Thursday, September 19, 2019

Sanction For Lawyering While Intoxicated

Dan Trevas describes a bar discipline decision on the web page of the Ohio Supreme Court

An Ashland lawyer who attempted to represent a client in a felony trial while intoxicated was suspended for two years with 18 months stayed by the Ohio Supreme Court today.

A unanimous Supreme Court agreed to the partially stayed suspension of Brian J. Halligan, but the justices split on the terms of the monitored probation it imposed. Halligan was found to have violated multiple professional conduct rules when he appeared intoxicated in court while representing a client and again when he went to answer for his own alcohol-related traffic violations.

The per curiam opinion stated that Halligan violated additional rules by failing to diligently represent a client by providing incompetent representation to another client, and for failing to return unearned fees to two clients.

Judge Stops Trial, Attorney Arrested Shortly after Leaving Courthouse

In November 2016, Halligan was appointed to represent a client, who had been indicted on five felony charges. In December 2016, Halligan was charged with operating a vehicle under the influence of alcohol (OVI) and failing to stop with assured clear distance. He was granted limited driving privileges.

The client’s case was set for a jury trial in late January 2017. On the morning of the trial, the client noticed that Halligan smelled of alcohol and was slurring his words. Court personnel overheard the accusations and alerted the judge. The judge asked Halligan if he had been drinking that morning and Halligan denied that he had. The judge noted that court personnel found Halligan smelled of alcohol and that Halligan refused to submit to a breath-alcohol test.

The judge removed Halligan from the case and delayed the trial. Halligan left the courthouse and was seated in his car when law enforcement officers observed signs of intoxication and arrested him. A blood-alcohol test conducted about four hours after the jury trial had been scheduled to start showed that Halligan had a blood-alcohol concentration of nearly 0.11 percent, which is above the legal threshold of .08. Halligan was charged with having physical control of a vehicle while under the influence of alcohol and his limited driving privileges were revoked. Halligan claimed he did not receive notice of the revocation.

Attorney Arrested Again after Court Appearance
Halligan appeared at a March 2017 hearing for his January physical-control offense. Court security and others once again noticed Halligan smelled of alcohol, and police noticed he had driven himself to the courthouse despite the fact that his driving privileges had been revoked. After the hearing, Halligan left the courthouse and drove away. When law enforcement officers stopped and questioned him, Halligan admitted to drinking vodka the night before but denied any subsequent drinking.

He was charged with OVI and driving under suspension. A sample taken that day showed a blood-alcohol concentration of .037 percent, which is below the legal limit.

Halligan later pleaded guilty to the January charge of having physical control of a vehicle while under the influence and driving under suspension. The March OVI charge was dismissed. He was sentenced to 30-day and 60-day jail terms, for which he was required to serve only three days. He also was fined and placed on probation for one year. At a subsequent hearing, he pleaded guilty to the December 2016 OVI charge and was sentenced to 180 days in jail, with 177 days suspended. He was also fined, and had his driver’s license suspended.

Complaints Arose from Client Representation
In addition to the alcohol-related charges, Halligan received complaints from two other clients about his representation. One client expressed dissatisfaction with Halligan’s failure to return text messages. Halligan did not receive or respond to the messages because officers had seized his cell phone during his January arrest and kept it for three months.

The Office of Disciplinary Counsel charged Halligan with multiple violations of the rules governing the conduct of Ohio attorneys. The parties stipulated to the facts and misconduct. The Board of Professional Conduct found Halligan violated several rules, including those that prohibit lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and conduct that adversely reflects on the lawyer’s fitness to practice law. The board also found that he violated rules that require lawyers to keep clients reasonably informed about their matters and to promptly return unearned fees.

Court Disagrees on Sanction
The Court agreed with the board’s recommendation that Halligan be suspended for two years with 18 months stayed on the conditions that he engage in no further misconduct; submit proof that he has completed an alcohol-related assessment by the Ohio Lawyers Assistance Program (OLAP); complied with any terms arising from the OLAP assessment; and paid $311 in restitution to two clients. In order to be reinstated to the practice of law, Halligan will be required to demonstrate that he has completed his court-ordered probation, abstained from using alcohol, and paid the cost of the disciplinary proceedings. If reinstated to the practice of law, he must serve 18 months of monitored probation.

Chief Justice Maureen O’Connor and Justices Judith L. French and Michael P. Donnelly joined the per curiam opinion. Justice Melody J. Stewart concurred in judgment only.

Justice Sharon L. Kennedy concurred in part and dissented in part, stating the court should have established specific conditions for Halligan’s 18-month probation.

“[O]ur failure to attach conditions to probation is more than a missed opportunity to set the criteria and goals for professional redemption, it is an abdication of our duty under the Rules for the Government of the Bar,” she wrote.

Justice Kennedy stated that the Court must establish conditions every time it imposes probation as required by the Rules, and without specific conditions designed to protect the public and rehabilitate the lawyer, “monitored probation has little value.”

Justice R. Patrick DeWine joined Justice Kennedy’s opinion.

Justice Patrick F. Fischer concurred with the Court majority, but wrote separately to address the assertion that the Court is required to specify the terms of monitored probation. Justice Fischer stated the Court has the discretion to impose specific conditions or allow for a more general term of probation that gives the disciplinary counsel more flexibility in determining the best way to proceed with the monitoring.

2018-1090. Disciplinary Counsel v. Halligan, Slip Opinion No. 2019-Ohio-3748.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/09/sanction-for-lawyering-while-intoxicated.html

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Comments

Talk about a split decision. If the members of the court cannot agree on the meaning of the rules that govern the court, will they fix the problem? It reminds me of what the lady said when she saw the police beating someone: “I wanted to call the police, but they were the police.”

Posted by: George Fleming | Sep 20, 2019 5:53:03 AM

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