Monday, January 25, 2021

Ethics Charges Dismissed

The Indiana Supreme Court has entered judgment in favor of an attorney charged with ethics violations.

 The Court incorporates by reference the hearing officer’s findings of fact. The hearing officer concluded the Commission failed to meet its burden of proving that Respondent committed any professional misconduct. After reviewing the evidence and considering the parties’ arguments, the Court concludes that the hearing officer’s findings of fact are supported by the evidence, and based on those findings we likewise conclude that the Commission has failed to prove by clear and convincing evidence either of the two charged rule violations.

IndyStar reported on the allegations

An Indianapolis attorney and former federal prosecutor is the subject of an attorney discipline complaint alleging an improper romantic relationship with the wife of a man he once represented.

Larry Mackey, a veteran federal and state prosecutor and a partner at Barnes & Thornburg, is accused of conflict of interest and making a false statement to the commission regarding the beginnings of his relationship with the woman he would eventually marry.

Keenan Hauke, who was once a high-profile financial adviser, pleaded guilty to securities fraud in 2011 after he was accused of stealing more than $7 million from investors and using their money to pay the mortgage on his home, a condo in Barbados and various business expenses. He was sentenced to 10 years in prison.

According to a complaint filed by the Indiana Supreme Court disciplinary commission in December, Mackey began representing Hauke in April 2011 and shortly thereafter began regularly interacting with Hauke's wife, Sarah, via email. Early that June, the complaint says, she was asking for legal advice regarding a divorce. She then filed for divorce on June 14, 2011.

In July 2011, Mackey bought gifts for her, including paying for a trip for her and her children to a resort in Michigan. She ended her email thanking him for the generosity with: "I love you!" Mackey said the same in his response to her.

In August 2011, Mackey arranged to take her on a trip to Siesta Key, Florida, according to the complaint, only days before he withdrew from representation of Hauke.

Mackey and Sarah became engaged in February 2012 and married that July.

In addition to alleging the relationship began while Mackey was representing Hauke, the complaint alleges that Mackey did not reveal the romantic nature of his relationship 

Hauke aired his grievances in a letter sent to the Indiana Supreme Court in May 2017, but G. Michael White, the executive director of the court's disciplinary commission, wrote him back, saying that while it was true that Mackey had married Hauke's ex-wife, he hadn't broken any rules. 

"That fact, in and of itself, is not a violation of any Rule of Professional Conduct," Witte wrote. "Our investigation shows that all other assertions you make about the marriage impacting your representation is unsubstantiated conjecture."

Hauke doubled down on the accusations in a civil lawsuit filed against Mackey in the U.S. District Court of Southern Indiana in 2018 in which he sought more than $2 million in damages he said were caused in part by poor representation after Mackey recused himself. Judge William T. Lawrence ruled in Mackey's favor in September 2018.

It is unclear in court documents obtained by IndyStar what precipitated any renewed investigation and the current complain

In a response to the complaint filed this week on Mackey's behalf, he admits paying for the Michigan trip and exchanging emails that were personal in nature with Sarah, but denied spending time alone with Sarah before he left Hauke's case. 

Regarding the accusation that he didn't reveal the romantic nature of his relationship with Sarah to the disciplinary commission: "Mackey admits that he did not use the adjective “romantic” to describe his relationship with Sarah in the response."

A final hearing in the issue is scheduled for July 14.

Call IndyStar reporter Holly Hays at 317-444-6156. Follow her on Twitter: @hollyvhays.

January 25, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 23, 2021

Facebook Advice Draws Sanction

A decision of the Tennessee Supreme Court is summarized on the court's web page
 
In a case it called a “cautionary tale,” the Tennessee Supreme Court held for the first time today that lawyers who make unethical statements may receive harsher discipline if they choose to post the statements publicly on social media. In this case, a Nashville attorney posted comments on Facebook with instructions on how to shoot someone and avoid criminal conviction by making it look like self-defense.
 
Winston B. Sitton had a Facebook page that identified him as a lawyer. For about a year, Mr. Sitton was a “Facebook friend” of Lauren Houston but had never met her in person. Through Facebook, Mr. Sitton learned that Ms. Houston was going through a difficult breakup with Jason Henderson, the father of her child, and that she was concerned about abuse or harassment by Mr. Henderson.
 
In 2017, Ms. Houston posted a question on her Facebook page, “I need to always carry my gun with me now, don’t I? Is it legal to carry in TN in your car without paying the damn state?” Responding to her post, Mr. Sitton told her that it was better to get a “taser” or “tear gas.” If she were to get a shotgun, he said, she should first fill it with rock salt, then bird shot, and then “load for bear.” Mr. Sitton next posted:
 
If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life.  Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.
 
Replying to Mr. Sitton’s post, Ms. Houston commented, “I wish he would try.” Mr. Sitton then posted on Ms. Houston’s Facebook page:
 
As a lawyer, I advise you to keep mum about this if you are remotely serious.  Delete this thread and keep quiet.  Your defense is that you are afraid for your life _ revenge or premeditation of any sort will be used against you at trial.
 
Mr. Sitton’s Facebook comments resulted in ethics charges with Tennessee’s Board of Professional Responsibility, the board that handles lawyer discipline. After a hearing, the Board recommended to the Tennessee Supreme Court that it suspend Mr. Sitton’s law license for 60 days. As part of normal procedure, the suspension was submitted to the Tennessee Supreme Court for final review. The Court indicated this sanction appeared inadequate given the facts and asked the Board and Mr. Sitton to brief the case.
 
In his brief, Mr. Sitton explained that his comments were sarcasm or “dark humor,” written hastily and not meant to be taken seriously. In the majority opinion authored by Justice Holly Kirby, the Court rejected this explanation.
 
First, the Court said, Mr. Sitton’s advice could have led to a disastrous outcome. Had Ms. Houston followed Mr. Sitton’s suggestion, Mr. Henderson could have ended up maimed or killed.
 
Second, Mr. Sitton’s comments encouraged Ms. Houston to purposefully set up a situation designed to make the premeditated use of deadly force look like self-defense. The Court said this was “grave misconduct.”
 
Third, Mr. Sitton’s choice to post his bad advice publicly fostered a cynical perception that the judicial process is corrupt and lawyers are co-conspirators who help clients manufacture fake defenses against criminal charges. The Court emphasized that the judicial system “is not based on lies and deception but on truth and honor.”
 
The Court remarked that practicing law is a privilege and lawyers in any setting—including on social media—are bound by the ethics rules. It held that Mr. Sitton’s advice to Ms. Houston violated those rules. His choice to post the remarks publicly on social media greatly amplified their damaging effect and justified an increase in discipline. The Court suspended Mr. Sitton’s law license for four years, with one year on active suspension and the rest on probation
 
Justice Sharon Lee filed a separate opinion, stating that she joined only in the section of the majority opinion that addressed the inadequacy of Mr. Sitton’s punishment. She agreed with the sanction imposed by the Court but disagreed that the Court should have reviewed the Board of Professional Responsibility hearing panel’s finding of misconduct and Mr. Sitton’s challenges to the hearing panel’s decision. In Justice Lee’s view, considering these issues exceeded the scope of the Court’s review under its rules.
 
To read the majority opinion in In Re: Winston Bradshaw Sitton, BPR #018440, authored by Justice Holly Kirby, and the separate opinion authored by Justice Sharon Lee, go to the opinions section of TNCourts.gov.
 
(Mike Frisch)

January 23, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 22, 2021

A Hopeful Future

The Kansas Supreme Court has imposed an indefinite suspension of an attorney who got caught up in her boyfriend's marijuana business and initially lied to police when they were pulled over for a traffic stop.

The court held out hope for her return to good standing

We are cognizant of the severity of the respondent's transgressions. She was present during drug deals, used illegal drugs, lied to legal authorities, and ignored administrative authorities. Both parties agree that the punishment for what the respondent did should be suspension of her license to practice law. A majority of this court agrees, though a minority of the court would impose a lesser level of discipline. We believe it is just that serious actions result in serious consequences.

But the respondent also, ultimately, told the truth to legal authorities and cooperated with administrative authorities. She apparently stopped using illegal drugs and stopped hanging out with those who used them and sold them. We know she could

have ended there and just said goodbye to the law license she fought so hard to achieve. The respondent did not give up, though she had to know the way would be difficult. We note her tenacity and observe she has overcome great difficulties. Respondent had suffered teenage abuse from a boyfriend during the same time she watched her mother lose a long battle with cancer. Unfortunately, trauma such as that leads to mental health issues and concerns that last for years. Respondent's problems with loneliness and depression only exacerbated other mental health issues that challenged her personally and in her relationships. Though she was able to excel in her education, and even earned a law degree, her emotional issues and their aftermath continued to plague her. The respondent's legal and license-related issues were not the end of this dark road. She eventually became homeless and lived for a time in her car.

What the respondent did after that was impressive. She got into counseling and worked the plan. For the last year-and-a-half, she has asked for help and received the help offered. She has continued to receive counseling and claims to have remained drug and alcohol free for many months. Respondent has a family and a job of which she is proud.
She has done much in her personal and professional life to restore her good health and her good name. Actions speak loudly, especially when they are difficult and take a long time.

Suspension of a law license does not need to signal the end of a legal career. As a court, we want to encourage the respondent to continue her recovery and continue to fight for the law license she worked so hard to obtain. Suspension will be effective as of the date of the panel's final report—December 20, 2019.

(Mike Frisch)

January 22, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Unrelated To Practice

The Nebraska Supreme Court has imposed a public censure and probation of an inactive attorney admitted in 2011

The formal charges generally allege violations stemming from the respondent’s being arrested in June 2018 and charged with one count of shoplifting (Class II misdemeanor) and one count of possession of a controlled substance (Class IV felony). On December 4, the respondent ultimately entered a plea of no contest to the amended charge of attempted possession of a controlled substance, a Class I misdemeanor. She was sentenced to 1 year of probation. She was granted early release from probation after 6 months. The formal charges also state that the respondent was previously convicted of a shoplifting charge in 2017, for which she was fined $200.

The attorney conditionally admitted the misconduct

The proposed conditional admission included a declaration by the Counsel for Discipline, stating that the respondent’s proposed discipline is appropriate in light of the fact that the conduct did not arise out of her duties as an attorney, the conduct did not involve clients, and the respondent is actively working on the personal behaviors that led to the charges.

The case is State ex rel Disciplinary Counsel v. Nowak. (Mike Frisch)

January 22, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 21, 2021

"Something Is Not Right"

A District of Columbia Hearing Committee recommends that a 30-day suspension with a fitness requirement be imposed for failures to respond to bar complaints

We find that Disciplinary  Counsel has proven of by clear and convincing evidence that there is a serious doubt about Respondent’s ability to practice in accord with the Rules, and we thus recommend that he should be required to demonstrate his fitness to practice law prior to reinstatement. Having observed Respondent at the hearing and given his demeanor and testimony, the Committee finds that something is not right with Respondent. He ignored multiple requests for information about his conduct as a lawyer, and attempted to justify his non-response with a far-fetched assertion that his former law partner was intercepting his mail. Of course, that does not explain his failure to respond to the packet left at his home, or his failure to respond to the inquiries he acknowledged receiving by email. The Committee cannot diagnose the reasons for Respondent’s failures in this case because Respondent offered no explanation for his conduct. Thus, the record shows only that Respondent received numerous repeated requests from Disciplinary Counsel, yet failed to respond to a single one, and did not even attempt to offer an explanation for his failure.

We might be tempted to conclude that certainly, after this proceeding, Respondent would act differently if he received a disciplinary complaint in the future. But that would be sheer speculation, unsupported by any evidence in the record. Instead, the unbroken pattern of unexplained non-responsiveness described above compels the conclusion that Respondent would repeat his misconduct if he were to receive a similar inquiry in the future. A reinstatement hearing will afford Respondent the opportunity to present evidence that he will not repeat this misconduct in the future.

(Mike Frisch)

January 21, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Michigan Recusal

The former Disciplinary Administrator now serves on the Michigan Attorney Discipline Board. 

He has granted a motion to disqualify himself in a pending proceeding

In this case, Exhibit B to respondent’s motion, a May 17, 2017 letter from an Attorney Grievance Commission Associate Counsel, states that, following investigation the matter was submitted to the Commission for review and decision and that the Commission  directed that the investigative file be closed pursuant to MCR 9.114(A)(2). In accordance with the procedures in place during my tenure as Grievance Administrator, I would have closely reviewed the recommendation made by staff counsel, any documents contained in the file, if necessary, and would have supported that recommendation before RI File No. 0113-16 was submitted to the Commission for its review and decision.

The order analyses court opinions and case law on the disqualification of an adjudicator. (Mike Frisch)

January 21, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 20, 2021

Not Fade Away

The Oklahoma Supreme Court has publicly censured a prosecuting attorney for facilitating unauthorized practice during a period of short staffing

Throughout the summer and fall of 2018, Tulsa County District Attorney Steve Kunzweiler was engaged in a contested reelection campaign. Concerns over a change in leadership, and consequently job security related to the campaign, prompted a number of assistant district attorneys to seek employment elsewhere. This exodus left the Tulsa County District Attorney's office shorthanded and forced the remaining assistant district attorneys to take on additional responsibilities. At that time, Respondent was employed as an Assistant District Attorney and serving as the Director of the Traffic and Misdemeanor Division. In that role, Respondent had direct supervisory authority of lawyer and non-lawyer employees in the division.

Five individuals appeared in court without a license on the attorney's watch per this example

Despite not having a legal intern license, Sweeney began representing the State of Oklahoma in criminal proceedings shortly after her employment began. In the period from August 1, 2018 to November 13, 2018, Sweeney made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On October 12, 2018, Sweeney represented the State in a non-jury trial in Tulsa County, during which she cross-examined witnesses and presented arguments to the court. On November 6, 2018, Sweeney, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Sweeney questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented closing arguments.

Mitigation

Respondent has practiced law for approximately 20 years and has not previously been the subject of any formal discipline. Respondent has been removed from her supervisory role, and since her misconduct came to light, the District Attorney's office has implemented various safeguards to ensure that unlicensed individuals do not engage in the practice of law in the future. The office has instituted a color-coded badge system that clearly identifies which individuals are licensed to practice law, and that system has been communicated to the courts in Tulsa County. The office has abandoned the designation of "Provisional Assistant District Attorney" for new hires who have not yet been admitted to practice. Finally, the  office has updated their handbook for legal interns to more clearly identify the scope of tasks that unlicensed individuals are allowed to perform.

For purposes of mitigation, we must also note that responsibility for the misconduct in question does not lie exclusively with Respondent. While she was the primary supervisor of her division, the office was generally supervised by First Assistant District Attorney Erik Grayless and District Attorney Steve Kunzweiler. During his testimony before the tribunal, Grayless acknowledged his responsibility for the five individuals in question but stated that he had little involvement in their daily activities. While we recognize the need for delegation in large offices like that in the Tulsa County District Attorney's office, Respondent was a supervisor who was nonetheless subject to supervision herself. Furthermore, each of the five unlicensed individuals were at the time of the alleged misconduct seeking admission to the Oklahoma Bar. As such, they must have--or should have--understood on some level the significance of admission to the Bar, namely that one cannot practice law prior to admission, absent special permission from this Court.

COMBS, J., with whom Darby, C.J. and Gurich, J., join, concurring:

I concur in the imposition of discipline for Ms. Jack's violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A and the Rules Governing Disciplinary Proceedings (RGDP) 5 O.S. 2011, ch. 1, app. 1-A. I write to emphasize the complicity of others within the district attorney's office for Tulsa County, specifically First Assistant District Attorney Erik Grayless. Ms. Jack was not the only supervisor responsible for the actions of the five individuals who intentionally violated the rules authorizing the practice of law in the State of Oklahoma. Mr. Grayless was in charge of the intern program in the office. Mr. Grayless was the person listed as the supervising attorney on any licensed legal interns paperwork. Ms. Jack relied on Grayless and the "interns" to know what they could or could not do. She did not receive any paperwork confirming the employees licensing status but only relied upon her First Assistant Grayless and the Human Resources director. Ms. Jack's first mistake was relying on her supervisor, Mr. Grayless. For Ms. Jack to take the entire blame for the office failure to supervise is unfortunate and fundamentally unfair. From this record, Mr. Grayless should bear blame as well. Ultimately the buck must stop with the District Attorney himself, Steve Kunzweiler; none of the leadership of the Tulsa County District Attorney's office should be allowed to escape blame.

The five individuals practicing without a license, Kelly Sweeney, Randall Young, Christopher Deane, Michael Shouse and Johnnie James, each have begun their legal careers in Oklahoma by committing fraud upon the courts they appeared before. As to each of them, this fraud cannot be ignored, allowed to fade away or be forgotten.

(Mike Frisch)

January 20, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 19, 2021

Disclosure Violations Draw Proposed Suspensions

The District of Columbia Board of Professional Responsibility proposes a six-month suspension of two prosecutors for disclosure violations

Prosecutors have ethical requirements that apply only to them. Important among these is a requirement – found in Rule 3.8(e) – to timely provide defense  information or evidence that tends to negate the guilt of the accused.

Respondents were prosecuting several inmates at the District of Columbia Jail for assault stemming from a fight in the jail. One important witness about the identity of the inmates was D.C. Jail correctional officer Lieutenant Angelo Childs. Roughly six weeks before trial, Respondents received a report that described several kinds of misconduct by Childs. The report was written by a Department of Corrections (DOC) Office of Internal Affairs (OIA) Investigator named Benjamin Collins. The Collins Report determined that Childs maced an inmate in the face who was handcuffed, then filed a false incident report about it and filed a false disciplinary charge against the inmate alleging the inmate assaulted an officer.

All of this information should have been disclosed to the defense under Brady v. Maryland, 373 U.S. 83 (1963). In a long line of cases under Giglio v. United States, 405 U.S. 150 (1972), courts have held that a prosecutor has a duty to disclose information and evidence that could be used to impeach the credibility of a government witness, commonly called Giglio information. The Collins Report contained such information.

Instead of providing the report to the defense, however, Respondents filed it ex parte and under seal with the Court and filed a motion in limine that purported to describe the Giglio information in the Collins Report. The summary of the Collins Report in that motion was defective; while it did include some of the impeachment evidence, it did not include all of it. Specifically, the motion in limine did not disclose the determination that Childs filed a false disciplinary charge against the inmate alleging that he assaulted an officer and it dramatically misconstrued the adverse finding about Childs’ credibility that was made in the report. The motion in limine said that the Collins Report “may have made potentially adverse credibility findings regarding Officer Child’s [sic] statement regarding when Inmate A was handcuffed,” DX 17 at 4, when it should have disclosed that Officer Childs filed a false disciplinary charge saying Inmate A assaulted an officer.

The record is clear that both Respondents read the Collins Report before writing the motion in limine and, while Dobbie wrote the motion, Taylor reviewed it before it was filed. The motion in limine includes a great deal of detail about theCollins Report, yet scrupulously avoids mention of the false disciplinary charge. Indeed, the motion includes a block quote from the Collins Report that ends right where the Report discusses the false disciplinary charge.

In drafting the motion, Respondent Dobbie testified that she “started with the findings” at the back of the Collins Report and then wrote the motion to include “the facts that pertain to those particular findings.” HC Rpt. at 22. The false disciplinary charge was not included in the findings.

Rule 3.8(e) states, in principal part, that it is a violation of the D.C. Rules of Professional Conduct for a prosecutor to:

[i]ntentionally fail to disclose to the defense . . . any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused . . .

Though a fuller discussion is set out below, we conclude that the elements of a Rule 3.8(e) violation have been proven. The Collins Report’s conclusion that Childs filed a false disciplinary charge was Giglio information and needed to be disclosed. While Respondents did not include it because it was not in the findings section of the Collins Report, a reasonable prosecutor would know that the false disciplinary charge was Giglio information. And Respondents intentionally made a disclosure, through the motion in limine, that did not include that Giglio information.

For the reasons set out below, we also find that Respondents violated Rule 8.4(c), by engaging in conduct involving dishonesty, and violated Rule 8.4(d) because their conduct seriously interfered with the administration of justice. We recommend a suspension of six months.

The board rejected a  number of charges but nonetheless concluded that suspension was appropriate

The Rule 3.8(e) violation is the central violation in this case; however, the determination that Respondents violated Rule 8.4(c) is a substantial aggravating factor. As Disciplinary Counsel acknowledged at oral argument, with respect to sanction on the Rule 3.8(e) violation, there is little to guide us; there is limited caselaw concerning the appropriate sanction in matters involving prosecutorial misconduct in violation of Rule 3.8(e).

Disciplinary Counsel is surely right that , as a general matter, a violation of Rule 3.8(e) undermines our entire system of criminal justice. Prosecutors are not merely advocates; they are called upon to make sure that criminal trials are fair to the accused and that the machinery of prosecution is credible. At its most severe, a violation of Rule 3.8(e) can mean that an innocent person languishes in prison –which would surely be an aggravating factor.

...we conclude that a sanction much more significant than that inKline is warranted. We believe that a six-month suspension is the appropriate sanction

Authored by a former student of mine. (Mike Frisch)

January 19, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 17, 2021

Indecent Proposal

The Medina (Ohio) County Bar Association has filed a complaint alleging misconduct against an attorney admitted in 1987 who has no prior discipline.

Two counts involve the same client who had retained him in October 2017; they allegedly began a sexual relationship shortly thereafter.

He handled several legal matters including her divorce which created an alleged conflict of interest.

He allegedly hired her to be his legal assistant "at no or virtually no pay" and failed to supervise her work.

After they began living together, the attorney "solicited [the client] to perform surrogate mother services for a fee to

fashion a super race of professionals such as himself

Editors note: yes really

He allegedly "intimidated and threatened [her] with severe bodily harm, including death."

He accused her of theft of checks from his office.  She pleaded guilty to criminal trespass of his office and was ordered to stay away from him.

She then filed the bar complaint.

Count Two involves a civil stalking protection order that he filed against her on behalf of his wife.

After a temporary protection order was granted, the attorney and his spouse took pictures of the client in the Walmart parking lot across from  his office.

He called the police and she was arrested and incarcerated.

When the matter was heard

the Magistrate, who presided over the Hearing on the Petition for the Civil Stalking Protection Order, sent a grievance to the Office of Disciplinary Counsel of the Ohio Supreme Court. The grievance, that reported Respondent’s conduct, was subsequently transferred to the Medina County Bar Association.

The alleged misconduct involves a current client conflict and misuse of information obtained in confidence against a former client. (Mike Frisch)

January 17, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 16, 2021

Ex-State Trooper Suspended For Four Years

An agreed four year suspension has been imposed by the Michigan Attorney Discipline Board for a conviction described by the Detroit Free Press

A judge told former Michigan State Police trooper Mark Bessner on Monday that people like him have caused “the distrust of police officers that plagues our community in Detroit, the state of Michigan and throughout the country.” 

Then she sentenced Bessner to 5 to 15 years in prison for the death of 15-year-old Damon Grimes.

The Detroit teen was driving his ATV in August 2017 on the city’s east side when Bessner — a passenger in a moving patrol car — fired his Taser at the teen during a chase. Grimes slammed into the back of a parked truck and died soon after from his injuries.

Last month, a Wayne County jury convicted Bessner, 45, of involuntary manslaughter. He has been locked up since.

“I’m truly sorry," Bessner said as he addressed the packed courtroom. “I think about it every day.”   

If there was a time machine and he could change the outcome, he would, Bessner said.

He went on to say it is a “no-win situation” for police, adding that police try to make the best decisions.

Wayne County Circuit Judge Margaret Van Houten said Bessner’s actions contradicted his training. Then, as prosecutors had requested, Van Houten went above the sentencing guidelines, which recommended no more than 38 months as a minimum sentence. Van Houten's minimum sentence was 60 months. 

The judge said the guidelines hadn't given enough weight to Grimes’ age and Bessner’s police training.

She told Bessner, who has a law degree, that he had abused the public trust placed in police officers.

"Your actions make it more difficult for the thousands of men and women who put on a uniform and a badge every day to go out and perform their duties," Van Houten said.  

During his trials, the defense said Bessner believed Grimes was reaching for a gun in his waistband during the incident. Grimes did not have a weapon.  

Van Houten said if Bessner truly believed Grimes was armed, he would have searched Grimes for a weapon immediately after the crash and told his partner.

She recounted Bessner saying on his police radio right after the incident: “He slowed down. We tased him. Check that, I tased him.”  

“That statement is very telling,” Van Houten said. “That is the obvious time Mr. Bessner would have stated that he thought Grimes was reaching for a weapon.”  

Helen Stinson, Grimes’ aunt, spoke during sentencing and said because of Bessner’s actions, their family member was taken from them.

“A child is a terrible thing to lose,” she said.

Prosecutors have argued Bessner had a history of using his Taser to punish those who opposed him and said, in this case, Bessner deployed his Taser without legal justification, causing Grimes to crash.

Bessner’s first trial ended with a hung jury last year. In both trials, he was charged with second-degree murder and involuntary manslaughter. This time, a jury convicted him on the lesser charge.

Bessner resigned from the State Police after the incident amid the criminal probe. He had been reprimanded before for using his Taser inappropriately.

Michigan State Police were patrolling in the city as part of the Secure Cities Partnership, an initiative launched in 2012 to bring additional police resources to high crime areas of Detroit, Flint, Saginaw and Pontiac.

January 16, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Ex-FBI Attorney Suspended

The Michigan Attorney Discipline Board has imposed an interim suspension of a former FBI attorney for his guilty plea to a federal false statement offense.

Politico reported

Prosecutors are asking for a prison sentence for a former FBI lawyer who admitted altering an email sent to a colleague working on the investigation into alleged Russian influence on Trump campaign affiliates.

Kevin Clinesmith pleaded guilty to a felony false-statement charge in August, soon after he became the only person charged in connection with the investigation Attorney General William Barr ordered last year into the origins of the Trump-Russia probe. Barr earlier this week appointed the veteran prosecutor leading that review, Connecticut U.S. attorney John Durham, as a special counsel, empowering him to continue the investigation into President-elect Joe Biden’s term.

In his plea, Clinesmith admitted adding words to an email used to bolster the case for a surveillance warrant on Carter Page, a former Trump campaign adviser. The alteration was one of a series of errors, omissions and inaccuracies identified by the Justice Department inspector general that sharply undercut the FBI’s treatment of Page, who was monitored from October 2016 until late 2017 under orders from the secretive Foreign Intelligence Surveillance Court.

Clinesmith faces a maximum possible sentence of five years in prison, but is likely to be sentenced in accordance with federal guidelines that call for a term of zero to six months in custody in his case
 
His attorneys are asking that he be spared any prison time. They say he has suffered enough, with his career “in shambles” and his reputation ruined.
 
Prosecutors, on the other hand, are seeking a jail term of “at least” three to six months for Clinesmith, contending that his offense was so serious that he deserves incarceration.
 
(Mike Frisch)

January 16, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 15, 2021

Relationship Status

The North Carolina State Bar has filed a complaint alleging that an attorney engaged in misconduct in the course of representing a domestic relations client.

The complaint alleged that the attorney went to the client's home to have her sign a consent order. He suggested a mutual attraction and asked for a kiss.

After "making out," she said she could not "go any further " and they did not have sex.

When Hurricane Florence hit Wilmington, the attorney allegedly stayed with the client at her mother's house and they had sex.

He then filed the divorce action and handled the matter until its conclusion.

It is alleged that the attorney was married and "gave [the client] various excuses about why he hadn't separated from his wife."

He then allegedly falsely told the client that his wife had discovered the affair and threatened to sue her for alienation of affection.

He allegedly lived with the client after he had separated from his spouse but "decided that the relationship wasn't going anywhere."

She found out it was over when she visited his Facebook page and saw he listed his "relationship status" to a relationship with someone else. (Mike Frisch)

January 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Missing Evidence

The Tennessee Supreme Court ordered a three-year suspension with all but eight months suspended and probation.

According to the summary on the web page of the Board of Professional Responsibility

He admitted to taking controlled substances from an evidence room while he served as an assistant district attorney.

He pled guilty to official misconduct, theft under $100 and simple possession.

He received diversion in the criminal case. (Mike Frisch)

January 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Maryland (Not) My Maryland

The New Jersey Supreme Court imposed a three-month suspension of an attorney in an original discipline case brought for misconduct in Maryland.

As described by the Disciplinary Review Board, the attorney took and passed the Maryland Bar but was never admitted there. 

In 2007, he was alleged to have practiced in Maryland without a license. The matter was resolved on his promise to stop until admitted.

He was warned that the inquiry would be reopened if he again engaged in unauthorized practice.

The attorney continued the violations after a 2009 consent decree.

A Maryland divorce client filed a bar complaint against him in 2012.

The complaint was dismissed on jurisdictional grounds because he had no Maryland license.

In these proceedings, he contended that the dismissal was a favorable adjudication on the merits.

Not, said the DRB. Rather, they relied on the testimony of Maryland Deputy Bar Counsel that his office had concluded that New Jersey should handle the situation.

The DRB further rejected the argument that the attorney could practice in Maryland on a "temporary basis."

The DRB found that the attorney had engaged in a number of rule violations beyond the unauthorized practice. (Mike Frisch)

January 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 14, 2021

Former State Senator Sanctioned

A one-year and until further order suspension has been ordered by the New York  Appellate Division for the Fourth Judicial Department

With respect to the facts underlying respondent’s conviction, from January 2015 through December 2016, respondent served as a New York State Senator representing Senate District 60. Respondent admits that, in January 2016, he traveled to New York City with a staff member of his Senate office to engage in fundraising activities for his 2016 reelection campaign. Respondent admits that, when they returned to their hotel after attending the fundraising event and engaging in related social activities, respondent visited the staff member’s hotel room to address matters related to the fundraising event, whereupon respondent made unwanted verbal and physical sexual advances toward the staff member. Respondent admits that the staff member asked him to leave her hotel room, which he did. In February 2016, the staff member submitted to respondent a letter of resignation from her position in respondent’s Senate office, citing, inter alia, respondent’s conduct following the fundraising event. Respondent immediately reported the former staff member’s allegations to the Senate Personnel Office, and the matter was eventually referred to the New York State Joint Commission on Public Ethics (JCOPE) for further investigation.

Respondent admits that, after he became aware of the JCOPE investigation, he was concerned that it would negatively affect his 2016 reelection campaign. Respondent admits that he subsequently arranged for an employee of his Senate office to offer the former staff member a financial payment or new employment in exchange for her agreement to refuse to participate in the JCOPE investigation. Respondent admits that, at his direction, the employee of his Senate office met the former staff member in March 2016, at which time the former staff member recorded the conversation. Approximately one week later, respondent publicly announced that he would not seek reelection to the Senate. The FBI commenced an investigation into respondent’s conduct and, in June 2018, respondent executed a plea agreement and entered a plea of guilty in District Court to the above-referenced federal misdemeanor. In December 2018, respondent was sentenced in District Court to incarceration for a period of two months, supervised release for a period of one year, and payment of a fine in the amount of $9,500. Respondent thereafter entered into a settlement with JCOPE wherein he acknowledged that the conduct set forth in his federal plea agreement violated certain provisions of the Public Officers Law,  and he agreed to pay a civil fine in the amount of $10,000.

He played NFL football with the Buffalo Bills. (Mike Frisch)

January 14, 2021 in Bar Discipline & Process | Permalink | Comments (0)

"Private" Criminal Conduct A-OK For Georgia Lawyers

I was surprised to read in Law.com a statement attributed to the General Counsel of the Georgia State Bar to the effect that a lawyer admitted there could not be sanctioned for "private" criminal behavior absent a conviction.

Of course, that would not be remotely accurate in a jurisdiction that followed the ABA Model Rules.

I was again surprised to the learn of Georgia's careful narrowing of the class of lawyers who engage in criminal conduct that can be sanctioned.

RULE 8.4 MISCONDUCT
  1. It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to:
    1. violate or knowingly attempt to violate the Georgia Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
    2. be convicted of a felony;
    3. be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law;
    4. engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation;
    5. fail to pay any final judgment or rule absolute rendered against such lawyer for money collected by him or her as a lawyer within ten days after the time appointed in the order or judgment;

      1. state an ability to influence improperly a government agency or official by means that violate the Georgia Rules of Professional Conduct or other law;
      2. state an ability to achieve results by means that violate the Georgia Rules of Professional Conduct or other law;
      3. achieve results by means that violate the Georgia Rules of Professional Conduct or other law;
    6. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
    7. commit a criminal act that relates to the lawyer's fitness to practice law or reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer, where the lawyer has admitted in judicio, the commission of such act.
    1. For purposes of this Rule, conviction shall include any of the following accepted by a court, whether or not a sentence has been imposed:
      1. a guilty plea;
      2. a plea of nolo contendere;
      3. a verdict of guilty; or
      4. a verdict of guilty but mentally ill.
    2. The record of a conviction or disposition in any jurisdiction based upon a guilty plea, a plea of nolo contendere, a verdict of guilty or a verdict of guilty but mentally ill, or upon the imposition of first offender probation shall be conclusive evidence of such conviction or disposition and shall be admissible in proceedings under these disciplinary rules.
  2. This Rule shall not be construed to cause any infringement of the existing inherent right of Georgia Superior Courts to suspend and disbar lawyers from practice based upon a conviction of a crime as specified in paragraphs (a) (1), (a) (2) and (a) (3) above.
  3. Rule 8.4 (a) (1) does not apply to any of the Georgia Rules of Professional Conduct for which there is no disciplinary penalty.

The maximum penalty for a violation of Rule 8.4 (a) (1) is the maximum penalty for the specific Rule violated. The maximum penalty for a violation of Rule 8.4 (a) (2) through (c) is disbarment.

The ABA version is linked here and pertinently provides that it is misconduct to

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation...

 Whenever a jurisdiction departs from an ABA Model Rule, I wonder as to the motivation.

I respectfully find it hard to fathom a rule departure that makes it more difficult to sanction criminal (and dishonest) behavior by a member of the legal profession.  (Mike Frisch)

January 14, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Show Me

The Missouri Supreme Court has disbarred an attorney, rejecting mitigation claims without supporting evidence

The parties agree that, over a period of approximately five years, Eric F. Kayira repeatedly failed to notify clients he had received funds belonging to them, engaged in a pattern of depleting his clients’ funds—frequently to make payments owed to other clients—and misappropriated client funds to pay for personal and firm expenses. As Mr. Kayira acknowledges, disbarment is the baseline sanction for knowingly converting client funds and is the sanction recommended by the disciplinary hearing panel (“DHP”) and the office of chief disciplinary counsel (“OCDC”).

But, Mr. Kayira argues, this case presents the kind of unusual circumstance in which consideration of mitigating factors should result in imposition of the lesser sanction of indefinite suspension. He notes that, at the time of his conduct, he had serious personal problems, including—he claims without providing any medical support—alcohol abuse and depression. He also was recently divorced. The DHP considered this information but  found it did not sufficiently mitigate Mr. Kayira’s wrongful conduct so as to lessen the appropriate sanction from disbarment to suspension.

Mr. Kayira asserts the DHP was unaware he also suffered from bipolar disorder because he did not discover it himself until after his disciplinary hearing and Rule 5.285 did not permit him to raise this mental disorder as a basis for mitigation of the sanction once he had filed his answer. If he had been permitted to raise it, he argues, it would have resulted in a lesser sanction, citing In re Belz, 258 S.W.3d 38 (Mo. banc 2008).

Mr. Kayira is incorrect. Unlike in Belz, Mr. Kayira offered no medical evidence to support his claim of a mental disorder, and an unsupported allegation of such a disorder is inadequate to invoke the mitigation features of Rule 5.285. And contrary to Mr. Kayira’s assertion that one cannot offer such evidence after the answer is filed, Rule 5.285(b) expressly permits an attorney to raise the issue of a mental disorder out of time if good cause is shown. Not only did Mr. Kayira fail to provide any proof of good cause, he failed
to even seek permission to raise this defense or offer any evidence in support of it. Finally, unlike in Belz, he did not show additional mitigating factors such as self-reporting and voluntary restitution before the information was filed.

In light of Mr. Kayira’s pattern of mishandling and misappropriating client funds, and the lack of sufficient mitigation evidence, this Court disbars him.

I use the court's Belz decision in my teaching. (Mike Frisch)

January 14, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 13, 2021

No Stone Left Unturned

The Utah Supreme Court has disbarred an attorney

The saga of the discipline of Brian W. Steffensen has continued for nearly a decade, now coming before this court for the third time. Though the matter has revealed numerous legal complexities over the years, it returns to us today primarily on the straightforward issue of the appropriateness of the district court‘s order disbarring Steffensen. We agree with the district court‘s analysis and affirm the disbarment order.

The court sets out the history of proceedings leading to a remand

Following our order of remand, the district court solicited proposed findings of fact and conclusions of law from each party to aid in the court‘s determination of the appropriate sanction. This is when the maxim that no good deed goes unpunished kicked in. The district court‘s apparent effort to "be  [and] give all [parties] an opportunity to respond" with their own proposed findings and conclusions quickly "mushroomed," as the district court aptly noted, "into something that seems to be far beyond what the Supreme Court ever intended."

The court on sanction

The district court recognized that the conduct amounting to Steffensen‘s 8.4(c) violation was not simply that Steffensen failed to remit tax monies but rather that, in doing so, he breached his fiduciary duty to his employees. It was this breach in particular that called for presumptive disbarment under rule 14-605(a)(3), which applies when a lawyer "engages in . . . intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer‘s fitness to practice law."

...With this opinion, we bring to a close this decade-long adjudication of Steffensen‘s conduct, comfortable in having left no legal or factual stones unturned in reaching this ultimate resolution. We affirm the district court‘s order of disbarment.

(Mike Frisch)

January 13, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Computer Glitch

The Minnesota Supreme Court has revoked the conditional readmission of an attorney who was suspended for a minimum of 30 days and conditionally readmitted subject to a requirement that he take and pass the MPRE.

The attorney did not demonstrate that he met the requirement to timely pass the exam.

Rather, he filed a motion to extend the time to permit him too do so.

Having failed the exam twice, he asserted good cause to extend the time

[He] contends he did not receive a passing score because the exam was administered on a computer and, having never worked on one before, he was unable to properly operate his computer.

He had also offered a supporting letter from his doctor.

The court noted that he could have sought an accommodation but ad not done so.

The sanction imposed is an indefinite suspension. (Mike Frisch)

January 13, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Numba One

The New Jersey Supreme Court has disbarred an attorney.
 
The Disciplinary Review Board recommended that sanction for the attorney's involvement in a complex series of arrangements that involved conflicts of interest, business transactions with clients and other misconduct that included the misuse of entrusted funds.
 
The board noted that an attorney-client relationship was not required to find disbarment -worthy misuse of other people's money.

The circumstances are set forth in an opinion of the court in the attorney's bankruptcy

When this unfortunate series of events commenced, Michael Attardi ("Attardi") was a screen writer and an aspirant film producer who had authored and attempted to finance several film scripts. Joseph Anselmo ("Anselmo") was a commercial finance broker who offered to assist Attardi with funding his film scripts and further offered to introduce him to the Defendant for legal representation. In or around June 2006, Anselmo introduced Attardi to the Defendant. Attardi retained the Defendant's law firm Klafter & Mason, LLC ("K&M"), to represent Attardi's businesses in exchange for a two percent equity interest in his various companies. Attardi began working on a film entitled, "Numba One," which was to be a live-action, mafia comedy starring Federico Castelluccio. Numba One, LLC ("Numba One") was a Florida limited liability company, formed for the purpose of producing the movie. Attardi and the Defendant were identified as the original managers of Numba One, and Attardi was the registered agent. Subsequently, Attardi learned that The Writers Guild of America would not permit him to be paid for his script as manager of the production company. Therefore, Attardi resigned as a manager of Numba One, and Andy VanRoon ("VanRoon") became a manager of Numba One. At all times thereafter, VanRoon and the Defendant acted as the two co-managers of Numba One.

In or around the later part of 2010, the Plaintiffs invested a total of $690,000 in Numba One with the understanding that the money was being placed in an escrow account until the total budget amount of $3,000,000 could be raised, further providing that the money would be  returned if the $3,000,000 could not be raised by September 2, 2011. The Plaintiffs' $690,000 was deposited under the name of Numba One into K&M's trust account. There can be no question, as confirmed by the credible testimony of Bade, Scire and Phillips, as well as the operative documents, that Plaintiffs invested their money with the understanding and assurances that not a single dollar would be released until the entire $3,000,000 raise had been achieved. In this regard, the Court notes the operative language appearing in Numba One's Operating Agreement and Confidential Private Offering Memorandum. Pursuant to the Operating Agreement, "[t]he monies shall be placed into a dedicated escrow bank account and will be released to [Numba One] only when the total budget amount of Three Million Dollars ($3,000,000) has been achieved." Plaintiffs' Exhibit 25. Similarly, the Confidential Private Offering Memorandum states that, "[a]ll funds received will be deposited into a dedicated bank escrow account until the Total Minimum Offering being offered hereby is obtained." Plaintiffs' Exhibit 32. These restrictions on the release of the invested funds confirmed the representations included in certain promotional literature prepared by Numba One and shown to potential investors. See Plaintiffs' Exhibits 26 and 35.

(Mike Frisch)

January 13, 2021 in Bar Discipline & Process | Permalink | Comments (0)