Thomas Pertler, who was the county attorney from 2005 to 2018, is no longer allowed to practice law in the state after failing to disclose police misconduct while in office, which led to the dismissal of 19 pending criminal cases and the retroactive dismissal of eight convictions...
Friday, September 18, 2020
The New York attorney discipline system has a singularly speedy and harsh response to an attorney's failure to respond to a complaint.
The Appellate Division for the First Judicial Department entered a disbarment order yesterday
In August 2019, the Attorney Grievance Committee (AGC) moved for respondent's immediate suspension from the practice of law, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9(a)(3), based on her failure to answer a complaint alleging that she sent disturbing emails to the New York City Bar Association which raised questions as to her mental health. Respondent submitted an untimely response in opposition to the AGC's motion wherein she failed to adequately address the content of the emails at issue.
Accordingly, by order of November 14, 2019, this Court immediately suspended respondent from the practice of law until further order of the Court without prejudice to her seeking to convert her interim suspension for noncooperation to a medical suspension pursuant to 22 NYCRR 1240.14(b) if she was so advised (179 AD3d 11 [1st Dept 2019]).
Inasmuch as more than six months have elapsed since this Court's November 14, 2019 suspension order, and respondent has neither responded to, nor appeared for, further investigatory or disciplinary proceedings, nor requested a post-suspension hearing, the AGC's motion for an order disbarring respondent pursuant to 22 NYCRR 1240.9(b) should be granted and her name stricken from the roll of attorneys in the State of New York (see Matter of Shapiro, 184 AD3d 352 [1st Dept 2020]; Matter of Matic, 173 AD3d 83 [1st Dept 2019]).
Thursday, September 17, 2020
The New York Appellate Division for the Third Judicial Department has denied a petition for reinstatement
respondent's application lacks certain required proof and documentation, such as all copies of any filed income tax returns. Further, petitioner points out that the majority of respondent's statements in his affidavit are incomplete and/or unsupported. Of greatest concern, however, is the proof in the record that respondent remains in significant arrears in overdue child support payments, with the current amount totaling over of $36,000. Under these circumstances, we find that respondent's application for reinstatement must be denied.
Turning to the parties' remaining motions, we agree with petitioner that respondent's separate motion seeking diverse orders granting him, among other things, immediate reinstatement to the New York bar and the expungement of his disciplinary history are not only lacking in merit, but are substantially the same as previous motions brought by respondent that were also denied on the merits. Under the circumstances, we further grant petitioner's cross motion and enjoin respondent from bringing any motion, application or proceeding in this Court, other than an application for reinstatement pursuant to Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.16 and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.16, without prior leave of this Court (see e.g. Matter of Marin, 162 AD3d 1198 ; Matter of Shieh, 162 AD3d 1393 ).
Ah, memories. I prosecuted the D.C. reciprocal discipline of the last cited Respondent. Counsel for the Respondent was the present Disciplinary Counsel. (Mike Frisch)
Wednesday, September 16, 2020
The New York Appellate Division for the Second Judicial Department affirmed the grant of summary judgment to a law firm sued for a referral fee
The plaintiff commenced this action to recover attorneys’ fees from the defendant law firm for a client referral made by the plaintiff’s decedent, George Moss, who was an attorney. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment on the complaint. Thereafter, the court entered a judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals.
The defendant established its prima face entitlement to judgment as a matter of law by submitting evidence that there was no written agreement between George Moss and the defendant to share fees in the underlying medical malpractice case. Furthermore, even assuming that there was a fee-sharing agreement in place, an attorney who seeks a share of the fee pursuant to such an agreement must have contributed some work, labor, or service toward the earning of the fee (see Benjamin v Koeppel, 85 NY2d 549, 556; Krug v Offerman, Fallon, Mahoney &Cassano, 214 AD2d 889; Grasso v Kubis, 198 AD2d 811). Here, the record establishes that George Moss’s role was merely that of a finder, who referred the plaintiff in the underlying action to the defendant. In order to be entitled to a portion of the fee, more is required of the forwarding attorney than the mere recommendation of a lawyer (see Nicholson v Nason & Cohen, P.C., 192 AD2d 473). The plaintiff failed to raise a triable issue of fact in opposition.
The Ohio Disciplinary Counsel has filed charges against a judge who held hearings in contravention of the coronavirus rescheduling order
Respondent received the order on Friday, March 13, 2020; however, she failed to abide by its terms.
The proceedings held in the following week are recounted at length
That evening, Cleveland.com published an article accusing respondent of issuing arrest warrants for non-jail defendants who did not appear on March 16th and March 17th, despite the administrative judge’s order rescheduling such cases. The article, “Cleveland judge flouts court’s postponements amid coronavirus pandemic, issues warrants for no-shows,” also appeared on the front page of the Cleveland Plain Dealer the following morning.
Proceedings continued on the next day.
After recessing court, respondent agreed to an interview with Fox 8 News’s reporter, Peggy Gallek.
During the interview, respondent falsely asserted that she had not issued any arrest warrants the previous two days.
The Ohio Supreme Court had disqualified the judge in a March 25 order
Regardless of her intentions, by continuing to hear cases after issuance of the municipal court’s administrative order, Judge Carr caused confusion and sent mixed messages to the public at a time when clarity and uniform application of the administrative order were necessary. Indeed, the judge may have incentivized parties to appear for their cases if they knew she was continuing to hold hearings, defeating the purpose of the administrative order. In addition, Judge Carr has failed to sufficiently respond to the allegation that she arbitrarily issued warrants authorizing the arrest of some defendants who failed to appear for their originally scheduled hearings, despite the rescheduling of those matters. If the allegation is true, her actions eroded the public’s confidence in the integrity of the judiciary and created at least the appearance of bias.
...the affidavit of disqualification is granted in part and denied in part. Judge Carr is disqualified from presiding over hearings in nonjail criminal and traffic cases during the pendency of the Cleveland Municipal Court’s March 13, 2020 administrative order or any orders extending the time frame of the original order. Mr. Stanton’s request for a blanket order disqualifying Judge Carr from all criminal and traffic cases is denied. Mr. Stanton’s emergency motion is denied as moot.
The Minnesota Supreme Court has disbarred a former prosecutor charged with disclosure violations
The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Thomas H. Pertler has committed professional misconduct warranting public discipline-namely, failing to disclose known police misconduct of which respondent had knowledge and which required disclosure, failing to implement a Brady policy, failing to disclose information about police misconduct to those who needed the information, and failing to train the staff of the Carlton County Attorney's Office, ultimately resulting in the dismissals of 19 pending criminal cases and the retroactive dismissal and expungement of eight cases that had resulted in conviction, including release of one such defendant who was incarcerated in prison at the Minnesota Department of Corrections. Respondent's conduct violated Minn. R. Prof. Conduct 3.4(c), 3.8(d), 5.l(a), 5.l(b), and 8.4(d).
The Star Tribune reported
The discipline stems from a 2016 investigation into misconduct by Cloquet Police Cpl. Scott Beckman. The police chief later found the claims were credible and told Pertler, according to the disbarment petition. Pertler "did not advise assistant Carlton County attorneys ... of Cpl. Beckman's misconduct and resulting discipline," the petition states.
He admitted the violations and accepted the sanction. (Mike Frisch)
The Minnesota Supreme Court has ordered the temporary suspension of an attorney subject to a stayed order of disbarment
Respondent Daniel Martin Lieber is an attorney who we previously disbarred, In re Lieber, 699 N.W.2d 722, 722 (Minn. 2005) (order), and later reinstated to the practice of law, In re Lieber, 834 N.W.2d 200, 210 (Minn. 2013). After being reinstated, Lieber committed professional misconduct. In re Lieber, 939 N.W.2d 284, 287 (Minn. 2020). In light of substantial mitigating circumstances, we determined that the appropriate discipline was a stayed disbarment. Id. When imposing this discipline, we expressly stated that:
If the Director becomes aware of any allegation or information that respondent has committed any unprofessional conduct or failed to comply with the terms of his stayed disbarment, the Director may immediately file a petition asking that respondent be temporarily suspended pending the completion of an investigation by the Director and resolution of a petition for disciplinary action. Id. at 298.
The Director of the Office of Lawyers Professional Responsibility has now filed a petition for disciplinary action and a supplementary petition for disciplinary action alleging that Lieber has committed professional misconduct warranting public discipline. The Director has also filed a motion to temporarily suspend Lieber pending resolution of the September 1, 2020 disciplinary proceedings in this matter. Lieber does not object to the motion for a temporary suspension.
Monday, September 14, 2020
An Ohio judge has been charged with ethics violations involving Facebook Messenger communications with a person he had friended after presiding over his criminal trial and divorce
Sometime prior to July 22, 2019, respondent and Keith became “friends” on Facebook. They remained friends on Facebook until August 25, 2020.
Between July 22, 2019 and December 19, 2019, Keith and respondent regularly communicated with each other using Facebook Messenger, a free mobile messaging app developed by Facebook, Inc. for instant messaging and sharing of photos, videos, or audio recordings between Facebook friends.
In a pending criminal matter
On August 27, 2019, Keith sent respondent a message via Facebook Messenger. In that message, Keith told respondent that [defendant] Mendez had sold heroin to Keith’s daughter, and he requested that respondent not give Mendez a “bond he can make.”
At no time while respondent was presiding over Mendez’s case did respondent disclose to either party that he had received an ex parte communication from Keith concerning Mendez.
He and Keith allegedly communicated about post-divorce matters
On the same day, respondent replied to Keith’s message via Facebook Messenger and stated, “Yes he is! That’s funny. I’ll look for him and for sure talk to him if I see him. I like his attitude[.] 😊😊”
On September 6, 2019, Keith filed a pro se Motion for Change of Parenting Time in his divorce case over which respondent was presiding.
Between September 6, 2019 and September 30, 2019, Keith and respondent exchanged several private messages with each other via Facebook Messenger, including information pertinent to Keith’s Motion for Change of Parenting Time.
There are alleged communications concerning an order permitting Keith to attend his mother's funeral
On December 18, 2019 at 4:48 p.m., Keith sent a message to respondent via Facebook Messenger and asked, “Any word on what’s going to happen with funeral [?]”
On December 18, 2019 at 9:25 p.m., respondent replied to Keith via Facebook Messenger and stated, “A deputy will accompany you. No need for consent, no need for a hearing and the Sheriff is onboard.” Keith immediately replied and stated, “You sure[?] Thank you Bruce[.]”
At no time while respondent was considering the Motion for Permission to Travel in Keith’s case did he disclose to Lear or the prosecutor’s office that he had spoken to Keith or that he had received and responded to multiple Facebook Messenger communications from Keith concerning the matter.
Finally, alleged communications concerning an accident between Keith and a charged defendant in a matter that the judge heard
At no time during the pendency of Fishburn’s criminal case did respondent disclose to Fishburn, Fishburn’s counsel, or the prosecutor that respondent had received multiple Facebook Messenger communications from Keith concerning Keith’s injuries and Fishburn’s criminal case.
An attorney's misdemeanor tax convictions presented a question of first impression in New Jersey, resulting in a public censure by the New Jersey Supreme Court.
The Philadelphia Business Journal reported on the criminal case.
The Disciplinary Review Board recommended that result.
On April 11, 2017, a grand jury for the EDPA charged respondent and her estranged husband, Edward Millstein, with tax offenses. Respondent was charged with two misdemeanor counts of failure to pay taxes to the Internal Revenue Service (IRS), for tax years 2010 and 2011, in violation of 26 U.S.C. § 7203. Millstein, who also is an attorney, was charged with felony tax evasion, in violation of 26 U.S.C. § 7201, and two misdemeanor counts of failure to pay taxes, in violation of 26 U.S.C. § 7203.
The indictment alleged that, in 2010, respondent and Millstein willfully failed to pay $143,473.35 in taxes, and that, in 2011, they willfully failed to pay $153,560.69 in taxes. Only Millstein was charged with tax evasion, however.
The attorney pled guilty to the two misdemeanors
Ultimately, in addressing both respondent and Millstein, Judge Rufe stated that these tax offenses occurred “because you two were so busy fighting, and trying to avoid the inevitable, you paid lip service to the law. Two lawyers paid lip service in law. You should be ashamed of yourselves.”
She was placed on five year's of probation.
This is a case of first impression, as respondent noted, because the Court has never disciplined a New Jersey attorney solely for the failure to pay income taxes, in violation of 26 U.S.C. § 7203. In our view, however, both the reasoning and the appropriate quantum of discipline for respondent’s offenses are well-charted by the Court’s precedent for failure to file income tax returns, a violation of the same applicable statute...
In light of the above precedent and the compelling mitigation presented by respondent, we determine that a suspension is not warranted. Respondent has satisfied her outstanding tax liability, and has presented significant mitigation, as in Vecchione. Further, although factual similarities are evident, she does not have a disciplinary history like similarly situated attorneys who received a one-year suspension, as in Hand. Moreover, we note that Williams was decided in December 2001, before censure became a recognized form of attorney discipline, pursuant to R. 1:20-15A(a)(4).
We determine that, on balance, a censure is the quantum of discipline necessary to protect the public and preserve confidence in the bar.
Two board members recommended a six-month suspension.
Pennsylvania had imposed a public reprimand. (Mike Frisch)
Sunday, September 13, 2020
The Georgia Supreme Court has held that a retainer provision mandating arbitration of legal malpractice claims does not violate public policy
Innovative Images, LLC (“Innovative”) sued its former attorney James Darren Summerville, Summerville Moore, P.C., and The Summerville Firm, LLC (collectively, the “Summerville Defendants”) for legal malpractice. In response, the Summerville Defendants filed a motion to dismiss the suit and to compel arbitration in accordance with the parties’ engagement agreement, which included a clause mandating arbitration for any dispute arising under the agreement.
The trial court denied the motion to dismiss, concluding that the agreement was unconscionable and violated public policy
the Court of Appeals reversed that ruling, holding that the arbitration clause was not void as against public policy or unconscionable.
The court here agreed
we conclude that regardless of whether Summerville violated GRPC Rule 1.4 (b) by entering into the mandatory arbitration clause in the engagement agreement without first apprising Innovative of the advantages and disadvantages of arbitration – an issue which we need not address – the clause is not void as against public policy because Innovative does not argue and no court has held that such an arbitration clause may never lawfully be included in an attorney-client contract. For similar reasons, the arbitration clause is not substantively unconscionable, and on the limited record before us, Innovative has not shown that the clause was procedurally unconscionable. Accordingly, we affirm the judgment of the Court of Appeals...
Even if we assume – as we will for the remainder of this opinion – that such conduct does violate Rule 1.4 (b) such that an attorney may be subject to professional discipline, the Arbitration Clause in dispute here is neither void as against public policy nor unconscionable.
Rather than unnecessarily addressing this attorney ethics issue by judicial opinion, we will leave it to the State Bar of Georgia to address in the first instance whether this is a subject worthy of a formal advisory opinion about or amendment to the GRPC. We have before us only one factual scenario and the arguments only of the parties and one amicus curiae (the Georgia Trial Lawyers Association). Under these circumstances, the Bar’s processes provide better opportunities to obtain input from all types of lawyers as well as the public and to consider all of the potentially applicable rules without limitation to a particular litigant’s arguments.
Friday, September 11, 2020
The Indiana Supreme Court has imposed a one-year suspension without automatic reinstatement for this stipulated misconduct
In September 2018, Respondent was employed as an assistant city attorney for the City of Anderson. On September 5, after Respondent began drinking alcohol at home early in the afternoon, he was unexpectedly summoned to attend a Board of Zoning Appeals meeting to substitute for another attorney. After leaving the meeting, Respondent went to a bar and continued to consume alcohol. Upon leaving the bar, Respondent was involved in a single-vehicle crash in which he left the road and struck a utility pole and retaining wall. Respondent fled the scene in his damaged car and was found moments later by police in a restaurant parking lot. Respondent refused to take field sobriety or certified breath tests. A subsequent blood draw pursuant to warrant showed an alcohol concentration equivalent of .29%. Respondent was charged with several offenses and pled guilty to operating while intoxicated (“OWI”) with endangerment and leaving the scene of an accident, class A and B misdemeanors respectively.
While disciplinary action involving that matter was pending, Respondent was arrested yet again and charged with counts of OWI and leaving the scene of an accident based on an incident that occurred on July 9, 2020. This is Respondent’s fifth alcohol-related arrest.
The Anderson Herald Bulletin reported on the recent arrest. (Mike Frisch)
The Maine Supreme Judicial Court has ordered an attorney's interim suspension after a recent hearing
Following the hearing on September 2, 2020 and upon consideration of the testimony together with the exhibits and materials submitted, as well as arguments of counsel, the court concludes that the submitted evidence supports a finding that Attorney Spurling has committed multiple violations of the Maine Rules of Professional Conduct, specifically at least Rules 1.7(a)(2), 8.1 and 8.4(a), (d) and (g).
The court finds that with his client J.K., Defendant engaged in several instances of touching of her leg of a sexual nature, culminating with unwelcome grasping and touching of her body at the last in-person conference. Defendant also suggested to J.K. that he would like a physical relationship to go further, particularly when he said he would like "the whole enchilada" from her. The touching and sexual innuendo were unwelcome to J.K. although she did not tell Defendant to stop by word or deed. Rather, she was distressed and discharged him almost immediately thereafter and hired another lawyer.
The court also finds that Defendant made unwelcome sexual advances to another client, K.W. Even if Defendant believed the advances were welcome at the time, it appears that K.W. was substantially incapacitated during the encounter.
Defendant’s conduct with both clients violated Rule 8.4(g). Whether the (unwelcome) sexual touching and advances also constitute "sexual relations" with a client within the strict meaning of Rule 1.8(j), such conduct violates Rule 1.7(a)(2) with regard to the personal interest of the lawyer. See Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 18. It may also be criminal. See supra fn. 2; 17-A M.R.S. § 260. See also Rule 8.4(b).
While Defendant immediately admitted he should not have touched J.K., and "owned" his responsibility at the hearing, the court is not re-assured. In the same testimony in which he put the responsibility squarely on his shoulders, he also testified that he should not have let himself be "handled" or "manipulated" by J.K. The court does not agree that she "handled" or "manipulated" him, and the testimony gives the court pause as to whether Defendant actually understands the problem, including the power imbalance and vulnerability of the client. Similarly, Defendant said he immediately recognized his actions were inappropriate and disappointing, and consulted with MAP as a result. The fact that Defendant talked with MAP on several occasions before he decided to go drinking with another client and try to start a sexual relationship makes it clear to this court that he does not recognize the problem. His insight and honesty are further called into question by the fact that he denied to Bar Counsel that K.W. was a client, despite the fact that she had come to him in his professional capacity and paid the retainer. The response to Bar Counsel violates Rule 8.1.
Under the facts presented by the Board, this court concludes that Attorney Spurling’s misconduct serves as an imminent threat to clients, the public and to the administration of justice. M. Bar R. 24.
The amended order is linked here. (Mike Frisch)
The Iowa Supreme Court has imposed a 30-day suspension of a previously-disciplined attorney.
The prior case
He was previously disciplined in 2010 after he had a sexual relationship with a client and disclosed confidential information about the client during his campaign for county attorney, which resulted in a six-month suspension of his license.
The Grievance Commission had proposed a reprimand.
The court sustained an excessive fee violation for finance charges
On our review, we agree Marzen violated rule 32:1.5(a). Generally, “[a]n attorney cannot assess finance charges when the attorney collects a fee, unless the client agrees in writing in advance to the finance charges imposed.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 404 (Iowa 2007). Even without an agreement, an attorney may apply finance charges on the unpaid balance of an accounts receivable if he complies with the notice requirements contained in Iowa Code section 535.11. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 560 (Iowa 2004). While the parties do not address whether Marzen’s invoices complied with the finance charge provisions of chapter 535, on our de novo review, we conclude they did not.
The court agreed that an alleged false statement that he had mailed a client's tax returns was not proven
Marzen maintained throughout this proceeding that the returns were mailed despite neither taxing authority receiving them. [Spouse] Kari Marzen testified she specifically recalled mailing the tax returns because it was a milestone in a big project, and her testimony is supported by the contemporaneous mailing affidavit. Marzen’s inability to produce a copy of the signed returns may be poor practice, but it does not in itself undermine the evidence showing the returns were mailed.
We are mindful of the standard for imposing attorney discipline. We agree with the commission that the Board failed to prove by a convincing preponderance of the evidence that Marzen knowingly made a false statement of material fact to the Board in violation of rule 8.1(a).
But there was a false statement
It is one thing to file tax returns with as much information as available to avoid late filing penalties; it is another altogether to do so in order to provide clients with “filed returns” to give the bank in support of a loan application. Rule 32:8.4(c) imposes an ethical obligation on an attorney to say no to his clients when complying with the request involves a known and material misrepresentation. Marzen violated rule 32:8.4(c).
Transfering an estate file to another attorney without client consent
We also agree with the commission this conduct violated rule 32:1.4(a)(1)–(3). The comments advise that ordinarily an attorney should obtain client consent before “retain[ing] or contract[ing] with other lawyers outside the lawyer’s own firm” to provide or assist in providing legal services on a client’s matter. Iowa R. Prof’l Conduct 32:1.1 cmt. . Even more so, transferring a file to another attorney in a separate law firm requires informed consent, and doing so without informed consent violates rule 32:1.4(a)(1).
The file transfer also violated the duty of confidentiality and involved a false statement
Whether Lloyd consented to Marzen transferring the estate mattern to Sutton was material to whether Sutton would accept the representation, particularly given Sutton’s prior experience with the Piersons. Having a client’s consent is not a fact that is easily overlooked. Testimony from Sutton and Lloyd supports the commission’s finding that Marzen told Sutton that Lloyd had already consented to the transfer when in fact he had not; Lloyd was unaware of the transfer until informed by Sutton. Whether or not Lloyd objected to the transfer, or even consented after-the-fact, Marzen’s statement to Sutton was false when he made it. Marzen knowingly made a false statement of material fact in violation of rule 32:1.4(a).
Defending the bar complaint is not an aggravating factor
With respect to whether Marzen accepted responsibility, we recognize that an attorney is entitled to defend his actions in a disciplinary proceeding without fear that doing so will be considered an aggravating factor if he is found to have violated our ethics rules. While we are troubled by Marzen’s misrepresentation to Sutton that Lloyd had provided written consent to transfer the estate file and by Marzen’s willingness to mail known inaccurate tax returns to the IRS, Marzen provided plausible, albeit misguided, explanations for his actions.
And the complainant's motivation is no mitigator
the commission found the Piersons brought this complaint because they did not want to pay Marzen, which it considered a mitigating factor. Even if the Piersons did bring this complaint to avoid paying their legal fees, a client’s motivation for bringing a complaint is not a mitigating factor.
Based on Marzen’s violations and the aggravating factors in this case, we agree with the Board that Marzen’s
license should be suspended, contrary to the commission’s recommendation of a public reprimand. We are most troubled by Marzen’s willingness to provide knowingly inaccurate tax returns for his clients to give to their bank in support of a loan application. This, coupled with Marzen’s prior disciplinary record, warrants a thirty-day suspension.
The District of Columbia Court of Appeals accepted a recommendation for consent discipline
In this disciplinary matter, the Ad Hoc Hearing Committee (the Committee) recommends approval of a petition for negotiated attorney discipline. See D.C. Bar R. XI, § 12.1(c). The petition is based on the finding that Respondent’s conviction for making a false statement to obtain unemployment compensation did not constitute moral turpitude per se. The Committee found that “circumstances in which Respondent found herself [a “volunteer” for the Gray campaign who was paid a stipend] may not have been employment at all” within the meaning of the unemployment compensation statute.
Respondent acknowledged that she committed a misdemeanor crime in violation of D.C. Rules of Professional Conduct 8.4(b) and 8.4(c). The proposed discipline is a three-year suspension without a fitness requirement nunc pro tunc to July 5, 2016, the date she filed her D.C. Bar R. XI, § 14(g) affidavit.
Because more than three years has passed since the interim suspension and there is no fitness requirement, the effect of the order is that the attorney is reinstated.
The hearing committee findings are linked here.
The committee noted the passage of time
The record does not disclose any reason why nearly three years separates the Board reference to a hearing committee and the filing of a petition for negotiated discipline on July 18, 2019. Disciplinary Counsel suggested at the hearing that there were “many fruitless attempts to get information from the [g]overnment, and I know there were various negotiations with prior counsel. But I don’t have a set answer of any one thing that caused the delay.” Hearing Transcript (“Tr.”) 69
A sparse record
None of the checks drawn to the Respondent by the Gray campaign were included in the record. It appears that the Assistant Disciplinary Counsel responsible for this matter was changed during the period in which this matter was pending. According to present Disciplinary Counsel, there were “fruitless attempts to get information from the [g]overnment.” Tr. 69. The Petition states, “We [Disciplinary Counsel] were unable to obtain additional evidence from DOES or the U.S. Attorney’s office regarding Respondent’s criminal conduct.” Petition, ¶ IV(2), p. 6. There is no further evidence in the record on this point. Because nearly 10 years have passed since Respondent’s criminal conduct, and nearly five years since her misdemeanor guilty plea, enhancement of the record is not promising.
Thursday, September 10, 2020
The District of Columbia Court of Appeals affirmed the conviction of an attorney for destruction of property and contempt.
On October 31, 2018, at around 5:30 p.m. an evening mass was in progress in the crypt church at the Basilica of the National Shrine of the Immaculate Conception, which is located at 400 Michigan Avenue, N.E. (“the Shrine”). Appellant entered the church “yelling” about the “need to restore the traditional mass.” Bryan Maynard, an agent with the Federal Bureau of Investigations who happened to be attending the mass, testified that appellant ran up towards the altar, denouncing the mass as “illegitimate,” using “expletives,” and telling “everybody to stop.” He then proceeded to walk straight up to the altar, knock over three candlesticks one by one, and head towards the officiating priest (at which point Maynard and others “moved forward to apprehend” appellant). As the candlesticks fell in succession, Maynard observed “debris fall,” and saw “bits of the brass or bronze, whatever the candlesticks were made of, breaking apart.”
The officiating priest asked appellant to leave, but appellant continued to protest, prompting Maynard to head to the altar, grab appellant, and assist other churchgoers in “forcibly walk[ing] [appellant] from the crypt.” After Metropolitan Police Department officers arrived, they arrested appellant for destruction of property and unlawful entry. Appellant was ordered by the court to stay away from the Shrine as a condition of his release, and the head of Shrine security testified that a Shrine security officer issued appellant a barring order. However, Shrine security officers observed appellant return for masses on November 18, 2018, and November 25, 2018. Appellant was charged with contempt of court for violating the stay away order on each occasion.
During his testimony, appellant — an attorney, who represented himself at trial accompanied by his “associate” (apparently, appointed standby counsel) — conceded that he “intentionally . . . toppled over” the candlesticks, but contended that he did so “very carefully” in such a way that they were “not harmed or broken at all.” With regard to the contempt charges, appellant conceded that he “returned twice to the National Shrine against the plain language of the stay away order” issued by the court on November 6, 2018. However, he argued that the stay-away order imposed against him violated RFRA because it “prevent[ed] a faith[ful] Roman Catholic from practicing his religion according to his sacred concepts.”
As to a hand being shackled at trial
we are satisfied that the error here does not warrant reversal of appellant’s convictions.
The stay away order did not violate his First Amendment rights
The trial court told appellant, “[N]obody’s saying you can’t practice your religion, they’re just saying at that particular place where you messed up, you can’t come back there for a while.” We have no trouble in recognizing that, while not saying so in so many words, the trial court found that appellant lacked a RFRA defense because he had not demonstrated that the stay away order substantially burdened his exercise of religion. We agree.
From the web page of the Tennessee Supreme Court
The Tennessee Supreme Court today entered an order permanently disbarring an attorney from practicing law in Tennessee.
A lawyer is “disbarred,” that is, expelled from the legal profession, when the Supreme Court finds that he or she has engaged in misconduct so serious that it must revoke the attorney’s license to practice law. Until 2020, attorneys in Tennessee who had been disbarred for five years had the right under the ethics rules to ask the Supreme Court to reinstate them, no matter how egregious their misconduct. That changed this year.
On January 23, 2020, the Tennessee Supreme Court amended its rules on discipline of lawyers to state that attorneys who are “disbarred on or after July 1, 2020, are not eligible for reinstatement.” The change meant that, effective July 1, attorneys who are disbarred in Tennessee are “permanently” disbarred. They can no longer ask the Court to reinstate their law license and will never again practice law in the State.
In its first order since the rule change went into effect, the Court permanently disbarred a Dickson County lawyer, Jackie “Jack” L. Garton. Mr. Garton was the trustee for a trust set up to provide for the 14-year-old daughter of Tennessee state trooper Todd Larkins, who was struck and killed by a tractor-trailer truck in 2005. The trust contained over $2 million from the settlement of a wrongful death lawsuit.
The trust was administered out of the probate and juvenile court of Dickson County. Over a period of years, Mr. Garton began quietly disbursing trust monies to himself in the form of excessive fees. As the probate judge neared retirement, Mr. Garton began taking bolder measures to disburse more trust money to himself and hide his wrongdoing. He persuaded the judge to shield disclosure of trust transactions from the trooper’s daughter, who by then was an adult. He also convinced the judge to issue an order saying that disbursements from the trust could be made without court approval.
Mr. Garton’s scheme was finally uncovered when the trooper’s daughter graduated from college and decided she wanted to use the trust monies to start her own business. By then Mr. Garton had secretly misappropriated well over $1 million from the trust.
In 2019, Mr. Garton was convicted of wire fraud, aggravated identity theft, and tax fraud, and the Tennessee Supreme Court suspended his law license. After that, a hearing panel of Tennessee’s Board of Professional Responsibility, which regulates lawyers in Tennessee under the authority of the Tennessee Supreme Court, found that Mr. Garton committed multiple violations of the ethics rules, including misappropriation of client funds and engaging in dishonest and fraudulent conduct. The hearing panel and the Board of Professional Responsibility recommended that the Court disbar Mr. Garton.
The Court agreed and today entered its order disbarring Mr. Garton. Under the new rule, Mr. Garton will never be eligible to be reinstated to the practice of law in Tennessee. The Supreme Court’s Chief Justice, Jeff Bivins, lauded the rule change: “When lawyers engage in misconduct serious enough to warrant disbarment, citizens should be confident that they will never again have a license to practice law. From now on, Tennessee citizens can have that confidence. The rule change adopted by the Tennessee Supreme Court ensures that lawyers who are disbarred in our State will remain disbarred, and will never again have a Tennessee law license.”
The Court’s Order of Enforcement entered in In Re: Jackie Lynn Garton, BPR #016106, can be found at: http://tncourts.gov/sites/default/files/docs/garton_order_of_enforcement.pdf.
The Ohio Supreme Court has entered an order disqualifying a judge from all matters while under indictment.
Sua sponte, Jason D. Warner, Attorney Registration No. 0066451, disqualified from acting as a judge pursuant to Gov.Jud.R. III(6)(A). He shall remain disqualified while any and all indictments filed in the Marion County Court of Common Pleas are pending and until further order of this court.
The Columbus Dispatch reported yesterday
A Marion County judge and his wife have been indicted on felony charges for their role in a hit-skip crash that injured a man.
Marion residents Jason D. Warner, 50, and Julia M. Warner, 53, were indicted Wednesday. Jason Warner is a commons pleas judge elected in November 2018.
The Warners are accused of leaving the scene of a with another vehicle early on June 4 at Route 203 and Somerlot-Hoffman Road, according to a report by the Marion Post of the Ohio Highway Patrol. A 19-year-old Marion man was injured and was released from a hospital the next day.
Following are the charges outlined in the joint indictment: complicity to vehicular assault, a fourth-degree felony; complicity to vehicular assault, a third-degree felony; complicity to leaving the scene of an accident, a fourth-degree felony; and complicity to tampering with evidence, a third-degree felony.
The couple will be arraigned at 11 a.m. on Sept. 15 in Marion County Common Pleas Court.
In count three of the indictment, complicity to leaving the scene of an accident, prosecutors allege that the Warners “knew that the accident or collision resulted in serious physical harm” to the driver of the other vehicle.
Count four of the indictment, complicity to tampering with evidence, alleges that the Warners, “knowing that an official proceeding or investigation was in progress, or was about to be or likely to be instituted, altered, destroyed, concealed, or removed a record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.”
Summonses and certified copies of the indictment were issued for each of the Warners on Wednesday.
Margaret B. Tomaro, senior assistant attorney general from the Ohio Attorney General’s office, has been assigned as the special prosecutor in the case.
The Ohio Supreme Court assigned former Summit County Common Pleas Court Judge Patricia A. Cosgrove, effective July 14, 2020, to preside over the case.
Cosgrove served on the Summit County Common Pleas Court for 18 years, retiring in 2011. According to news reports, she has been assigned to numerous high-profile cases, including many involving elected officials.
According to the Ohio Highway Patrol report, the Warners’ vehicle struck the vehicle driven by the 19-year-old male around 12:04 a.m. on June 4 at the junction of Ohio 203 and Somerlot-Hoffman Road, causing it to veer off the roadway and hit a utility pole. He suffered a head injury, was trapped inside his vehicle, and had to be mechanically extricated from the vehicle.
According to the report, the Warners left the scene of the crash and contacted the Marion Post around 9:30 a.m. on June 4 to report their involvement.
Citing a conflict of interest in the case, Marion County Prosecutor Ray Grogan requested that Ohio Attorney General David Yost’s office assume responsibility for the investigation. Marion County Common Pleas Court Judge W.T. Edwards then issued the order for the Attorney General to take over the matter.
Judge Warner took a leave of absence from the court, effective Monday, Aug. 3. Judge W.T. Edwards, who serves as the administrative judge for common pleas court, said he was informed about the leave of absence by Warner’s secretary on Aug. 3.
Edwards said he has had no contact with Warner since being informed about the leave of absence and all of his attempts to reach Warner have been unsuccessful. Edwards noted that Warner did not specify the duration of the leave of absence.
Wednesday, September 9, 2020
The web page of the Oklahoma Supreme Court is providing real time access to an ongoing judicial misconduct proceeding
Case No. CJTD-2020-1, The Supreme Court of the State of Oklahoma, Petitioner v. Kendra Coleman, Respondent.
On Monday, August 31, 2020, at 9:00 a.m., Trial in the above-referenced matter will commence in the Court on the Judiciary, Trial Division. Thereafter, proceedings are scheduled to commence at 8:30 a.m. each weekday (except Labor Day) until concluded.
The Oklahoma State Court Network (OSCN) website will provide a link to livestream the Court’s proceedings. The Oklahoma Judicial Center remains closed to the public, so public viewing of the proceedings is only available by watching the livestream feed. The link to the live-time feed will be posted on August 31 on the OSCN website approximately sixty minutes before the hearing begins.
Article 7A Section 2 of the Oklahoma Constitution sets forth the requirements for membership on the Trial and Appellate Divisions of the Court on the Judiciary. The trial division is made up of 8 district judges appointed by the Oklahoma Secretary of State and one active member appointed by the Oklahoma Bar Association. The Secretary of State maintains the list of members for both the Trial Division and the Appellate Division.
The nine members of the Trial Division are: Presiding Judge Rebecca Nightingale (District Judge,Tulsa) , Vice Presiding Judge Brad Heckenkemper (OBA member), and district judges Newburn (Comanche), Woodward (Garfield) , Kirkley (Wagoner) , Ashwood (Lincoln) , Coppedge (Marshall) , Balkman (Cleveland) and Pazzo (Rogers).
Tuesday, September 8, 2020
A Montgomery County-based attorney who played a crucial role in the prosecution of convicted child sex offender Jerry Sandusky has been suspended for professional misconduct on the case, the Pennsylvania State Supreme Court determined in a ruling Wednesday.
The court voted 5-1 to suspend Frank Fina, based in Plymouth Meeting, for one year. They determined Fina had violated regulations in calling Cynthia Baldwin, the attorney of two Penn State administrators who were being questioned in the trial, to be a witness.
The action was inappropriate, according to the opinion issued Wednesday, because a lawyer should not be called to testify against the individuals whom they are representing.
Sandusky, the former Penn State assistant football coach whose arrest and subsequent conviction spurred a lengthy investigation into the university, was sentenced to 30 to 60 years in prison.
The court's opinion noted that such an action by Fina could have been approved, had he received permission from a judge to subpoena Baldwin.
However, instead of securing that approval, Fina "mislead" the court by claiming he would not ask questions that would compromise Baldwin's attorney-client privilege.
The Pennsylvania order is linked here. Justice Wecht issued an explanatory concurring opinion. Justice Dougherty dissented and found the sanction too severe.
The suspension is for a year and a day. (Mike Frisch)
The Georgia Supreme Court rejected an attorney's third petition for voluntary discipline
In this third petition, William Leslie Kirby III (State Bar No. 220475) again seeks voluntary discipline in connection with his admitted misconduct in four separate State Bar matters, yielding violations of Rules 1.2, 1.3, 1.4, and 1.16 of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d). In adjudicating the previous two petitions, the Court first rejected the proposed imposition of a State Disciplinary Review Board reprimand and then rejected a proposed 30-day suspension, finding both sanctions insufficient given the gravity of Kirby’s pattern of misconduct. In the current petition, Kirby again requests the imposition of a State Disciplinary Review Board reprimand, but states that he is “willing to accept” a suspension of up to four months. The Special Master, who recommended acceptance of both prior petitions, recommends acceptance of this petition as well, with the imposition of a four-month suspension. As before, however, in light of the gravity of Kirby’s admitted misconduct, we again find that the proposed discipline is insufficient, and we therefore reject the petition.
While all indicators reflect that Kirby has taken the necessary steps to address the mental health and practice management problems that contributed to his misconduct, we are troubled that Kirby continues to insist on the appropriateness of sanctions that this Court has already rejected. And while the upper limit of what Kirby has declared himself “willing to accept” – a four-month suspension – has been held to be an acceptable sanction in two other cases with similar rule violations, both of those cases involved misconduct committed in only a single client matter...
In light of the pattern of misconduct at issue, assessed against the backdrop of the above precedent, we conclude that the proposed discipline is insufficient, and we therefore reject Kirby’s petition.
Saturday, September 5, 2020
A law firm that was the victim of a fraud did not have coverage under its liability insurance policy for the ensuing damage according to a decision of the Vermont Supreme Court.
A firm attorney had heard a CLE presentation by an insurance agent on cybersecurity and the firm then secured a policy from the speaker's company.
They alleged that they were covered for cyber fraud.
The insurer had warned of the dangers of wire fraud scams
In an August 2, 2016 email containing plaintiffs’ renewed policy for 2016-2017, defendants included a bulletin entitled, “Email Wire Fraud Scam Affecting Lawyers and Law Firms.” The four-page bulletin warned of the dangers of email wire fraud scams, provided tips for avoiding such scams, stated that coverage for losses resulting from such scams was not a given, and advised attorneys to discuss with their insurance agent coverage as to potential scenarios described in the email. There is no indication in the record that plaintiffs discussed with defendants their Hanover policy’s coverage with respect to potential wire fraud scams.
Then the law firm was victimized
On September 16, 2016, plaintiffs conducted a residential real estate closing, representing the buyers. At the closing, plaintiffs provided the sellers with a $100,744 check for the net proceeds of the sale. That same day, plaintiffs received an email purportedly from the sellers’ attorney stating that the sellers wanted the buyers to stop payment on the check and instead have the money wired to their bank in Texas. Plaintiffs complied with the request that same day. On September 25, 2016, the sellers’ attorney called plaintiffs to inform them that the sellers had not received the money. During the ensuing conversation, plaintiffs learned that the sellers’ attorney had never asked plaintiffs to send the money to a Texas bank. A subsequent investigation revealed that plaintiffs were the victim of a wire fraud scam. Plaintiffs sought coverage under the Hanover policy. Hanover initially denied coverage but eventually paid $50,000 as part of a settlement of the sellers’ lawsuit against plaintiffs.
The court found no basis for the coverage claim
We conclude, as a matter of law, that the circumstances in this case do not support plaintiffs’ VCPA [Vermont Consumers Protection Act] claim. At the CLE seminar, Garcia spoke about the importance of cybersecurity coverage. Finnegan approached Garcia after his talk expressing an interest in obtaining such coverage. Garcia explained to Finnegan that he would first need to review plaintiffs’ then-current policy, but he felt confident Smith Brothers could get plaintiffs better coverage in that regard. More than a month later, Finnegan completed an application on defendants’ website for professional liability insurance without specifically seeking cybersecurity coverage or referring to his conversation with Garcia or the CLE seminar. Plaintiffs were unable to provide documentation to support their claim that they sent their then-current policy to defendants before applying for insurance from them, and they have not disputed defendants’ assertion that defendants never received a copy of the policy before then. Defendants asked plaintiffs to review the Hanover policy and respond with any questions or concerns. Plaintiffs signed the policy without positing any questions or concerns regarding the coverage provided therein.
Given these circumstances, no reasonable factfinder could conclude that plaintiffs reasonably interpreted and relied upon Garcia’s representation that he was confident defendants could provide plaintiffs with better coverage once he had had an opportunity to review plaintiffs’ then-current policy. No reasonable factfinder could conclude that such specialized coverage would be supplied in the professional liability policy plaintiffs requested and acquired on defendants’ website over a month later without any mention of cybersecurity coverage and with no evidence that defendants had had an opportunity to review plaintiffs’ then-current policy. We reject plaintiffs’ argument that such a determination fails to give them the benefit of all reasonable doubts and inferences. Rather, our determination is based on the undisputed facts contained in the record.