Thursday, June 30, 2016

Living Arrangements

The Indiana Supreme Court has ordered a two-year suspension of an attorney convicted at trial of a number of offenses, some of which were affirmed on appeal.

In the current case, Respondent and the Commission propose that Respondent receive a suspension from the practice of law for a period of at least two years, without automatic reinstatement. Viewed by itself, this would be at the low end of the discipline we have imposed in similar cases. We note, however, that Respondent already has been under interim suspension in this matter for over four years, and in conjunction with the parties’ proposed final discipline Respondent will have served over six years of suspension before he becomes eligible to petition for reinstatement. Moreover, a petition for reinstatement would be granted only if he is able to prove by clear and convincing evidence his fitness to resume the practice of law, a burden that likely will be particularly steep given the seriousness of Respondent’s misconduct. See Gutman, 599 N.E.2d at 608. With these considerations in mind, the Court approves and orders the agreed discipline.

The criminal case was decided by the state Court of Appeals.

Four months after Charles “Charlie” P. White was elected Indiana Secretary of State, a Hamilton County grand jury indicted him on seven felonies, including theft, perjury, and voter fraud. The charges arose from White’s conduct while he was a member of the Fishers Town Council and a candidate for Secretary of State; specifically, he purchased a townhome outside his district but kept his town-council position; submitted a form to the Hamilton County Board of Voter Registration that changed his address from his apartment to his ex-wife’s house, which was located inside his district; voted in the May 2010 primary election using his ex-wife’s address; and applied for a marriage license using his ex-wife’s address. Former Marion County Prosecutor Carl Brizzi defended White at trial. A jury convicted White of six of the seven counts, and the trial court sentenced him to one year of electronic home monitoring. His sentence was stayed pending appeal.

White utilized the Davis-Hatton procedure to temporarily suspend his direct appeal and seek post-conviction relief in the trial court. The trial court denied White’s request for post-conviction relief, which alleged, among other things, that Attorney Brizzi was ineffective. White’s reinstated direct appeal and the appeal of the denial of post-conviction relief are now before us.

We divide White’s claims into direct-appeal and post-conviction issues, and we ultimately conclude that three of White’s convictions must be vacated. As the State concedes, two of the convictions violate double-jeopardy principles. As for the third conviction, the perjury charge against White should have been dismissed because it was based on White’s street address, which was not material to his marriage-license application—only the county of residency is material. As for White’s post-conviction claims, we conclude that Attorney Brizzi was not ineffective. We affirm in part, reverse in part, and remand with instructions.

IndyStar reported on the criminal case

White was convicted in February 2012 of six Class D felony charges, including voter fraud, perjury and theft. The charges stemmed from his residency while he served on the Fishers Town Council. Prosecutors said he voted and took pay as a council member of a district in which he no longer resided. White claimed he was living with his ex-wife, which was within the council district. But evidence presented during his trial in Hamilton Superior Court indicated that he had been living with his then-fiancee in a new townhome outside the district.

(Mike Frisch)

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

Wednesday, June 29, 2016

A Badly-Chosen Godfather

The South Carolina Supreme Court has disbarred a misappropriating attorney

Respondent mismanaged and misappropriated $171,392 from three trust accounts for which he served as trustee, using the stolen funds to operate his law firm and to support a lifestyle that he could not otherwise afford. We note Respondent is the uncle and godfather of the beneficiaries of the trusts from which he stole money.

There were a number of other violations such as

Respondent prepared a will for a client, and after the client's passing, $18,000 cash was found in the client's home and delivered to Respondent to hold in trust. Respondent converted those funds, and none of the funds remained in trust at the time of Respondent's interim suspension.

Restitution of nearly a quarter of a million dollars was order.

Respondent has admitted theft that has resulted in significant harm to his clients and failed to participate in the disciplinary investigation. At oral argument before this Court, Respondent requested that his "license be taken."Because of the prevalent nature of Respondent's theft and wrongdoing, we find Respondent committed misconduct in the respects identified by the Panel...

In light of Respondent's pervasive misconduct, Respondent is hereby disbarred, retroactive to the date of his interim suspension. Within sixty days of the date of this opinion, Respondent shall enter into a monthly payment plan with the Commission on Lawyer Conduct to pay restitution in the amount of $244,722.22.

(Mike Frisch)

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


An attorney's  taste for child pornography led to his conviction and resulting disbarment by the New York Appellate Division for the Second Judicial Department

On December 29, 2004, the respondent registered with Yahoo! Groups under a fictitious name. Between December 2004 and August 2007, the respondent maintained two email addresses from which he accessed Yahoo! Groups. From on or about August 11, 2005, through March 2007, the respondent posted, among other things, photos, and "jpg files" containing child pornography and child erotica on a Yahoo! Group. He admitted that for purposes of this stipulation, child pornography includes depictions of pre-pubescent children engaging in sexual acts including genital penetration. Between March and July 2007, the respondent actively communicated with others regarding images of child pornography, posting, transmitting, and exchanging images.

In July 2007, the Los Angeles Regional Internet Crimes Against Children Task Force (hereinafter the LA Task Force) obtained the billing information related to the respondent's IP address. Subsequently, activity-monitoring software conclusively identified the respondent as an LA Task Force suspect. On August 2, 2007, officers of the Los Angeles Police Department (hereinafter LAPD) Juvenile Division obtained and executed a search warrant at the respondent's home. When the respondent was made aware that the LAPD believed that some member of his household was viewing, downloading, uploading, and exchanging child pornography, he responded, "It's me and nobody else." The respondent directed the search to the computer in the home office, and indicated that there would likely be evidence of child pornography on the other computers in the house. The respondent also admitted that he collected printed material or DVDs which he kept in an unlocked briefcase in the trunk of his car. The detectives discovered a black nylon briefcase in the trunk of the respondent's car, which contained 215 printed images, many of which depicted images that constitute child pornography. A second black briefcase was discovered behind the driver's seat, which contained an additional 92 printed images of child erotica and/or child pornography.

On August 2, 2007, the respondent was placed under arrest, and his home computer and an attached hard drive were retained by a Special Master. The LA Task Force also conducted a forensic examination of the desktop computer on the respondent's desk at the law offices at which he was employed, and the hard drive was retained by the Special Master. A post-arrest review of the property recovered from the respondent's residence and work address determined that it contained, among other things, 307 color and black/white photos of child pornography and 255 videos of child pornography.

On October 14, 2008, a criminal complaint was filed against the respondent in the Superior Court of California, County of Los Angeles, in an action entitled People v Robert Fishman , Case No. BA335615, charging him with seven felony counts. On December 19, 2008, the respondent entered a plea of nolo contendere to two counts of possession of child pornography in violation of California Penal Code § 311.11(a). That same day, the Court accepted the respondent's plea and he was convicted. The respondent failed to report his conviction to the California State Bar.

The foregoing stipulation was approved by the California State Bar Court and the respondent was transferred to involuntary inactive status by order dated October 20, 2010. By order filed on February 18, 2011, the Supreme Court of California disbarred the respondent in that state, and struck his name from the roll of attorneys.

The court here imposed reciprocal discipline. (Mike Frisch)

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

How The West Was Lost

An attorney who never barred in Colorado but nonetheless disbarred there for unauthorized practice both in Colorado and Wyoming suffered the same reciprocal fate at the hands of the Oklahoma Supreme Court.

He was also a CPA 

Respondent became licensed to practice law in Oklahoma in 1991. He also holds a CPA license in Oklahoma, Colorado, and Wyoming. Respondent was never licensed to practice law in Colorado. In 2010, he and Loni Woodley, also a CPA, entered into a partnership, Auer & Woodley CPA's, to acquire CPA firms in other states. They first purchased two accounting firms in Colorado Springs. Most of the clients in the firms already had legal counsel who had set up their businesses or prepared their estate planning documents. They later asked CPA's from whom they had bought the accounting firms to recommend local counsel who could meet with them and their clients regarding their tax and estate planning issues. Auer testified that he met with clients and worked with outside counsel to provide legal work for their clients in the summer and early fall of 2010.

He had formed a partnership with a Colorado attorney  named Doherty.

Doherty testified at the [Colorado] PRT hearing. He stated that at the time they formed Auer & Doherty LLP, he was told that Auer would become licensed to practice law in Colorado "imminently." He inquired about the status of Auer's application in Colorado "multiple times" and was told it was imminent. We note that, at the same hearing, Auer testified that he did not apply for reciprocity with the state of Colorado until after he and Doherty ended their partnership.

Doherty testified their intended arrangement would be to create a law firm to work in proximity to the accounting firm "and bring synergy that way." He said business clients often need both accounting and legal advice, creating an overlap. However, he said until Auer was licensed, all clients needing legal work had to go through him, and "as the bottom line, any document that went out the door from the law firm had to have my blessing." After several months, he drafted a memo to Auer (Complainant's Exhibit 12) regarding his concerns about Auer's promises and the possible unauthorized practice of law. He said Auer's Colorado law license was never issued, and Auer was marketing their services "to anybody with a pulse." He was never in the office and was no help at all. Doherty testified he asked the bookkeeper to see the billing statements and discovered Auer was billing for legal services through the accounting firm instead of the law firm, depriving Doherty of funds that were to be split by Auer & Doherty. He said the entries of billable hours were "mostly" for legal work, such as "prepared estate plan," and "drafted contracts." He testified that after this discovery he terminated his relationship with Auer and "walked out the door." Auer and Doherty reached an agreed settlement upon ending their business relationship.

And in the Cowboy state

In Wyoming, in which Auer held a CPA license, there is evidence of his unauthorized practice of law in Cheyenne, where he acquired an accounting firm. He testified he received a cease and desist letter, dated April 5, 2013, from the Unauthorized Practice of Law Committee of the Wyoming State Bar, advising him to cease further activity relating to the unauthorized practice of law. The letter related to a flyer used to advertise a seminar he was doing at his accounting firm, Auer, Woodley & Ostlund, in Cheyenne. The cease and desist letter contained a cover letter to Ms. Erin Sokol, legal counsel for Loni Woodley, advising her the letter had been sent to Auer, apparently as a follow-up to a complaint filed. The flyer in question advertising the seminar listed Auer as an attorney, although it did not denote the state in which he was licensed. The flyer contained the language, "Here's your golden ticket for a free consultation with David Auer, Attorney." The cease and desist letter referenced the "maintenance of an office in Wyoming as well as various activities conducted by you, within the State of Wyoming" and stated that "it was the unanimous consensus of the committee that in fact you have engaged in unauthorized practice of law within the State of Wyoming by giving legal advice and holding yourself out as licensed to practice in this state. You are not licensed to do so."

After that letter was admitted as evidence, Auer then stated he had not held himself out as a Wyoming lawyer. However, he then admitted he had testified previously that Auer & Brown's billing statements for legal services showed a Cheyenne, Wyoming, address. Moreover, he admitted he did engage in the practice of law in Colorado by drawing up legal documents and giving clients legal advice "to the extent that it involved the tax issues that - you know, that I - that the client was asking me to advise him in, that's correct."

In Oklahoma, he actually did have a law license. No longer.

We find there was overwhelming evidence before the Colorado disciplinary tribunal to find that Mr. Auer committed the unauthorized practice of law in Colorado and in Wyoming, in violation of ORPC Rule 5.5(a). The disciplinary authority of this state over its attorneys does not cease when the attorney goes to another jurisdiction. Although Mr. Auer tried to explain his conduct as merely an overlap between his CPA license and the practice of law, it is clear to this Court that he engaged in the practice of law in Colorado and in Wyoming without a license. He used other lawyers and CPA's to acquire the clients for his practice. He was not honest with the lawyers with whom he associated. Clients and firms were damaged by his actions.

(Mike Frisch)

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

Discipline For Thefts From Mother

The Oklahoma Supreme Court accepted the resignation of a convicted attorney

The Record submitted by the Oklahoma Bar Association reveals that The District Attorney for Tulsa County charged the respondent with the crime of Financial Exploitation of an Elderly Person, a felony. Count 1 alleged that between June 2013, and January 2014, the respondent financially exploited her mother, born April 3, 1938, by writing checks from her mother's bank accounts and using her mother's credit cards without permission. An affidavit from a Tulsa Police Department detective alleged that the amount taken by the respondent was $63,985.44. The allegation would constitute violations of Rule 1.3, RGDP, 5 O.S.2011, ch. 1, app. 1-A, Discipline for Acts Contrary to Prescribed Standards of Conduct; and Rules 8.4(b) and 8.4(c) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011 ch. 1, app. 3-A, (Amended by order of the Supreme Court, 2007 OK 22; effective January 1, 2008) Misconduct, which includes committing a criminal act that reflects adversely on the lawyer's honesty, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

The respondent acknowledges that she is aware that a Notice of Felony Plea of Guilty and Deferment is currently pending before this Court in State ex rel. Oklahoma Bar Ass'n v. Kathryn Kimberlee Dickson, OBAD 2091, SCBD 6375, and that these proceedings were filed pursuant to Rule 7 of the RGDP. The respondent entered a plea of guilty to the charge on March 14, 2016. On that date, she received a six years and six months deferred sentence, was placed on supervised probation for two years, and ordered to make restitution of $15,700.00. The trial court also ordered her to pay court costs, victim's compensation assessment, and any applicable fines.

Aa attorney who resigns can seek reinstatement after five years.  (Mike Frisch)

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

Tuesday, June 28, 2016

Facebook Campaigning May Draw Disciplinary Sanction; Attorney Also Charged With Hateful Comments

The West Virginia Record has a story on an ongoing bar discipline case

The state Lawyer Disciplinary Board has asked the West Virginia Supreme Court of Appeals to disbar a Morgantown attorney it claims violated the Rules of Professional Conduct.

Edward R. Kohout faces four counts with several charges of rule violations under each of them, according to the amended formal statement of charges filed Dec. 11 with the state Supreme Court.

 The West Virginia Judicial Investigation Commission received a complaint on Sept. 10, against Kohout. The complaint was predicated on several Facebook postings on Kohout’s campaign for Judge of the 17th Judicial Circuit account, in which he personally solicited campaign donations.

On Nov. 20, the JIC determined that Kohout was engaging in serious violations of the Code of Judicial Conduct, according to the statement of charges.

The JIC concluded that Kohout engaged in a pattern of egregious and notorious verbal abuse that is likely to cause irreparable harm to others and on the judicial system.

“Of critical importance, because the effect of his wrongful activity is unlikely to cease during the pendency of the 2016 judicial campaign, the only procedural method available to stop him is injunctive relief from the Supreme Court of Appeals of West Virginia,” the statement of charges reads.

The JIC unanimously determined that probable cause existed to formally charge Kohout with violations of the West Virginia Code of Judicial Conduct and the West Virginia Rules of Professional Conduct.

Kohout, who has been practicing law in West Virginia since 1987, filed pre-candidacy papers in June 2015 for Monongalia circuit court judge. In July 2015, a Facebook page was made for the campaign and the majority of the posts on the site referred to his judicial campaign.

On Sept. 2, counsel for the JIC informally inquired about an undated Facebook solicitation and Kohout responded that the solicitation was accidentally posted to his personal page and had been corrected and that no one had sent funds. After he was questioned about the inappropriate solicitation, Kohout removed it and assured JIC counsel that he would refrain from personally soliciting campaign contributions in the future.

After the ethics complaint was filed, revealed two more solicitations from July and August, Kohout responded that he had no role in the two posts soliciting funds and that there was no functional difference in his committee putting a posting on the Facebook page asking for donations than what other candidates were doing.

While Kohout denied many any personal solicitations, he never said who made the posts and JIC’s counsel made the point to the Commision that the person who has a Facebook page is normally the only one who can access it and make posts unless that person gives someone else privileges by either providing them with the e-mail account and password or assigning them administrative rights.

In the posts, Kohout speaks in the first person and one of the posts was made after he became the sole administrator of the campaign Facebook page.

“It is for these reasons that the JIC has concluded that Edward R. Kohout has not been truthful in his representation to our counsel,” the statement of charges reads.

The second charge against Kohout involves his campaign bank account. The account was created on June 24, 2015, for “Ed Kohout for Judge” at the Morgantown branch for BB&T. Kohout gave $20 to open the account and the balance has remained at $20 with no deposits or withdrawals from its inception through Oct. 30.

A judicial candidate cannot be on the signature card, according to JIC Advisory Opinion 2/15/95. Kohout also declined to address the makeup of his campaign bank account in his Nov. 2 response to the ethics complaint, despite specifically being requested to do so by JIC counsel.

The third charge against Kohout involves maintaining dignity appropriate to judicial office. Between July and November, Kohout made derogatory and hateful comments, including describing government receptionists as “dumbass coloured women” and stating that “too many women taking men’s jobs trying to be men when they oughta be home taking care fo [sic] the kids.”

He also described people of middle eastern descent as “Ahab,” “Arab,” “camel bangers” and “ragheads.”

“In yet another supercilious post he said that ‘many black men beat their women’ and ‘so many run off’ leaving ‘single while women and their white parents to raise the babies.’ He also said that ‘white women who date black men are trash and ruined.’”

On Jan. 15, Kohout and the Judicial Disciplinary Counsel entered into a written agreement in which Kohout agreed to never again seek judicial office by election or appointment in West Virginia, according to a Feb. 5 stipulation and recommended discipline document.

In a March 15 order from the Judicial Hearing Board, the board recommended that Kohout receive a public censure for his violations; that in lieu of a fine, he be ordered to pay the ultimate costs of the investigation and prosecution in the amounts of $3,307.95 as of Jan. 28 and at a rate of $200 per month beginning 30 days after the conclusion of proceedings; and that Kohout be barred from ever seeking any judicial office again.

W.Va. Supreme Court of Appeals case number: 15-1190

The attorney had been suspended by the West Virginia Supreme Court of Appeals for two years in 1995.

The misconduct involved, in part, his failure to disclose to the University of Pittsburgh Law School that he had been suspended from the Cumberland School of Law of Samford University as a result of an accusation of selling stolen law books. He also had failed to disclose the suspension in his bar admission application. (Mike Frisch)


June 28, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

The Firm that Wasn't

A disciplinary decision issued today by the Ohio Supreme Court is summarized (with links) by Dan Trevas

The Ohio Supreme Court today indefinitely suspended a Cincinnati attorney based on complaints from several clients, improperly sharing fees with an unauthorized legal referral service, and falsely representing that he was a partner in a law firm after the firm dissolved.

In a 4-3 per curiam decision, the Supreme Court indefinitely suspended Robert H. Hoskins and set three conditions he must meet before the Court would consider reinstatement. Prior to his indefinite suspension, the Court had placed Hoskins on a 60-day suspension in April 2015 after he was suspended from the practice of law in Kentucky.  Although Hoskins claimed that he was later reinstated in Kentucky, he did not apply for reinstatement in Ohio. Therefore, his suspension remained in effect.

In February 2014, the Cincinnati Bar Association filed a complaint against Hoskins with the Board of Professional Conduct alleging multiple violations of the rules governing Ohio attorneys. The bar association alleged he neglected client matters, failed to reasonably respond to clients, did not provide competent representation, engaged in dishonest conduct, and committed other infractions.

Shared Fees for Social Security Disability Referrals
Hoskins contracted to accept Social Security disability cases from Citizens Disability, a Massachusetts company that describes itself as a national disability advocates group. Hoskins testified he paid the organization half of the 25 percent contingency fee he received from the cases referred to him and had a written agreement to pay the firm up to $3,000 per case for advertising, screening, and other case assistance.

Ohio rules allow a lawyer to share legal fees with a nonlawyer in limited circumstances, including with a nonprofit organization that recommends employment of a lawyer. The nonprofit must meet certain standards to qualify for fee sharing, and Citizens Disability had not complied with Ohio regulations for a lawyer-referral service.

Hoskins argued that his arrangement was permissible because Citizens Disability is operated by an attorney and his actions were not directed by nonattorneys. However, the board found Citizens Disability did not qualify under any rules that would allow the fee-sharing, and that Hoskins violated the rule for paying to be recommended by an unauthorized referral service.

False Registration Implied Partnership in Firm
The board also found Hoskins violated  rules  prohibiting lawyers from making false or misleading claims about their services or implying they practice in a partnership or other organization when it is not true. Hoskins practiced for a time in the firm of Hoskins & Muzzo LLP, but the firm was dissolved in 2011. Hoskins did not update his attorney registration to reflect the change, and admitted to the violation.

Infractions for Improper Handling of Client Matters
The bar association’s complaint also alleged violations for five client matters including his misrepresentation of a client attempting to file Chapter 11 and Chapter 13 bankruptcy.

The bankruptcy court found his filings contained multiple deficiencies, and when it rejected the Chapter 13 filing Hoskins moved to reopen the case. He then attempted to withdraw the request without informing the client. Hoskins failed to appear at two hearings the court scheduled, and it subsequently ordered him to pay a $500 sanction before June 2013. He did not actually pay until February 2015, several months after disciplinary hearings against him had started.

The board found the client made clear his objective for filing bankruptcy was to avoid foreclosures on his properties and he had no knowledge of Hoskins’s move to not reopen his case after the initial filings were rejected. When Hoskins failed to appear at the hearings, the client filed handwritten motions in court asking it to consider his bankruptcy and stop the foreclosures sales.

Two other clients filed complaints against Hoskins for his handling of their marriage dissolutions. In one case, he agreed to draft orders to divide the martial retirement assets, but he failed to do so and disregarded numerous requests by the client to complete them.

In another matter, a client paid him $1,275 to dissolve a marriage, but before Hoskins completed the necessary documents, the client discharged him and requested a billing statement and refund of any unearned fees. Hoskins did not provide either, and failed to respond to a later request for a full refund. At his disciplinary hearing in July 2014, he delivered a $1,500 refund check to the client that was not drawn from his required client trust account. He admitted he did not have a client trust account at the time he accepted the client’s money.

Misrepresentations to Clients and Court
Hoskins also failed to attend a hearing in Adams County Common Pleas Court on behalf of a client, alleging he had a scheduling conflict with a hearing in Indiana. His office arranged to send another attorney to the Adams County hearing where the judge continued the case and requested documentation of Hoskins’s scheduling conflict. Hoskins had learned the morning of the hearing that the Indiana hearing was postponed, and he did not inform the Adams County judge of that when providing the requested information.

When contacted by disciplinary investigators, Hoskins implied the attorney attending the hearing met with the client, but the claim was contradicted by the judge and the other attorney who had not met the client or had information about his case prior to appearing in court.

Hoskins was also found to have made misleading statements during disciplinary proceedings regarding a case in which he represented a client in a personal-injury case arising from an automobile accident.

At the sole meeting the client had with Hoskins, she gave him photographs of her car and correspondence from the other driver’s insurance company. In August 2013, the insurance company sent the client a letter hoping to resolve the matter in 45 days, but Hoskins did not contact the company until after 45 days, and then failed to respond to the client’s messages regarding the proposed settlement until January 2014. The client terminated Hoskins’s representation and asked for her file, which included the accident photographs.

She did not receive the file and the client’s new attorney contacted Hoskins for the file, but Hoskins never sent the file or photographs. He did not take action until the bar association relayed that the client filed a grievance against him. Hoskins told the bar association that he had sent the new attorney the information in August 2014, but did not actually send the information until December 2014.

Board Recommends Indefinite Suspension
When considering the appropriate sanctions, the board found there were no mitigating factors that would lead it to reduce any punishment it considered. It did find several aggravating factors, including that Hoskins had a prior disciplinary record, engaged in multiple counts of misconduct, refused to acknowledge the wrongful nature of his actions, submitted false statements during disciplinary proceedings, and failed to cooperate in the disciplinary process.

In response to the board’s recommendation of an indefinite suspension, Hoskins acknowledged he made some mistakes, but stated his conduct was not indicative of his usual practice and that a fully stayed 12-month suspension was the appropriate sanction.

Court Finds Hoskins Disobedient and Dishonest
The Court stated it found that “Hoskins does not appreciate the magnitude of his own misconduct,” and that his misdeeds touch virtually every aspect of his law practice from how he attracts clients to how he conducts himself with the courts handling his client’s legal matters and how he conducts himself with the courts handling his own legal issues.

“His misconduct demonstrates a disturbing pattern of neglect and an ongoing failure to comply with established rules and procedures — not to mention a flagrant disobedience of court orders and a troubling propensity to engage in dishonesty when his actions are questioned,” the opinion stated.

The Court also noted that while this case was pending, the Court also found Hoskins in contempt of his April 2015 suspension, having received evidence that he continued to practice law in several matters while under suspension. In one instance, he created and used an email account in the name of a former colleague and impersonated the colleague to participate in legal matters.

The Court required that Hoskins’s potential reinstatement be conditioned on his completion of a continuing-legal-education course focused on law-office management, obtaining a passing score on the Multistate Professional Responsibility Examination, and payment of the costs of the disciplinary proceeding. 

Justices Paul E. Pfeifer, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the opinion.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, and Judith Ann Lanzinger dissented, stating they would disbar Hoskins.

2015-1003. Cincinnati Bar Assn. v. Hoskins, Slip Opinion No. 2016-Ohio-4576.

Video camera icon View oral argument video of this case.

(Mike Frisch)

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

Monday, June 27, 2016

Attorney On Parole Reinstated In New Jersey

The New Jersey Supreme Court has reinstated an attorney suspended as a result of a series of drug-related offenses.

The Office of Attorney Ethics had opposed reinstatement because the petitioner remains on criminal parole supervision. had reported on the criminal matters

Rowek pleaded guilty to defrauding a drug test; possession of Percocet; possession of gamma-hydroxybutyrate, or GHB, a strength enhancer and aphrodisiac; possession of Vicodin; and driving under the influence of drugs, after his arrests in four incidents from 2010 to 2013. Other charges, including heroin and methedrine possession, were dismissed under a plea agreement.

 He must submit to random drug tests.

The order here instructs the OAE Director to present to the Disciplinary Review Board "any conditions limiting reinstatement of suspended attorneys based on probation and parole status" at the time of the suspension recommendation. (Mike Frisch)

June 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Stipulation: Oh, Behave!

A Law Society of Upper Canada Tribunal Hearing Panel has accepted a joint submission that essentially requires an attorney under disciplinary investigation to behave himself in his communications concerning the ongoing process.

The stipulation involves allegations of discourteous communication in an underlying matter as well as with the bar investigation.

As to the complaining counsel

The Lawyer has allegedly, in private litigation matters, repeatedly engaged in demeaning, abusive and offensive conduct toward opposing counsel.  He claimed, for example, that opposing counsel was having an inappropriate relationship with one of that lawyer’s clients.

He disparaged the religious beliefs of opposing counsel after that counsel requested an indulgence from a court for religious obligations. The Lawyer suggested repeatedly that opposing counsel was perpetrating a fraud on the court.  He sent opposing counsel an overtly anti-Muslim message.

After that counsel complained to the Law Society, the Lawyer sent the following email to opposing counsel on October 4, 2015:

I continued to be seriously concerned about what you managed to get away with your mosque “attendance” before Justice Gibson.

I intend to appeal/re-visit his ruling notwithstanding his forthcoming motion ruling.

You mentioned that the Islamic rules/guidelines sent to you by me regarding your mosque attendance or inability to attend have no application to you.

For the record, would you kindly explain forthwith failing which we will continue to view your conduct as fraud on the court.

As to the Law Society staff

In relation to one conduct application, the Lawyer’s prolific communications with Discipline Counsel and Investigation Counsel over the period from 2008 to 2015 are alleged to demonstrate a pervasive pattern of incivility and complete absence of professionalism.  They are said to be characterized by offensive remarks and threats of other proceedings.

The recent email communications to the Law Society Tribunal addressed to the same Tribunal staff member on January 23, 26, three on January 28 and one on January 31, 2016, are said to be unprofessional and insulting, to accuse panel members of conspiracy in this motion, and to be generally offensive.

And the Tribunal itself

The Lawyer’s remarks to members of the Law Society Tribunal are alleged to have been demeaning and abusive.  He has commented on their personal attire and appearance, referring to them by derogatory names and making unsupported and baseless allegations of incompetence and bias. 

In one email sent on November 6, 2015 to the Law Society Hearings Coordinator he stated:

I would be less than honest, I did not comment on the inappropriate manner in which the head of yesterday’s panel was dressed.

The event was not a motor cycle mamma fest or a party at a local pick up joint.

 In proceedings before the Hearing Panel, the Lawyer compared his experience before the Tribunal with the experience of residential school survivors:

It is an absolutely ludicrous, ludicrous, monstrously wrong decision that has taken a horrific toll on lots of people, including my family, me and my children – most importantly my children.  The residential schools have nothing on what this court has done to me, now – my children, that is.

 On January 29, 2013 in proceedings before Mr. Mark Sandler, sitting as the Appeal Management Conference, the Lawyer made certain comments comparing himself to Jews in Nazi Germany:

And if you send me back to them it’s like you saying ‘It’s 1944 Germany and I might as well change my name to Robsonstein.  I’m not going to get a fair hearing.

Just for the record, I think there’s another case of abuse.  Go and try set down [sic] an immediate stay motion, and they just ignore you.  My name is Robsonstein.

His last name is Robson.

The agreed-to conditions include

  1.    The Lawyer shall, effective immediately, cease all direct communication with the Law Society, its staff, counsel and representatives, and the Law Society Tribunal, its members, staff and representatives and only communicate with the Law Society, its staff, counsel and representatives and/or the Law Society Tribunal, its members, staff and representatives, as necessary, through Richard Watson, or such other lawyer licensed by the Law Society as he may designate as his counsel, or such other personal representative as may be approved by the Law Society in writing.
  1.    The Lawyer shall, effective immediately, refrain from making any derogatory, abusive or offensive statements or representations, through any medium, directly or indirectly, with respect to the Law Society, its staff, counsel and representatives or the Law Society Tribunal, its members, staff and representatives.
  1.    The Lawyer shall instruct Richard Watson, or such other lawyer licensed by the Law Society as the Lawyer may designate as his counsel, to confirm in writing to Glenn Stuart, counsel to the Law Society for motion LINT13/16, within three days of this order, that the Lawyer has authorized and retained Mr. Watson or such other lawyer licensed by the Law Society as the Lawyer may designate as his counsel or a personal representative approved by the Law Society in writing to receive any correspondence or other communications from representatives of the Law Society’s Investigations, Discipline or Monitoring & Enforcement Departments, or from the Law Society Tribunal, and that he acknowledges that delivery of any communications to Mr. Watson under this order shall be deemed to have been delivery to him of those communications.
  1.    If the Lawyer intends to discharge Mr. Watson as his counsel, the Lawyer shall forthwith instruct Mr. Watson to advise Mr. Stuart, as counsel to the Law Society for motion LINT13/16, in writing, of the name and contact information of his successor counsel or personal representative approved by the Law Society in writing within twenty-four hours, or, in any event, prior to the discharge taking effect. This provision applies, with necessary amendments, to any successor counsel or personal representative approved by the Law Society in writing that the Lawyer may retain.
  1.    The Lawyer shall ensure that he is represented by counsel or a personal representative approved by the Law Society in writing at all times throughout the term of this order for the purposes of communicating with the Law Society in accordance with this order.
  1.    This order does not relieve the Lawyer from his obligations to respond to the Law Society with respect to matters under investigation, or otherwise, but the Lawyer shall fulfil those obligations by providing any required responses through his counsel or personal representative approved by the Law Society in writing.
  1.    If the Lawyer breaches this Order at any time, the Law Society is at liberty to bring, in addition to any conduct proceedings that may be authorized, a new motion for an interlocutory suspension in reliance on the evidence currently before the Tribunal in this motion and any further evidence that it considers relevant.
  2.    This order shall be in effect until the earliest of the following:
  3.    A panel varies or cancels the order on the consent of the Society and the Lawyer prior to the hearing on the merits of the proceedings to which the motion relates.
  4.    A panel varies or cancels the order on the basis of fresh evidence or a material change in circumstances that is brought by the Society or the Lawyer to the panel prior to the hearing on the merits of the proceedings to which the motion relates.
  5.    The panel presiding at the hearing on the merits of the proceeding to which the motion relates, prior to disposing of the proceeding, varies or cancels the order.
  6.    The panel presiding at the hearing on the merits of the proceeding to which the motion relates disposes of the proceeding.


Having regard to the context of the communications, we concluded that the joint submission, which includes strict limits on the manner and method of the Lawyer’s communications with the Law Society and the Law Society Tribunal, is within the range of reasonableness.  The proposed order does not impair the Lawyer’s ability to respond to investigations and conduct proceedings. While the Lawyer’s communications with other counsel in civil proceedings as set out above is of great concern, the weight of the communications is in Law Society matters rather than in civil matters. A focused restriction order can address the risk in Law Society matters. If further such communications are made, it may be that a further motion will be brought. had this earlier report on the matter. (Mike Frisch)

June 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 26, 2016

Web Access To Bar Discipline Information: The Critical Component Of Transparency

The web page of the Colorado Supreme Court was recently redesigned as noted below

By JAMES C. COYLE, Attorney Regulation Counsel
Spring 2016

The Office of Attorney Regulation Counsel new website, unveiled this spring, is a reflection of the Office’s continued efforts to promote professionalism and protect the public.

The website at includes numerous resources intended to help attorneys be better attorneys and help members of the public better understand how to navigate the legal community.

The Office, for instance, developed a guide to “Hiring and Working with Your Attorney” that educates people on what to expect when engaging a lawyer. Another page consolidates links to services that may help those who can’t afford traditional legal representation. And there is an entire section with practice management resources for attorneys, including tools such as the Self-Audit Checklist, a link to ethics opinions, and downloadable registration forms for the Office’s Trust Account School.

The easy-to-navigate interface aims to help our 30,000-50,000 monthly visitors find their way to their intended site location quickly.

The site was designed using the latest in advanced web development tools and languages, including HTML5, CSS 3.0, and Active Server Pages. By using the latest in JavaScript, the site will format to any current electronic device such as cell phones, tablets, laptops, and desktop computers.

Phase two projects include calendars for upcoming events in each department, pop-up charts for attorney demographics, portals to self-assessment forms that lawyers can use and legal check-up forms for consumer use, and videos to explain the office processes and for other educational purposes.

I daresay that I am among the most frequent visitors to state court/bar web pages rooting out information concerning bar discipline. Access and transparency of these web pages is the lifeblood of this blog. We would not exist without it.

I generally have no issues with Colorado, as I do with the many states that make this information as inaccessible as possible.

But the changed web page has made it far more difficult  to find information about the most recent disciplinary cases, which used to be just one click away. 

I hope Colorado adds the link to its most current cases,  if nothing more than out of selfish blogging purpose. I also believe that such access is very much in the public interest. 

A "recent decision" link is a most useful function. Massachusetts, for instance, posts all its cases but only in alphabetical order. To find the new decisions, one has to scroll through the whole Megillah to find the 2016 decisions. Pity the poor blogger.

Connie, help!

The best information - access state bar web pages (the roll of honor) are North Carolina, Illinois,  Ohio, Arizona, Pennsylvania (they really care about transparency), Louisiana, Kansas (with oral argument video), New Jersey (although I generally don't like what I read), Maine (information at Bar Overseers web page) and the District of Columbia.

If readers are surprised by my inclusion of D.C., note that the web page in a single place provides easy access to all informal admonitions, hearing committee reports, board reports and court decisions. D.C. even has a "recent case" function. 

That puts a jurisdiction close to Mount Rushmore status. 

If you want to understand a bar case from soup to nuts, North Carolina is the creme de la creme of access. I could write a book about what they are doing right. 

If every jurisdiction followed the North Carolina model, I'd need a staff to do this blog properly.

Many courts post their disciplinary decisions but not the underlying reports. The above-named jurisdictions do provide web access to board reports and (in some instances) charging documents (they are public in D.C. but not posted online).

In many jurisdictions, the only way to search discipline decisions is to enter an attorney's name. This limitation renders it far more difficult to evaluate the overall functioning of that  system. 

Oregon has an open system but I have found it impossible to find anything save for court decisions about their discipline cases. If I'm missing the way to access recent Oregon bar discipline cases, I'd appreciate the information.

And any jurisdiction that has a video library where bar discipline arguments are preserved for review deserves kudos as well. Hat tip to Kansas, Ohio and Maryland.  (Mike Frisch)

June 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Resigned To Fate

The Ohio Supreme Court accepted the resignation of an attorney who had been the subject of this September 2015 post

The Ohio Supreme Court has ordered the interim suspension of an attorney as a result of a felony conviction. 

The Advertiser Tribune had a story on the charges

A former Bettsville Local Schools treasurer has been issued a summons on a three-count indictment. According to court documents, Roger Luhring was indicted on one count of theft in office, one count of having an unlawful interest in a public contract and one count of having an unlawful interest in a public contract, all fourth-degree felonies.

Also, a former executive director of Seneca County Agency Transportation has been indicted on a charge of theft. Susan J. Phillips, 63, of Tiffin, was indicted by a Seneca County grand jury on the fifth-degree felony charge.

Phillips allegedly stole more than $1,000 from SCAT from Dec. 11 until Jan. 3, according to her indictment.

The Courier reported on a mistrial

Michael E. Woodman, 22, of Tiffin, has admitted stealing from Seneca County Area Transportation and pleaded guilty to theft, a fifth-degree felony, during an appearance in Seneca County Common Pleas Court, Tiffin.

He appeared before visiting Judge Charles Wittenberg, the (Tiffin) Advertiser-Tribune reported.

During his court appearance, Woodman said he transferred money from an agency account into another account and then withdrew the money, the newspaper said.

Woodman’s mother, Susan J. Phillips, initially was charged after $6,500 allegedly was transferred from the agency’s account into her account. In March, Phillips stood trial on a fifth-degree felony theft charge, but the jury was unable to reach a verdict.

During his mother’s trial, Woodman took responsibility for the theft.

The attorney was recently convicted of complicity of theft, a fifth degree felony.

(Mike Frisch)

June 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 25, 2016

"Lip Service And Poppycock"

A federal court order suspending an obstreperous attorney for 180 days was imposed nunc pro tunc and until further order by the New York Appellate Division for the Fourth Judicial Department.

By decision and order dated January 22, 2016, the United States District Court for the Western District of New York (District Court) suspended respondent from practice for a period of 180 days upon a finding that, in August 2015, he engaged in undignified and discourteous conduct that disrupted proceedings before that Court (Matter of Parrinello, 2016 WL 270920, *8-9, 2016 US Dist LEXIS 8025, *23-25 [WD NY, No. 15-MC-6007]). The decision and order of District Court additionally made public an order of private reprimand that District Court had issued to respondent in 2013 upon a finding that he had engaged in abusive and profane conduct that disrupted courtroom proceedings and adversely affected the fair administration of justice...

 We agree with respondent, however, that reciprocal suspension from practice in New York for a period of 180 days from the date of this decision would be unduly harsh under the circumstances herein. Accordingly, we conclude that respondent should be suspended for a period of 180 days nunc pro tunc from January 22, 2016, and until further order of this Court.

RochesterFirst,com had a story on the federal court suspension.

The suspension stems from two incidents. The first happened in November 2012, when Parrinello was upset his client was not brought to the courthouse in time for him to discuss a case before an appearance before the judge. Parrinello allegedly said to the deputy marshals, “You (expletive) can't even get him here on time...You place him in (expletive) Steuben County which makes it difficult for me.”

Informed of Parrinello's outburst, Judge Marian Payson refused to take the bench. Parrinello, angry that the case didn't proceed that day, sent an email to the judge saying the presumption of innocence is nothing more than “lip service and poppycock.”

The court issued an “order of private reprimand” over the incident. Parrinello admitted he was out of line and promised it would never happen again.

On August 25, 2015, Parrinello was representing one of several defendants who were part of the same case. Before his client was called, Parrinello objected to statements made by Assistant U.S. Attorney Everardo Rodriguez from the courtroom gallery. Eventually, Parrinello and Rodriguez came face to face. Deputy marshals tried to separate them. Parrinello is accused of saying, “Big deal you got badges on...I'll move when I want to.”

Rodriguez called Parrinello an “old man.” Parrinello allegedly responded, “I'll show him who is an old man because I'll knock him on his ass.”

 Unrelated to the above is this report of the Democrat & Chronicle from last August

Noted Rochester criminal defense lawyer John Parrinello at noon Thursday turned himself in to the Gates Police Department and was charged with patronizing a prostitute.

Gates Police Chief James VanBrederode said in a news release that the 76-year-old Parrinello was charged with one count of  third-degree patronizing a prostitute from an incident that allegedly occurred Aug. 16 at the Gates Motel. The charge is a misdemeanor.

Parrinello, of Rochester, is scheduled to be arraigned at 5:30 p.m. Tuesday, in Gates Town Court.

VanBrederode said in the news release that there would be no further comments regarding Parrinello's arrest until the arraignment.

“We categorically deny these charges,” said David Rothenberg, the attorney for Parrinello. “John Parrinello never solicited anybody. These are irresponsible charges.”

On Wednesday evening, VanBrederode sent an email to media outlets, apparently in response to rumors that Parrinello had been involved in a sting.

In an email sent at 7:05 p.m., VanBrederode wrote:

"The Gates Police Department has NOT arrested anyone from the (Parrinello) Family.  

Here are some other rumors that are circulating:

We did a Prostitution sting – NO

They are involved in a Prostitution Ring – NO

We have a mug shot of Mr. (Parrinello) – NO

We hope this answers most of your questions…….

Chief VanBrederode"

In the news release Thursday announcing Parrinello's arrest, VanBrederode wrote that "the Gates Police Department will continue to aggressively enforce the prostitution laws to protect our community from the social ills and other crimes that are associated with the sex trade business." He wrote that prostitution is not a victimless crime and that it often supports a drug habit and can lead to violence.

He wrote that because of the Internet, prostitution over the past 10 years has "exploded in popularity and the number of people engaging in the business."

Since 2011, Gates police arrested 125 females for prostitution and 33 males for patronizing a prostitute, according to the chief. He wrote that much of the activity happens in hotels and that the police have partnered with the six hotels in the town to address the problem.

"People should think twice before coming to Gates to engage in prostitution," he wrote.

In January 2012, Parrinello turned himself in to Rochester police on a warrant stemming from an argument in his office with a client. The charges later were dismissed.

Parrinello has received numerous legal and civic honors over a career that also saw him run for mayor in 2005. He served on city council from 1970-74. He served on the board of trustees of Monroe Community College from 1998 to 2014, when his term expired, according to a representative of the college.

Parrinello is a graduate of Aquinas Institute, the University of Rochester and the Syracuse University College of Law. According to the website for the Parrinello Law Firm, Parrinello was recognized by his peers in 2013 as among the best attorneys in the state. He is listed among New York super lawyers.

Among the notable cases Parrinello listed on the website, he had charges dismissed or defendants found not guilty in several cases of sex abuse, rape or sodomy.

Parrinello also has been the defense attorney in some of the area's highest-profile cases.

(Mike Frisch)

June 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Pressures Of Practice

A Louisiana Hearing Committee has recommended a year and a day suspension of an attorney nunc pro tunc to his January 2016 interim suspension for false internal firm billings over a three-year period. 

The committee found that at least 428 billing entries were "certainly false" and 220 more that were likely false. 

The attorney's firm set a yearly target of 1800 hours and hitting the target number was important to bonuses and promotions.

The attorney had risen in the firm's leadership while suffering a decline in his book of business. He contended that  the conduct was a product of social rather than financial pressures. The false entries were internal and not billed to any clients.

He self-reported to the bar and cooperated in the proceedings.

He had "served [as] the firm's hiring partner, head of recruiting, and chaired the firm's diversity committee as the firm's first minority recruiting and retention partner."

The attorney had consented to the interim suspension.

Update: post corrected as to proposed sanction - thanks to Dane Ciolino for pointing out my error. (Mike Frisch)

June 25, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Friday, June 24, 2016

Pissing Contest

The United States Court of Appeals for the District of Columbia Circuit denied review to a Spirit Airline pilot who had failed a urine test taken after he had landed a plane in Fort Lauderdale.

Swaters’s specimen was sent to Quest Diagnostics, Inc., an HHS-approved testing laboratory. Id. Two weeks later, Quest reported to Spirit Airlines that Swaters’s sample contained morphine at more than eight times the legal limit, a metabolite of heroin at more than 49 times the legal limit, and a metabolite of cocaine at more than 63 times the legal limit.

The court

Jeffrey Swaters, a former pilot with Spirit Airlines, challenges the Department of Transportation’s refusal to consent to the release of the urine sample it says Swaters produced for a mandatory drug test. The sample, which tested positive for controlled substances, cost Swaters his job and his airman medical certificate. See Swaters v. Osmus, 568 F.3d 1315 (11th Cir. 2009); Sturgell v. Swaters, NTSB Order No. EA-5400, 2008 WL 3272390 (2008). Swaters now wants the urine sample in order to conduct a DNA test in the hope of proving, in a state court negligence action, the urine is not his. We hold that neither the DoT’s general rule against releasing urine samples for DNA testing, nor its refusal to release the sample in this case, is arbitrary, capricious, or contrary to the Omnibus Transportation Employee Testing Act of 1991. We also hold that Swaters’s constitutional challenges to the rule fail.1 We therefore deny Swaters’s petition for review.

(Mike Frisch)

June 24, 2016 | Permalink | Comments (0)

Thursday, June 23, 2016

No Malpractice In Model Representation

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a legal malpractice claim against Boies Schiller.

Plaintiff failed to establish that defendants breached their duty by representing her despite a conflict of interest, in violation of Code of Professional Responsibility DR 5-105 [22 NYCRR 1200.24), the conflicts rule in effect at the time. Unlike current Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7, DR 5-105 did not require that client consent to a conflict be confirmed in writing. An issue of fact exists whether defendants' clients consented orally.

In any event, the violation of a disciplinary rule, without more, is insufficient to support a legal malpractice cause of action (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]). Since plaintiff cannot prove that she suffered damages that were proximately caused by defendants' alleged misconduct, her cause of action must be dismissed (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]).

Nor can plaintiff prove that defendants proximately caused her any injury with respect to her underlying claim for unauthorized use of her image, since that claim was time-barred and had already been released by the time she engaged defendants (see CPLR 215[3]; Nussenzweig v diCorcia, 9 NY3d 184 [2007]).

As for her other, potentially meritorious, claims, plaintiff settled those, and offers no evidence that, but for defendants' negligence, the settlement awards would have been higher (see [*2]Fusco v Fauci, 299 AD2d 263 [1st Dept 2002]).

Indeed, plaintiff failed to demonstrate that she suffered any harm at all as a result of defendants' alleged failings. Although defendants admittedly filed plaintiff's bankruptcy proof of claim one day late, the claim was accepted, and plaintiff received a substantial mediated settlement. Although she complains of defendants' alleged failure to join Elite S.A. as a party in one of the underlying actions, plaintiff nonetheless obtained a substantial settlement from that entity. Although plaintiff objects that she was not named as a class representative in one of the underlying actions, the deadline for adding class representatives had already passed by the time she engaged defendants, and nonetheless she received an incentive award for her active participation in the litigation.

The plaintiff is a fashion model. The ABA Journal had an earlier report on the case. (Mike Frisch)

June 23, 2016 in Clients | Permalink | Comments (0)

Forced Apology In Juvenile Case Does Not Violate First Amendment

The Washington State Supreme Court today held that a convicted juvenile defendant who continued to maintain his innocence can be compelled to write a letter of apology to the victim.

A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior.

Additionally, an apology letter recognizes the victim's interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts. This further advances the rehabilitative goals of the statute.

The outward manifestation of accepting and apologizing for the consequences of one's actions is a rehabilitative step that attempts to improve K.H.-H.'s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. 's rehabilitation and the crime here.

One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights. There is a whole range of constitutional rights that can be affected by a conviction, not the least of which is a loss of liberty. There may be a limitation on the degree to which First Amendment rights may be restricted for those convicted of crimes, but an apology letter condition does not approach that limit. We affirm.

There is a dissent from Justice McCloud

The juvenile court's forced apology condition fails under any First Amendment test other than the majority's highly deferential, rational-relationship test borrowed from language in Clark. Under the Supreme Court's test in Martinez, the government cannot restrict the content of a prison inmate's speech in this context unless the restriction "further[ s] an important or substantial governmental interest" and is narrowly tailored so that it infringes on "no greater [speech] than is necessary or essential to the protection of the particular governmental interest involved." 416 U.S. at 413. The compelled confession and apology in this case fails that narrow tailoring requirement. Under the test we articulated in Bahl, the condition must be '"reasonably necessary to accomplish the essential needs of the state and public order."' Bahl, 164 Wn.2d at 757 (internal quotations marks omitted) (quoting Riley, 121 Wn.2d at 37-38). The compelled confession and apology in this case fails that requirement also. In fact, under controlling Supreme Court precedent, compelled speeches and pledges are probably the worst ways to teach remorse or anything else: "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Barnette, 319 U.S. at 632-33. I respectfully dissent.

June 23, 2016 in Current Affairs | Permalink | Comments (0)

One Night Stand

The Arizona Presiding Disciplinary Judge has approved a consent disposition of a reprimand and probation for six months, subject to early termination.

The issue

Mr. Armenta was hired to represent a client in divorce proceedings. The client paid a significant retainer. Mr. Armenta acknowledges his fee agreement did not contain language advising the client of the right to discharge Mr. Armenta and be entitled to a refund of all or a part of the fee. Mr. Armenta and the client developed romantic feelings towards each other, he engaged in a one-time sexual relationship with the client, and he continued to act as counsel despite the significant risk that the representation could be materially limited by his personal interest in his client.

The sanction

The parties have stipulated Mr. Armenta has expressed sincere and deep remorse which has also been demonstrated by him significantly discounting the bill of his client. The parties agree Standard 4.33 and 4.64 apply as they stipulate Mr. Armenta engaged in an isolated instance of negligence in failing to provide his client with accurate information regarding the potential conflict. He acted knowingly in his sexual relationship but acted negligently failing to consider the romantic relationship might have affected his representation. The parties agree suspension is the presumptive sanction but stipulate the mitigating factors warrant reprimand due to his remorse coupled with his full and free disclosure and cooperative attitude towards these proceedings. Mr. Armenta has no prior disciplinary history. The probation is to be a one-time LOMAP fee agreement consultation, effective in thirty (30) days plus costs of $1,200 to be paid within thirty (30) days.

Part of the consent disposition process in Arizona involves notice to the complainant and an opportunity to object.

She did.

The objection of complainant is appreciated and exposes the injury caused to her by Mr. Armenta and his damage to the legal profession. This judge appreciates and respects the candid assessment in the objection. That objection raises important issues and concerns. The concluding observations of complainant are that the actions of Mr. Armenta “should be publicized in the glossy magazine Arizona Attorney for all other attorneys to see…”

The ethical chain between the lawyer and client are built with links of expectation. Mr. Armenta admittedly broke that chain when he failed in his ethical obligations and his reputation is bound to the disregard of his client. However, our Supreme Court has stated attorney discipline is not intended to punish the offending attorney, although the sanctions imposed may have that incidental effect. In re Swartz, 141 Ariz. 26 6, 686 P.2d 1236 (1984). Contrary to the assertion of complainant, the proposed reprimand is a formal sanction. That sanction is public, not private. The actions of Mr. Armenta are not excused. While his conduct may be published in the Arizona Attorney magazine, that publication is not a sanctioning body and the information is not designed to harm the attorney but to protect the public.

(Mike Frisch)

June 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Board To Consider Ethics Of Marijuana Advice, Use

From the web page of the Ohio Supreme Court

The Board of Professional Conduct has received two requests from attorneys seeking ethical guidance regarding H.B. 523, signed by Gov. John R. Kasich on June 8. The law permits Ohio doctors to prescribe marijuana for qualified patients and permits the cultivation, processing, and dispensing of medical marijuana through the issuance of various state-regulated licenses.

The questions submitted to the Board concern: (1) the scope of services Ohio attorneys may provide to businesses that directly or indirectly engage in businesses related to the cultivation and sale of medical marijuana; (2) attorney ownership in related businesses; and (3) personal use of marijuana by an Ohio attorney. The Board’s Advisory Opinion committee is currently working with Board staff to research the relevant issues and expects to make a recommendation to the Board in August.

The Board is authorized by the Supreme Court Rules for Government of the Bar of Ohio Rule V, Section 2(D) to issue nonbinding advisory opinions in response to prospective or hypothetical questions regarding the application of the Ohio Rules of Professional Conduct. Attorneys with questions about medical marijuana not presently before the Board may submit written questions for consideration on or before July 11 to the attention of Director Richard Dove at

This is clearly a hot topic as Nevada is also studying it.

The Nevada Supreme Court will review a proposed comment to be added to the state rules of professional conduct for lawyers relating to the state’s medical marijuana laws at 1 p.m. on July 7, 2016 in Las Vegas. The hearing will be videoconferenced to the Nevada Supreme Court Courtroom in Carson City.

The Supreme Court invites comment from attorneys and the public regarding the proposed comment and whether additional changes to the state rules are warranted. Send original written comments, and 8 copies, by 5 p.m. on July 1, 2016 to Tracie K. Lindeman, Clerk of the Supreme Court, 201 South Carson Street, Carson City, Nevada 89701. Comments submitted electronically will not be filed.

In 2014, the Supreme Court added a comment to the rules allowing Nevada attorneys to counsel clients regarding medical marijuana decisions. The new comment seeks to inform attorneys that federal law prohibits the sale, use, or possession of marijuana, and engaging in such behavior, even where allowed by state law, could result in prosecution and the threat of attorney misconduct.

The public hearing is a result of the State Bar of Nevada seeking guidance from the court regarding attorney participation in the medical marijuana industry.

(Mike Frisch)

June 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 22, 2016

Wrong Way To Censure

An attorney who was twice found to be driving while intoxicated drew a public censure from the New York Appellate Division for the Second Judicial Department.

On April 12, 2014, the respondent was arrested and charged with reckless endangerment in the first degree in violation of Penal Law § 120.25, a class D felony, and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), an unclassified misdemeanor.

On July 16, 2014, the respondent pleaded guilty to reckless endangerment in the second degree in violation of Penal Law § 120.20, a class A misdemeanor, and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), an unclassified misdemeanor, in full satisfaction of all charges.

In his plea allocution, the respondent admitted that he operated a motor vehicle while intoxicated, and that he drove in the wrong direction on the Saw Mill River Parkway.

On November 5, 2014, the respondent was sentenced to a period of three years of probation, and was fined $500, along with a $605 surcharge.

On the plus side

In determining an appropriate measure of discipline to impose, this Court has considered the following factors in mitigation: the respondent's voluntary efforts at rehabilitation, his sincere statements of remorse, numerous letters and affirmations attesting to the respondent's good character, and his unblemished disciplinary record.

(Mike Frisch)

June 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reinstated To Retire

An attorney who was disbarred for dishonest conduct in 2007 has been reinstated in Maryland.

But hold the congratulations because there is this

ORDERED, that Petitioner, upon taking in open court and subscribing to the oath of attorneys required by MD Code (2004), Business Occupations and Professions Article Sec. 10-212, be reinstated as a member of the Bar of Maryland on the condition that Petitioner agree he will apply immediately following reinstatement for placement on inactive/retired status with the Client Protection Fund and thereafter remain inactive permanently...

Welcome back (sort of). (Mike Frisch)

June 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)