Thursday, March 31, 2016

Too Late To Answer

Disbarment has been imposed by the New York Appellate Division for the Second Judicial Department for an attorney's default in responding to charges after a deadline was set

The respondent did not comply with the October 6, 2015, deadline. On October 9, 2015, the respondent moved for leave to file a late answer, explaining that his answer, mailed on October 3, 2015, was returned to him undelivered on October 7, 2015. The respondent's answer, which was attached to the motion, continued to dispute the validity of the judicial subpoenas dated June 19, 2013. Of note, the respondent stated that he had no further desire to practice law.

As a consequence, the Grievance Committee moved to adjudicate the respondent in default based on his failure to file an answer by the October 6, 2015, deadline. The respondent was served with a copy of the motion, by first class mail and certified mail, on October 7, 2015. In opposition to the motion, the respondent argued that the return of his answer was not his fault. The respondent acknowledged that he used the wrong zip code, but claimed that the package still should have been delivered.

In view of the extraordinary history of this case, including the respondent's failure to cooperate with the Grievance Committee's investigation of the underlying complaint; the respondent's refusal to comply with two judicial subpoenas over the course of a 2½-year period; the Court's adjudication of the respondent in contempt by decision, order, and judgment dated April 22, 2015; and the respondent's continued contempt to date, since the respondent has not purged himself of contempt, the Grievance Committee's motion to adjudicate the respondent in default is granted, the charge in the petition is deemed established, and, effective immediately, the respondent is disbarred upon his default, and his name is stricken from the roll of attorneys and counselors-at-law. Were the respondent not in continued contempt of this Court's directives, his motion for leave to file a late answer would be viewed differently by this Court. Under the circumstances, his motion for leave to file a late answer, and that branch of his separate motion which is for leave to submit an affidavit of resignation are denied.

(Mike Frisch)

March 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Remote Control

The Wyoming Supreme Court affirmed an aggravated assault and battery conviction notwithstanding error by the prosecutor in closing argument in discussing the presumption of innocence and reasonable doubt.

The facts

On January 9, 2014, [victim] Ms. Lynch was at home when [defendant] Mr. Watts returned from work. The two argued when Ms. Lynch told Mr. Watts that she did not want him watching television in the same room in which she had been reading. Ms. Lynch testified that after a brief “hand skirmish” over the remote control, she walked to the telephone to call the television service provider and request that the service be disconnected. She explained that Mr. Watts followed her, and told her that if she had the service shut off, he was going to “knock me on my . . . ass.” Ms. Lynch responded, stating: “If you do that, you’d better make it a good one.” At that point, according to Ms. Lynch, Mr. Watts punched her in the face. She then remembered being on the floor with Mr. Watts standing over her and taunting her while she asked him to stop. After the altercation, Ms. Lynch went to the bathroom to tend to her wounds. She asked Mr. Watts, “What happened?” to which Mr. Watts responded that she “had fallen into the plant.” Ms. Lynch responded, stating: “Ernie [Mr. Watts], that isn’t what happened. You did this to me.” Ms. Lynch testified that she asked Mr. Watts to drive her to the hospital, but he refused, telling Ms. Lynch that she was fine. Ms. Lynch then drove herself to the hospital where she was treated. Ms. Lynch suffered a blow-out fracture to the right orbit which required surgery; nasal bone fractures; a minor subarachnoid bleed; a concussion; and lacerations to her upper and lower lip and eyebrow, which required sutures.

 The court

the prosecutor transgressed a clear and unequivocal rule of law when he defined reasonable doubt for the jury in his closing argument. Solis, 2013 WY 152, ¶ 46, 315 P.3d at 632 (“To be sure, it is error for a prosecutor to attempt to define ‘reasonable doubt’ for the jury.” (citing Blakely, 542 P.2d at 861)). The prosecutor’s statement was improper, and one which he should have known would deprive Mr. Watts of the right to a fair trial. He therefore committed misconduct when he defined reasonable doubt in this closing argument.


While Mr. Watts has established that the prosecutor committed two errors which
transgressed clear and unequivocal rules of law, the accumulated effect of these errors
was not prejudicial. The statements made by the prosecutor were limited in scope, and
confined to closing arguments. “In general, we are reluctant to find plain error in closing
arguments lest ‘the trial court become [] charged with an adversary responsibility to
control argument even when objection is not taken by the opposing attorney.’”
Sanderson v. State, 2007 WY 127, ¶ 37, 165 P.3d 83, 93 (Wyo. 2007) (citations omitted).
In fact, the prosecutor’s statements encompassed less than thirty lines in a trial transcript of over 500 pages. See id. (The prosecutor’s actions are evaluated “within the context of the entire record and the argument as a whole.”). Moreover, the State produced extensive competent evidence establishing Mr. Watts’ guilt.

 (Mike Frisch)

March 31, 2016 | Permalink | Comments (0)


The dismissal of legal malpractice claims was affirmed by the Maine Supreme Judicial Court

We agree with much of the rationale set forth by the court in its order granting the Eaton Peabody attorneys’ motion to dismiss. The court concluded that the Board of Appeals’ findings of fact in 2005 were not a final judgment—and therefore not appealable—because the case was remanded to the Planning Board for reconsideration due to the inadequate notice of the hearing. The Board of Appeals’ findings were ultimately immaterial because at the hearing on remand Montgomery did not object to the partial revocation of the permit and at later proceedings Montgomery conceded that the lot was indeed not grandfathered. Beyond this, in its order on Goodall’s motion for summary judgment—a decision that Montgomery did not appeal and is therefore final—the court found that the 1975 partition of lots thirty-seven and thirty-eight from the other lots resulted in a property that was less than 20,000 square feet, thereby terminating any grandfathered status from that point forward. Because the lot was not grandfathered at the time of the initial application for a building permit in 2004, as the court found, “there [was] nothing that Attorney Goodall or any other attorney could have done to obtain a different result” in this matter. The court, therefore, properly granted the Eaton Peabody attorneys’ motion to dismiss.

Too late to amend

In the proposed third amended complaint, Montgomery sought to raise additional claims against Goodall, contending that he was negligent in failing to advise Montgomery that his property was, in fact, not grandfathered. This new allegation reflected Montgomery’s apparent understanding that the lot was never grandfathered following the 1975 conveyance, and therefore was not a nonconforming lot of record during all relevant times here. However, Montgomery could have raised the proposed allegations much earlier in the litigation because the 1974 SZO, by its plain terms, outlines the minimum lot-size requirement. Thus, the Superior Court acted within the bounds of its discretion in denying the motion to file a third amended complaint made three years after the commencement of the suit.

(Mike Frisch)


March 31, 2016 in Clients | Permalink | Comments (0)

Privacy Defeats Hailstorm

The Maryland Court of Special Appeals has held that the state may not use cell phones as a tracking device without a warrant or governing exception

This case presents a Fourth Amendment issue of first impression in this State: whether a cell phone—a piece of technology so ubiquitous as to be on the person of practically every citizen—may be transformed into a real-time tracking device by the government without a warrant.

On the evening of May 5, 2014, the Baltimore City Police Department (BPD) used an active cell site simulator, without a warrant, to locate Appellee Kerron Andrews who was wanted on charges of attempted murder. The cell site simulator, known under the brand name “Hailstorm,” forced Andrews’s cell phone into transmitting signals that allowed the police to track it to a precise location inside a residence located at 5032 Clifton Avenue in Baltimore City. The officers found Andrews sitting on the couch in the living room and arrested him pursuant to a valid arrest warrant. The cell phone was in his pants pocket. After obtaining a warrant to search the residence, the police found a gun in the cushions of the couch.

In the Circuit Court for Baltimore City, Andrews successfully argued that the warrantless use of the Hailstorm device was an unreasonable search under the Fourth Amendment of the United States Constitution. The court suppressed all evidence obtained by the police from the residence as fruit of the poisonous tree. The State, pursuant to Maryland Code (1973, 2013 Repl. Vol., 2015 Supp.), Courts and Judicial Proceedings Article (“CJP”), § 12-302(c)(4), now appeals the court’s decision to suppress that evidence.

The court

We conclude that people have a reasonable expectation that their cell phones will
not be used as real-time tracking devices by law enforcement, and—recognizing that the Fourth Amendment protects people and not simply areas—that people have an objectively reasonable expectation of privacy in real-time cell phone location information. Thus, we hold that the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requisites of a warrant, unless an established exception to the warrant requirement applies.

We hold that BPD’s use of Hailstorm was not supported by a warrant or an order
requiring a showing of probable cause and reasonable limitations on the scope and manner of the search. Once the constitutionally tainted information, obtained through the use of Hailstorm, was excised from the subsequently issued search warrant for 5032 Clifton Avenue, what remained was insufficient to establish probable cause for a search of that residence. Because the antecedent Fourth Amendment violation by police provided the only information relied upon to establish probable cause in their warrant application, those same officers cannot find shelter in the good faith exception, and the evidence seized in that search withers as fruit of the poisoned tree. We affirm.

(Mike Frisch)

March 31, 2016 | Permalink | Comments (0)

Wednesday, March 30, 2016

Disbarred for Computergate

The Pennsylvania Supreme Court has disbarred the former Chief of Staff to State Representative John Perzel, who served as Majority Leader and later Speaker of the state House of Representatives.

Justice Wecht in his opinion noted that

During his tenure as a public servant, [the attorney] conspired to misappropriate millions of dollars in public resources for his own personal and political gain...For six years, in his capacity as a state official and in collusion with Perzel and others, [he] used public funds to develop sophisticated data collection and processing software for partisan political campaigns. That conspiracy, which the media dubbed "computergate," had three discrete components.

The conspiracy began in November 2000 after the narrow re-election win of Perzel.

The court (in an unusual full opinion) found the offenses "no less reprehensible"  than theft of client funds. (Mike Frisch)

March 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Oklahoma Accepts Computer Illiteracy As Mitigation: Censure Imposed

A technology-challenged attorney admitted in 1967 has been censured by the Oklahoma Supreme Court for misconduct that had led to discipline in United States Bankruptcy Court.

During the hearing before a trial panel of the Oklahoma Bar Association's Professional Responsibility Tribunal, the complainant entered as exhibits the bankruptcy court's transcript of proceedings, and the documentation of the orders issued by that court. Judge Sarah A. Hall, who serves in the Western District of Oklahoma, suspended Mr. Oliver from practice in that court for a period of at least 30 days on October 29, 2014, and reinstated him on December 1, 2014. That judge suspended him again on January 14, 2015, for a period of at least 60 days. On June 15, 2015, that court permanently suspended him from practicing in the United States Bankruptcy Court for the Western District of Oklahoma. Those documents were included in the complainant's exhibits.

During the hearing before the trial panel, Mr. Oliver acknowledged that his problems with the bankruptcy court were caused by his lack of expertise in computer skills and his frustration in trying to meet the federal court's expectations with electronic pleading requirements. No testimony nor any documents showed an insufficiency in Mr. Oliver's knowledge of substantive bankruptcy law. The trial tribunal reported that his problem was technological proficiency. This, in itself, does not disqualify him from practicing law in the courts of Oklahoma.

In the show cause hearing before the federal court on May 6, 2015, Judge Hall informed him of the errors that he made in filing nine "homework" documents that she had assigned to him. Mr. Oliver began by answering the judge's invitation to tell her why he should not permanently be suspended from practicing in that court. He replied he had an attorney friend who would be willing to assist him with all of the filings for the next few weeks. When questioned by the court he named a specific attorney. The judge was not familiar with that attorney and told him he needed an attorney who knew bankruptcy exceptionally well. She told him he had thirty days to "have a lawyer on board," and one who was well-versed in the local rules and guidelines. She wanted that lawyer to file something telling the court that the attorney agreed to assist Mr. Oliver. The judge instructed him to resubmit the homework without any errors, neither rules errors nor even any typographical errors. Again she told him that he would have to submit something from an attorney who confirms the attorney was well-qualified and had agreed to assist Mr. Oliver in his bankruptcy filings.

In the bankruptcy court's order of May 7, 2015, the judge memorialized her instructions from the show cause hearing. In her instructions he was required to refile the nine documents he previously presented, which had to be "error free." She ended that paragraph with the sentence, "In doing so, Oliver may not seek or obtain assistance from this Court's law clerk, the staff of the Court Clerk's office or any other person." The next paragraph requires him to file a document certified under oath from a bankruptcy attorney agreeing to associate with Mr. Oliver and assist him in the preparation and filing of "documents with this Court" and that he or she was well versed in the Local Rules and Guidelines of the court and the Federal Rules of Bankruptcy Procedure."

In the June 15, 2015, order permanently suspending Mr. Oliver from the practice of law, the court accused and concluded that Mr. Oliver disobeyed the order of the court by contacting a bankruptcy lawyer admitted in that court and paying him "$1,000.00 to provide the nine (9) documents" the court required. However, that attorney had called and talked to the judge's law clerk with Mr. Oliver's permission to find out what he was permitted to do to aid Mr. Oliver. The attorney testified before the trial panel that he told the clerk that Mr. Oliver did not hire him to ghost-write the assignment, and that Mr. Oliver had worked pretty hard on the assignment on his own. The attorney testified he told the clerk that "I had worked on reviewing some forms that Ed had done, and most of them looked pretty good and they could use some tucking in in a few areas." He further testified that Mr. Oliver had talked to him "regularly" about needing a short letter about the attorney's knowledge of bankruptcy law and that he was willing to work with Mr. Oliver. He had not talked to the judge, but only to her clerk, and there was no hearing subsequently before the judge. The only testimony given under oath is that which was held before the trial panel of the Professional Responsibility Tribunal. Accordingly, we find by clear and convincing evidence that the Bar Association did not prove that Mr. Oliver's intent was to have another bankruptcy attorney do his "homework" for him. We can easily conclude that within the context of the bankruptcy court's order, Mr. Oliver was required to obtain the aid of a competent bankruptcy attorney, and he did that. He even specifically permitted that attorney to talk to the judge's clerk to find out what he was supposed to do to help Mr. Oliver.

At the hearing before the trial panel, the bankruptcy attorney's testimony, subject to cross-examination, explained that Mr. Oliver wanted him to check over the nine documents that Mr. Oliver had already completed, and that the money was for the attorney to continue to help Mr. Oliver in his bankruptcy practice. The attorney submitted a document memorializing their agreement with part of the $1,000 to be credited to future months, and the amounts of future payment. An arranged per-month payment followed. This is not inconsistent with the bankruptcy court's second requirement. The attorney testified that he wished to make it clear to the tribunal that he had not been asked, nor did he "ghost-write" the documents for Mr. Oliver. The trial panel did not find, nor do we, that the evidence supports any discipline regarding this particular matter.

During the hearing before the trial tribunal Mr. Oliver acknowledged his lack of expertise in computer skills and his frustration in trying to meet the federal court's expectations in filing electronic pleadings. Mr. Oliver is suspended from the bankruptcy court. This, in itself, does not disqualify him from practicing law in the courts of Oklahoma. There is no such argument in the briefs. The trial panel made no such finding.

Vice Chief Justice Combs dissented, joined by Justice Taylor

I respectfully dissent to the majority's decision to publicly censure the Respondent, James Edward Oliver. The decision merely to publicly censure the Respondent results from a mischaracterization of his problematic conduct while practicing before the United States Bankruptcy Court for the Western District of Oklahoma (Bankruptcy Court). Respondent's actions resulted, after several temporary suspensions, in his permanent suspension by the Bankruptcy Court in June of 2015.

The majority determines Respondent's problem to be one of computer illiteracy and declares Respondent's inability to adapt to electronic forms and filing to be the reason for the Bankruptcy Court's progressive disciplinary orders, noting those issues have little bearing on his ability to practice law in the State of Oklahoma generally. A detailed examination of the record in this cause reveals that Respondent's issues go far beyond technological illiteracy.

The series of disciplinary orders concerning Respondent reveal an attorney not only unable to meet the minimum requirements of modern bankruptcy practice but also one unwilling to make any substantial effort to do so. Respondent effectively ignored the local rules and guidelines, made no effort to correct his work despite being given personalized help by the Bankruptcy Court's staff on more than one occasion, and insulted court staff when the Bankruptcy Court refused to bend the rules for him.

After giving Respondent multiple chances, the Bankruptcy Court ordered Respondent to submit draft templates of nine frequently filed documents, and specifically stated that "in doing so, [Respondent] may not seek or obtain assistance from this Court's law clerk, the staff of the Court Clerk's office or any other person." In a separate portion of the same order, the Bankruptcy Court required Respondent to file a document certified under oath by a bankruptcy attorney conforming that the attorney would assist Respondent in his practice...

To quote the Bankruptcy Court's own Order of Permanent Suspension: "[Respondent] has blamed his problems on software deficiencies and computer glitches, even when poor reading comprehension, impatience and/or lack of attention to detail were the real culprits." As part of the disciplinary process, it is our duty to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts, and of the legal profession. State ex rel. Okla. Bar Ass'n v. Friesen, 2015 OK 34, ¶18, 350 P.3d 1269; State ex rel. Okla. Bar Ass'n v. Layton, 2014 OK 21, ¶34, 324 P.3d 1244. I am unconvinced Respondent will represent future clients with any more competence than he displayed in his bankruptcy practice, and find his lack of candor and blatant disregard for the Bankruptcy Court's orders disturbing.

The dissenters would suspend the attorney for two years and a day. (Mike Frisch)

March 30, 2016 in Bar Discipline & Process | Permalink | Comments (1)


An attorney named Hammer has been suspended for a year by the South Carolina Supreme Court.

On June 25, 2012, respondent was charged with first degree assault and battery, malicious injury to personal property, hit and run or leaving the scene with property damage, and unlawful conduct towards a child. The charges resulted from an incident involving a process server who was attempting to serve documents on respondent in connection with a family court proceeding. During the incident, respondent, who was with his two sons, twice made contact with the process server's vehicle while backing his car out of a parking space. Respondent left the scene, but later returned.

On December 15, 2014, respondent pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to leaving the scene with property damage. He was sentenced to 364 days in prison, suspended upon six months' probation. The remaining charges were dismissed.

The sanction was imposed by consent.

Chief Justice Pleicones would run the suspension from the date of an interim suspension. (Mike Frisch)

March 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Untimely Payment For Services

The South Carolina Supreme Court has imposed a definite suspension of nine months for, among other things, the attorney's failure to timely honor his agreement to pay a court reporting service.

Respondent acquired the services of a videographer for a deposition. Following the deposition, Respondent received the video deposition and an invoice. After failing to receive payment for almost two years, the videographer emailed Respondent about the outstanding payment. Two months later, Respondent sent a check for the payment of the deposition and an additional $100.00 for the delay in payment and inconvenience...

Respondent used the services of a court reporting service for two depositions. He was invoiced for both depositions at the time the transcripts were delivered. Several months later, the court reporting service requested payment of the depositions and asked to be paid within the week. The next month, the court reporting service sent a certified letter requesting payment for both depositions. In response to the certified letter, Respondent made a partial payment towards the outstanding balance. One month later, the court reporting service sent a letter seeking the remainder of Respondent's balance. Eight months passed with no response and the court reporting service sent an email seeking payment. Respondent later issued a check for the payment of the outstanding invoice.

 He had also failed to cooperate and had a record of prior sanctions of " for a myriad of matters. " (Mike Frisch)


March 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Proof Problems Leads To Censure

The New Jersey Supreme court has imposed a censure based on the recommendation of the  Disciplinary Review Board.

The Board noted concerns

On its review of this motion, the Board considered that respondent  was unable to locate needed records; that some of the witnesses  had provided inconsistent statements, thereby creating  issues of credibility; and that one of the key witnesses could no longer be located. In addition, and specifically cited in the stipulation  that the parties executed, although the OAE was aware that respondent’s handling of the case was highly suspect and that he may have knowingly misappropriated client funds, it could not prove, by clear and convincing evidence, that he did so. In the context of these proof problems, the Board determined to grant the OAE’s motion.

The attorney had advanced funds and paid creditors in an estate matter.

He also engaged inrecordkeeping violations

As a result of respondent's deficient records, he was unable to substantiate the total amount of advances he had made against the proceeds of the lawsuit. He, thus, admitted that, because he had failed to maintain adequate records of the advanced funds, he negligently misappropriated a portion of them by failing to distribute the correct amount to Webb’s heirs, a violation of RPC 1.15.

(Mike Frisch)


March 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Basket Case Survives

A majority of the Wisconsin Supreme Court has held that the operator of a hot air balloon ride did not enjoy recreational immunity in a claim by a plaintiff injured in line waiting for a ride.

We conclude that Sundog is not entitled to recreational immunity pursuant to Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an "occupier" of the land and the hot air balloon was not "property" because it was not a "structure." Finally, we determine that Sundog's waiver of liability form violates public policy and is unenforceable as a matter of law. Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

The story

Patti J. Roberts was injured at a charity event sponsored by Green Valley Enterprises ("Green Valley"). Beaver Dam Conservationists, LLC ("the Conservationists") owned the shooting range where the charity event was held.

Sundog Ballooning, LLC was the owner and operator of a hot air balloon providing tethered rides at the event. Kerry and Jodi Hanson, the owners of Sundog, donated hot air balloon rides to promote Green Valley's charity event.

On the day of the event, Sundog set up a display, a sign-up table and a waiting area for the ride. The hot air balloon was tethered to two trees and a pick-up truck. During rides, the balloon operator raised the balloon to the length of the ropes and then lowered it back to the ground.

Patti Roberts and her family watched the balloon rides and then entered the line to take a ride. While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon. Roberts signed the waiver form, but never returned it to Sundog. The signed waiver form was found on the event grounds after Roberts sustained her injuries...

 After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon's tether lines to snap. As a result, the untethered balloon moved toward the spectators in line. Roberts was injured when she was struck by the balloon's basket and knocked to the ground.

Justice Ann Walsh Bradley wrote the opinion. It being Wisconsin, there are a concurring/dissenting and dissenting opinions. (Mike Frisch)

March 30, 2016 in Current Affairs | Permalink | Comments (0)

Former New York State Assembly Speaker Disbarred

Automatic disbarment for a federal felony conviction was imposed by the New York Appellate Division for the First Judicial Department of former New York Assembly Speaker Sheldon Silver

Respondent's conviction was based on his receipt of nearly $4 million in payments from two law firms. Respondent received approximately $700,000 in payments from one firm, in exchange for invoking his official position to obtain recurring tax certiorari legal claims of two real estate developer clients with significant business before the New York State Legislature. Respondent also received approximately $3 million in payments through another law firm in exchange for using his official position to obtain names and identifying information of unrepresented patients with mesothelioma from a doctor, to whose research respondent secretly directed $500,000 in State funds and for whose benefit respondent engaged in other official acts. After obtaining the funds, respondent transferred the proceeds to various investment vehicles that he controlled.

The federal crime is essentially similar to a state felony

In Matter of Margiotta, (60 NY2d 147 [1983], supra), the Court of Appeals expressly held that a felony conviction for extortion under color of official right in violation of 18 USC §§ 1951 and 2 is essentially similar to the New York felony offense of larceny by extortion under Penal Law § 155.05(2). The Court determined that the absence of an express coercive element under that federal felony did not thwart a finding of essential similarity between that offense and the New York felony of larceny by extortion because the language "under color of official right" reflected the common law definition that extortion could only be committed by a public official, into which the element of threat or fear was implied. It was only when the crime of extortion was extended to apply to private citizens that "the element of threat or feat was made express" (id. at 152).

And why wait for the April 13 sentencing?

Although respondent concedes that the federal extortion counts of which he was convicted mandate disbarment under controlling case law, he asks that the matter be held in abeyance until the trial court issues decisions on his two pending post-conviction motions for a judgment of acquittal and for a new trial. We deny this request because a proceeding brought "pursuant to Judiciary Law § 90(4)(b) to strike his name from the roll of attorneys is a mere formality that serves only to record the fact of a disbarment that has already occurred" (Matter of Biaggi, 146 AD2d 148, 149 [1st Dept 1989]). That respondent has not exhausted the appeals process does not alter the fact that he ceased being an attorney by operation of law on the date of his conviction (Matter of Kozlow, 29 AD3d 44 [1st Dept 2006]).

(Mike Frisch)

March 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, March 29, 2016

Aloha Means Don't Practice

The Hawai'i Supreme Court added two years to an attorney's suspension for practicing law in violation of a 2005 injunction.

in August, 2010 Respondent Tagupa formed an attorney-client relationship with Mr. K, a distant relative, and thereafter assisted Mr. K, through January, 2014, with a civil rights proceeding and subsequent litigation regarding a wrongful discharge claim, by discussing the legal aspects of the claim, including interpreting relevant statutes and case law, performing legal analysis and developing legal strategies, including, inter alia, arguments based upon statutes of limitation, the doctrine of preemption, rational relationships, and disparate impact, advising Mr. K on deposition and discovery strategies, providing legal arguments for responding to a motion for summary judgment, drafting legal memoranda for use in the litigation, discussing settlement strategy and the characteristics of a valid settlement agreement, drafting a legal memorandum for Mr. K to use in a settlement conference in the federal litigation, advising Mr. K on an appeal to the United States Court of Appeals for the Ninth Circuit, drafting an opening brief for use by Mr. K and his formal counsel, and drafting a reply brief which Mr. K submitted to the Ninth Circuit under his own name on January 14, 2014...

we concur with the Hearing Officer’s characterization of Respondent Tagupa as “intelligent and competent” with “legal research skills and analysis [which] are certainly quite good, if not superior,” and, hence, concur Respondent Tagupa was “certainly quite capable of accurately researching the existing case law about what constitutes the practice of law . . . in Hawai'i and in other jurisdictions, as well as any attorney,” but, nevertheless, despite that ability, and the Gould holding provided him by the Hawai'i Civil Rights Commission, Tagupa never sought advice of counsel from ODC or any other party concerning whether his activities were permitted as a suspended attorney.


Respondent Tagupa is hereby notified that any further misconduct that can be established as the unauthorized practice of law under either the Hawai'i or foreign case law cited above may be grounds for a criminal contempt proceeding against him...

(Mike Frisch)

March 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Doctor's Note

A disciplinary sanction summarized on the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Kallman S. Elinoff (Attorney Registration Number 18677) for thirty days. Elinoff’s suspension took effect on February 20, 2016.

In 2015, Elinoff represented a client in a criminal matter in Jefferson County District Court. Nine days before his client’s trial, Elinoff filed a motion to continue in which he indicated that he was undergoing a medical procedure that week. Two days before the trial, Elinoff appeared at a hearing when he asked to approach the bench. There, Elinoff exaggerated the nature of his medical procedure in an effort to persuade the court to grant a continuance. That same afternoon Elinoff brought medical documentation to the court, admitted his misrepresentation, and took responsibility for his actions.

Elinoff’s conduct violated Colo. RPC 3.3(a) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal) and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

(Mike Frisch)


March 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sign Language

An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct deals with the propriety of a judge's involvement in a spouse's political campaign

A full-time Municipal Court Judge wishes to be involved in a spouse’s political campaign for a non-partisan position at a local level. No monetary campaign contributions will be sought. The judge wants to attend meet-and-greet events and post campaign signs. The judge would not personally seek permission from the landowners to place signs, but once someone from the campaign has obtained permission, the judge would participate in the posting of the signs. Some of the people or businesses who consent to allowing the signs may have appeared (or could appear in the future) before the judge.

The judge may attend functions and but not post signs

Here, the judge will not be personally seeking permission from the landowners or businesses to post the signs, which reduces the inference of public endorsement. However, the fact that the judge will be posting the signs for the spouse’s campaign could still create the inference of a public endorsement to onlookers. In addition, the judge’s actions could also create the appearance that the judge is lending the prestige of judicial office to advance the spouse’s private interests as a political candidate. Thus, we conclude that the judge should not participate in the posting of a spouse’s campaign signs.

(Mike Frisch)

March 29, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

No Suspension For Third DUI And Other Violations

A public reprimand has been imposed by the Wisconsin Supreme Court for an attorney's misconduct that included trust account violations and drunk driving.

Having considered this matter, we approve the stipulation and adopt the stipulated facts and legal conclusions of professional misconduct. From our independent review of the matter, we agree that a public reprimand is an appropriate sanction. We note that the OLR's memorandum in support of the stipulation identifies a number of aggravating and mitigating factors. With respect to aggravating factors, the OLR points out that Attorney Adent has substantial experience in practicing law, having been admitted in 1967. The Attorney Adent previously agreed to a consensual public reprimand for lack of diligence and for being convicted of OWI (second). In addition, the OLR says that, during the course of its investigation, Attorney Adent represented in two letters to the OLR that he had opened a business checking account when in fact the account he opened was a personal account.

With respect to mitigating factors, the OLR noted that Attorney Adent had an absence of dishonest or selfish motive and that he suffered from personal or emotional problems which he blamed for the issues with his bank accounts. The OLR also noted that Attorney Adent was the subject of penalties, including jail time, driver license revocation, and a fine, for the third offense OWI. Finally, the OLR said that Attorney Adent fully cooperated with the investigation and expressed remorse for his actions.

 Justice Abrahamson dissented

Five counts of professional misconduct were charged in the complaint and admitted by Attorney Adent, including trust account violations, criminal conviction of operating while intoxicated (OWI) (third), and a transaction with a client without informed consent or written disclosures. These are serious offenses and in and of themselves require a more severe sanction than a public reprimand.

The third OWI offense stands out. Drunk driving is a major public safety issue in Wisconsin and across the country. All drivers are aware, or should be held to be aware, of the dangers of drunk driving. That drunk driving may be prosecuted as a crime is also common knowledge.

A criminal conviction for OWI by a Wisconsin licensed lawyer does not in and of itself automatically constitute professional misconduct. But the record demonstrates that Attorney Adent has alcohol-related problems. His three OWI offenses and his numerous other violations of the Rules of Professional Conduct for Attorneys reflect on his honesty, trustworthiness, and fitness as a lawyer.

Although Attorney Adent has been sober for a number of months, his record is not sufficient to warrant a public reprimand rather than a suspension.

Justice Ann Walsh Bradley joined the dissent. (Mike Frisch) 

March 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sanction Imposed But No Progress On Discipline Reform

The Wisconsin Supreme Court has ordered a six-month suspension of an attorney who violated ethics rules in a series of matters involving divorce and parental rights.

The attorney stipulated to the misconduct. The referee had not followed the recommendation of both parties for a four-month suspension but proposed six months.

The referee noted that Attorney Templin is a staff attorney employed at a nonprofit law firm directing services for economically disadvantaged clients who have few or no lawyer retention options. The referee also found a lack of remorse or acceptance of responsibility for Attorney Templin's actions, as well as a significant number of violations occurring in a relatively short period of time since he was licensed to practice law. The referee also expressed concern about Attorney Templin's understanding of his violation of supreme court rules, the seriousness of the violations, the inappropriateness of his conduct, and the effect of his violations of the rules. The referee noted that, while the disciplinary proceeding was pending, Attorney Templin attempted to voluntarily resign from the State Bar. His resignation request was held in abeyance pending the outcome of this disciplinary proceeding. The referee also commented that she was concerned about Attorney Templin's understanding and attitude towards meeting the professional standards imposed on a member of the bar, and said his "conduct during these proceedings raises substantial concerns about [his] understanding of and attitude toward court proceedings and toward future clients' needs and expectations."

Justice Abrahamson concurred but continues to express concern about the operation of the bar discipline processes

I write separately, however, to discuss a procedural issue posed in the instant case relating to current OLR practice: How should the OLR address multiple investigations of a lawyer during substantially the same time period? Should the OLR propose disciplining an attorney in one disciplinary proceeding only to support a different discipline or suspension of the license in the near future in another proceeding?...

I write separately to address an anomaly that was revealed in Osicka and to repeat my commitment to try to keep the bench, the bar, and the public generally informed as best I can about what progress (or lack thereof) is made in the appointment of the committee. As of this date, no progress has been made to create the committee.

(Mike Frisch)

March 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, March 28, 2016

APRL In Paris In April

The Association of Professional Responsibility Lawyers ("APRL") is meeting in Paris from April 12-14.

The program - as one might expect - has a heavy flavor of international legal ethics issues, for example from the April 14 agenda

Legal Malpractice in International Business Transactions

Speakers: Ronald C. Minkoff, Frankfurt Kurnit; Vincent R. Johnson, St. Mary’s University School of Law; Richard Harrison, Clyde & Co., Rebecca Watkins, Beazley PLC

Attorney‐Client Privilege and Confidentiality – EU Developments for Corporate
Representation and In‐House Lawyers

Speakers: George R. Clark; Matt Bosworth, Russell‐Cooke; Charles Mokriski, Proskauer Rose, LLP; Colin Passmore, Simmons & Simmons

 Conflicts – A Comparison of European, UK and US Standards

Speakers: William Freivogel; Heather McCallum; Frank Maher, Legal Risk, LLP; Russell R. Yurk, Jennings, Haug & Cunningham L.L.P., James B. Kobak, Jr., Hughes, Hubbard & Reed, LLP.

(Mike Frisch)

March 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Pay Back

The New York Appellate Division for the Second Judicial Department has held that restitution had been properly ordered against a suspended attorney who misappropriated client funds.

At the restitution hearing, the respondent claimed that it was the petitioner's burden, in the first instance, to establish that his fees were unreasonable. This claim is based upon a view that the matter involved a fee dispute between an attorney and a former client, but fails to recognize that this Court has already determined that the respondent engaged in serious misconduct in his representation of Kathryn Cerullo, including the willful misappropriation of her funds...While the respondent was afforded an opportunity to be heard, he did not submit evidence to mitigate the amount of restitution to be imposed. Accordingly, we find the Special Referee properly concluded that the respondent should make restitution in the amount of $77,508.47.


this order may be entered as a civil judgment, and such judgment shall be enforceable as a money judgment in any court of competent jurisdiction by the party to whom payments are due hereunder in the amount set forth herein, minus any amount reimbursed by the Lawyers' Fund for Client Protection or by the Lawyers' Fund for Client Protection when it has been subrogated to the rights of such party.

(Mike Frisch)

March 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

New Status For Ohio Lawyers

Stephanie Beougher has a story on the Ohio Supreme Court web page

Ohio will soon have a new attorney registration status. The Ohio Supreme Court announced today new rules that will allow non-active attorneys to engage in limited legal practice to provide pro bono service.

The changes to Rule VI of the Rules for the Government of the Bar of Ohio will take effect on Sept. 15, and come from recommendations made by the Supreme Court Task Force on Access to Justice, which was charged with identifying gaps in and obstacles to accessing the civil justice system in Ohio.

After taking public comments into consideration, the Supreme Court revised the original proposal, including:

  • Eliminating the requirement that an attorney be 65 years or older in order to qualify for emeritus status and instead only require he or she have practiced for a minimum of 15 years
  • Adding a biennial registration requirement and a $75 registration fee
  • Requiring an emeritus pro bono attorney, upon expiration or revocation of the attorney’s status, to file for either active or inactive attorney status.

The emeritus pro bono status will be available to an attorney admitted to practice law in Ohio and associated with a law school clinic, legal aid, approved legal services organization, public defender’s office, or other legal services organization. The attorney will be required to have supervision from an active-status attorney to appear before a court, administrative board, or agency. Routine legal services won’t require supervision. The emeritus attorney won’t be allowed to receive compensation beyond reimbursement for expenses from the pro bono organization.

(Mike Frisch)

March 28, 2016 in Current Affairs | Permalink | Comments (0)

Ready For My Close Up, Mr. DeMille

A new opinion from the Florida Judicial Ethics Advisory Committee


May a judge appear in a documentary concerning a case that the judge prosecuted as an assistant state attorney and that has reached final disposition where the judge will not be identified as a current, sitting judge?

ANSWER: Yes, as long as the matter on which the inquiring judge has been asked to speak has reached final disposition in both the state and federal appellate process.


The inquiring judge has been contacted by a television producer about participating and possibly appearing in a documentary concerning a murder case which the judge prosecuted as an assistant state attorney in 2005. The Defendant was convicted and sentenced to thirty-five years in prison. The judge advises that the most recent appellate activity concluded in 2014, and that there are currently no pending appeals. The judge also advises that the judge will be identified in the documentary only as the prosecutor in the case, and will not be referred to as a current, sitting judge. Additionally, the judge will not appear in the documentary wearing a judicial robe or in judicial chambers, but rather, in both a casual setting and clothing.

OK but

We caution, however, that Florida Code of Judicial Conduct, Canon 2(B) states that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” For this reason, the inquiring judge would not be permitted to appear in the documentary, in order to discuss the judge’s prior role in the case as the prosecutor, were the judge to be identified as a current, sitting judge, because that appearance would lend the prestige of the judicial office to the private interests of the documentary producers, and their particular point of view, if any, presented in the documentary. See Fla. JEAC Op. 07-07. As such, the fact that the inquiring judge will not be identified as a current, sitting judge, nor appear in the documentary wearing a judicial robe or in the setting of judicial chambers, is also relevant to this Committee’s opinion that the judge’s appearance would not be prohibited under the Code.

(Mike Frisch)

March 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)