Sunday, May 31, 2015

In Camera

Is voyeurism a crime of moral turpitude?

No, according to a District of Columbia Hearing Committee that dealt with this question in the case of an attorney who pleaded guilty to a misdemeanor violation of 22 D.C. Code section 3531(c), which makes it a crime to electronically record, without consent, a person using a bathroom or restroom or who is undressing or changing clothes.

The committee did recommend a three- year suspension with fitness.

Disbarment is mandatory in D.C. for criminal convictions that involve moral turpitude.

The incident that led to the conviction occurred at a Washington sports club (named Washington Sports Club) on August 19, 2009. 

The attorney, who was employed with the Freshfields law firm, had recently returned from a two-year stint in Germany. He was two days away from a scheduled civil union with his longtime partner.

He testified before the committee that he went on Craigslist that morning to identify a gym where he might find a same-sex encounter.

He further testified that he responded to several people. including someone who described himself as "a well -endowed bear who was interested in showing off in the SSS [shower, sauna, stall]."

He brought a video camera with him that he concealed in a toiletries bag. 

He described his intent was to have a "last fling here at the gym and wouldn't it be nice to record some of [it]."

The ensuing encounter was with a person that the attorney  claimed to mistakenly have believed might be the aforesaid bear.

Rather, the victim/complainant was an attorney - a former Boston police officer and Assistant DA who was in private practice after a stint with the D.C. Attorney General 's Office.

He was looking to exercise and use the bathroom, nothing more. 

The attorney took surreptitious video of the victim's buttocks and genital area. He then attempted to take video from one bathroom stall of the victim in the adjacent stall and was discovered. 

Chaos and an arrest followed. 

The complainant and the attorney provided conflicting versions of what happened in the stalls.

The committee believed the complainant and found that (i) the Craigslist/bear story was false and (ii) he had assaulted the complainant in the chaos.

Finding that the crime did not rise to the level of moral turpitude today's world, a camera can be expected to be anywhere, including gyms like WSC, which are forced to post signs stating that video cameras are prohibited in the locker room. While this technological reality does not excuse Respondent's conduct, it properly frames the [moral turpitude] question...

The  committee's sanction recommendation was heavily influenced by its finding that the attorney gave knowing false testimony in the disciplinary proceeding.

The committee found a dearth of D.C. law on the moral turpitude issue but looked to the 1996 Holloway case from Georgia.

There the Georgia Supreme Court struggled with sanction.

The court majority imposed a three-year suspension on these facts

[The attorney's] guilty plea was predicated upon charges that he surreptitiously used a video camera to record his secretary while she was in the bathroom of his cabin at Usry Pond, after he had fabricated a story to lure her there. It was shown that [he] had constructed an elaborate observation area underneath the bathroom floor and had altered the bathroom cabinet to conceal himself and a video camera while he lay in wait for his victim. Sometime later, the victim inadvertently found the videotape with her initials on it and viewed it.

There was a dissent in favor of disbarment

There are no words in the majority opinion explicitly approving the victimization of women by lawyers. But such words are not necessary: it is actions that speak most loudly here and the message is clear and unmistakable: the court will not disbar a lawyer for committing a criminal offense of a sexual nature against women. It does not matter whether the lawyer's victim is client or employee, it does not matter whether the lawyer preys on one woman or five, whether there is physical contact or premeditated plotting, it does not even matter whether the lawyer's crime is a misdemeanor or a felony. Sex crimes against women are all on one level. Like cocaine addicts and tax evaders, lawyers who commit sex crimes against women will be accorded special treatment by this Court. No, there are no words in the majority opinion explicitly approving the victimization of women by lawyers: the majority has no need for such words when its very actions are sufficient to convey that message.
The majority opinion, by justifying its inadequate punishment by relying on Brooks and Yarbrough, supra, has solidified this Court's approach toward lawyers who victimize women. The majority has created a glass ceiling on punishment by grouping these sex crimes into one amorphous category. And for mitigation evidence: the fact that the lawyer is a sex pervert and has knowingly and deliberately violated laws he swore to uphold will not matter if the lawyer is competent in his practice, victimizes only employees (but see Yarbrough, supra), and has kept the general public in ignorance of his criminal activities.
The majority opinion propagates an environment where lawyers know they can target women and can be convicted of sex crimes against women without any fear whatsoever of losing their licenses to practice law in this State.
Maryland recently disbarred an attorney who videotaped three tenants in intimate encounters.
The court has not yet issued its full opinion in the case. 
A video of the oral argument in the Maryland case is linked here.  
The D.C. case is In re Kelly Cross, Docket No. 2009- D476. 
The attorney members of the committee were Chair Thomas Bundy and Marcie Ziegler. Ria Fletcher was the public member. 
The opinion is now available at this link. (Mike Frisch)

May 31, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Risk v. Reward

The Montana Supreme Court has reversed and remanded with spoilation sanctions a verdict in favor of defendant BNSF Railway based on its failure to preserve a video of the accident of an employee plaintiff.

BNSF is a seasoned and sophisticated corporate litigant well aware of its obligations when responding to workplace violations and employee injuries and accidents. These obligations include the retention of evidence relevant to injury claims. In this case, BNSF supervisors took immediate action within minutes of Spotted Horse’s alleged accident. While Price drove Spotted Horse to the hospital for medical treatment, BNSF supervisors began gathering and analyzing information related to the incident. Within hours of the alleged accident, according to testimony, three individuals viewed a brief portion of the video footage from one camera in the shop stall where Spotted Horse and Syverson were apparently working. And yet–inexplicably–this and other video footage from the shop was not retained...

We reject the notion that BNSF is entitled to unilaterally determine which evidence is relevant or valuable when investigating an alleged work-related accident preceding litigation. Such a decision must be left to the trial court.

Justice Wheat would order default

I agree with the Court’s decision to reverse the judgment of the District Court and to order more serious spoliation sanctions against BNSF on remand. I would, however, remand to the District Court with an instruction to enter default judgment, because the audacity of the spoliation in this case warrants more than a mere negative inference in favor of Spotted Horse...

Montana courts should not shrink from granting default judgment where, as here, spoliation is willful, in bad faith, or knowingly committed in order to obscure the truth and to prevent accurate decision making. By failing to take such action when it is warranted, we fail the spoliation victim and our system of justice, while at the same time rewarding the spoliator with the result he or she sought: an advantage in litigation. By failing to take such action, we set the stage with perverse incentives and encourage further spoliation. Until we are willing to respond with sanctions commensurate to the damage caused by intentional spoliation – that is, with default judgment – the reward from destroying evidence will continue to outweigh the risk.

Justice McKinnon dissented and would affirm the trial court's exercise of discretion. (Mike Frisch)

May 31, 2015 in Clients, Law & Business | Permalink | Comments (0)

Friday, May 29, 2015

Harsh Sanction Proposed For Attorney Who Blogged About Probate Case

The Illinois Review Board has recommended a three-year suspension of an attorney who blogged about a probate court case

This case involves Respondent's statements on a blog impugning the integrity of certain judges, guardians ad litem ("GALs") and the lawyers involved in a case in the Probate Court of Cook County. The Hearing Board concluded that Respondent violated Rules 8.2(a) which provides that "a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer"; 8.4(c) which prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation"; and 8.4(d) which prohibits "conduct that is prejudicial to the administration of justice."

The Administrator's Complaint alleged that Respondent made statements in violation of the above rules when she blogged about an adult guardianship of Mary G. Sykes ("Mary") pending in the Probate Division of the Circuit Court of Cook County ("the Sykes case"). In December 2009, the probate court had disqualified Respondent from representing Gloria Sykes ("Gloria"), one of Mary's daughters, in the case. Thereafter, Respondent published blogs related to the Sykes case. The Administrator's Complaint set forth ten excerpts taken from Respondent's blogs and alleged that the statements in the excerpts were made in violation of the Rules. The Hearing Board based its findings on these ten statements. 

The board rejected the First Amendment defense

The First Amendment does not afford Respondent any protection. No ruling of the United States Supreme Court or any other court supports the conclusion that Rules 8.2(a) or 8.4(c) are unconstitutional, or that enforcing the rules in this case violates her First Amendment rights. The Respondent cites no case or authority that knowingly making false statements about a judge's integrity is protected under the First Amendment. Indeed, in a recent case cited by Respondent, Alvarez v. United States, 567 U.S. ___, 132 S.Ct. 2537 (2012), the Supreme Court pointed out that there are situations in which knowingly or recklessly made false statements are not protected under the First Amendment, citing Garrison v. Louisiana, 379 U.S. 64, 75 (1964) a case in which the district attorney was convicted of defamation for making disparaging statements about the judiciary (" the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.").

Similarly, the Illinois Supreme Court has routinely rejected attempts by respondents to argue that the First Amendment protects lawyers from making false accusations about judges and court proceedings that have no basis in fact and are false or made with reckless disregard to the truth.

The board further recommends that the attorney establish fitness for reinstatement.

At the risk of possible sanction, I blogged on the hearing committee report and opined

As a blogger who frequently finds it necessary to criticize disciplinary processes in D.C. and elsewhere, I confess that I find this proposed sanction excessive given the absence of prior discipline and the conceded sincerity of the attorney's beliefs, even if unfounded.

Corruption in our courts does exist and attorneys have an obligation to speak out when it occurs.

In my view, that conduct should be, if not encouraged, at least allowed.

(Mike Frisch)

May 29, 2015 in Billable Hours | Permalink | Comments (0)

The Return Of the Blues

The Massachusetts Supreme Judicial Court decided a divorce case involving the widow of John Belushi.

In late December, 1988, the husband, who had previously been married, and the wife, a widow, "agreed to marry and discussed that a premarital agreement was necessary to protect various assets each had acquired, including intellectual property rights they intended to exploit or continue to develop in the future and that each wanted to protect in the event of divorce, separation or death." The wife had valuable real property located in Martha's Vineyard as well as an interest in her parents' house in New Jersey. The wife also had valuable intellectual property rights, including rights she inherited from her late husband, the actor/comedian, John Belushi. While the wife had achieved some success in her own right as an author, writer, producer, and speaker, her income was derived primarily from royalties and residuals from the intellectual property rights she inherited from Belushi.

The husband is involved in the entertainment industry and, prior to the marriage, had, among other things, written, produced and co-directed a successful television miniseries, produced a concert television special, and written scripts or concepts for several full length screenplays, one of which was sold to a studio. The husband had also negotiated various business transactions regarding production, residual rights, and intellectual property and royalty payments for himself and his production company.

The great comedian may be gone but the  money stream continues

The wife stated that her right to receive the royalties and residuals, as well as her right to exploit the name and likeness of her late husband and the Blues Brothers, represent valuable assets, albeit assets that are difficult to value as it is "impossible to predict with any degree of accuracy what income stream they might generate in the future." Although there was fluctuation in the amounts of income received by the wife from her intellectual property interests, the amounts were substantial.

The court here affirmed the enforcement of the prenuptial agreement over the husband's objections and dismissed his request for sanctions. (Mike Frisch)

May 29, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, May 28, 2015

Mississippi Yearning

The Mississippi Supreme Court has held that an out-of-state paramour had insufficient contacts with the state to permit long-arm jurisdiction over an alienation of affections suit.

This is an alienation-of-affections lawsuit brought against a nonresident paramour over whom our courts have personal jurisdiction under the Mississippi long-arm statute. But because the paramour did not make purposeful minimum contacts with Mississippi that were sufficient to satisfy the Due Process Clause of the Fourteenth Amendment, we reverse the circuit court’s denial of the paramour’s motion to dismiss for lack of personal jurisdiction and we render judgment dismissing the plaintiff’s complaint and this action for lack of personal jurisdiction over the paramour.

Phillip was married to Paige and had an affair with Francesca as well as with an unnamed fitness instructor.

Francesca could not be sued because she was under the mistaken impression that Phillip was from Tennessee

The record in this case includes no evidence whatsoever that Francesca ever purposefully made any contact—minimum or otherwise—with Mississippi. She had an affair (never in Mississippi) with a man (a) who worked in Memphis for a Memphis-based corporation; (b) whose cell phone had a Tennessee area code; (c) who sent her packages using a Tennessee return address; (d) who drove a truck with a Louisiana license plate; and (e) who asked her to meet him in “MEM” so they could disclose the affair to his wife...

It is uncontroverted that Francesca never knew of Phillip’s home in Mississippi. There is no evidence in the record to suggest that Francesca knew or should have realized her calls and texts to Phillip’s Tennessee telephone number would be received in Mississippi. And while Francesca certainly should have known her affair with a married man might break up a marriage somewhere, there is nothing in the record to suggest she knew or should have known the marriage would break up in Mississippi.

Presiding Justice Randolph disagreed and would find that Francesca's conduct was sufficiently purposeful to invoke the power of Mississippi

Were the contacts between [Francesca]... and Phillip purposeful? Yes. Were [Francesca's] contacts with a resident of Mississippi? Yes. Did the complaint allege that a tort was committed, in whole or in part, in Mississippi? Yes. Our law requires no more to exercise in personam jurisdiction, other than to conduct a due process analysis of fair play and substantial justice. Today’s outcome achieves neither...

Today’s case presents a claim of injury which arose out of and is related to communications through cell phone calls, text messages, and emails. Considering the contacts have been admitted, Paige has a right to seek redress for damages related to those contacts.

Justice Pierce joined the dissent.

Paige divorced Phillip and has moved to Texas.

This 2012 Mississippi College Law Review article  discusses the tort. David Neil McCarty correctly predicted

Recent rulings from the Mississippi Supreme Court make clear that the tort is here to stay and is evolving to meet the digital contours of the twenty-first century.

The article also favors adoption of the tort beyond  the six states that recognize the action. (Mike Frisch)

May 28, 2015 in Current Affairs | Permalink | Comments (0)

No Safe Harbor For "Company Of Non-Lawyers"

A recent decision of the Colorado Supreme Court is summarized in the court's headnote

The supreme court examines the legal services exemption in the Uniform Debt-Management Services Act, §§ 12-14.5-201 to -242, C.R.S. (2014) (“DMSA”), to determine whether the original version of the exemption applies to Morgan Drexen, Inc., a company of nonlawyers. The court also analyzes whether the amended version of the exemption violates the separation of powers doctrine in the Colorado Constitution and the Commerce Clause and Privileges and Immunities Clause in the United States Constitution because certain out-of-state attorneys may be subject to regulation under the DMSA. The supreme court reverses the trial court’s order and remands for further proceedings consistent with this opinion. The supreme court holds that the trial court erred by concluding that Morgan Drexen’s services fall within the scope of the legal services exemption in the original DMSA, section § 12-14.5-202(10)(A), C.R.S. (2008). The original exemption encompasses nonlawyer assistants, but Morgan Drexen’s activity here does not fall within the scope of that exemption because it performs substantive debt-management services without meaningful instruction and supervision by an attorney. The supreme court also holds that the amended DMSA does not violate the separation of powers doctrine in article III of the Colorado Constitution or the Commerce and Privileges and Immunities Clauses of the United States Constitution.

The plaintiff

Walter Ledda is the founder, Chief Executive Officer, and majority shareholder of Morgan Drexen. He describes Morgan Drexen as a “legal software and legal software development company” that is owned and operated by nonlawyers but provides paraprofessional and administrative support to attorneys and performs “routine tasks.” Although Morgan Drexen alternates between calling itself a California and a Nevada corporation, its principal place of business is in California. Morgan Drexen employs what it terms “nonlawyer assistants” and provides debt-management services nationwide in conjunction with contracting attorneys known as “engagement counsel” or “engagement law firms,” some of whom then engage local counsel. Engagement counsel or local counsel enter into attorney–client fee agreements with debtors. Those fee agreements state that counsel may use the services of outside companies such as Morgan Drexen; however, Morgan Drexen is not a party to the agreements. 

Morgan Drexen refers to engagement counsel as its “clients” and pays them a minimal fee that passes through the law firms’ trust accounts, sometimes as low as two dollars per month per debtor–client. Two of those attorneys are parties to this lawsuit: Donald Drew Moore and Lawrence Williamson, Jr. Moore is a Colorado-licensed attorney who acts as both engagement counsel and local counsel. Williamson is a Kansas attorney who acts as engagement counsel and represents Colorado clients through association with Moore.


We hold that the trial court erred by concluding that Morgan Drexen’s services fall within the scope of the legal services exemption in the original DMSA. The original exemption encompasses nonlawyer assistants, but Morgan Drexen’s activity here does not fall within the scope of that exemption. Morgan Drexen finds no safe harbor under Colo. RPC 5.3, given that it performs substantive debt-management services without meaningful instruction and supervision by an attorney. We also conclude the amended DMSA does not violate the separation of powers doctrine in article III of the Colorado Constitution or the Commerce and Privileges and Immunities Clauses of the United States Constitution. Consequently, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

(Mike Frisch)

May 28, 2015 | Permalink | Comments (0)

Resigned But A "Special Place In Hell" May Await

An attorney who stole $262,000 from the estate of a disabled veteran had his resignation accepted by the Ohio Supreme Court.

John Caniglia  in The Cleveland Plain Dealer had this report on his criminal conviction and sentence

An attorney was sentenced to 16 months in prison Tuesday for siphoning $262,000 from the estate of a disabled Army veteran.

Cuyahoga County Common Pleas Judge Timothy McCormick sentenced Kevin Purcell, 62, formerly of Middleburg Heights, after hearing how the attorney stole the money from the estate of John Kane, who suffered from schizophrenia.

"There is a special place in hell waiting for attorneys who steal from the defenseless,'' said Matthew Meyer, an assistant Cuyahoga County prosecutor who handled the case.

Purcell served as a guardian for Kane since 1993 and administrator of his estate after he died in 2012. He pleaded guilty last month to aggravated theft and agreed to never practice law again. He also planned to pay restitution to Kane's estate. He has been an attorney since 1981.

"Kevin Purcell is the worst kind of thief,'' said Kane's sister, Valarie DeChant. "(He) constantly boasted to me what a great service he was performing for my brother. At the same time, he was draining his estate.''

She said she has received a small fraction back from Purcell's theft and urged McCormick to condemn Purcell for what he did, "thereby protecting those who are vulnerable to his lies and his thievery.''

The court also accepted another resignation of an attorney whose alleged misconduct has been the subject of reports by The Columbus Dispatch. (Mike Frisch)

May 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Massey Successor Must Pay Blankenship Legal Fees

Incurred and future legal fees to defend criminal charges against former Massey Energy chief Don Blankenship must be paid by the company that acquired Massey, according to a Delaware Court of Chancery decision issued today. 

This advancement action involves some unusual facts but an all too common scenario: the termination of mandatory advancement to a former director and officer when trial is approaching and it is needed most.

Plaintiff Donald L. Blankenship is the former Chief Executive Officer and Chairman of Massey Energy Company, which is now known as Alpha Appalachia Holdings, Inc. (“Massey”). Blankenship held those positions when there was a tragic explosion at a Massey subsidiary’s coal mine in West Virginia in April 2010, killing 29 miners. In June 2011, after Blankenship had retired from Massey, Alpha Natural Resources, Inc. (“Alpha”) acquired Massey. For several years after the explosion, Massey and Alpha (together, the “Defendants”) honored Blankenship’s rights to advancement and paid his legal expenses relating to various civil proceedings and a federal criminal investigation that had been launched as a result of the explosion.

Alpha paid his fees until he was indicted. The decision to stop paying counsel's bills came after Alpha had sought advice from Cleary Gottlieb

In the wake of the indictment, Alpha stopped paying Blankenship’s legal fees. Alpha management, with approval from Alpha’s board of directors, then initiated a process to review the company’s indemnification and advancement obligations to Blankenship. Alpha focused on an unusual undertaking Blankenship had signed in April 2011 (the “Undertaking”), which states, in relevant part, that Massey’s indemnification and advancement obligations to Blankenship are “contingent upon [certain] factual representations and undertakings,” including a representation that, in performing his duties as a director and officer of Massey, Blankenship “had no reasonable cause to believe that [his] conduct was ever unlawful.” In late January 2015, after a process described below, Philip Cavatoni, an Alpha officer and Massey director, determined that Blankenship had breached that representation (the “Determination”). Based on the Determination, Alpha asserts that Blankenship is no longer entitled to advancement of any of his legal expenses from Massey.

Alpha must pay

Defendants must (1) advance Blankenship’s unpaid legal expenses incurred in connection with the federal criminal investigation and the Criminal Proceeding and (2) pay his reasonable expenses of litigating this action. Counsel shall confer and submit an implementing order within five business days, providing for the foregoing payments to be made within ten business days of entry of judgment.


Defendants have not advanced any substantive argument that the aggregate fees that have not been paid (approximately $5.8 million as of April 1, 2015) are unreasonable. Nor have they identified, in my view, any “gross problem” or other legitimate reason that would warrant injecting a special master to “perform the task of playground monitor, refereeing needless and inefficient skirmishes in the sandbox.” Disputes over the reasonableness of Blankenship’s expenses in the Criminal Proceeding can ultimately be resolved when any determination on indemnification is made

Blankenship is represented by the Zuckerman Spaeder firm. (Mike Frisch)

May 28, 2015 in Billable Hours, Current Affairs, Economics | Permalink | Comments (0)

Winning Ticket

The Florida Supreme Court agreed with a litigant who claimed a share of a winning lottery ticket that his asserted contention fell outside the statute of frauds requirement of a writing.

Petitioner Howard Browning and Respondent Lynn Anne Poirier lived together in a romantic relationship beginning in 1991. In approximately 1993, the parties entered into an oral agreement in which they each agreed to purchase lottery tickets and to equally share in the proceeds of any winning lottery tickets. On June 2, 2007, Poirier purchased a winning ticket and “collected one million dollars minus deductions for taxes.” When Browning requested half of the proceeds, Poirier refused, and Browning filed the underlying suit for breach of an oral contract and unjust enrichment. However, Poirier denied the existence of any oral agreement to split lottery proceeds and raised the defense of the statute of frauds. 


Because the oral agreement between Browning and Poirier could have possibly been performed within one year, it falls outside the statute of frauds. Accordingly, we answer the rephrased question in the negative. We quash the Fifth District’s decision and remand for further proceedings.

(Mike Frisch)

May 28, 2015 | Permalink | Comments (0)

Lacking Common Sense Or Intellectual Honesty

The Florida Supreme Court has imposed a one-year suspension for misconduct in failing to respond to discovery demands in civil litigation.

The referee had properly granted summary judgment to the State Bar

given the undisputed facts, it is clear that Rosenberg failed to act competently on behalf of his clients, in violation of Bar Rule 4-1.1, when he failed to seek documents from his clients after multiple circuit court orders compelling production of the documents; when he testified at the show cause hearing before Judge Gerber that he believed he had complied with the orders to compel production by simply providing the few documents his clients had given him, without reviewing those documents; when he did not timely file a written response to discovery, as required by the Rules of Civil Procedure; and when he continued to raise objections that the circuit court had already considered and overruled. We agree with the referee that Rosenberg’s conduct displayed “a lack of knowledge, thoroughness, and preparation in his representation.” Additionally, the facts as found by the referee demonstrate that Rosenberg repeatedly failed to comply with numerous circuit court orders compelling production, in violation of Bar Rule 4-3.4(d). And his failure to comply with these orders was detrimental to the administration of justice, in violation of Bar Rule 4- 8.4(d).

The court quoted the referee

The Referee has strong doubts about the Respondent’s fitness to practice law. It is obvious Respondent possesses above-average intelligence. It appears, however, that he lacks either the common sense or the intellectual honesty to distinguish appropriate and rational arguments from inappropriate and irrational arguments. The ability to read precedent, while a necessary condition for practicing law, is not sufficient. A lawyer must be able to apply legal principles correctly and honestly. There are times when a lawyer must yield to the facts, precedent, or court orders. Respondent appears incapable of discerning when to yield a legally unsupportable position.

The referee had proposed a 91-day suspension. (Mike Frisch)

May 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Essentially Similar

A Virginia drug distribution conviction resulted in an attorney's automatic disbarment by the New York Appellate Division for the Second Judicial Department.

A felony committed in another jurisdiction need not be a mirror image of a New York felony, but it must have "essential similarity" (Matter of Margiotta , 60 NY2d 147, 150). A conviction of conspiracy to distribute cocaine, in violation of Virginia Code Annotated § 18.2-248, [*2]has been held to be "essentially similar" to the New York offense of criminal possession of a controlled substance in the third degree, in violation of Penal Law § 220.16(1) (see Matter of Ekperigin , 304 AD2d 133). Accordingly, the offense of which the respondent was convicted in Virginia constitutes a felony within the meaning of Judiciary Law § 90(4)(e).

The Grievance Committee for the Tenth Judicial District now moves to strike the respondent's name from the roll of attorneys and counselors-at-law based on her conviction of a felony. In response, the respondent states that she was unaware of her obligation to notify this Court of her conviction, as she relied upon the advice of her Virginia counsel that New York would be automatically notified by the court in Virginia of the conviction. Further, she avers that she has not practiced law since her plea, and she requests that the date of her disbarment be effective as of the date of her plea, to wit, October 27, 2009.

By virtue of her conviction of a felony, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

(Mike Frisch)

May 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Indefinite Suspension For Paying Witness To Leave State

From the Ohio Supreme Court web page by Kathleen Maloney

While representing a client in 2013 who had been charged with murder, Gregory A. Cohen paid a prosecution witness to leave the state. The witness told police, and Cohen pled guilty to attempted tampering with evidence and attempted obstruction of justice – both felonies. He was sentenced to 60 days of monitored house arrest, 3 years of community control, 500 hours of community service, and a $5,000 fine.

Because of his felony convictions, the Supreme Court suspended Cohen for an interim period on February 12, 2014. The disciplinary counsel investigated, and the parties agreed to certain facts and rule violations, and proposed an indefinite suspension with credit for the time Cohen has served since the interim felony suspension. The state disciplinary board accepted the findings and recommended the proposed punishment to the court.

In a 5-2 per curiam decision, the court agreed that Cohen violated three professional conduct rules. However, noting the attorney’s attempt “to thwart the administration of justice,” the court stated that “the seriousness of [Cohen’s] misconduct cannot be overstated.” The court indefinitely suspended Cohen, but declined to give him credit for the suspension that began in February 2014. He will be permitted to apply for reinstatement to practice law in two years.

The court’s majority included Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French. Justices Judith Ann Lanzinger and William O’Neill would have granted credit to Cohen for the time served during the interim suspension.

2014-1740Disciplinary Counsel v. CohenSlip Opinion No. 2015-Ohio-2020.

(Mike Frisch)

May 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecution Must Disclose "Use Of Force" Reports

The Maryland Court of Special Appeals has held that a "use of force" police report must be disclosed to the defense in a criminal case.

Nearly forty years ago, the Court of Appeals held that a defendant in a criminal case has a due process right to inspect prior written statements made by prosecution witnesses that are in possession of the State. Carr v. State, 284 Md. 455, 472–73 (1978). Two years later, this Court held that this right existed independently of the State’s duties imposed by the criminal discovery rules. Leonard v. State, 46 Md. App. 631, 636–37 (1980), aff’d, 290 Md. 295 (1981). This appeal requires us to apply the principles of Carr and related decisions to decide whether a prosecutor is required to provide to defense counsel copies of a use of force report prepared by an arresting officer who testified at trial...

The Baltimore City Police Department requires its officers to prepare “use of force” reports when the officer uses physical force in an encounter with a member of the public. The record before us indicates that the Department maintains these reports in the officer’s personnel file, and does not disclose the documents to third parties. Moorer prepared a use of force report after appellant’s arrest. The issue before us is whether the trial court erred when it denied appellant’s motion to require the prosecutor to provide him with a copy of Moorer’s statement.

The case involved a fleeing drug suspect who was subdued by three officers. The suspect was struck with a baton. Two officers testified at the trial. 

The court concluded that these reports must be disclosed and that the failure to do so here was not harmless error. (Mike Frisch)

May 28, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 27, 2015

Overbilling Suspension

The Pennsylvania Supreme Court has accepted a two-year consent suspension  of an "independent staff attorney" who inflated his bills while employed as a $40 per hour document reviewer for Drinker Biddle.

The attorney was employed from November 2011 to November 2012 when the firm confronted him about billing concerns. He resigned, self-reported to disciplinary authorities and admitted the misconduct.

In March 2013, the firm and Respondent's counsel agreed that Respondent would pay $12,250.00 to the firm to compensate the firm for wages that Respondent had received, but had not earned; Respondent's counsel advised the firm that Respondent would repay the firm when he has an income.

The court gave him credit for time served on an interim suspension.

In mitigation, the attorney was young, inexperienced and suffered from ADD, depression and other conditions. (Mike Frisch)

May 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Disbarred After Rape Plea

The Delaware Supreme Court has accepted the consent disbarment of a former prosecutor who pleaded guilty to rape charges.

Delaware Online has details of the criminal case 

A former Delaware criminal prosecutor pleaded guilty Monday to raping a 16-year-old boy during a threesome last year.

Daniel Simmons, 35, entered the plea to one count of fourth-degree rape before Judge William L. Witham Jr. in Superior Court in Wilmington.

Chief Prosecutor Peggy Marshall agreed under the terms of the plea deal to drop three additional counts of fourth-degree rape.

Fourth-degree rape carries no minimum mandatory prison time and a maximum of 15 years. Marshall is going to recommend prison to the judge at Simmons' June 16 sentencing.

Simmons will be required to register as a tier two sex offender and have no contact with the victim.

Simmons was arrested May 3. He was accused of having sex with a teenage boy and college student at his home in the 5000 block of N. Tupelo Turn in Pike Creek in March 2014, according to court documents.

The police investigation began after a Salesianum School staff member learned of the sexual encounter and reported it to county police.

Detectives interviewed the teenage boy and found he had met New York University student Matthew T. Coogan, 24, on the social media "hook-up" app, Grindr, court documents said.

The boy and Coogan texted each other and agreed to have a sex on March 19, court documents said.

Coogan picked up the teen from school that day and drove him to Simmons' house. Simmons arrived a short time later, court documents said.

The three had sex in the living room and bedroom, according to court documents. During the encounter, the boy said, "I'm only 16, take it easy on me."

Coogan, of Brandywine Hundred, told police he and Simmons had talked about Simmons' desire to have sex with a younger person, specifically a high school age boy, according to court documents.

Coogan is charged with sexual solicitation of a child and second-degree conspiracy for aiding Simmons in the rape. Coogan was not charged with rape because under state law it is legal to have consensual sex with a 16-year-old if you are under 30.

Coogan is scheduled for trial April 20.

Simmons, who joined the Department of Justice in 2006, is free on $45,000 secured bail.

He resigned from his job as a deputy attorney general assigned to the New Castle County Misdemeanor Trial Unit soon after his arrest. He was also suspended from practicing law by the Delaware Supreme Court.

After court, Simmons' attorney, Eugene Maurer, said today is a "sad day" for Simmons, but "he is accepting responsibility."

The Department of Justice issued a statement from the victim's family saying they are satisfied with the plea.

(Mike Frisch)

May 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Place Like Nome

Alaska Dispatch News has a report on ethics charges against a recently-appointed judge of the Nome Superior Court.

The News summarizes:

The statements taken from recorded court proceedings and listed in the complaint are as follows:  

 • On May 29, 2013, Dooley said during a sentencing, “Has anything good ever come out of drinking other than sex with a pretty girl?”

 • On Oct. 29, 2013, during a sentencing, Dooley said, “What you’ve done with this young girl, it’s a strange thing, routinely done in Afghanistan where they marry 6-year-old girls. In our society, and in the society of the local tribal communities, supposed to be totally forbidden.”

 • On Nov. 5, 2013, Dooley said during a sentencing, where the victim was a 14-year-old girl, “This was not someone who was, and I hate to use the phrase, ‘asking for it.’ There are girls out there that seem to be temptresses. And this does not seem to be anything like that.”

 • On Aug. 12, 2014, Dooley said during a civil trial involving parties that did not have attorneys that, “I’m gonna enforce these oaths and they’re enforceable with a two-year sentence for perjury. And I’d be the sentencing judge. I also have a medieval Christianity that says if you violate an oath, you’re going to hell. You all may not share that, but I’m planning to populate hell.”

 • On Aug. 20, 2014, Dooley made off-the-record comments to the jury about a soft-spoken witness, according to the complaint. “I’m sorry folks, but I can’t slap her around to make her talk louder,” the complaint accuses Dooley of saying.

 Dooley’s statements, according to the accusations, violate the Alaska Code on Judicial Conduct and Alaska statutes, including maintaining “professional competence in the law,” being “patient, dignified and courteous” and acting “without bias or prejudice,” among other aspects. 

 Now that formal charges have been filed, Dooley will have a hearing before the commission that Greenstein described as a "full trial proceeding." If the allegations are found to have merit, the [Commission on Judicial Conduct] will recommend action to the Alaska Supreme Court.

 Thanks to a reader for sending this to us. (Mike Frisch)

May 27, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Logged In

An attorney who was convicted of misdemeanor failure to pay employee withholding taxes has been reinstated from the resulting October 2014 interim suspension by the Oklahoma Supreme Court.

The court considered mitigation

The Respondent's first main mitigating factor concerned his CPA. In 1988, Respondent hired a CPA, Judy Poltera. Poltera's duties included paying all the office bills and preparing as well as paying taxes including payroll taxes. She had the final decision making authority as to when and if employment taxes would be paid to the IRS. In 1998, Poltera was involved in a serious car accident which enhanced an existing medical condition. She began taking prescription pain killers and had many doctor appointments. She subsequently lost another job where she had health insurance and eventually lost that health insurance. She testified she embezzled money from the Respondent's operating account and even took out a mortgage on the Respondent's home without his knowledge to pay for her medical treatment and medication. Poltera was also authorized to accept correspondence and phone calls from the IRS and to meet with them as needed. She testified she told the Respondent she would take care of any problems and "it would be okay." She also testified she did not believe the Respondent knew of the details of her meetings with the IRS. In 2005, when Poltera realized she could no longer hide her embezzlement she quickly left the law firm.

After Poltera left, the Respondent went to her office and discovered she had not paid all the federal and state taxes owed from 1998 to 2005 and she had not been paying office bills. The amount of unpaid office bills alone amounted to approximately $150,000.00. In addition, he discovered she had taken out a mortgage in excess of $100,000.00 on his residence, which he eventually lost in foreclosure.

Then there was a federal criminal indictment on weapons charges

The ATF discovered a World War II English Sten fully-automatic submachine gun the Respondent had legally purchased. The submachine gun had been shipped from England but apparently a wrong serial number had been recorded when it was shipped. In 2004, a search warrant was issued and the ATF searched the Respondent's house and office and confiscated the submachine gun. In 2007, the case against him "started gearing up" and in 2008, the Respondent was indicted for this recording error. He went to trial which resulted in a mistrial and afterwards the government tried to negotiate a plea. The Respondent testified the government discovered he had also failed to properly record a gun he legally purchased from a local gun dealer. Because the Respondent had been a gun dealer he was required to keep a separate log of guns he owned personally from the ones his business owned. He stated he failed to note the gun purchase on his individual registry. The government agreed to drop the felony charges concerning the submachine gun in exchange for a plea of guilty to a misdemeanor improper recordkeeping charge on the gun he purchased locally. The Respondent accepted and pled guilty in 2009. The Respondent testified he spent approximately $250,000.00 on legal representation and experts during the period between 2007 through 2009. In 2009, he also received a private reprimand from the Professional Responsibility Commission of the Oklahoma Bar Association for his plea of guilty to the misdemeanor charge.

The court found him fit to practice

Here we are confronted with multiple misdemeanor counts for failure to pay taxes in violation of federal tax laws. The Respondent was not convicted of any other offenses nor is there any evidence that his clients were harmed by his actions. The Respondent has taken important remedial steps to improve his law office management, especially concerning its finances. He has already paid nearly a quarter of a million dollars in back taxes. The United States Magistrate Judge tailored the Respondent's sentence so that even on house arrest he could practice law if his suspension was lifted. The judge understood that allowing the Respondent to practice would greatly increase his chance of paying the restitution. Many testified concerning the Respondent's practice of law including several judges. All gave favorable testimony. The record also reflects the many services he has provided to the legal profession above and beyond his daily practice. In addition, the Respondent has complied with Rule 9.1, RGDP and has also refrained from the practice of law since his interim suspension. Although the record reflects the Respondent received a private reprimand in 2009 for his plea to a federal misdemeanor, we find no value in enhancing his discipline for the mistake of incorrectly recording a gun he purchased in the wrong log.

Justice Taylor dissented

"The Respondent should not be allowed to practice law while he is on federal criminal probation."

The court reserved the right to impose further discipline if he violates his criminal probation. (Mike Frisch)

May 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Recused In One But Not The Other

A judge who recused herself in a divorce case because she had the same accountant as the wife did not err in declining to recuse herself from a domestic violence matter involving the same parties.

The New Hampshire Supreme Court so held 

On March 6, the day of the scheduled hearings, the respondent moved to recuse Judge Carbon from both the domestic violence and the divorce proceedings. He argued that recusal was required from both proceedings because the accountant who was scheduled to testify on the respondent’s behalf during the divorce proceeding also provided financial services to Judge Carbon. The respondent asserted that, although the accountant “w[ould] not testify in the domestic violence proceeding,” an “integral connection” existed between the domestic violence and the divorce proceedings such that Judge Carbon was required to recuse herself from both proceedings.

Following oral argument, Judge Carbon recused herself from the divorce proceeding, observing that the “Court could be accused of either giving undue preference to, or undervaluing the quality of, [the accountant’s] testimony” during the divorce hearing. However, she denied the motion seeking her recusal from the domestic violence proceeding, explaining that there was “no conflict of interest, nor any appearance of possible bias resulting from a shared professional when that person has no role whatsoever” in the domestic violence case. Accordingly, Judge Carbon presided over the March 6 domestic violence hearing, and the parties’ divorce proceeding was assigned to another judicial officer.

Recusal not required

Here, it was the accountant’s role as a witness in the divorce proceeding that caused Judge Carbon to recuse herself from that proceeding. However, because the accountant was not to be involved in the domestic violence proceeding in any manner, we conclude that a disinterested observer, fully informed of the facts, would not, in fact, entertain doubt that justice would be done.,,

Accordingly, we hold that Judge Carbon did not err by denying the motion to recuse herself from the domestic violence proceeding.

(Mike Frisch)

May 27, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 26, 2015

Collateral Estoppel Establishes Violations By Former Durham DA

The North Carolina Disciplinary Hearing Commission has granted partial summary judgment to the State Bar in its disciplinary charges against former Durham District Attorney Tracey Cline.

The commission concluded that collateral estoppel applied as a result of a judgment of the Durham County Superior Court established violations of Rules 3,1, 3.3(a)(1), 8.2(a) and 8.4(c) and (d),

The only remaining issue is sanction.

IndyWeek reported on her removal from office in March 2012

Cline, who had been Durham’s top prosecutor for three years, wouldn’t comment on the decision of Superior Court Judge Robert Hobgood to permanently remove Cline from office. But the Pinehurst legal team that Cline assembled just three weeks ago filed a notice Friday morning that they’ll appeal the decision. (Read the ruling, PDF)

As the judge ruled against her, Cline thanked him for taking the time to consider the matter.

“And I thank you for, in the past, being an extremely effective litigator for the state of North Carolina and the citizens of Durham County,” replied Hobgood, a visiting judge from Franklin County.

“I appreciate it judge, that means a lot to me,” Cline replied.

Hobgood concluded that public statements Cline made about Durham’s Senior Resident Superior Court Judge Orlando Hudson last fall have interfered with the regular operation of the courthouse and brought Durham’s judicial system into “disrepute.”

Cline’s attorneys tried to prove that, among other reasons, Cline should not be removed from office because her speech was protected by the First Amendment. Hudson did find that some of her comments may fall under the “umbrella” of free speech.

But other statements, including accusations in public documents that Hudson was guilty of misconduct, “moral turpitude, dishonesty and corruption,” that he had “kidnapped” the rights of victims and their families, and that he and others had the “blood of justice” on their hands, were not protected.

“This false, malicious, direct attack on Judge Orlando F. Hudson Jr., to which Judge Hudson, under the Code of Judicial Conduct, cannot respond publicly, goes far beyond any protected speech under the First Amendment and cannot be and is not supported by any facts in the record,” Hobgood wrote in his final ruling. “These specific statements were made with actual malice and with reckless disregard for the truth.”

The charges are linked here. (Mike Frisch)

May 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Interlocutory Appeal In Connecticut Bar Case

An attorney may not appeal a decision directing a hearing on ethics charges, according to an opinion of the Connecticut Appellate Court.

The alleged violations arose out of the plaintiff’s conduct related to his involvement as executor of the estate of Kathleen Gisselbrecht and with respect to litigation that was commenced by the plaintiff following his removal for cause as executor of her estate...

...the reviewing committee concluded by clear and convincing evidence that the plaintiff had violated rule 3.1 of the Rules of Professional Conduct. The reviewing committee also concluded, after reviewing the plaintiff’s disciplinary history, which included a prior two year suspension from the practice of law, that the plaintiff’s serious misconduct justified the plaintiff’s presentment to the Superior Court.

The matter must proceed on the merits and cannot be derailed by an interlocutory appeal

We agree that our decision in Miniter controls this case, and, therefore, the judgment of the trial court must be affirmed. In Miniter, we stated: ‘‘An order of presentment is an initial step in disciplinary proceedings against an attorney. Following the filing of a presentment complaint, a hearing on the merits is held after which the court renders judgment on the presentment complaint. See Practice Book § 2-47 (a). The committee’s decision directing that a presentment be filed in Superior Court is interlocutory in nature and not a final judgment from which an appeal to the Superior Court lies.

(Mike Frisch)

May 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)