Legal Profession Blog

Loose Lips

A former Cook County Circuit Court Judge has been charged with an ethics violation by the Illinois Administrator for comments he made when he thought he was not being live-streamed after a hearing where counsel had participated remotely

Respondent, mistakenly believing that the virtual feed of his courtroom had ended, then engaged in a conversation with the Assistant State’s Attorneys and Assistant Public Defenders physically present in his courtroom about the just concluded Myles matter, and, specifically, about Mr. Myles’s attorneys, Ms. Bonjean and Mr. Kennedy. During that conversation, Respondent, referring to Ms. Bonjean, stated: “Did you see her going nuts? Glasses off, fingers through her hair, the phone’s going all over the place. It’s insane.” Respondent further stated that Ms. Bonjean’s behavior “was entertaining” for him and inquired: “Can you imagine waking up to her every day? Oh my God.” Respondent further stated, “You know what? I couldn’t have a visual on that if you paid me. There you have it.”

During the conversation described...above, Respondent also mocked and ridiculed Attorney Sam Kennedy. When a question was raised regarding who Attorney Sam Kennedy was, Respondent stated, “That’s her [Ms. Bonjean’s] man child.”

Ms. Bonjean learned of Respondent’s comments described in paragraphs four and five, above, later in the day on January 11th. Ms. Bonjean then filed a motion to preserve the livestream recording of Respondent’s courtroom from January 11, 2022. On January 13, 2022, after Ms. Bonjean filed the motion, the presiding judge of the 5th District of the Circuit Court of Cook County, the Hon. Erica Reddick, reassigned Mr. Myles’s matter to the Hon. Carol Howard.

On January 17, 2022, in connection with the allegations above, the Judicial Inquiry Board charged Respondent in case number 22 CC 2 with conduct that was prejudicial to the administration of justice and that brought the judicial office into disrepute, in violation of the Code of Judicial Conduct, Illinois Supreme Court Rule 61, Canon 1; Rule 62, Canon 2(A), and Canon 3(A)(2), (A)(3), and (A)(9).

On January 18, 2022, the Chief Judge of the Circuit Court of Cook County placed Respondent on restrictive duties. On November 6, 2022, Respondent resigned from his position as a judge. On December 2, 2022, Illinois Courts Commission dismissed the pending case against Respondent, finding that it lacked jurisdiction to hear the matter as Respondent was no longer a sitting judge.

The disparaged attorney has had an interesting career as reflected on her web page biography

After college, Bonjean attended the Manhattan School of Music where she earned a Master’s Degree in Music in Opera Performance.

After the switch to law

Since 2014, Bonjean has successfully overturned the convictions of no fewer than thirteen individuals wrongly convicted of crimes they did not commit. Bonjean has also successfully tried or settled 1983 civil rights cases totaling over $20 million dollars.

Specifically, in 2017, Bonjean obtained the largest settlement for a civil rights case in the state of New Jersey in the case of Castellani v. City of Atlantic City, et. al., 13 CV 6667, a police brutality, malicious prosecution and Due Process case with a Monell claim. The case was settled at $3,000,000.

In 2019, a jury awarded $5.2 million to Plaintiff Stanley Wrice in the matter of Wrice v. Byrne, et. al., 14 CV 5934 after they found that he was beaten into confessing to a brutal rape by Area Two Detectives. Mr. Wrice spent 31 years in prison for a crime he didn’t commit.

Bonjean represented Bill Cosby on his appeal before the Pennslyvania Supreme Court. In June 2021, Mr. Cosby’s conviction was overturned when the Court found that Mr. Cosby’s due process rights were violated when a non-prosecution agreement with a previous prosecutor meant that Mr. Cosby should not have been charged in the first place.

Additionally, in September 2021, BLG client Armando Serrano and his co-Plaintiff Jose Montanez received a $20.5 million settlement after serving 23 years in prison for crimes they didn’t commit after being framed by a former Chicago police detective.

Respondent is charged with engaging in conduct prejudicial to the administration of justice in violation of Illinois RPC 8.4(d). (Mike Frisch)

Tracking

A complaint recently filed by the Illinois Administrator alleges that the Respondent engaged in criminal conduct

Between May of 2021 and June of 2022, Respondent and an individual identified in this complaint as J.Z. engaged in a romantic relationship. In April of 2022, J.Z. drove her car to visit Respondent at his law office in Chicago. While J.Z. was at his office, and unbeknownst to J.Z., Respondent placed an electronic tracking device underneath the front passenger seat in J.Z.’s car. Respondent placed the electronic tracking device in J.Z.’s car so that he could monitor J.Z.’s location and surveil her without her knowledge.

Prior to placing the electronic tracking device in J.Z.’s car, Respondent did not know the location of J.Z.’s residence. Using the information from the tracking device he placed in J.Z.’s car, Respondent discovered the location of J.Z.’s residence, and thereafter travelled to J.Z.’s residence multiple times, without J.Z.’s knowledge, to surveil J.Z. On two of those occasions, Respondent placed new electronic tracking devices on the undercarriage of J.Z.’s car. Respondent placed the subsequent electronic tracking devices on J.Z.’s car because he was concerned that the prior devices would run out of battery power, which would render him unable to continue his secret surveillance of J.Z.

On July 28, 2022, while cleaning the inside of her car, J.Z. found the electronic tracking device Respondent placed underneath the front passenger seat of her car, described...above. J.Z. contacted the police to report her discovery of the electronic tracking device.

The police investigation of cell phone data obtained through a warrant  revealed that Respondent was in the immediate area of J.Z,'s residence on nine occasions.

In the ensuing criminal case

On July 27, 2023, the Cook County State’s Attorney’s Office (“CCSAO”) voluntarily dismissed Count One (burglary) and Count Three (stalking). The CCSAO amended the stalking charge in Count Two to unlawful use of an electronic tracking device, a Class A misdemeanor, in violation of Chapter 720, Section 5.0/21-2.5-B of the Illinois Compiled Statutes. On the same day, Respondent pled guilty to the amended Count Two. Judge Martin sentenced Respondent to one year of court supervision and ordered Respondent to pay $437 in fines and costs. Judge Martin further granted J.Z. a three-year order of protection, scheduled to terminate on July 23, 2026, which prohibits Respondent from having any contact with J.Z.

(Mike Frisch)

Chesebro Charged With Election Interference

Kenneth Chesebro has been charged with ethics violations by the Illinois Administrator 

Between November 2, 2020 and January 6, 2021, Respondent chose not to accept that incumbent President Donald J. Trump (“Trump”) had lost the 2020 election to Joseph R. Biden (“Biden”), and joined in a scheme to unlawfully change the outcome of the election in Trump’s favor. Respondent’s participation in that scheme, first as a lawyer engaged by the Wisconsin Republican Party in recount efforts in that State and later as a lawyer working directly for the Trump Campaign, was wide-ranging and lasted over a period of two months. Through his participation in the scheme, Respondent attempted to unlawfully subvert the Electoral College process in seven different States where Trump lost the 2020 presidential election so that Trump could remain in power. The State of Georgia subsequently charged Respondent with multiple felony counts of fraud pertaining to his participation in the scheme, and Respondent pled guilty to one of those counts, admitting to felony offense of Conspiracy to Commit Filing False Documents.

The complaint lays out Respondent's contacts with several others post-election

In each of the legal theories and strategies Respondent communicated to individuals in the Trump Campaign, described...above, Respondent advocated to the Trump Campaign and to Trump’s personal lawyers that members of the Congress of the United States and various State legislators should take actions that exceeded their constitutional and statutory powers in order to prevent Biden being declared the winner of the 2020 presidential election. When Respondent advocated for these legal theories and strategies, he knew that they called for Members of the Congress and State legislators to assert powers they were not provided in either the Constitution of the United States or State constitutions.

Respondent’s role in the scheme was not limited to his advocacy in support of unlawful legal theories. He also executed those strategies by personally drafting fraudulent electoral ballots, organizing illegal meetings of purported Trump elector nominees, and arranging for those illegitimate slates of Trump elector nominees to be presented to Congress on January 6, 2021, as described below. In addition, Respondent attempted to keep those illegal meetings secret until the purported Trump elector nominees had cast their illegitimate ballots, as described below.

Consequences

Respondent’s advocacy for and coordination of lawless activity in the days and weeks leading up to January 6, 2021 had practical consequences. On January 5th and 6th of 2021, Trump made various public statements falsely asserting that then-Vice President Pence had the power to decline to count the electoral votes during the January 6, 2021 joint session of Congress. In making those statements, Trump in large part was repeating the arguments Respondent made to Giuliani in his December 13, 2020 “President of the Senate” email, described in paragraph 11, above.

Georgia criminal proceedings

On August 31, 2023, Respondent, through counsel, waived formal arraignment on the charges and pled not guilty to all counts alleged against him in the indictment. On October 20, 2023, Respondent appeared before Judge McAfee and entered a plea of guilty on Count 15 of the indictment, which charged that he had committed the felony offense of Conspiracy to Commit Filing False Documents in violation of Title 16, Section 16-4-8 of the Georgia Code. In exchange for Respondent’s plea of guilty to Count 15 of the indictment, the State of Georgia dismissed the remaining six counts against him. Judge McAfee sentenced Respondent to five years of probation as a first-time felony offender pursuant to Title 42, Section 8-60 of the Georgia Code. Special conditions of Respondent’s probation included that he perform 100 hours of community service, pay a fine of $5,000 to the Georgia Secretary of State, testify truthfully at all hearings or trials involving his codefendants, have no communication with co-defendants, witnesses, or media until all cases are closed, and write an apology letter to the State of Georgia. In accord with Title 42, Section 8-60 of the Georgia Code, Judge McAfee ordered that, upon fulfilment of his sentence or upon release of Respondent by the court prior to the termination of the sentence, Respondent will stand discharged of the offense without court adjudication of his guilt and shall be completely exonerated of guilt of the offense.

(Mike Frisch)

Scout's Dishonor

The July 2024 edition of the Oregon State Bar Bulletin reported that an attorney has resigned after self-reporting a felony conviction.

Oregon Live reported on the crimes

The case began in 2021 after a woman reported to the Washington County Sheriff’s Office that Bauer had abused her when she was a child.

She spoke briefly in court, telling Bauer that the abuse she withstood left her “damaged and broken.” She said he abused her in front of a younger girl and one time had drugged her.

 

After Bauer’s arrest was publicized in 2021, a former legal advisor for the Boy Scouts of America contacted the Washington County Sheriff’s Office and shared internal Boy Scouts documents that revealed that more than a decade before the girl’s abuse, Bauer had been kicked out of two different Boy Scout troops and placed on the “ineligibility” list for future volunteering in 1993 for inappropriate contact with two scouts, according to Senior Deputy District Attorney Marie E. Atwood and court records.

 

Bauer had exhibited “prolific grooming behavior,” exposing himself to scouts, inappropriately touching them and making sexualized comments, Atwood said.

 

Boy Scouts of America never reported Bauer’s conduct to police, even after kicking him out of the organization, she told the court. But the organization did turn over to Washington County investigators hundreds of pages of documents detailing the disciplinary proceedings Bauer faced.

 

The detectives used those records to identify eight additional victims, Atwood said. The statute of limitations has expired for charges in many of those cases, she said.

 

One former scout told the detectives that Bauer had repeatedly touched him when he was in seventh grade while he was in a sleeping bag, Atwood said.

 

Another said he was 10 when Bauer molested him and touched his genitals during an “unsolicited massage,” according to court papers. Another scout said Bauer had taken only him on a trip where Bauer molested him, according to the documents.

The Boy Scout records showed that when Bauer was dismissed from the organization, he told Paul Lorenzini, of the Boy Scouts of America’s Cascade Pacific Council: “I would like to continue to be involved in Scouting, but with restrictions that prevent me from doing things like this. I know you have other options, probation perhaps. It’s something I have had difficulty with, not just in Scouting.”

 

Investigators also learned that Bauer had been terminated from multiple volunteer jobs as a result of his inappropriate conduct around children, Atwood said.

According to Washington County investigators, Bauer had also volunteered with Alpenrose Dairyvill, Neah-Kah-Nie High School, Portland Revels, the Rockaway Beach Police Department and the Tillamook Association for the Performing Arts.

Investigators said they found allegations of Bauer’s misconduct dating back to the 1970s, although Bauer had never been convicted of a sexual offense in Oregon, according to the state’s online court case database.

 

While Atwood described the negotiated sentence as a “good result,” she said it still doesn’t “suffice in any way” for Bauer’s alleged repetitive child abuse.

 

“It’s not particularly satisfying to the state or to the victims,” she said.

Defense lawyer Steven J. Sherlag called the sentence an “appropriate” resolution of a “difficult situation for everybody.”

One of the documents that the Boy Scouts of America shared with investigators was an unsolicited short story titled “A Touching Problem,” that Bauer had submitted to Scouting Magazine, which described child sex abuse allegations “eerily similar” to those he had been accused of within the organization, according to court documents.

 

It’s about a scout who confides to his mother about a troop leader who touched him inappropriately at summer camp but then ends with the scout claiming to his mother that he loves the leader, according to court documents. The story closes with the troop leader kissing the scout while they cuddle by a campfire, according to court papers.

Bauer had repeatedly written his name in place of the troop leader’s name in the story “in what appear to be Freudian slips of sorts,” Atwood wrote in a memo to the court.

Along with the story he submitted, Bauer wrote a letter to the magazine detailing his frustration with the Boy Scouts of America’s rules against physical contact with children.

 

The story was never published but was cited as particularly concerning in the Boy Scouts internal investigation and decision to bar Bauer from any work or volunteering for the organization, according to Atwood.

 

If the case had gone to trial, Atwood said she intended to offer the Boy Scout evidence and testimony from other alleged victims.

 

(Mike Frisch)

 

Administrator Alleges Ethics Violations

The illinois Administrator has filed a complaint alleging ethics violations in Respondent's representation of a client in a federal court action and with respect to his words and deeds after his client retained new counsel in the underlying matter and sued him

Beginning in 2016, Respondent and an individual with the initials J.M. (“J.M.”) agreed that Respondent would represent J.M. in a civil rights matter alleging that DeKalb School District No. 428 (“District 428”) allowed non residents to enroll in school within the district and therefore violated the civil rights of the district’s taxpayers by requiring them to pay for the nonresidents’ education. On October 4, 2017, Respondent filed a lawsuit on behalf of J.M. The case was docketed in the United States District Court for the Northern District of Illinois, Western Division, as John Doe, et al. v. Community Unit School District No. 428, et al., case number 2017- CV-50307 (“District Matter”). 

When the case foundered, the client retained new counsel

On February 25, 2020, Keith Foster (“Foster”) of the firm Foster, Buick, Conklin, Lundgren & Gottschalk, LLC (“Foster Buick”) sent a letter to Respondent. In the letter, Foster informed Respondent that Foster Buick had been retained by J.M. to facilitate J.M.’s exit from the District Matter. Foster also informed Respondent that, while J.M. intended to fight any claims by District 428 for fees, J.M. also planned to pursue recoupment of fees paid to Respondent for the District Matter and any amount of District 428’s fees ordered by the federal court. Foster asked Respondent to “please notify your insurance carrier immediately … as we assume they will want to be, at a minimum, advised, and potentially even involved with the ongoing fee dispute in federal court.

On May 29, 2020, Respondent sent an email to J.M. and Foster. Respondent attached pages of typed case notes to his email, and those notes, quoted from the August 16th prehearing, claimed that the delays in the case “makes it look like the judge knows the school is wrong, and that the school attorney tried to ‘cook the books.’”

Respondent’s statements that Judge Johnston “knows the school is wrong, and that the school attorney tried to ‘cook the books’” were false or made with reckless disregard of the truth, because Respondent had no objectively reasonable factual basis for the statements that Judge Johnston “knows the school is wrong, and that the school attorney tried to ‘cook the books.’”

Then

On February 28, 2020, District 428 filed a petition for fees alleging that Respondent had filed frivolous pleadings in the District Matter.

On March 29, 2021, the court granted District 428’s petition for fees finding:

[Respondent’s] attempt to litigate state taxation issue in federal court was frivolous and without grounds from the outset.

This long history of jurisprudence should have alerted the plaintiffs before they ever filed suit that the doctrine of comity barred their claims from proceeding in a federal forum.

A suit alleging legal malpractice

On May 12, 2021, attorney Thomas Gooch (“Gooch”) filed a complaint on behalf of J.M. against Respondent in the Circuit Court of DeKalb County alleging legal malpractice and excessive fees. The clerk of the circuit court docketed the case as J.M. v. Michael P. Coghlan, case number 21 L 45 (“The J.M. Matter”). The case was assigned to Judge Bradley Waller.

Allegations in Respondent's defending the suit

On August 4, 2022, Respondent filed a reply to J.M.’s motion to strike and a response to J.M.’s motion to strike. Respondent also filed a “reply affidavit” and attached exhibits to his affidavit. Respondent’s attachments included, among other things, a police report of an incident involving J.M., a State Police Firearm Disposition Record for J.M., a copy of a Facebook post from Hinshaw and Culbertson with a photo of Judge Mary Rowland and Judge Pallmeyer at a reception at Hinshaw and Culbertson, transcripts, and a screenshot of a website entitled “corruptionpedia” discussing Hinshaw and Culbertson.

Respondent’s attachment of a police report involving J.M. and a State Police Firearm Disposition Record for J.M. served no purpose other than to embarrass, delay, or burden J.M.

Respondent handwrote notes purporting to be quotes from J.M. in the margins of his attachments. Respondent’s notes included the following:

[J.M.]: Fixes for favors rather than cash in envelopes

[J.M.]: “I told the judge five times that this had to be done before Aug 15th cost of millions of dollars”

[J.M.]: The next day order looks like a fix.

[J.M.]: The judge blocked my injunction without a hearing. The fix was in

[J.M.]: It cost $6.6MM to delay 1 day after school starts this was no accident. The fix was in.

Respondent handwrote notes in the margins of the October 29, 2018, transcript of proceedings before Judge Johnston. Respondent’s notes included the following:

Judge acknowledges exparte (extrajudicial) allegation? appearance of exparte Hinshaw claims to know the judges extrajudicial reasons for 248 days of postponement?

Judge blocking 8.3 reporting?

Judge acting as prosecutor and blocking the correction of the judges misstated evidence?

Judge again misstates the exhibit – Judge “testifying” falsely, and asking a false premise in his prosecution rule violating 455?

False statement by the judge? (Inside Joke)

There are further alleged false statements in open court.

Respondent’s statements that the judiciary repeatedly defied rules and laws to retaliate against him, that there was a pattern of judicial misconduct consistent with US v. Murphy and that Judge Buick used “extrajudicial influence to require her associate judges to defend her husband’s law firm,” were false or made with reckless disregard of the truth, because Respondent had no objectively reasonable factual basis for the statements that the judiciary repeatedly defied rules and laws to retaliate against him, that there was a pattern of judicial misconduct consistent with US v. Murphy and that Judge Buick used “extrajudicial influence to require her associate judges to defend her husband’s law firm.”

Concerning opposing counsel

Respondent’s statements in his pleading...were intended to embarrass, delay, or burden Foster, attorneys at Foster Buick, and attorneys at Hinshaw.

Opposing counsel filed a bar complaint

On February 24, 2023, Respondent filed a pleading entitled “Claims/Complaint Against – J.M. Properties.” In the pleading, Respondent claimed that J.M., judges, and lawyers all worked in concert to pursue a $450,000 fraudulent insurance claim against Respondent’s malpractice insurer. As exhibits, Respondent attached the February 25th letter from Foster and a diagram. In the diagram, Respondent accused Lester, Hinshaw, Judge Johnston, the Federal Court clerks, Judge Pallmeyer, the Executive Committee of Judges, J.M., J.M. Properties, Foster, Lundgren, Gooch, Judge Voilland, Judge Klein, and [ARDC attorney] Guzman of conspiring to violate federal and state law.

Respondent’s diagram served no purpose other than to embarrass, delay, or burden Lester, Hinshaw, the Federal Court clerks, J.M., J.M. Properties, Foster, Lundgren, Gooch, and Guzman.

Motion to dismiss

On June 22, 2023, Respondent appeared before Judge Klein in relation to case 21 L 45 for a hearing on motions to dismiss.

Allegations flowing from that hearing

Respondent’s statement that Judge Klein was engaged in a criminal enterprise was false or made with reckless disregard of the truth, because Respondent had no objectively reasonable factual basis for the statements that Judge Klein was engaged in a criminal enterprise.

At the time Respondent made the statement in court that Judge Klein was engaged in a criminal enterprise, he knew his representation was false or made with reckless disregard of the truth. When Respondent made the statements, he had no objectively reasonable factual basis to support such statements.

(Mike Frisch)

Interlocutory Review Denied To Jeffrey Clark

The District of Columbia Court of Appeals has dismissed Jeffrey Clark's petition for interlocutory review of orders entered in his disciplinary case, in effect, denying his attempt to circumvent the Board on Professional Responsibility's review of the hearing committee recommendation of a two year suspension.

Mr. Clark does not cite, and we are not aware of, any authority supporting the idea that there is a right to immediate judicial review in such circumstances, whether in the context of disciplinary proceedings or otherwise.

The order issued yesterday was entered by a panel consisting of Associate Judges McLeese and Deahl and Senior Judge Steadman, with Judge McLeese indicating that he would favor full briefing and review of the petition.

The Board in turn entered an order today setting the briefing schedule and page limits.

Links to orders here. (Mike Frisch)

Surcharges And Other Charges

An associate attorney's report of misconduct led to findings that drew a censure from the New Jersey Supreme Court.

The misconduct was described by the Disciplinary Review Board

First, in eight client matters (Elite Transcripts, Inc.; the Estate of Rochelle Lewis; the Estate of Iannoaccone; the Walker Guardianship; the Walker Foreclosure; the Estate of Paylor-Koffi; the Estate of Franklin Anthony; the Estate of Shaughnessey; and in connection with the representation of Jim Steiner), respondent admittedly imposed a prohibited, two-percent surcharge on billed fees for “costs incurred and not otherwise billed. Respondent conceded that, pursuant to ABA Comm. on Ethics and Professional Responsibility, Formal Op. 93-379, (December 6, 1993) (entitled “Billing for Professional Fees, Disbursements and Other Expenses”), such a surcharge is prohibited and constitutes a per se violation of RPC 1.5(a). Moreover, the OAE’s investigation revealed that, in some client matters, the Firm billed clients for actuals costs and further billed clients the two-percent charge “for costs incurred and not otherwise billed.”

Respondent’s fee overreaching did not, however, occur solely in connection with the improper, two-percent surcharge. He also committed fee overreaching in the Kaczala matter; the Estate of Rochelle Lewis matter; the Walker Guardianship matter; the Paylor-Koffi matter; and the Rauch matters by engaging in “omnibus” billing without supporting billing records.

Next, respondent committed fee overreaching, by other means, in two client matters. In the Concetta Hagel matter, he improperly applied Concetta’s retainer to her son Matthew’s matter without written authorization to do so. In the Dorothy Dobak matter, he improperly retained the client’s $610 retainer balance without her written authorization.

Respondent committed final acts of fee overreaching in the Estate of Doris Krisa matter, the Estate of Eda Sharenow matter, and the Estate of Nancy Mamis-King matter by improperly charging legal fees in addition to receiving an executor’s commission, contrary to N.J.S.A. 3B:18-6.

Sanction

Given respondent’s violations of RPC 8.4(d), as exacerbated by his further violations of RPC 1.4(b) and (c), the baseline censure could be enhanced to a short term of suspension. However, to craft the appropriate discipline in this matter, the Board considered the application of aggravating and mitigating factors.

The Board found no aggravating factors independent of the volume of client matters in which respondent overreached and failed to communicate. However, the breadth of that aspect of respondent’s misconduct was considered in setting the baseline discipline and, thus, was not further weighed in aggravation.

In respect of mitigation, the Board accorded substantial weight to respondent’s unblemished disciplinary record since his 1988 admission to the bar. Moreover, respondent stipulated to his wrongdoing and consented to discipline. Years have passed since respondent committed the misconduct under scrutiny, and respondent has not engaged in any other misconduct. Respondent has already made restitution in all three estate matters in which he improperly billed legal fees following his appointment as executor. He further agreed with the Board’s request that he refund to the affected clients the improper two-percent surcharge within sixty days of the Board’s decision in this matter. Proof that those refunds have been remitted and the checks honored shall be provided to the OAE within that same sixty-day period. The Board determined that a term of suspension, thus, is not necessary to protect the public and preserve confidence in the bar.

Washington State Sanctions

The Washington State Bar News has a summary of recent sanctions

Justin C. Osemene (WSBA No. 28082, admitted 1998) of Mill Creek, WA, was reprimanded, effective 3/12/2024, by order of the chief hearing officer. Chris Chang acted as disciplinary counsel. Anne I. Seidel represented respondent.

The lawyer’s conduct violated the following Rules of Professional Conduct: 3.5 (Impartiality and Decorum of the Tribunal).

Osemene stipulated to reprimand for violating the Rules of Professional Conduct by communicating ex parte with three Washington Supreme Court justices regarding a case pending before the Washington Supreme Court.

Decision documents: Order Approving Stipulation; Stipulation to Reprimand; and Notice of Reprimand.

Respondent had filed a wrongful foreclosure complaint against his homeowners association. After losing below, he had mailed packages to Chief Justice Gonzales and Justices Whitener and Yu asking that they intervene to prevent a miscarriage of justice.

He did not copy opposing counsel due to his "good faith but erroneous belief" that he was not obligated to do so as a pro se litigant.

Hugo Cornelius Johnson IV (WSBA No. 45342, admitted 2012) of Seattle, WA, resigned in lieu of discipline, effective 5/16/2024. The lawyer agrees that they are aware of the alleged misconduct in disciplinary counsel’s Statement of Alleged Misconduct and rather than defend against the allegations, they wish to permanently resign from membership in the Association. Claire Carden acted as disciplinary counsel. Hugo Cornelius Johnson IV represented themselves.

The Statement of Alleged Misconduct reflects the following violations of the Rules of Professional Conduct: 8.4(b) (Criminal Act), 8.4(g) (Discriminatory Act), 8.4(i) (Moral Turpitude, Corruption or Disregard of Rule of Law), 8.4(j) (Violate a Court Order), 8.4(n) (Conduct Demonstrating Unfitness to Practice Law).

Hugo Cornelius Johnson IV’s alleged misconduct includes: 1) committing the crime of attempted hate crime in violation of RCW 9A.28.020 and 9A.36.080(l)(a)-(c); 2) committing assault in the fourth degree – sexual motivation in violation of RCW 9A.36.041 and RCW 9.94A.030(48); 3) committing simple assault in violation of 18 U.S.C. §113(a)(5); 4) willfully violating a court order directing respondent not to consume alcohol.

Decision document: Resignation Form of Hugo Cornelius Johnson IV (ELC 9.3(b)).

The decision document recounts that the simple assault involving a guilty plea and that charges of interference with a flight crew members and attendants were dismissed.

The attempt hate crime "occured immediately after a firm sponsored social event" and that the victimes were all law firm employees. (Mike Frisch)

"Voluminous And Well Documented"

The Washington State Supreme Court has disbarred an attorney

In this attorney discipline proceeding, Thi Anh Huynh was charged with numerous counts of misconduct, including false representation, theft, and other misconduct involving dishonesty. The hearing officer recommended disbarment, and the Washington State Bar Association (WSBA) Disciplinary Board (Board) unanimously affirmed. Huynh challenges the disbarment recommendation, arguing a number of the hearing officer’s findings of fact and conclusions of law lack adequate support and his due process rights were violated. Huynh asks this court to reverse the Board’s decision and reject the disbarment recommendation. We adopt the Board’s recommendation and disbar Huynh. The hearing officer’s findings of fact are supported by substantial evidence, the conclusions of law are supported by those findings, and Huynh waived his right to raise a statutory defense to theft. On the record as a whole, Huynh misappropriated client and investor funds, attempted to conceal the thefts, and engaged in other intentional conduct involving dishonesty; thus, disbarment is a proportionate sanction.

The allegations related to three transactions; Respondent was admitted in 2006 and had no prior discipline.

He made a number of challenges to the findings of fact

In sum, all of Huynh’s challenges to the findings of fact fail. Some of his challenges are unsupported by argument and therefore those findings of fact are verities on appeal. Marshall, 160 Wn.2d at 330. Those findings that are actually challenged with argument are nevertheless supported by substantial evidence sufficient to persuade a fair-minded, rational person of their accuracy.

And the same conclusion on the rules violated

In sum, all of Huynh’s challenges to the conclusions of law fail because he has not shown that the challenges are unsupported by the findings of fact. Behrman, 165 Wn.2d at 422 (citing Marshall, 160 Wn.2d at 330). We therefore uphold all of the hearing officer’s conclusions of law.

Defense to theft charges

Huynh was charged with violating RPC 8.4(b) by committing theft as defined by RCW 9A.56.020 in counts 3, 6, and 11, which correspond with the hearing officer’s conclusions in COL 73 and 78. DP at 2-3, 19-20. RCW 9A.56.020(2)(a) sets out a statutory defense to theft, where “[t]he property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable.”

Huynh raises for the first time on appeal that he was deprived of the opportunity to raise a defense to theft under this statute.

The failure to raise this issue below waived the contention.

Sanction

Huynh violated numerous rules against mishandling client funds and misrepresenting those actions. The evidence against Huynh is voluminous and well documented, and he demonstrates no mitigating factors for his behavior. Consequently, this is a case where the most serious disciplinary sanction is not only called for but, frankly, demanded by the record. Therefore, we affirm the hearing officer’s findings of fact and conclusions of law, reject Huynh’s due process claims, and adopt the Board’s recommendation to disbar Huynh.

(Mike Frisch)

Ohio Hears Bar Discipline Cases

The Ohio Supreme Court web page lists the bar discipline hearing scheduled for this month.

September 11-12
Disciplinary Counsel v. Ryan Richard Black
Case No. 2024-012
Respondent’s counsel:  Alvin E. Mathews, Jr., Columbus
Hearing location: Moyer Judicial Center, Hearing Room 106, 65 S. Front St., Columbus

September 13 (11:00 a.m. start time)
In re Reinstatement of William Terry Washington, Petitioner; Disciplinary Counsel, Relator
Case No. 1997-036
Petitioner’s counsel: None
Hearing link:
https://us06web.zoom.us/meeting/register/tZIudOmvqzguHNTzgOqXARkHgK5gChThS-1a-

September 16-17
Disciplinary Counsel v. Jeffrey Dwight Hunter
Case No. 2023-035
Respondent’s counsel: None
Hearing location: Moyer Judicial Center, Hearing Room 106, 65 S. Front St., Columbus

September 25
Disciplinary Counsel v. Hon. Russell Dee Kegley
Case No. 2024-014
Respondent’s counsel: Charles J. Kettlewell, Columbus
Hearing location: Moyer Judicial Center, Hearing Room 106, 65 South Front Street, Columbus

13 News WOWK  covered the allegations in the Judge Kegley case

According to the complaint, Judge Russell D. Kegley is accused of violating judicial codes and abusing his power by interfering with a domestic violence case involving the arrest of his son, Case Kegley. It claims the judge did not act in a manner that promotes public confidence and abused the prestige of judicial office, as well as allegedly allowed family relationships to influence judicial conduct.

We reported on the allegations in the Black case

Ohio Disciplinary Counsel has filed a complaint charging the elected prosecutor of Hocking County with creating a hostile work environment "through his unprofessionalism."

In the process of hiring two victim witness advocates, he allegedly asked if it was permissible to say "fuck" in the office and if they would accept "dogshit pay" and hired them both when they answered in the affirmative.

He is charged with erratic behavior, screaming outbursts and keeping a gun in his office which "made staff members afraid of [his] volativity."

He is charged with inappropriate sexual behavior towards an assistant prosecutor, saying as she left a grand jury that her dress made him  "want [her] wrap her legs around his face until she orgasmed." 

There are further allegations of conduct that led that assistant prosecutor to resign.

With respect to one of the victim advocates he hired and could fire, he allegedly "began grooming [her] to engage- in a sexual relationship with him by sending her increasingly sexual text messages."

There is a lot more of this type of conduct alleged in the 30-page charging document.

Scioto Valley Guardian reported that he has resigned effective April 19.

Black is also accused of having a sexual relationship with a client; county commissioner Jessica Dickens.

• • The encounter between Black and Jessica Dickens, a Hocking County Commissioner, occurred on August 2, 2023, and indicates a consensual sexual relationship occurring while Dicken was serving as a client of the county.
  • This behavior violates professional conduct rules prohibiting lawyers from engaging in sexual activity with clients unless a pre-existing consensual relationship existed before the client-lawyer relationship commenced, the board said.

Black is accused of abusing his powerful office for gain:

• • Black’s interactions with Mark Stout, the Hocking County IT Director, demonstrate an abuse of power and misuse of his position as a prosecutor.
  • In on instance, Black was threatening Stout with legal action and attempting to coerce him into prioritizing the prosecutor’s office’s computer issues reflect behavior that adversely reflects on respondent’s fitness to practice law. Black said he was going to criminally charge Stout if he did not stop everything he was doing to focus on the Prosecutor’s office.

The Logan-Hocking Times reported on the controversy 

The Hocking County Republican Party voted unanimously to seek removal of Hocking County Prosecutor Ryan Black from office on behalf of the Republican Party and the citizens of Hocking County.

The discussion for the removal of Black was brought up during Monday night’s monthly meeting demanding his resignation for misfeasance, malfeasance and gross misconduct, which brought disrepute to his office, the criminal justice system, and the citizens of Hocking County who elected him into office four years ago.

The demand for the removal of the Prosecutor comes at the heels of a federal lawsuit filed by two former employees who claim Black used his power and position for sexual favors from women in his office.

Kate Ricketts and Kelsey Vanscyoc, former employees of the Hocking County Prosecutor’s Office, have filed a suit against Hocking County and Prosecutor Ryan Black, alleging loss of wages; loss of pension benefits; loss of insurance benefits; loss of other fringe benefits; loss of the opportunity to be able to continue the gainful employ in which they have been engaged for prior years; loss of future earnings and front-pay; loss of reputation; humiliation, embarrassment and loss of self-esteem; adverse health affects; unequal pay on the basis of their gender; and loss of time and money in endeavoring to protect themselves from the Defendants’ unlawful retaliation, including costs and reasonable attorney fees of the action.

The two women allege that they, along with other women in Black’s office were subjected to “demeaning, degrading, sexist and offensive comments and conduct,” which created a hostile environment. The case was filed in Federal Court at the beginning of February.

Allegedly Ricketts, Vanscyoc and another female co-worker complained on several instances to superiors including Olen Martin, Cynthia Ellison and Justin Townley regarding Black’s inappropriate comments, harassment and actions that created a hostile work environment; however, nothing was resolved.

Ellison has since moved on and is working for the Ohio Attorney General’s Office; and Martin is now the Police Chief in Great Falls, South Carolina.

Monday night, the Hocking County Republican Party took action with the unanimous vote to remove Black from office. Republican Chair Mike Harris and Executive Committee Chair Ray Elzey served Black with a letter demanding his resignation on Tuesday. Black was not in his office but Harris and Kernen delivered the letter at 9:38 a.m.

In the letter signed by Chairman Harris, he said, “Your inability to lead, your abuse of power, and your blatant disregard for your staff, public officials whom are your statutory clients, victims of crime, and the general public, have caused irreparable damage to your reputation as Prosecuting Attorney, and the office which you hold.

You’ve managed to disgrace our entire county. Our citizens cannot pick up a newspaper or watch the news without being reminded of your misdeeds. These are not the values of a true professional, an ethical and moral attorney, or a Republican. Instead of stopping corruption, you perpetrated it.

“We demand that you immediately withdraw your candidacy for Prosecuting Attorney, and tender your resignation to the Board of Commissioners of Hocking County no later than March 20, 2024. If you fail to do so, we, as the Republican Party, supported by many members of our beloved community will seek your removal from office for neglect and misconduct pursuant to Ohio Revised Code Section 309.05.

Whereas, the members of the Hocking County Republican Central and Executive Committees are elected, and appointed, to serve the best interests of the Republican Party, and the citizens of Hocking County, Ohio;

And whereas, the members of the Hocking County Republican Central and Executive Committees shall submit a letter to Ryan Black, the Prosecuting Attorney of Hocking County, demanding his resignation for misfeasance, malfeasance, and gross misconduct, which have brought disrepute to his office, the criminal justice system, and the citizens of Hocking County, whom he wore an oath to serve.

And whereas, the seriousness of his alleged offenses undermines the integrity of his office, which adversely affects the functioning of his office, and adversely affects the rights and interest of the public;

And whereas, timely and official action must be taken to seek removal action as outlined in Section 309.05 of the Ohio revised Code if Mr. Black does not resign immediately;

Now therefore be it resolved, that the Central and Executive Committee of the Republican Party of Hocking County, Ohio, hereby authorize, and sanction, Chairman Michael D. Harris to pursue, by whatever means necessary, removal action as outline in 309.05 of the Ohio Revised Code on behalf of the Republican Party and the citizens of Hocking County, Ohio.

The resolution was signed by Michael D. Harris, Chairman of Central Committee; Janet Conrad, Secretary Central Committee; and Ray Elzey, Chairman Executive Committee.

According to the ORC 309.05, the written complaint, signed by one or more taxpayers, containing distinct charges and specifications of wanton and willful neglect of duty or gross misconduct in office by the prosecuting attorney, supported by affidavit and filed in the court of common pleas, the court shall assign the complaint for hearing and shall cause reasonable notice of the hearing to be given to the prosecuting attorney of the time for the hearing.

If it appears that the prosecutor has willfully and wantonly neglected to perform his duties or has been found guilty of gross misconduct in office, the court at that time, according to ORC 309.05, shall remove the prosecutor from office.

The Republican Party has taken the proper steps for removal of Black, but it is uncertain how long the process will take to remove him from office; however, the Party is hoping for a speedy response.

In July 2023, the Hocking County Prosecutor Ryan Black and Hocking County Sheriff Lanny North announced the formation of a joint agency Public Anti-Corruption Initiative to focus on allegations of misconduct and corrupt activities within Hocking County.

In a press release concerning the Initiative, Prosecutor Black stated, “Our agencies have recognized the need to cooperatively work together, and the recent complaints have made it clear that collaborative investigative efforts in conjunction with aggressive prosecution is appropriate and necessary.”

Seven months has passed since the formation of the Initiative, and now Prosecutor Black is in the news with a suit being filed against him in the U.S. District Court Southern District of Ohio Eastern Division.

According to the press release, the Initiative was formed because — “the residents of Hocking County deserve public servants who act with transparency, impartiality and above all with integrity.”

How ironic is it that the public official who formed the Anti-Corruption Initiative along with Sheriff North, now has a lawsuit filed against him in Federal Court?

Hocking County has certainly seen its fair share of alleged corruption within its public offices from elected officials — Hocking County Commissioner Jessica Dicken is accused of wrongdoings while acting as the Hocking County Fair Board Secretary. She is facing six felony charges including election falsification, theft and money laundering. Dicken is scheduled for a pretrial in April, followed by a jury trial in August. She is currently being paid by the county although she is not serving in the capacity of Commissioner.

And now Prosecutor Black is being accused of using his power and position for sexual favors from certain employees.

Although he is NOT an elected public official, former Hocking County Sheriff Chief Deputy Caleb Moritz has also made the news since last July when he was indicted on felony charges of intimidation and theft in office.

As a reminder, and this has been said many times — ALL are presumed innocent until proven guilty in a court of law.

What’s next for Hocking County? Will there be more corruption uncovered?

(Mike Frisch)

Impregnated With A Prohibited Substance

A Michigan Tri-County Hearing Panel has imposed a 45-day suspension

Based on the evidence presented at hearings held in this matter in accordance with MCR 9.115, Tri-County Hearing Panel #6 found that respondent committed professional misconduct when he participated in discussions and activities that culminated with him transporting documents purportedly impregnated with a prohibited substance into a Michigan correctional facility, as set forth in a one-count formal complaint filed by the Grievance Administrator.

(Mike Frisch)

"You Might Want To Google The Word Defamation"

The Ontario Law Society Tribunal Hearing Division imposed a reprimand and costs for admitted misconduct in part involving an attorney's responses to unfavorable online reviews.

Respondent had represented a client who refused to pay his fee and later applied for a paralegal license

 In February 2021, Mr. Samfiru learned that JD was applying to become a paralegal. He wrote JD the following email:

Ms. D.,

We understand, based on your comments, that you are seeking to become a member of the LSO. We have significant concerns with this, as it is a requirement that members show good character and honesty prior to admission. We feel it is incumbent on us to write to the LSO and advise it as to our experience with you and your character (this will involve sending a copy of the pleadings, which are public record). The LSO should have all information prior to deciding whether you should be considered for admission.

Later

Following the settlement of the civil litigation, JD renewed her complaint with the Law Society. Mr. Samfiru was advised of the reactivated complaint on October 12, 2021. On October 13, 2021, he sent an email to JD’s counsel, stating that the LSO complaint represented a fundamental breach of the terms of settlement and that the claim would be reissued. Despite this threat, this litigation was not pursued.

Another matter

 IK had a consultation with Mr. Samfiru’s associate on May 27, 2021. IK decided not to proceed with a retainer, and the associate agreed to refund her consultation fee. IK wrote a negative Google review about Mr. Samfiru’s firm on May 31, 2021, and Mr. Samfiru was copied in an email from his firm advising IK that the fee would not be refunded until the review was taken down. Further email exchanges occurred between IK and Mr. Samfiru on May 31, 2021, in which Mr. Samfiru wrote to IK and demanded that she remove the Google review or face a defamation lawsuit. The email exchanges included, in part, the following:

Licensee: I will make it very simple for you. Unless this review is deleted by 5pm today, we will be suing you for defamation. This is not negotiable. I will be checking again at 5pm. Not a minute later.

IK: You might want to google the word defamation. I wrote a review based on my experience. Not a word of a lie or misleading. I am contacting the law society now. These threats are unacceptable and quiet [sic] pathetic from senior counsel.

Licensee: 5pm. Not a minute later.

Licensee: The only one that can decide if something is defamatory is the court. So we will be suing you and taking it to court. You may wish to return [sic] counsel already.

IK: I will not engage in any more back and forth. I will not be removing the review – I will however update it once the refund has been processed to reflect same.

Licensee at 12:24 pm: Boris, Please sue this lady for defamation for $500,000 and arrange service ASAP. Kari can give you particulars. Thanks.

 In early June 2021, IK retained counsel, who negotiated a reimbursement of the consultation fee in exchange for removing the Google review. Mr. Samfiru never commenced a defamation lawsuit, given the matter had settled.

A client who had retained him

Following an unsuccessful Employment Insurance Appeal, Mr. Samfiru renewed his offer for advisory support to BE if he self-represented in Small Claims Court. BE was unsatisfied with this offer of support and posted another Google review of the firm. The following email exchange ensued between BE and Mr. Samfiru:

Licensee: …You left a negative review again. If you want to see how good we are litigating, fine. Here is what will happen. Unless you remove your false and defamatory review by today (Sunday) at noon, we will sue you. Not in Small Claims but in Superior Court. This is not a debate or an idle threat. It is simply what we will be doing. I will be checking again at noon and if your review is still up, we won’t be holding back. Noon.

BE: What judge would find in your favour for wasting his/her time for an honest Google review? Let this email serve as a cease and desist notice. Effective 9:11 AM eastern standard time on 9th February 2019 [sic], I wish to receive no further communications from you or anyone at your firm. Regards, [BE]

Licensee: Too bad. A judge will certainly find in our favour. In any event, you will have to hire a lawyer and go through thousands of dollars in fees to find out. I am not kidding. Noon today. David, please sue BE for $250k in damages plus $100k in punitives, if his review is still online at noon today.

 BE subsequently deleted his second review. However, a screen shot of his email exchange with Mr. Samfiru, which included a portion of their February 9, 2020 emails, continued to be posted online. Mr. Samfiru proceeded to commence a defamation action for over $1.2 million against BE, including punitive damages. The statement of claim was issued on May 21, 2020. BE retained counsel on a pro bono basis through the Canadian Civil Liberties Association and the parties settled the matter in October 2020, with BE agreeing to remove his reviews in exchange for a dismissal of the lawsuit.

Finding

The facts particularized in the ASF for all three complainants have made out the finding of professional misconduct as alleged by the LSO. Mr. Samfiru’s actions with his firms’ clients IK, BE, and JD lacked compassion and empathy, and he failed to act with integrity, to the extent that his actions and communications were abusive and offensive, inconsistent with the proper tone of a lawyer.

Respondent has no prior record of discipline. (Mike Frisch)

Appeal Rejects Bias Contention

The Ontario Law Society Tribunal Appeal Division rejected claims made on appeal from a hearing panel's findings and order of revocation

The Law Society alleged that the appellant had knowingly assisted in dishonest conduct or alternatively accepted and disbursed funds in circumstances where he ought to have known that he was being used to facilitate dishonest conduct when he acted as an escrow agent in two transactions in 2012-13. In addition, the Law Society alleged that his trust account was overdrawn during 2013 contrary to By-Law 9.

The hearing panel found that the two transactions were dishonest. It found that the appellant ought to have known that the first transaction was dishonest and that he was being used to facilitate dishonest conduct. It found that the appellant knew the second transaction was dishonest when he participated as an escrow agent. Finally, the hearing panel found that overdrawing the trust account was misconduct.

On penalty, the hearing panel concluded that given the seriousness of the misconduct, which it characterized as involving a breach of trust, the presumptive penalty was revocation of licence. However, the hearing panel held that the evidence presented on penalty outlining the appellant’s value to the Black community and his longstanding commitment to improving the circumstances of people in his community amounted to mitigating factors that justified lessening the penalty from immediate revocation to permission to surrender his licence. Alternatively, assuming the presumption of revocation did not apply, an analysis of the Tribunal’s standard penalty factors would have led to the same result.

Claim of racial bias

The hearing panel agreed that systemic racial discrimination exists in Canadian society and in its institutions. However, it pointed out that his position would lead to a rebuttable presumption of impropriety in every motion for production of PAC materials where discrimination was argued. This would be inconsistent with the James test, which the appellant had accepted as applicable. In addition, the appellant cross-examined a number of Law Society employees involved in the investigation in aid of his motion yet was unable to provide any “tenable or particularized evidence of impropriety in the initiation of this application.”

We see no error in this reasoning. Again, the primary issue was whether the appellant could point to any evidence to suggest that race was a factor in the decision to initiate the proceedings. He could not. As the hearing panel put it: to get access to the PAC materials on this motion, “the Licensee must show more than that systemic racial discrimination exists.”

Conclusion

 In its lengthy reasons on the recusal decision, the hearing panel applied these principles in the context of an extensive examination of each example of alleged reasonable apprehension of bias set out by the appellant in his affidavit and in his materials. The panel concluded that “the interactions complained would not, individually or collectively, lead a reasonable observer to find a reasonable apprehension of bias, racial or other, on the part of the panel. When race was discussed it was done so respectfully and in context with the racism issue raised by Mr. Barnwell in the motion to quash.” We see no error in these recusal reasons.

Other claims on appeal

The hearing panel examined the stages of the investigation and hearing in great detail, concluding that any delays during the investigation process did not prevent the appellant from making full answer and defence and did not work a manifest unfairness. The panel also concluded that the appellant had not been prejudiced by any delays. We see no palpable and overriding error in this conclusion.

With respect to the remaining grounds of appeal, we see no merit in any of them. The hearing panel explained in its reasons on abuse of process and discrimination that it denied a further adjournment request after three expert witnesses had withdrawn from the hearing because of its concern that “we felt that the public interest in resolution had become paramount”. We see no error in the other hearing rulings made by the hearing panel.

 

(Mike Frisch)

Voluntary License Surrender Accepted

The Georgia Supreme Court accepted a voluntary license surrender

As recounted by the Special Master, Lane is 74 years old and has been a member of the State Bar of Georgia since 1975. In August 2016, a client retained Lane to file a petition for a writ of habeas corpus. Lane filed the habeas petition in September 2016, and a hearing was scheduled for December 12, 2016. Over the next three years, the habeas court continued the hearing approximately 14 times, mostly at Lane’s request, but Lane repeatedly failed to notify her client about the status of his case. During this time, Lane experienced health problems that materially impaired her ability to represent her client, but she did not at any time seek to withdraw. Lane did not take reasonable measures to expedite resolution of the habeas litigation consistent with the interests of her incarcerated client, and she failed to file a final brief on her client’s behalf after the hearing on his habeas petition was finally held on September 30, 2019. Further, Lane admitted that she has been previously disciplined in 2011 and 2015.

Disposition

Under the circumstances of this case, we agree that no discipline greater than that offered by Lane in her petition for voluntary discipline would be warranted for any additional violations of the GRPC, and we therefore agree with the Special Master’s recommendation and accept Lane’s petition for voluntary discipline in which she agreed to surrender her license and never apply for readmission to the State Bar of Georgia. Accordingly, it is ordered that the name of L. Elizabeth Lane be removed from the rolls of persons authorized to practice law in the State of Georgia. Lane is reminded of her duties pursuant to Bar Rule 4-219 (b).

(Mike Frisch)

A Second Look

In a matter in which the Georgia Supreme Court had rejected a proposed 30-day suspension and remanded for further fact-finding, the court has now ordered disbarment

The Special Master has now conducted that additional factfinding. After an evidentiary hearing on November 9, 2023, the Special Master issued his report and recommendation, recommending that Tuggle be disbarred. The Review Board later agreed with the Special Master recommendation. For the reasons explained below, so do we.

Respondent had neglected a matter leading to a default judgment against the client in a civil suit related to a probate matter entrusted to him

Ultimately, the client was successful in getting the judgment set aside based on the trial court’s finding that the default had resulted from Tuggle’s “abandonment” of his client. . . . The client spent $31,857 in attorney fees to get the judgment set aside.

A separate matter involved an elderly client who retained him to obtain Medicaid benefits for his spouse on a time-sensitive basis

The client ultimately hired new counsel and filed suit against Tuggle. Tuggle failed to answer, and a default judgment was entered in the amount of $22,176, plus $2,000 in attorney fees and costs. As of the disciplinary hearing, Tuggle had not paid the judgment.
                                                                                         . . .

[I]t was undisputed that Tuggle had entered an agreement with his clients’ “successor counsel” under which he agreed to “make payment” if they dismissed their barcomplaint against him.

Reasons for remand

Given the nature of Tuggle’s conduct and the balance of aggravating and mitigating factors, we held that the recommendation of a one-month suspension was “grossly inadequate.” Id. We stated that, instead, “a significant disciplinary sanction in the form of either a lengthy suspension with conditions or disbarment is warranted.” Id. at 279 (6) (c).

The court sought further information on the malpractice cases

Tuggle had unsuccessfully filed for bankruptcy twice during the pendency of his malpractice proceedings. Tuggle later characterized his statements about bankruptcy as a “threat,” a “tactic,” or “leverage” to jumpstart negotiations and get a reasonable settlement. But the Special Master found that Tuggle’s responses showed he had no intent to participate in the damages hearing or resolve the malpractice case.

Respondent did not for the damages hearing or take actions to pay the judgment; he made a few payments to the second client.

Before the Special Master

Tuggle claimed that he failed to fully satisfy the money judgments against him in part because he lacked the financial resources to do so. He argued that the Special Master, by disregarding his financial circumstances, had created a two tiered system of discipline in which wealthy lawyers receive lesser discipline than other lawyers who commit identical infractions but are unable to pay. The State Bar responded that Tuggle’s argument was a mere distraction from his misconduct. Tuggle had made no attempt at restitution even when he continued to earn income as a lawyer during the 16-month period between the April 2022 disciplinary hearing and the issuance of Tuggle II. Only when this Court signaled that Tuggle might be disbarred did he take any steps toward restitution, and even then, his offers of restitution to both clients were contingent on his retaining an active license to practice law—a contingency that was unlikely to occur. The State Bar argued that Tuggle’s claimed lack of financial resources was not a mitigating factor under these circumstances.

The court

At bottom, the Rules and our precedent support disbarment for misconduct like Tuggle’s.

(mike Frisch)

Bar Matter Remanded

The Illinois Review Board has remanded a matter to allow the Respondent to submit evoidence and testify

The Administrator brought a twelve-count disciplinary Complaint against Respondent, charging him with making false statements to a tribunal; engaging in the unauthorized practice of law; failing to respond to the Administrator’s request for information; and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rules 3.3(a)(1), 5.5(a), 8.1(b), and 8.4(c) of the Illinois Rules of Professional Conduct (2010). The Complaint alleged that (1) Respondent made false statements to the Immigration Service in Appearance Forms that he filed in eleven immigration cases; (2) he engaged in dishonest conduct by making those false statements; (3) he engaged in the unauthorized practice of law by representing those immigration clients in front of the Immigration Service at a time when he was prohibited from doing so; and (4) he failed to provide requested information to the Administrator.

The Hearing Board found that Respondent had committed the charged misconduct and recommended that Respondent be disbarred.

Respondent filed an appeal in which he argued that the Chair erred in making certain rulings; that Respondent’s due process rights were violated; that the Hearing Board erred in finding Respondent engaged in the charged misconduct; and that he should not be disbarred. The Administrator asked the Review Board to affirm the Hearing Board’s rulings and factual findings, and to recommend that Respondent be disbarred.

The Review Board recommended that this case be remanded for a new hearing so that Respondent can testify and present evidence, in order to develop a more complete record. Given the recommendation for a remand, the Review Board did not address the other issues raised on appeal.

Respondent had asserted a Fifth Amendment claim that led to sanctions

As set forth above, in July 2023, Respondent filed a Motion requesting that the date of the hearing be reset so he could testify at a deposition, and requesting that the sanction be vacated. In his Motion, Respondent stated that he would voluntarily waive the Fifth Amendment and that he would testify at a deposition. That Motion was denied.

The review board found the denial in error

The Administrator had tried, unsuccessfully, to obtain Respondent’s testimony during depositions in May and June 2023. Granting Respondent’s Motion would have allowed the Administrator to obtain the deposition testimony that the Administrator had been trying to obtain.

Granting the motion would have also allowed Respondent to comply with the June 1st order, which was issued in order to compel Respondent to provide deposition testimony. The order directed Respondent to “answer any deposition question posed to him that relates to the allegations of the Administrator’s Complaint.” (Order, C.564.) According to Respondent’s Motion, he was willing to answer deposition questions, as required by the June 1st order.

Granting the Motion would have also allowed for a full hearing on the merits of the case. In his Answer to the Complaint, Respondent denied any wrongdoing. Respondent’s testimony, at a deposition and at the hearing, could have helped clarify the basis of his denials, and given him the opportunity to explain his conduct and present a defense.

Granting the Motion would have also helped to develop the record concerning mitigating and aggravating factors. The record as it stands provides very limited information from which to assess whether or not Respondent is willing and able to comply with the Rules of Professional Conduct; whether Respondent accepts responsibility; whether he understands the seriousness of the misconduct; and whether he is likely to engage in misconduct in the future.

Rare relief

We do not condone or excuse Respondent’s violation of the June 1st order; his delay in deciding to waive the Fifth Amendment; his last minute filing of the Motion; his failure to file an affidavit with the Motion; and his failure to provide an offer of proof; nor do we approve of Respondent’s making baseless allegations of improper conduct by the Administrator’s counsel. Nevertheless, we are convinced that a remand is needed here to make a more complete record, particularly given the high stakes involved.

We note that Respondent has been placed on an interim suspension. Because of that, a remand does not present a risk to the public, since Respondent will not be able to practice law while the remand takes place. In recommending a remand, we have taken into consideration the fact that Respondent will not be practicing law because of the interim suspension.

Thus, based on the unique facts and circumstances of this case, we conclude that the denial of Respondent’s Motion was an error, and the case should be remanded in order to develop the record. We want to emphasize that, in our view, this case provides a very narrow precedent, limited to cases in which a respondent, who is facing disbarment and has a criminal case pending, is sanctioned for violating an order by refusing to testify based on the Fifth Amendment, and subsequently agrees to testify, but is then denied the opportunity to do so.

Fresh eyes, fresh start

Given the difficult nature of the first proceeding, we believe that it would be appropriate to remand the case to a different Panel. To be clear, we do not suggest that the members of the Panel were biased in any way, or that they allowed any frustration that they may have experienced to influence their decisions, or that they would do so in the future. However, we believe the best course of action is for a different Panel to preside over the proceedings on remand, which will provide a fresh start to everyone in the case.

(Mike Frisch)

Second Glance

Two complaints against an attorney drew disbarment from an Adjudication Tribunal of the Disciplinary Panel of the Newfoundland and Labrador Law Society

At first glance it seems odd to disbar someone who has already been disbarred. Before accepting the joint submission, the Tribunal considered whether disbarment was available.

Misconduct

1.   C2023-016 (the “Practice Management Complaint”) alleged that the Respondent failed to cooperate with the second half of a practice management review.
2.   C2023-042 (the “CPD Complaint”) alleged that the Respondent failed to comply with the Mandatory Continuing Professional Development requirements for the year 2022.

Sanction

Given (1) the Respondent’s disciplinary record and prior finding of ungovernability, (2) the high threshold for departing from a joint submission, (3) the emphasis on public protection rather than proportionality, and (4) the marked and repeated disregard for the Law Society’s regulatory role demonstrated by the Respondent in this case, the Tribunal accepted the joint submission and declared that the Respondent is ungovernable and must be disbarred.

CBC News reported on the earlier disbarment

St. John's lawyer Averill Baker has been disbarred by the Law Society of Newfoundland and Labrador after it found her deserving of sanctions over eight complaints.

In its Nov. 27 decision, the law society's adjudication tribunal called Baker "ungovernable" and ordered her to pay $9,350 to the law society.

"Averill Baker has been struck from the Roll of Barristers in the Province of Newfoundland and Labrador and all her rights and privileges as a member of the Law Society of Newfoundland and Labrador have ceased," said the notice, which was posted Wednesday on the law society website.

Baker did not respond to requests for comment by publication time.

In September, the law society's adjudication tribunal found Baker guilty of eight complaints following hearings between May and July.

Those complaints alleged Baker didn't respond to a trust audit report, failed to reply to law society communications, failed to move a client's matter forward or respond to client quickly enough, wasn't honest or candid with a client, didn't return a client's file, and used an unprofessional tone and misled a client.

The tribunal also found that she didn't protect solicitor-client information related to an eviction from her law office in November 2021. The landlord put Baker's property, which included clients' files, into storage. Baker didn't make any move to retrieve the property and the landlord contacted the law society, who took possession of the materials.

"When the law society took possession in accordance with a custodianship order on Dec. 20, 2021, it was discovered that the office space, in which the filing cabinets and boxes with client files were stored, was not locked. The filing cabinets were not locked and client information was visible when the door to the space was opened," the tribunal wrote in its decision.

According to those documents, one client referred to as Mr. M testified at the hearing that he tried to get his files from Baker so he could go to another lawyer after years with no movement on his case relating to a slip and fall accident.

Mr. M received text messages from Baker that indicated she would "check [herself] into a mental institution" and she was "ready to kill herself so stop texting me please."

During a visit to Baker's office to talk to her about a $3,000 Seahold loan she had him take out for her services, that client also alleged she was drinking out of a "ridiculously big" wine glass.

Baker had pleaded not guilty to all the allegations but didn't co-operate with the investigation.

At one point Baker claimed to be too ill to attend a hearing, only to pop up on her YouTube channel, Prisca Theologia Tarot, for a live tarot card reading.

• • Dana Metcalfe court hearing set over after her lawyer, Averill Baker, hit with suspension

• • Philip Pynn, Averill Baker shared 'passionate kiss' before arrest

Law society spokesperson Amelia White told CBC News the law society will not be doing interviews on the matter but said the organization is going through the Supreme Court of Newfoundland and Labrador for custodianship of Baker's files.

"This is customary where a disbarment is ordered, as the member is 'inactive' as defined by s. 56 of the Act. The application will be heard next week," she wrote. White later clarified her response was on behalf of the society's executive director, Brenda B. Grimes.

Suspended Already

Even before being disbarred, Baker's law society membership has been suspended since Oct. 25 because she failed to complete 15 hours of professional development, which is mandatory of all practising members of the law society.

Baker had recently represented Dana Metcalfe, who is facing charges of criminal harassment and causing a disturbance over a "surprise convoy" protest on July 9 outside Premier Andrew Furey's Portugal Cove-St. Philip's home.

In early November Metcalfe was in provincial court — days after Baker had been suspended —  and told a judge she was without a lawyer after being informed that Baker no longer intended to practice law.

Baker has found herself in hot water before.

In 2013, Baker was disciplined for an explosive and profanity-laced tirade against a provincial court clerk that took place in 2011.

In 2014, Baker was caught sharing what was described as a "passionate kiss" with then-client Philip Pynn, just moments before he was arrested in relation to a murder charge. Her apartment had been under Royal Newfoundland Constabulary surveillance on July 11, 2011, two days after Nick Winsor was shot to death on Portugal Cove Road.

Baker was called to the bar in 1998.

(Mike Frisch)

The Autocorrect Explanation

The Circuit Court of Portsmouth Virginia imposed a public reprimand with terms of an attorney in connection with his court-appointed representation of a client named Madison Babe on "multiple criminal charges."

After meeting with the client, Respondent texted her "[c]ome back when you can stay longer" and "I'm going to take care of you."

She responded that "we'll see what happens but this needs to be a professional relationship" and that she was nine months pregnant.

There were texts over the next few days where her called her "baby" repeatedly and asked if she would wear "that tight little tank top you wore the other day."

She texted that the communications were "completely inappropriate" and that perhaps she needed another attorney.

His response: "No. I get it. We are good."

Her efforts to communicate further did not receive a response; she texted him that he was not trying to help her because "I didn't want to sleep with you."

The charges were dropped. 

When she then expressed her discomfort in a text to him, Respondent did not respond and she filed a bar complaint.

He responded that the communications between them had been professional and that her allegations were "baseless, defamatory and offensive."

She responded with the texts.

He explained that the multiple use of "baby" was an autocorrect of her last name, denied he was propositioning the client for sex but acknowledged that the texts were "inappropriate."

The Circuit Court found ethical violations including lying to the bar investigator and having sexually suggestive communication with the client.

The sanction was an agreed disposition.

WWLP.com reported on criminal charges involving a Virginia Beach woman named Madison Babe.

 A Virginia Beach woman sent several drug-filled greeting cards to an inmate at the Virginia Peninsula Regional Jail late last year, police say.

After a two-month investigation, Madison Nicole Babe was arrested on Saturday by the West Point Police Department and charged with delivery of drugs to a prisoner, a felony.

VPRJ staff found the greeting cards back on November 22 in the jail’s mail room and contacted James City County police. Each card had Suboxone concealed inside.

The cards were addressed to Brittany Margaret Wolf, 29, of James City County. Wolf was charged with possession of a schedule II drug by a prisoner on December 23 by James City County Police.

(Mike Frisch)

Indiana's (Not Adelaide's) Lament

A sanction imposed by the Indiana Supreme Court

We find that Respondent, Robert T. Miller, engaged in attorney misconduct by signing family case managers’ (FCMs) names to Child in Need of Services (CHINS) petitions without their knowledge or consent. For this misconduct, we agree with the parties that Respondent should be suspended for 120 days with automatic reinstatement.

Specifics

At all relevant times, Respondent was a staff attorney for the Indiana Department of Child Services (DCS) and was assigned to the office shared by Newton and Benton Counties. As a staff attorney, Respondent was responsible for preparing and filing CHINS petitions, which must be verified. In thirty-eight CHINS petitions filed between April 2022 and April 2023, Respondent signed the names of FCMs without their knowledge or permission. DCS fired Respondent upon learning of his misconduct.

Importantly, the parties stipulate in their conditional agreement that there is no evidence any of the facts alleged in the CHINS petitions were falsified other than the signatures. Respondent drafted the petitions based on facts contained in documents prepared by the FCMs; the FCMs attended the initial hearings on the CHINS petitions with Respondent; and the FCMs testified regarding the information contained in the CHINS petitions.

Motive

We have repeatedly lamented the fundamental breach in trust posed by attorneys who falsely sign or notarize legal documents. “The accuracy of documents and instruments utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice.” Matter of Darling, 685 N.E.2d 1066, 1068 (Ind. 1997). “[F]raudulent alteration of such documents by an officer of the court is therefore severe misconduct.” Id.

That such misconduct often has been motivated by considerations of expediency rather than selfishness does little to lessen the impact of the deceit upon courts, parties, and public confidence in the legal system.

Sanction

When weighing the seriousness and scope of the misconduct against the stipulated mitigating factors, which include among other things Respondent’s lack of prior discipline and his lengthy career of public service, we agree with the parties that a 120-day suspension with automatic reinstatement is appropriate.

You need to be my age to understand the title to this post. (Mike Frisch)

Emperor Of The South

In looking into the previous post, I came across this story from the June 2024 edition of the Louisiana Record

A Baton Rouge attorney who referred to himself in court filings as “Emperor of the American Empire” and “Christian Emperor d’Orleans” has been suspended by the state Supreme Court and ordered not to be reinstated until submitting to a mental health exam. 

Six Supreme Court justices issued the opinion imposing the disciplinary action against attorney Edward Moses Jr. on May 29. The decision comes in the wake of the federal court in the Western District of Louisiana and the Fifth Circuit Court of Appeal each fining Moses $2,500 for filing frivolous litigation.

In the federal case of Moses v. Edwards, the attorney argued that former Louisiana Gov. John Bel Edwards and former President Donald Trump illegitimately held their offices and that Moses should assume the posts himself.

“Among various bizarre and frivolous assertions, Moses contends that, as Emperor of the American Empire and protector of the "Tribe of … Moses," he is entitled to the (offices) because the elections were invalid and the government of the United States was dissolved by a coup d'état on Jan. 6, 2021,” the 2022 appeals court decision states.

Moses was also suspended for one year by the federal court in the Middle District of Louisiana for filing frivolous lawsuits and attempting to use his clients’ cases to “assert his own personal agenda,” according to the state Supreme Court’s disciplinary order.

“Our review of the record demonstrates respondent was afforded full due process rights in the federal court and there is no infirmity of proof establishing the misconduct,” the high court’s decision states. “The discipline imposed by the federal court is not offensive to the public policy of this state and is not substantially different from the discipline we would impose under similar circumstances.”

The court characterized Moses’ filings and actions as bizarre and suggested that his ability to practice his profession has been compromised, endangering his clients or members of the public.

“In light of these concerns, we will mandate that after serving his one-year suspension, respondent shall not be eligible to seek reinstatement to the practice of law in Louisiana … unless and until he submits to a comprehensive mental health evaluation through the Judges and Lawyers Assistance Program and files a copy of the evaluation report in this court …” the state Supreme Court said in its opinion.

The only justice not signing on to the court’s opinion was Jefferson Hughes.

“Justice Hughes did not assign reasons for his partial dissent in the referenced matter,” Robert Gunn, a spokesman for the high court, said in an email to the Louisiana Record. Gunn also noted that the court’s per curiam opinion says the state “Office of Disciplinary Counsel, not the Louisiana Supreme Court, filed a petition seeking the imposition of reciprocal discipline.”

Moses did not respond to a request for comment.

The high court indicated that in March, it issued an order giving Moses 30 days to explain why the court should not issue a one-year suspension.

“He asserted that although he is an attorney, he did not appear in these proceedings in his individual capacity, but rather solely in the capacity of “the Christian Emperor d’Orleans Trust protector of the Atakapa Indian ‘Tribe of … Moses’ (Foreign) Express Spendthrift Trust,” the Supreme Court stated.

(Mike Frisch)