows Respondent stood up in an open  courtroom and in a loud voice accused Mr. Xydakis of snorting cocaine at least  three times and called him an "idiot." Also, during a legal argument before the  Judge, Respondent referred to Mr. Xydakis as an "idiot" and a "coke head."  Respondent's choice of words and manner of bringing this to the court's  attention is problematic. He resorted to using insulting and derogatory language  about opposing counsel in the context of a judicial proceeding. There was  clearly a more appropriate way to disclose what he claimed to have seen without  resorting to personal attacks. See Gerstein, 99 SH 1 (Review Bd.  at 6); see also Hoffman, 08 SH 65 (Review Bd. at 14).  Accordingly, we find the Administrator met his burden and proved by clear and  convincing evidence that Respondent's statements to and about Mr. Xydakis served  no substantial purpose other than to embarrass, delay or burden him.

And a Deputy

The Administrator proved by clear and convincing  evidence that Respondent's statements that Deputy Kennealy was a "dumbbell" and  his repeated threats to "have her job," served no substantial purpose other than  to embarrass or burden her, in violation of Rule 4.4. We find Respondent  resorted to name calling and threats because he was angry with and embarrassed  by Deputy Kennealy because she had admonished him. While we [sic] the act of calling  someone a "dumbbell" is not, by itself, so egregious, the fact that Respondent  did so in anger and while also threatening to have Deputy Kennealy's job amounted to harassment. Respondent by continuously making these threats and  calling her names attempted to burden her with worry over her career and sought  to embarrass her in front of both his colleagues and her colleagues. Respondent  should have exercised discretion and simply brought his concerns to Deputy  Kennealy's supervisor through a letter or scheduled appointment.

I'm not entirely confident that a course in professionalism will cure the problem. (Mike Frisch)

June 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

D.C. Bar Seeks To Change Bar Counsel's Name

You won't get wind of this from the web pages of the District of Columbia Bar or the Court of Appeals, but the Board of Governors has proposed that the court amend its Rule XI by changing the name of the Office of Bar Counsel to the Office of Disciplinary Counsel.

By letter to Chief Judge Washington dated May 14, 2014, the Board gave three reasons for changing the name that has been used in court opinions and known to the Bar and the public since 1972:

1. "To reflect more accurately the activities of the prosecutorial office of the disciplinary system; "

2. "To resolve the current confusion among the members of the Bar who believe that Bar Counsel is the office that they should contact to advise them about ethical questions; and"

3. "To avoid erroneous service of process on disciplinary authorities perceived to be counsel for the District of Columbia Bar in matters in which the Bar is sued."


If you want to avoid confusion, don't change the name that an Office has been known by for the past 42 years.

It is also well known and made clear to whoever calls Bar Counsel that the office  does not provide ethical advice. That has been so since the 1980s. Any calls are simply referred to the Bar's Ethics Counsel. Reason #2 is entirely specious. -- a solution without a problem.

But it is the third justification that really grabs me --they want to it make it easier to sue the Bar. That doesn't even pass a laugh test.

I'm not sure what is behind this truly awful idea, but it surely is not for the reasons given by the Board of Governors.

Also, if names of the disciplinary components need to "reflect more accurately" their functions, I can think of several new names that better describe the Board on Professional Responsibility.

And why is this proposal not on the Bar's web page? (Mike Frisch)

June 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

Flying Hotdog Not Inherent Risk Of Watching A Baseball Game

A longtime Kansas City Royals baseball fan who lost a jury verdict for an eye  injury allegedly sustained during the "Hotdog Launch" by team mascot Sluggerrr gets a new trial.

The plaintiff was at a sparsely attended game with the Tigers.The court noted that the Royals won.

He and his father had moved down into choice seats nearthe dugout. He claimed he was struck by a hand-tossed hotdog but did not report any injury at the time. In fact, he attended the next night's game.

He sought medical attention and claimed the toss caused a detached retina. He advised the Royals of his claim eight days after the incident.

Sluggerrr had no memory of the event.

The jury found the plaintiff 100% at fault.

From the web page ofthe Missouri Supreme Court

A spectator, allegedly injured when a hot dog tossed by a baseball team’s mascot hit him in the eye, appeals a jury verdict in favor of the team that assessed 100 percent of the fault for his injury to him. In a unanimous decision written by Judge Paul C. Wilson, the Supreme Court of Missouri vacates the judgment and remands (sends back) the case. Whether a particular risk is inherent in watching a sporting event is a question of law for the court, not a question of fact for the jury. The risk of being injured by the hotdog toss is not one of the inherent risks of watching a baseball game. As a result, the trial court erred in submitting an instruction putting this question to the jury. Because the error affected the outcome of the case, it was prejudicial, requiring the judgment to be vacated and the case remanded.
The court's opinion is linked here. Also linked is a story from the Associated Press.
(Mike Frisch)

June 26, 2014 in Law & Business, Law & Society, Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)

A Fine Line

The Florida Supreme Court has reprimanded and fined a judge for campaign violations.

The judge purchased a table at a Republican Party event, left out "for" prior to the office she sought in campaign material (which is required of non-incumbants) and accepted funds fron her spouse.

Justice Lewis in dissent decried the use of large fines as a sanction

While I recognize that this Court has the authority to impose fines for ethical violations committed by judges and judicial candidates, I continue to oppose the utilization of large fines to punish serious violations of the Code of Judicial Conduct. See In re Pando, 903 So. 2d 902, 904-05 (Fla. 2005) (Lewis, J., specially concurring); In re Kinsey, 842 So. 2d 77, 99 (Fla. 2003) (Lewis, J., concurring in part, dissenting in part). Faith and confidence in our judicial system is rooted in the ability to rely upon the integrity and independence of our judges. That confidence is severely undermined when an ethical transgression of a judge or judicial candidate is so severe that it justifies the imposition of a fine of this magnitude.

(Mike Frisch)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Judge Removal From Office Upheld

 The New York Court of Appeals has upheld an order removing a surrogate's court judge from office.

The judge had presided over matters involving a very close friend (and former judge) as well as a matter in which her personal attorney was counsel.

The judge claimed that the matters were uncontested and thus no harm, no foul.

The court

The Rules Governing Judicial Conduct create no distinction between contested and uncontested/ministerial matters. The perception that these attorneys were in a position to be accorded preferential treatment is based on their relationships to the judge, not the type of proceedings. As the Commission pointed out, assuming that petitioner actually believed recusal was unnecessary under existing precedent and that there could be no appearance of impropriety or favoritism in her presiding over the matters involving these three individuals, her behavior reflects "exceedingly poor judgment and an inability to recognize impropriety."

A dissent notes the judge's "remarkable" career and would impose censure

Judge Doyle's tenure is remarkable. She served for 20 years as Chief Clerk of the Albany County Surrogate's Court. She was an Adjunct Professor of Law at Albany Law School teaching courses on trusts and estates and Surrogate Court procedure. She has been a frequent lecturer for the New York State Bar Association, Surrogate Judges Association and the Office of Court Administration. She also served as an Acting Supreme Court Justice by designation of the Office of Court Administration. The voters of Albany County elected her Surrogate twice.

Judge Doyle was first elected Surrogate in 2000 and reelected in 2010. She presided over a Court that has processed over 3,500 cases annually. The charges here are few and minor and involve only an "appearance of impropriety" and concededly involved no impropriety in fact.

The judge had previously been censured for giving misleading and evasive testimony. 

The determination of the Commission on Judicial Conduct is linked here. (Mike Frisch)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

How Not To Use Social Media: Suspension Proposed For Tweets And Online Campaign

A Louisiana Hearing Committee has recommended a year and a day suspension of an attorney found to have "used the internet and social media in an effort to influence ...future rulings in pending litigation."

The litigation involved a "very contentious" custody/visitation matter litigated in Louisiana and Mississippi.


...also used her Twitter account to publish multiple tweets linking audio recordings of the minor children discussing alleged sexual abuse; to publish false, misleading and inflammatory information about [two judges], and to promote [an] online petition, all of which was designed to intimidate and influence the judges' future rulings in the underlying proceedings.

Respondent knowingly if not intentionally embarked on a campaign using internet, social media and ex parte communication specifically designed to intimidate and to influence the judges' future rulings in pending litigation. Her online campaign to influence judges in pending litigation threatened the independence and integrity of the judiciary. Respondent's conduct also caused the judges concern for their personal safety.

The complaint was filed by one of the judges. The hearing committee found that the attorney was not remorseful.

It appears that the attorney is a candidate for judicial office. (Mike Frisch)

June 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Failure To Seek Disqualification Waives Objection

The New York Appellate Division for the Second Judicial Department affirmed the dismissal of a legal malpractice claim arising from the representation of an entity formed to acquire, own and operate a Manhatten office building.

The court agreed with the trial court that the plaintiffs could not prove proximate cause for their alleged damages and

The Supreme Court also properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging breach of fiduciary duty. Parklex alleged that the defendants breached their fiduciary duty by continuing to represent Deutsch after Deutsch and one of his affiliates asserted claims against it in the Holtkamp action. The defendants established their prima facie entitlement to judgment as a matter of law dismissing this cause of action by demonstrating that Parklex never sought to disqualify [the law firm] FZWZ from representing Deutsch and his affiliates in the Holtkamp action after FZWZ discontinued representing it in that action. Parklex's failure to seek to disqualify FZWZ from representing its adversary in the Holtkamp action constituted a waiver of its objection to FZWZ's legal representation. In opposition to this prima facie showing, Parklex failed to raise a triable issue of fact (citations omitted)

(Mike Frisch)

June 26, 2014 | Permalink | Comments (0) | TrackBack (0)

The Candyman

An Illinois Hearing Board majority has recommended disbarment of an attorney for misconduct in several matters.

...the Hearing Board  determined Respondent had: a) improperly diverted over $4,500 donated to benefit  teenagers injured in an automobile accident; b) raised frivolous issues and made  false statements to the court and the ARDC in an effort to justify keeping those  funds; c) attempted to represent the defendant and the victim in each of two  criminal cases; d) brought unfounded contempt proceedings against the prosecutor  in that matter; e) failed to return the unearned portion of a fee; f) created a  false billing record and made false statements to the ARDC in an effort to  justify keeping all of that fee; g) improperly represented a wife in a  dissolution of marriage action, while representing her husband on criminal  charges and both of them in civil litigation arising out of the husband's  crimes; h) improperly revealed client confidences to police and opposing  counsel; i) sent the wife threatening e-mails; j) improperly retained funds  belonging to the wife; and k) improperly diverted insurance payments intended to  pay for a client's medical treatment.

The attorney represented three teenage pedestrians who had been severely injured. He misappropriated the proceeds of a candy sale held on their behalf.

The attorney engaged in misconduct in a criminal matter

...we believe Respondent intentionally sought to frustrate those  proceedings, by using improper tactics, such as his effort to have Assistant  State's Attorney Whitfield held in contempt. From our perspective also, in  seeking to represent Soto and Sackette, Respondent was not attempting to benefit  either of them, but rather to obtain an acquittal for Hernandez by precluding  the State from access to witnesses important to its case against Hernandez. This  is not a proper tactic.

And there is this tangled web in another matter

Respondent represented Kelly in seeking a  divorce from Michael, Michael in criminal proceedings in which he was charged  with embezzling funds and represented Michael and his accounting firm in civil  litigation arising out of the embezzlement. Respondent also represented Kelly in  some aspects of the civil litigation.

The board majority found that the attorney had inflicted great harm on a number of clients and had no remorse. The attorney had prior discipline of a one-year suspension.

The dissent as to sanction would impose a three-year suspension. (Mike Frisch)

June 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2014

Wendy Brown Scott chosen as new Dean of Mississippi College's law school

As a former resident of Clinton, Mississippi -- home of Mississippi College's main campus -- and more importantly as a former colleague of Wendy Brown Scott at Tulane, I wanted to congratulate her and Wendy-scottespecially MC for a great match of leadership and community-directed law school. This Miss. business blog has a good account of the announcement.

Having been supervised by Wendy as my Vice Dean during a time of much upheaval and sadness in Katrina (she and her husband Eddie, a pastor, even lost their church in the Ninth Ward), it's nice that what makes her return to the deep South is good news and not diaspora. Welcome back, and visit Nola every once in a while! [Alan Childress]

June 25, 2014 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Klayman Update

The Legal Times is reporting that the Office of Bar Counsel and Mr. Klayman submitted a proposed consent disposition that will resolve conflicts of interest charges by a court-imposed public censure.

The petition (a public record but lamentably not available on line) alleged Rule 1.9 violations against his former client Judicial Watch.

The disposition was reached prior to the start of the hearing on Monday.

Be assured that this agreement is not necessarily the end of the story. The assigned hearing committee must review and may reject the consent disposition.

If the committee favors it, a report must then be filed with the Court of Appeals. The court may accept or reject the disposition and sometimes will ask for the views of the Board on Professional Responsibility.

In sum, stay tuned if you are interested. It likely will take a couple of years to complete the process. (Mike Frisch)

June 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 24, 2014

The Gentleman Of Verona

The Wisconsin Supreme Court has imposed a four-month suspension of a solo practitioner from Verona.

The attorney had engaged in misconduct in several matters. The court noted that his ethical problems were attributed to health issues

Within a week after the referee filed her report in this matter, the OLR received a letter from one of Attorney B.'s health care providers.  The provider stated that he was writing at the request of and with the permission of Attorney B.  The letter described health issues which were then affecting Attorney B. and which had led to symptoms that included problems with memory, concentration, and the ability to make decisions.  The letter further stated that due to those health issues, Attorney B. was unable at that time to respond to complaints that had been filed with the OLR.  It requested that the OLR temporarily suspend all administrative proceedings involving Attorney B.

The attorney nonetheless agreed to the suspension.

The court rejected the referee's proposal that monitoring by the bar's assistance program be a requirement of reinstatement

...we do not think it necessary to require Attorney B. to submit to an extended monitoring program administered by WisLAP.  In order to ensure that Attorney B.'s health will be in a sufficient condition to allow him to resume the practice of law, however, we conclude that the reinstatement of his license to practice law in this state following his four-month suspension should be conditioned upon him obtaining a satisfactory mental health evaluation and providing that evaluation to the OLR.  In order to be satisfactory, the evaluator must render an opinion, to a reasonable degree of professional certainty, that Attorney B. is presently capable of discharging the duties of a person licensed to practice law in this state.  We further conclude that as an additional condition of reinstatement, Attorney B. must execute medical releases that authorize the OLR for a period of three years to review his medical and mental health records and to speak with his medical or mental health care providers.  Once Attorney B. has complied with these conditions and the other conditions that are always required for reinstatement after a disciplinary suspension of less than six months, his license to practice law in this state can be reinstated.

(Mike Frisch)

June 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Dead Wrong

The Florida Judicial Ethics Advisory Committee opines


May a judge who  is a candidate for re-election use in the judge’s campaign literature and  electronic media a picture of the judge being sworn in at the judge’s  investiture by a now deceased former judge?



Regardless of whether the judge in the  photograph is deceased or alive, it appears the use of this photograph could  “imply” to the voting public that the judge pictured with the candidate judge previously  endorsed or would have endorsed the candidate judge.  It must be recognized that the  audience to whom the campaign materials are directed may or may not realize the  pictured judge is deceased, but this realization arguably does not change the  outcome of the inquiry.  For example, if  the voting public knows the judge pictured with the candidate judge is  deceased, the picture still potentially implies the deceased judge previously endorsed  or would have endorsed the candidate judge.   If the voting public does not know the judge pictured is deceased, the  picture potentially implies the pictured judge endorses the candidate  judge.  These implications, and potential  misrepresentations, are the very type of conduct addressed in Fla. JEAC Op.  10-18 and prohibited by Canon 7A(3)(e)(ii).

Therefore, given this Committee’s prior  opinions prohibiting the use of photographs depicting other judges, both in  campaign literature and on any website, and given candidates have an obligation  under Canon 7A(3)(e)(ii) to not knowingly misrepresent a fact concerning their  candidacy, and given that use of the photograph in question could imply and  give to the voting public the perception of endorsement of the inquiring candidate  judge by the deceased judge pictured in the photograph, the Committee believes  the inquiring judge should avoid use of the photograph in question in the  judge’s campaign materials and electronic media.

(Mike Frisch)

June 23, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Serious Question Remains (For Dissenting Justice)

The Rhode Island Supreme Court has ordered a public censure of an attorney who practiced while suspended for non-payment of annual dues.

Justice Goldberg dissented

When the respondent appeared before this Court it was disclosed—apparently for the first time—that throughout the period of time she has been removed from the Master Roll of Attorneys, including now, the respondent has been employed as staff counsel in the Office of Legislative Counsel at the Rhode Island General Assembly. Upon further inquiry, this Court was advised by Disciplinary Counsel of the following:

"Whether the title is staff counsel or legal counsel, there is certainly an implication that the person holding the position is an attorney. While there is no written job description, it can be presumed that only attorneys are hired for these part-time positions. Ms. Napolitano was duly licensed when first hired at Legislative Counsel, but it is not clear that maintaining active status is a prerequisite for holding such a position."

Because this position was not disclosed to Disciplinary Counsel or the Disciplinary Board, it is my belief that further inquiry into whether the respondent’s continued employment after she was removed from the rolls is warranted. A serious question remains as to whether the respondent continued to act as an attorney while she was no longer eligible to practice law in this state, and, whether her failure to disclose this employment constitutes another violation of the disciplinary rules.

Furthermore, the fact that there is no job description for the position of legal counsel is of no moment to whether this matter should be referred back to the Disciplinary Board for further inquiry. The position of legal counsel or staff counsel clearly signifies to this Justice and the public that the respondent has been employed in the capacity of an attorney throughout these proceedings, notwithstanding that she is not authorized to do so. Consequently, I dissent.

(Mike Frisch)

June 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Christmas Story

The California State Bar Court Review Department has recommended a partially-stayed two year suspension of an attorney who had misappropriated the proceeds of a settlement of a tort action on behalf of his parents.

The attorney had assigned his interest in the settlement to a New York company (Modeso) in exchange for a $10.000 payment.

When the case settled, he failed to pay and lied to the company representative.

At trial, [the attorney] testified that he lied to Modeso because he needed the money to pay his staff. He reasoned that he could not live with himself if he laid off his employees just before Christmas. [He] claimed that he intended to pay Modeso as soon as other cases settled, but they spiraled into protracted litigation. He described his remorse: "I am ashamed that I lied the way I did. What I should have done is told Modeso about my situation and been forthright with them and let them take the course of conduct that they chose to take in response."

He must serve a minimum of six months actuual suspension under the proposed sanction.

The California Supreme Court previously had rejected a stipulated 30 day suspension in the matter. (Mike Frisch)

June 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Klayman Hearing Starts Today

This listing from the D.C. Bar web page reports that the disciplinary hearing in In re Larry Klayman is scheduled to start today

Hearings are held in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals located at 430 E Street NW, Washington, DC 20001.

Please contact the Office of the Executive Attorney at (202) 638-4290 to confirm the date, time, and location of hearings, as schedules are subject to change.

In re Larry Klayman, D.N. 048-08 June 23-24 & 26-27, 2014, 9:30 a.m. Courtroom II

The docket number means that the invesigation into this matter began in early 2008. Also, it is somewhat unusual for a hearing committee to hold hearings on four out of five consecutive days.

We previously reported on the allegations

The petition (which is not available on line) alleges three instances of violations of District of Columbia Rule of Professional Conduct 1.9 in representing  interests materially adverse to Judicial Watch in the same or substantially related matters.  

It states that Mr. Klayman was Chairman and General Counsel of Judicial Watch from July 1994 to September 2003.

(Mike Frisch)

June 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, June 20, 2014

Reinstatement Denied With One Vote For Mercy

The West Virginia Supreme Court of Appeals has acknowledged a petitioner's commendable progress in drug rehabilitation but nonetheless denied his application to be reinstated to practice.

The attorney's license had been annulled in West Virginia and Georgia as a result of a federal felony conviction for forgery. He also misappropriated entrusted funds.

The court noted that the attorney became involved with drugs as a teenager. He was sober for many years, completed his education and had gone to work at his father's law firm.

He resumed  illegal drug use after being prescribed cough syrup that contained hydrocodone. He failed to advise the prescribing doctor of his drug history. He got hooked on the syrup and then moved on to oxycodone and crack cocaine.

The triggering event for the relapse was the death of his child's six-year-old friend in his swimming pool.

He went to federal prison as a result of the conviction and has been sober since 2007.

The court was concerned about his candor and acceptance of responsibility

More compelling are the falsehoods. These also indicate that Mr. DiTrapano’s inclinations regarding the truth have not been amended to an extent that would overcome the nature of his prior dishonest conduct. While he may no longer be under the influence of illegal drugs, we cannot overlook his failure to be thoroughly forthright with the [Lawyer Disciplinary Board] and this Court.

In view of the foregoing, we choose not to adopt the recommendation of the HPS, and we deny Mr. DiTrapano’s petition for reinstatement of his law license. Mr. DiTrapano has failed to carry his burden of showing this Court that he currently possesses the integrity and moral character necessary to resume the practice of law. We conclude that reinstatement would have a justifiable and substantial adverse effect on the public’s confidence in the administration of justice.

There was a concurring opinion linked  here.

Justice Ketchum dissented

 Sometimes we need to mix a little mercy with justice...

Mr. Ditrapano was in legal trouble for years because of his drug and alcohol addiction. However, he has been drug and alcohol free for over seven years and straightened up his life. In fact, he has more than met our five-factor test for rehabilitation in order to be readmitted to the practice of law.

 The hearing Panel Subcommittee of the Lawyer Disciplinary Board heard the evidence, considered the extent of the rehabilitation, weighed the demeanor of the witnesses and Mr. Ditrapano, and made a thoughtful, measured recommendation. I would accept their recommendation to conditionally reinstate Mr. Ditrapano’s law license after the completion of his supervised release.

I disagree with my distinguished colleagues.

(Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Only Washington Can Cross The Delaware

The Delaware Supreme Court has suspended a Pennsylvania attorney for one year and prohited his pro hac vice admission in any matter for three years based on findings of a pattern of unauthorized Delaware practice.

From 2006 to 2013, the attorney (never admitted in Delaware) "represented Delaware residents in over 100 matters arising out of motor vehicle accidents which occurred in Delaware and involved a policy of insurance issued for a vehicle registered in the State of Delaware."

Many of the matters were referrals from a Wilmington doctor. The attorney met with some clients in the doctor's office. Some of the clients came from television ads "which targeted Delaware residents." The attorney met with some of these clients in his firm's Wilmington office.

 The attorney was admitted in Pennsylvania in 1965 and began practice in 1968.  The Pennsylvania reciprocal discipline case could be interesting, as that jurisdiction takes a notably dim view of practicing while suspended. (Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)