Friday, November 19, 2021

Concurrent Sanctions Affirmed

The Tennessee Supreme Court affirmed the imposition of a three-year suspension with the final year stayed with probation

After an evidentiary hearing, a Board hearing panel found that Mr. Walker had violated Rules of Professional Conduct 3.1, 3.3, 3.4, and 4.1 by his conduct in the chancery court tax sale redemption proceeding and should be suspended for three years; that he had violated Rule 8.4(c) and (d) by not complying with a chancery court injunction and should be suspended for three years; that he had violated Rule 3.3 by omitting his disciplinary history in the pro hac vice application and should be suspended for two years; and that he violated Rule 8.4(a) by his misconduct. The hearing panel also found that Mr. Walker’s suspensions should be served concurrently for an effective suspension of three years, with two years on active suspension and one year on probation supervised by a practice monitor.

The pro hac disclosure issue

The hearing panel also found that Mr. Walker should be disciplined based on his failure to make certain disclosures in his August 2017 pro hac vice application filed in the United States District Court for the Western District of Texas at Austin. The application asked whether he had “been subject to grievance proceedings or involuntary removal proceedings while a member of the bar” and whether he had “been charged, arrested, or convicted of a criminal offense.” In answering these questions, Mr. Walker failed to
disclose his prior disciplinary history, his pending disciplinary complaints, and that he had been found guilty of criminal contempt of court for disobeying an order of the Davidson County Chancery Court in August 2016.

On review

We affirm the decision of the hearing panel and the judgment of the trial court that Mr. Walker violated Rules 3.1, 3.3, and 3.4 arising from his conduct while representing REO Holdings in a chancery court proceeding involving the redemption of property sold at a tax sale. The hearing panel’s decision was supported by substantial and material evidence and was neither arbitrary nor an abuse of discretion.

(Mike Frisch)

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

Thursday, November 18, 2021

Winners of Zacharias Prize announced

We are happy to report from Sam Levine that "the committee has made our selections for the twelfth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  This year's winners are:

  1. Bradley Wendel, Lawyer Shaming, 2021 U. Ill. L. Rev. (forthcoming 2021) , and 

2. Angela Onwuachi-Willig & Anthony V. Alfieri, (Re)Framing Race in Civil Rights Lawyering, 130 Yale L.J. 2052 (2021) 

Thanks,

Samuel J. Levine
Professor of Law & Director, Jewish Law Institute
Touro Law Center

[posted by Alan Childress]

November 18, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Is Entirely Private Behavior Of A Judge Sanctionable?

The Kansas City Star reported on a judicial misconduct oral argument held last month before the Kansas Supreme Court

The Kansas Supreme Court is trying to decide whether it is disqualifying for a judge to share nude photos of their private life online.

The question was raised Thursday in a disciplinary hearing for retired Russell County Magistrate Judge Marty Clark.

Clark, who resigned from the bench in May, shared nude photos of himself with another couple on Club Foreplay, a dating website for swingers.

The Kansas Commission on Judicial Conduct became aware of the photos when the husband in the other couple filed a complaint last year.

Todd Thompson, of the judicial conduct commission, said Thursday that Clark and his wife met the couple once before sharing photos. In addition to sharing photos, he said, Clark exchanged “salacious” text messages with the wife in the couple that included discussion of having sex in his chambers.

In March the Kansas Commission on Judicial Conduct concluded Clark had violated the ethical standards by failing to “avoid impropriety or the appearance of impropriety in (his) personal life” and protecting the public impression of the judiciary.

Thompson argued Clark should be barred from ever being a judge again unless he receives significant education on the role and integrity of the judicial branch.

“We all have standards that we think is appropriate or inappropriate behavior,” Thompson said. “Just taking pictures of your genitals and distributing them in any way to the public in my opinion does nothing to enhance the integrity of the judiciary.”

Clark’s attorney, Chris Joseph, argued the court would set a dangerous precedent by punishing Clark for sending nude photos in a private channel, on his own time.

“I don’t think you look at morality as a basis for discipline … unless there is a connection to the job,” Joseph said.

He argued that any communication or photos sent in a private channel could become public if the receiving party chose to place it on social media.

Justice Caleb Stegall said it would be “troubling” if judges could be censured for private communication.

The Supreme Court justices questioned where the line was between appropriate and inappropriate and public and private.

“Are you suggesting it’s just you know it when you see it?” asked Justice Kenyen Wall of determining inappropriate conduct.

Justice Melissa Standridge argued that taking the photos and using the social media platform may have inherent consequences on the perception of the judiciary.

“If you post something it’s out there,” Standridge said. “It’s the old adage of don’t write anything down you wouldn’t want on the front page of the Wichita Eagle.”

An earlier of this story mistakenly referred to the Kansas Commission on Judicial Conduct as the Kansas Judicial Council.

As he is no longer a judge and is not an attorney, the court raised questions as to its jurisdiction to impose sanction.

There were also questions about the extent to which the private behavior of a judge should be sanctionable. (Mike Frisch)

November 18, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Texts To Witness During Deposition Draw Suspension

Witness coaching by text message at a deposition drew a 91-day suspension from the Florida Supreme Court

James represented the employer in a worker’s compensation case. On July 31, 2018, Renee Gray, the adjuster who worked for the employer, was deposed via telephone. Gray, James, and the claimant’s counsel, Toni Villaverde, attended the deposition via telephone, from different locations. Because the deposition was not conducted by video, the court reporter refused to swear Gray in as a witness, making her testimony unsworn. While the deposition was in progress and Villaverde was questioning Gray, James sent text messages to Gray regarding her testimony. The texts included coaching and specific directions on how to respond to Villaverde’s  questions.

A misdirected text caused the misconduct to unravel

Villaverde could hear typing sounds and asked Gray and James if they were engaging in texting during the deposition. James denied texting Gray and stated he was only receiving a text from his daughter. Villaverde asked James to stop texting and put his phone away, and James agreed. James misrepresented to Villaverde that he had concluded the text messaging when in fact he had not. After a break, and after Villaverde resumed questioning Gray, James inadvertently sent the following text messages intended for Gray to Villaverde:
11:53 a.m. (James): Just say it anyway
11:53 a.m. (James): Just say 03/28
11:54 a.m. (James): In addition to the 03/28/2018 email containing the signed release I show . . .
11:55 a.m. (James): Don’t give an absolute answer
11:55 a.m. (James): All I can see at this time but I cannot rule out existence
11:55 a.m. (James): It’s a trap
11:56 a.m. (James): Then say that is my best answer at this
time.

Once Villaverde noticed the texts, she stopped the deposition. She later filed a motion for production and in-camera inspection of all the texts sent during the deposition.

In the bar proceeding

During the disciplinary proceedings, James testified that he was unable to retrieve the texts from his daughter due to his own technological limitations. He explained that worker’s compensation proceedings are informal, and he felt compelled to aid his witness during the deposition because Villaverde was constantly talking over Gray’s answers or interrupting with speaking objections, and he felt Gray was being mistreated. The referee found that James’s texts to Gray while she was being questioned, telling her what to say, how to answer, to avoid providing certain information, to remember a deposition but not discuss certain checks, and to not give an absolute answer were dishonest.

Furthermore, the record shows that after the deposition ended, and in the days following the deposition, James tried to convince Villaverde that he sent the texts to Gray during the break, not during the questioning. During a hearing on Villaverde’s motion for production and in-camera inspection, James failed to be transparent and forthright with the judge regarding his texts to Gray. He made it appear that he only texted his wife and daughter during the deposition and that he sent the text messages to Gray during the break in the deposition.

Violation

Here, the referee specifically found that James’s response that he was just responding to his daughter when in fact texts were being sent to Gray was misleading and a matter contrary to honesty. He also found that James misrepresented to Villaverde that he had concluded the text messaging when in fact he had not. The referee further found that James’s texts to Gray while she was being questioned, telling her what to say, how to answer, to avoid providing certain information, to remember a deposition but not discuss certain checks, and to not give an absolute answer were dishonest. James’s dishonesty is clear from the record, and we find him guilty of violating Bar Rule 4-8.4(d).

The referee's proposed 30 day suspension was insufficient

James obstructed opposing counsel’s access to evidence when he secretly coached Gray while she was being questioned, telling her how to answer Villaverde’s questions and directing her to avoid providing certain information. This conduct continued even after he assured Villaverde that he would stop texting during the deposition. Thereafter, he repeatedly misrepresented to Villaverde that he did not send text messages to Gray during the deposition. Particularly egregious was his failure to be forthright with the Judge of Compensation Claims about sending the text messages to Gray and about when he sent them. We find that James’s behavior warrants a ninety-one-day suspension.

Reinstatement is not automatic for a suspension of more than 90 days. (Mike Frisch)

 

November 18, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Removed And Suspended

Misconduct committed as a judge led to both removal from the bench and, more recently, a three-year suspension from the New Jersey Supreme Court.

The Daily Voice (Hackensack) covered the removal

An investigation found that DeAvila-Silebi misused her position to try to help a former intern involved in a custody battle, calling the Fort Lee Police Department in May 2015 requesting officers retrieve the intern's child from his grandmother and bring him to the intern, NJ.com says.

DeAvila-Silebi claimed the former intern had a court order supporting her custody rights that weekend -- but she did not, NJ.com reports.

When the judge testified before the Advisory Committee on Judicial Conduct, DeAvila-Silebi said she had gotten a call that morning from "either an attorney, a sheriff's department or the prosecutor's office or a local police department," who had read the order over the phone, the media outlet said.

That call had been placed from the former intern's cellphone number, the panel found.

The Disciplinary Review Board report sets out the former judge's intervention of behalf of a former intern in a custody matter which led to removal

On November 9, 2017, the Supreme Court issued an Order to Show Cause why respondent should not be removed from office as set forth in the complaint for removal, and appointed a three-judge special panel to conduct a hearing, take evidence, and report its findings to the Court.

The special panel held a six-day hearing and issued a June 19, 2018 report, determining, beyond a reasonable doubt, that respondent should be removed from office. Specifically, the panel found that respondent had made several misrepresentations to the FLPD, including that she was on emergent duty; that she had a responsibility to perform judicial duties in any vicinage besides Passaic on May 9, 2015; and that she had no knowledge of Chermont, their relationship, and their communications. The panel found that respondent had not seen a court order in Chermont’s case, and that there was no “emergent application.” The ACJC prosecuting attorney had obtained Chermont’s cell phone records via subpoena, which revealed that, between February 2 and May 9, 2015, twenty-four text messages and telephone calls had occurred between Chermont’s and respondent’s cell phones. On February 25, 2015, a telephone call from respondent to Chermont’s phone lasted fifty minutes. The evidence clearly supported the fact that respondent knew Chermont. In fact, Chermont’s internship application and related paperwork demonstrated that respondent had referred her to the Judiciary, and additional evidence confirmed their continued and frequent communication after the internship concluded, and demonstrated that respondent’s version of the events on May 9, 2015 were “a complete fabrication.”

The DRB noted a wealth of favorable character evidence and other mitigation sufficient to avoid disbarment

On balance, respondent has presented significant mitigation, she is not beyond rehabilitation, and, based on precedent, we determine that a three-year suspension is the appropriate quantum of discipline necessary to protect the public and to preserve confidence in the bar.

Vice-Chair Gallipoli and Member Zmirich voted to recommend respondent’s disbarment.

Unlike in most U.S. jurisdictions, disbarment is permanent in New Jersey. (Mike Frisch)

November 18, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 17, 2021

An Entirely Different Story

The Indiana Supreme Court has suspended an attorney without automatic reinstatement

In Case No. 20S-DI-27, Respondent has admitted, and we find, four rule violations arising from his trust account mismanagement and inadequate supervision of a paralegal. In Case No. 21S-DI-88, we find that judgment on the complaint was appropriately entered due to Respondent’s failure to timely file an answer and, accordingly, that Respondent committed eight rule violations as charged arising from two client representations. For Respondent’s misconduct in both cases, we conclude that Respondent should be suspended for at least one year without automatic reinstatement.

As to the charges

For Respondent’s trust account mismanagement and inadequate supervision of his paralegal, Respondent has admitted, and we find, violations of the following four rules:

Ind. Professional Conduct Rule 1.15(a): Commingling client and attorney funds.
Ind. Professional Conduct Rule 5.3(c): Ordering or ratifying the misconduct of a nonlawyer assistant.
Ind. Admission and Discipline Rule 23(29)(c)(2): Paying personal or business expenses directly from a trust account, and failing to withdraw fully earned fees and reimbursed expenses from a trust account.
Ind. Admission and Discipline Rule 23(29)(c)(5): Making cash disbursements from a trust account.

On the sole contested charge in Case No. 20S-DI-27, involving Respondent’s alleged violation of Professional Conduct Rule 8.1(b), we “reserve final judgment as to misconduct” even in the absence of a petition for review. See Matter of Levy, 726 N.E.2d 1257, 1258 (Ind. 2000). We further observe that the Commission bears the burden of clearly and convincingly establishing that Respondent “knowingly” failed to respond to a demand for information by the Commission. Upon our review and consideration of the facts stipulated by the parties, we conclude the Commission has failed to meet its burden, and accordingly we find in Respondent’s favor on this charge. For reasons explained in our sanction analysis below, we need not dwell further upon this.

While the trust management lapses would not merit suspension

Respondent’s misconduct in Case No. 21S-DI-88 is an entirely different story. His client representations in both counts involved pervasive fraud, dishonesty, bad faith, obstreperousness, repetitive and frivolous filings, and gross incompetence. Our factual recitation in this opinion is but a brief distillation of 60 pages and 461 rhetorical paragraphs of allegations recited in the amended disciplinary complaint and conclusively established as true. Respondent has no prior discipline, but his pattern of misconduct in this case spanned nearly a decade and reflects factors that are endemic to Respondent’s practice and not isolated lapses in judgment. Accordingly, suspension without automatic reinstatement is warranted.

(Mike Frisch)

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

Domestic Violence In New Jersey

A six-month suspension has been imposed by the New Jersey Supreme Court for conduct described by the Disciplinary Review Board

On December 13, 2018, respondent became angry when M.C., his then fiancée, confronted him at a restaurant where he was drinking alcoholic beverages with his friends. Respondent and M.C. then drove, in separate vehicles, to a parking lot near respondent’s office. Respondent began to yell and curse at M.C., and then grabbed her head and “smashed it against the [vehicle] door frame twice.” Respondent then tried to go inside his office but, after M.C. screamed that she was bleeding, he entered his vehicle and fled. A
police officer dispatched to the scene observed that M.C. was bleeding from the top left side of her head and called an ambulance, which transported her to a hospital for treatment. Respondent admitted that, during the incident, he was under the influence of alcohol.

After indictment

On January 6, 2020 respondent entered a guilty plea to one count of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(12). At the January 6, 2020 plea hearing, respondent provided a sworn allocution that he became involved in a physical altercation with M.C. and that, as a result, he caused M.C. significant and severe bodily injury. Specifically, respondent admitted that he caused M.C. to sustain a “gash to her head.”

Criminal sentencing

In mitigation, Judge Carter-Latimer found that respondent was likely to respond affirmatively to probationary treatment. She acknowledged two letters in the file from the victim, dated six months earlier, wherein M.C. stated that she did not feel that she was a victim; that respondent is a “good man;” and that she had hoped that the matter would not “get this far;” and asked the Court permission to see respondent. Respondent likewise requested permission to see the victim. A no-contact provision had been part of respondent’s pretrial release order, but Judge Carter-Latimer determined not to include the no-contact provision as a condition of respondent’s sentence. Respondent further was ordered to pay mandatory fines and costs.

The victim supported him in a letter submitted in the bar proceeding

In addition, respondent submitted a letter from the victim, addressed to the Middlesex County Prosecutor’s Office, in which she stated that she lied to the police about the incident because she was upset after she found respondent with another woman in the restaurant. She explained that the parties entered into a “screaming match” outside his office; she “went at [respondent] and we struggled;” and then she “fell into” the car door because she was wearing high heels. The victim stated that respondent did not hurt her intentionally, and that her injury was minor. Respondent also submitted a January 14, 2020 statement from the victim in which she asserted that respondent did not assault her; the incident was a misunderstanding due to her own insecurities and jealousy; and respondent is not a criminal.

DRB on sanction

We...accord no weight to respondent’s “after-the-fact” attempts to undermine his criminal conduct, which endeavors are contrary to his sworn guilty plea allocution and conviction. It was disconcerting that respondent offered statements from the victim to prove that he did not intend to cause her injury. We were tempted to inquire whether respondent attempted to convince us that he lied during his sworn allocution in Superior Court, and that he did not commit an act of domestic violence, despite his guilty plea to exactly that.

In any event, respondent’s behavior in this respect is troubling. To be sure, society has taken a stricter view of domestic violence, and has become more cognizant of the serious and pervasive impact that perpetrators have on their victims, and our culture as a whole. These significant aggravating factors, thus, warrant the enhancement of the discipline to a six-month suspension.

He had failed to report the charges to the Office of Attorney Ethics as required. (Mike Frisch)

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

To Youngstown And Back

A bar discipline decision issued today by the Ohio Supreme Court is summarized by Dan Trevas

The Ohio Supreme Court today suspended a Cleveland attorney for two years for committing several ethical violations, including billing a client’s mother twice for round trips to Youngstown to visit his client in prison when the man was in the local county jail.

The Supreme Court voted 5-2 to suspend Harvey Bruner and ordered him to pay a total of $2,750 in restitution to two clients. The Court overruled Bruner’s objections, in which he called for the Court to adopt a two-year suspension with one year stayed as was jointly recommended by him and the Ohio State Bar Association (OSBA) or remand the matter to the Board of Professional Conduct for a new hearing.

In a per curiam opinion, the Court majority stated Bruner committed serious violations that the board believed justified not staying any part of the suspension, and noted he had been given the opportunity to further explain his position in a posthearing brief. The board characterized Bruner as having “a rather cavalier attitude toward the truth.”

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, and Melody J. Stewart joined the majority opinion. Sixth District Court of Appeals Judge Christine E. Mayle, sitting for Justice Michael P. Donnelly who did not participate in the case, also joined the opinion.

In a dissenting opinion, Justice Jennifer Brunner stated the board three-member panel hearing the case changed its “established procedural parameters without notice” to Bruner, which led to him having to testify to charges that the bar association withdrew. She stated the hearing process was not fair, and the Court should have accepted the agreed-upon suspension with a stay or allow for a new panel hearing.

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

Attorney Violated Rules for Several Years
The Court first sanctioned Bruner in 2012, imposing a two-year suspension, fully stayed with conditions for neglecting clients and charging excessive fees. In 2019, the OSBA filed a complaint with the board charging Bruner with professional misconduct in six client-matters and for failing to notify clients that he lacked malpractice insurance over a seven-year period.

A board panel was slated to hear up to six days of testimony in Bruner’s discipline case. But on the morning of the first day, the parties stipulated to misconduct that Bruner committed. In doing so, the OSBA requested to withdraw some of the charges it originally filed against Bruner and amend the complaint to add other charges.

The changes prompted the panel to request testimony from Bruner, which ultimately led to the panel concluding that Bruner committed two violations of the rule prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The Court concluded that the board only established that Bruner engaged in one of those two withdrawn violations.

Charges for Trips to State Penitentiary Do Not Match Records
Some of Bruner’s violations stem from his agreement in February 2016 to charge Mary Walton a $5,000 fee to represent her son, Devonte Walton. Mary Walton paid Bruner $3,000 of the fee for the attorney to find new evidence to seek a new trial for Devonte or perform other postconviction work.

Mary Walton filed a grievance against Bruner, alleging he did not complete any work on the matter. Bruner claimed he performed work on the case, but admitted he failed to inform Mary about the scope of the work he performed and that he did not adequately communicate with her about the basis for his fee. He also admitted he did not create or maintain any client trust account records related to the funds he received from Mary.

The board noted that Bruner claimed to have visited Devonte at the Ohio State Penitentiary in Youngstown in July and September of 2016. He charged Mary four hours for each visit, which included two hours of round-trip travel time from Cleveland to Youngstown. However, Devonte was incarcerated in the Cuyahoga County Jail on those dates, which the board noted was only five minutes from Bruner’s office.

Bruner claims he was not dishonest about his visits, but recalled he visited Devonte in Youngstown in April 2016 and another time, which he could not recall. The Court’s opinion noted that Bruner was not being charged for misconduct for not visiting Devonte, but because on several occasions during the disciplinary process he stated he visited Devonte and billed for those visits on those specific July and September dates.

At his disciplinary hearing, Bruner conceded the prison records indicate Devonte was transferred from the penitentiary in early July 2016, weeks before he said he visited, until October 2016. Bruner denied falsifying his invoices to Mary and said he made a mistake by providing the wrong dates.

The hearing panel did not find Bruner’s testimony credible, and the Court agreed he did violate the rule against acting with dishonesty, along with two other rules requiring he adequately communicate to the scope of employment to his client and maintain sufficient records when accepting an advanced fee.

Court Considered Sanction
When considering the sanction in a disciplinary case, the Court considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.

The board found Bruner committed prior disciplinary offenses, engaged in a pattern of misconduct, committed multiple offenses, and a failed to make restitution to Mary Walton, or another client, Carlos Ortega. The board also found one mitigating factor -- that Bruner submitted three letters from judges lauding his professionalism and competence.

In recommending a two-year suspension, the board cited several cases where attorneys who committed multiple offenses similar to Bruner’s received sanctions ranging from an indefinite suspension to partially stayed two-year suspensions.

The Court’s opinion concluded the board’s sanction was appropriate, noting that in one matter Bruner threatened a client for filing a grievance against him. The Court also found Bruner admittedly failed to disclose important information during the disciplinary investigation, failed to competently represent two clients, failed to explain the scope of his representation to multiple clients, engaged in dishonest conduct, and did not notify clients over a seven-year period that he did not have malpractice insurance.

“The misconduct – combined with a profusion of aggravating factors, including previous discipline, compared to a single mitigating factor – warrants an actual two-year suspension,” the opinion stated.

In addition to the suspension and the restitution order, the Court also charged Bruner for the costs of the disciplinary proceedings.

Process Unfair to Attorney, Dissent Maintained
In her dissent, Justice Brunner noted that it was clear the OSBA and Bruner intended to use a stipulated agreement to resolve the matter and to waive any further hearings. She wrote that the record indicated both sides were unprepared to present testimony to the panel and were confused about the panel’s request for testimony. The dissent pointed out that the panel chair indicated several times that the testimony requested by the panel was to be in support of their agreement.

Since the panel scheduled six days to consider the matter, the dissenting justices argued that, if the panel intended to reject the parties’ agreement, it should have explained that and allowed the parties to have a day to prepare for a full hearing.

“The totality of the proceedings, and the majority’s approval of it, creates a disincentive for parties to cooperate to resolve a disciplinary case or even to narrow issues for a disciplinary panel, as these efforts may ultimately be used against them,” Justice Brunner wrote.

Given these procedural problems, the dissenting justices would have remanded the matter for a full evidentiary hearing and allowed the parties additional time to file a proper consent-to-discipline agreement, or in the alternative, dismissed the violations that were outside of the parties’ stipulation agreement and imposed the sanction that the parties had jointly recommended.

Given these procedural problems, the dissenting justices would have remanded the matter for a full evidentiary hearing and allowed the parties additional time to file a proper consent-to-discipline agreement, or in the alternative, dismissed the violations that were outside of the parties’ stipulation agreement and imposed the sanction that the parties had jointly recommended.

2020-1533. Ohio State Bar Assn. v. Bruner, Slip Opinion No. 2021-Ohio-4048.

Video camera icon View oral argument video of this case.

Justice Brunner dissented on behalf of Respondent Bruner

I respectfully dissent from the majority opinion in this case. While this court is the ultimate arbiter of attorney-discipline matters, see Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193 (1999), paragraph one of the syllabus, I cannot support the board’s recommendation in this case, because the disciplinary panel did not render procedural fairness—with its “surprise,” late-hour rejection of the parties’ efforts to resolve the matter without the necessity of a hearing. See In re Ruffalo, 390 U.S. 544, 551-552, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968) (admonishing against turning the attorney-disciplinary proceeding into a trap). The actions of the panel in this case give the appearance of inducing respondent, Harvey Bruce Bruner, to testify in order for the panel to accept the parties’ stipulation agreement, but really, the panel’s actions served to elicit testimony from Bruner, over the objections of his counsel, about matters he was unprepared to testify about. The panel then used that testimony to find that Bruner
violated rules of professional conduct that relator, the Ohio State Bar Association, had requested to withdraw and then impose a sanction that was partially based on those additional violations. Our role is not only to promote public confidence in the state’s judiciary but also to secure the confidence of the members of the bar. We require them to respect the judiciary. Prof.Cond.R., Preamble [5] (“A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.”).

The procedures employed resulted in unfairness

Because the panel at first appeared to agree to the parties’ stipulation-agreement approach but then elicited testimony that went beyond the agreement, I cannot join the majority opinion—I do not believe the hearing was a fair process. The majority finds support for the Prof.Cond.R. 8.4(c) violation in the Walton matter (a violation that relator had sought to withdraw before the panel) in testimony from Bruner elicited by panel member Caruso that was outside the scope of the stipulation agreement and over Bruner’s counsel’s objection, which was overruled by the panel chair. The ruling on the objection, absent other circumstances, could be found to be legally correct. But by changing the earlier established procedural parameters without notice, the panel denied Bruner a fair hearing.

The institutional concern

The totality of the proceeding, and the majority’s approval of it, creates a disincentive for parties to cooperate to resolve a disciplinary case or even to narrow issues for a disciplinary panel, as these efforts may ultimately be used against them. I therefore dissent from the majority opinion and would remand this matter to the board for a full evidentiary hearing or to allow the parties additional time to file a consent-to-discipline agreement in conformance with our rules, or I would simply dismiss the violations found by the panel that were outside of the parties’ stipulation agreement and impose a two-year suspension with one year stayed and order Bruner to pay restitution, as the parties had jointly recommended.

DEWINE, J., concurs in the foregoing opinion.   (Mike Frisch)

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

Tuesday, November 16, 2021

Domestic Violence Draws Suspension

An Illinois Hearing Board has recommended a two-year suspension and until further order for acts of domestic violence

The allegations deemed admitted establish as follows. On April 28, 2016, Respondent was charged with Aggravated Domestic Battery and Domestic Battery, arising from an incident in which he pushed his wife, Candice, against a wall and placed his hands around her throat, causing a partial obstruction of her breathing. The police smelled a strong odor of alcohol on Respondent at the time of his arrest and observed a scratch on Candice’s throat and redness on her upper and lower back. On May 24, 2016, Respondent pleaded guilty to an amended count of misdemeanor battery. He was placed on supervision for 24 months with conditions that included abstaining from drinking alcohol, completing a Domestic Violence Offender evaluation, and complying with treatment recommendations. Respondent completed his term of supervision.

Respondent was arrested again on September 10, 2018, after he consumed half of a bottle of vodka and got into an argument with Candice. When he tried to enter his young daughters’ bedroom, Candice blocked his way. Respondent then began punching her in the arm and attempted to punch her in the stomach. When police officers arrived at the home, he resisted arrest. The arresting officers reported that Respondent smelled strongly of alcohol and they observed redness on Candice’s arms and a welt on her bicep. Candice was granted an order of protection against Respondent for herself and their daughters. Respondent was charged with two counts of Resisting a Peace Officer and two counts of Domestic Battery. However, after Candice advised the Lake County State’s Attorney that she would not be able to attend Respondent’s court date and wanted the charges to be dropped, the charges were dismissed.

His failure to participate was considered as an aggravating factor as well as his "increasingly dangerous behavior." (Mike Frisch)

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

Pawning Client's Jewelry Gets Attorney Disbarred

The Oklahoma Supreme Court disbarred an attorney admitted in 2013 for a criminal conviction

At some point before July 12, 2019, a husband and wife hired Sweet to prepare trust documents. She went to her clients' house on several occasions to create an inventory of various pieces of jewelry to include in the trust documents. From July 12 through July 30, 2019, Sweet pawned at least six pieces of jewelry owned by her clients for $2,910.00. Sweet falsely declared to the pawnbroker that she owned the pieces of jewelry. The clients then positively identified the pawned items as pieces of jewelry Sweet had handled in the preparation of the trust. Sweet was arrested and charged with Grand Larceny and False Declaration of Ownership in Pawn Shop.

On June 8, 2021, Sweet entered pleas of guilty to one count of Grand Larceny, a felony, in violation of 21 O.S. Supp. 2018, § 1705, and one count of False Declaration of Ownership in Pawn Shop, a felony, in violation of 59 O.S. Supp. 2018, § 1512(C)(2). The district court entered a deferred sentence of three years, until June 3, 2024.

Sanction

The totality of Sweet's conduct demonstrates her unfitness to practice law. Sweet has failed to comply with the mandatory MCLE requirements since 2018. A week before she committed the crimes, this Court suspended Sweet from the practice of law for failure to comply with MCLE. Sweet therefore engaged in the unauthorized practice of law when she visited her clients' house to create an inventory for the trust documents and stole the items of jewelry. The two felony crimes committed by Sweet undoubtedly involved dishonesty, fraud, deceit, and breach of trust. In this disciplinary proceeding, Sweet never responded or otherwise offered any explanation for her conduct. She has not requested a hearing, filed a brief, or submitted any evidence to support any mitigation of final discipline.

The sum of Sweet's actions--her continuing failure to comply with the MCLE requirements even after her suspension that resulted in this Court striking her name from the membership rolls, her unauthorized practice of law, her guilty pleas to two felonies, and her failure to respond to these disciplinary proceedings against her--combine to reflect adversely on Sweet's trustworthiness and fitness as a lawyer. Because of the gravity of Sweet's misconduct and as her culpable acts are neither mitigated nor explained by extenuating circumstances in the record, there is no basis for a sanction less severe than that of disbarment. See State ex rel. Okla. Bar Ass'n v. Cantrell, 1987 OK 17, ¶ 2, 734 P.2d 1292, 1293. This Court holds that Sweet be disbarred. See, e.g., State ex rel. Okla. Bar Ass'n v. Cook, 1983 OK 33, 661 P.2d 531 (disbarring an attorney for committing the crimes of embezzlement and false account of officer).

(Mike Frisch)

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

Friday, November 12, 2021

A Persuasive Professor

A Florida attorney who sued his clients for alleged unpaid fees ended up with a decision disgorging payments he had already received from the Tennessee Court of Appeals.

It is undisputed that the McMichaels paid Mr. Harris a total of $41,500 and that Mr. Harris demanded an additional $30,000 under the Third Agreement. Prior to the hearing in the instant case, Mr. Harris tendered a statement alleging that the McMichaels owed a balance of $40,027.50, comprised of 50.2 hours of work by Mr. Harris and 33.3 hours of work by a paralegal from August 7, 2014, though October 24, 2014.

The attorney was found to have breached fiduciary duties to the clients with respect to billing and a series of retainer agreements

The McMichaels called University of Tennessee College of Law Professor Paula Schaefer, whom the trial court qualified as an expert in the area of legal ethics. Professor Schaefer testified that: (1) an attorney has the ethical obligation to “make sure that their fee agreements are fair, fully explained, and easily understandable”; (2) “liens must be fair and explained to the client, and there is a presumption that they are voidable”; and (3) “[n]on-refundable retainers still must be earned and are therefore problematic.” Professor Schaefer opined that Mr. Harris breached his fiduciary duty to his clients. The trial court found “this witness to be the most credible of all of the witnesses as she had no financial interest in the outcome of case as well as [due to] her credential[s].”

The breach

Contrary to Mr. Harris’ assertion, the trial court did not hold that Mr. Harris breached his fiduciary duty due to his failure to abide by any Florida rule that required contemporaneous billing; rather, the court held “that [Mr. Harris’] failure to comply with the provisions of his fee agreement was a breach of his duty under the rules of professional conduct.” (Emphasis added). We agree. All three fee agreements provide, “Time billed shall be in increments of one quarter of an hour.”

As to the second and third retainer agreements, the trial court observed

[Mr. Harris] waited for deadlines to be close, at which time he demanded additional funds and promised, but never fully delivered, the representation that he convinced [the McMichaels] that [he] could perform. This created a situation for [the McMichaels] that put them in an unmanageable position after already having been put in a problematic position by [their previous counsel].

The attorney did not keep contemporaneous records

Mr. Harris testified that he: (1) prepared these [detailed billing] statements just prior to the hearing; (2) had not submitted them when he sent the “skinny bills” to the McMichaels; and (3) submitted the detailed bills to the McMichaels shortly before the hearing. This belated and ad hoc compliance with the billing provisions of the parties’ agreements simply does not reflect the promptness, diligence or appropriate communication required of a Florida attorney, or any other attorney. We conclude that the trial court did not err in holding that Mr. Harris’ failure to comply with the terms of his fee agreement constitute a breach of the fiduciary duty he owed to the McMichaels.

Disgorgement

The trial court’s equitable solution was to allow Mr. Harris $5,000, the amount contemplated in the First Agreement, and to disgorge him of the remainder of the fees paid him. Under the specific facts of this case, the trial court’s decision constitutes an acceptable resolution, see Lee Med., Inc., 312 S.W.3d at 524; as such, we conclude that the trial court did not abuse its discretion or otherwise err in allowing Mr. Harris to retain only $5,000.00.

(Mike Frisch)

November 12, 2021 in Billable Hours | Permalink | Comments (0)

Sanction Reduced After Remand

An unusual disciplinary order of the South Carolina Supreme Court takes back a recent disbarment

By opinion dated July 7, 2021, this Court disbarred Respondent. In re Hopkins, Op. No. 28042 (S.C. Sup. Ct. filed Jul. 7, 2021) (Shearouse Adv. Sh. No. 23 at 9). Thereafter, this Court granted Respondent's petition for rehearing following the discovery that our July 7, 2021 decision was made without the benefit of existing mitigating evidence, which was submitted to the Office of Disciplinary Counsel (ODC), but which ODC failed to provide to the Commission on Lawyer Conduct or to this Court. In re Hopkins, S.C. Sup. Ct. Order dated Aug. 19, 2021. The matter was reheard on October 11, 2021, and after careful consideration of all mitigating evidence, we hereby substitute the attached opinion for the previous opinion, which is withdrawn.

As to the lapse

Indeed, ODC admits it "inexplicably" failed to include Respondent's affidavit in mitigation with the other case file materials when the matter was submitted to the Commission for review and recommendation under Rule 21(c), RLDE, Rule 413, SCACR. Due to ODC's failure, neither the Commission nor this Court had the benefit of reviewing Respondent's mitigating information in considering the Agreement and the appropriate sanction. In ODC's return and at rehearing, Disciplinary Counsel has assured this Court that ODC and the Commission have both implemented new internal procedures to avoid omissions of this type in the future.

The mitigation

At the rehearing, Respondent testified credibly that he is remorseful and regrets he did not recognize and treat his symptoms sooner, rather than withdrawing and isolating himself from the support of family, friends, and colleagues. Respondent explained that at the time of the misconduct, "personally and professionally, I was spiraling. It is so unfortunate it took a catastrophe like this for me to get the help I needed." Respondent testified that he plans to continue treatment "for the rest of [his] life" and believes he can make positive contributions to the legal profession if he is allowed to practice law again. Respondent also submitted five character affidavits from long-serving and well respected members of the Bar, who acknowledged Respondent's misconduct and attested to Respondent's remorse, good character, fitness to practice law, and long history of service to the community and the legal profession.

As a result, the sanction was reduced to a three-year definite suspension. (Mike Frisch)

November 12, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Capri Pants, Spaghetti Straps, Ripped Clothes: Nebraska Drills Down On Workplace Attire

The Nebraska Supreme Court has adopted extensive amendments to its court staff dress code.

New definitions

(1) Definitions
Professional Attire: Professional attire means employees shall dress in a conventional businesslike manner; appropriate professional attire includes dresses, skirts, dress slacks, pantsuits, collared shirts, ties, suits, or sport coats. Dress shoes are required.
Business Casual Attire: Business casual attire means employees may dress in khakis or similarly styled pants, shirt, and dress shoes. Shirts should have a collar or finished edge. Capri or “Gaucho” pants may be worn if they are no shorter than mid-calf length and are worn in the same manner as dress slacks, i.e., with a jacket or dress shirt.
Casual Attire: Casual attire shall consist of jeans, a collared shirt with a Nebraska Judicial Branch approved logo or similar shirt, and casual shoes, which may include tennis shoes. Shorts or hats are not permitted unless specifically authorized by the Administrative Office of the Courts and Probation to be worn in conjunction with community activities occurring outside, on weekends, or as other conditions warrant.
Field Work is defined as visitations to homes, other places of residence, hospitals, treatment facilities, schools, places of employment, community service sites, nursing homes, or similar locations.

Professional attire is required in court or while representing the court; otherwise business casual fills the bill.

Casual in Nebraska is a privilege, not a right

Casual “jeans” or “denim” days are permitted not more than one day per month at the discretion of the presiding judge, chief probation officer or the division head within the Administrative Office of the Courts and Probation. Additional days may be granted at the discretion of the State Court Administrator or the State Probation Administrator.

Body armor

Unless otherwise prevented from doing so, body armor shall be worn under clothing or concealed from public view. At all times, probation officers shall present themselves in appearance as officers of the Court, not as law enforcement officers. Battle dress uniforms (BDUs), “raid-type” jackets, or similar clothing with law enforcement identifiers may be worn only in conjunction with conducting a search or field visits in conjunction with law enforcement.

Verboten

The following is a list of unacceptable attire, not to be considered inclusive, although it is subject to modification by a supervisor or management and the limited exceptions detailed elsewhere in this policy.
· Tank tops, spaghetti-strap tops, strapless tops, or any top that does not completely cover the midriff area.
· Clothing with noticeable wear, including ripped, frayed, dirty, or wrinkled clothing.
· Stretch pants or leggings worn without skirts, dresses, cardigans, and/or long tops.
· Sweat pants, warm-ups, or other athletic clothing.
· Flip-flop sandals, slippers, or Crocs.
· Clothing which is excessively tight, short, lowcut, revealing, or sheer.

Body decor

Tattoos which by slogan and/or design imply negative connotation shall be concealed at all times during working hours.

What constitutes a "negative connotation"?

Piercings

The normal wearing of earrings in the earlobe and/or a small, single “stud” in a nostril is acceptable. Although an employee may have parts of his or her body pierced, all other piercings shall be covered by clothing. The wearing of ear gauges is not permitted...

Have to google ear gauges.

Finally

An employee may request an exemption to parts of these standards based on legitimate medical, religious, or cultural practice.

(Mike Frisch)

November 12, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, November 11, 2021

Madeline Dinmont And Fire The Liar

An Illinois Hearing Board has recommended a 60-day suspension for an attorney's response to a bar inquiry into the creation of a Facebook page opposing the retention of a judge.

But the hearing board rejected charges of false statements on the web page, which were not proven as posted by the accused attorney

When she set up the GoDaddy account, and purchased the Fire the Liar website, Respondent used the email address madeline.dinmont@charter.net. This email address belonged to Respondent, as did a Dinmont terrier named Madeline. Respondent used the name Madeline Dinmont in all her communications with GoDaddy. According to Respondent’s testimony, whenever she set up a website or purchased a domain name for someone else, she used whatever name was on the account. 

Thereafter, Respondent designed and built the Fire the Liar website, using a GoDaddy web builder. According to Respondent’s testimony, this entailed creating a structure where text or images could be put in later. Respondent put in some basic content, such as information about the group, and links to articles about Judge Gleeson. She also purchased a second domain name, firejudgegleeson.com for the group and worked with GoDaddy representatives to ensure that anyone who clicked on a post on that domain would automatically be directed to the Fire the Liar website. This was done, at the request of group members, as Facebook had blocked access to the Fire the Liar website. Respondent testified that, otherwise, she did not write any of the Fire the Liar website’s content or post any pictures on the site. After she built the frame, she turned the website over to others. Respondent was actively involved with the website from September 2018 until early October 2018.

Based on Respondent’s testimony, she also gave the anti-retention group a Facebook page she was no longer using. Respondent had set up this Facebook page in 2012, under the name Madeline Dinmont, to post pictures of her dog. That Facebook page was linked to the madeline.dinmont@charter.net email account. A comment posted on the Madeline Dinmont Facebook complained about Facebook blocking access to the Fire the Liar website. Respondent denied posting that comment. 

Charges

The Complaint charged Respondent with violating Rule 8.2(a) by making the October 4, 2018 statements on the Fire the Liar website. Before and after that date, Respondent had access to the Fire the Liar website and took substantive actions related to that website. However, no evidence directly connected Respondent with these posts. Significantly, the Administrator did not present any evidence which established that Respondent was the only person able to post material on the website.

But

Respondent set up a structure in which negative comments could be made, regardless of their truth or falsity, about the integrity of a judge. She knew or should have anticipated the type of material that might be posted, yet Respondent allowed persons she had no basis to expect would exercise any restraint to have access to the website. We found that behavior extremely troubling and the posts themselves highly offensive.

The Rule 8.2 charge in that count was not sustained.

A post that falsely accused the judge of KKK ties also could not be attributed to Respondent.

But there was misconduct in her response to the investigation

During Respondent’s sworn statement, counsel for the Administrator inquired about the Fire the Liar website. Respondent denied any involvement with setting up the site and denied knowledge of specifics concerning the site. Given her activity in relation to that website, Respondent’s answers were false, and Respondent knew they were false. The Administrator proved Respondent violated Rules 8.1(a) and 8.4(c).

Further

While speaking with a GoDaddy customer service representative about the Fire the Liar website, Respondent stated that the subject of the website orchestrated an attempt to set up another judge for murder. While false and baseless, Respondent’s comment was made in a very limited context, unrelated to any court proceeding, and did not identify anyone by name. Given these circumstances, the statement did not violate Rule 8.2(a).

Recommended sanction

Respondent’s misconduct is serious. She lied to the ARDC about the manner in which she assisted the anti-retention group in setting up the website, on which some of the false accusations against Judge Gleeson were made. Given all the circumstances, Respondent’s misconduct deserves some period of suspension, to impress upon Respondent and the bar as a whole the need for honesty in responding to the ARDC. That said, a short suspension, with the requirement that Respondent successfully complete the ARDC’s Professionalism Seminar, should suffice to serve those purposes.

(Mike Frisch)

November 11, 2021 in Bar Discipline & Process | Permalink | Comments (1)

No Purpose To "Inane" Probation

Possession of marijuana and a negligent instance of practice while suspended drew a 30 day suspension followed by a year of unsupervised probation from the Louisiana Supreme Court.

Justice Genovese dissented in part

A majority of this court has opted for a 30-day suspension from the practice of law, followed by a one-year period of unsupervised probation. I concur in the 30-day suspension, but dissent from the probation disposition.

As presented herein, I find the one-year period of unsupervised probation cannot be meaningfully enforced. According to the conditions of the discipline imposed by this Court, once Respondent serves her 30-day suspension, there is no sanction to be imposed should she violate her one-year period of unsupervised probation. So what purpose does the probation serve? None.

A probation contemplates a sanction for a violation thereof. If there is no sanction—as is the case herein—then there is no need for any probation. If there is a violation of probation, without a sentence to be imposed over and above the suspended portion of that sentence, the probation is meaningless and serves no purpose, as there is no sanction for a violation of said probation.

Thus, I would remand for a sanctionable probation or else eliminate this inane probation altogether.

Justices Crain and McCallum joined the dissent in part. (Mike Frisch)

November 11, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 10, 2021

Back From Vegas

Over a vigorous dissent, the West Virginia Supreme Court of Appeals granted reinstatement to an attorney suspended in 2011.

An incarcerated client had complained about the attorney's sexual advances toward his spouse

Mr. Cline filed an ethics complaint against Mr. Perry on June 23, 2009. Mr. Perry was not truthful in responding to the allegations in Mr. Cline’s complaint. ODC filed formal charges against Mr. Perry on December 3, 2010 and had to serve Mr. Perry by publication because he moved to Las Vegas, Nevada when he learned of the ethics complaint and “anticipated a bad result.” Mr. Perry did not participate in the proceeding, and the Court suspended his law license indefinitely on December 1, 2011. The Court also required Mr. Perry to pay costs of the disciplinary proceedings, undergo a psychiatric evaluation before petitioning for reinstatement, comply with any suggestions of the evaluator after being reinstated, and have his law practice supervised for two years upon reinstatement.

A 2017 petition had been summarily denied.

Now, while the "transgressions were undoubtedly serious"

But ten years have passed, and Mr. Perry now demonstrates some level of “maturity that was lacking as of the date of his [indefinite suspension]” by accepting responsibility for his actions and seeking self-improvement. HPS found that “[t]he evidence . . . reflects that [Mr. Perry] has demonstrated great remorse for his previous misconduct, has acknowledged the severity of such, and appears to accept full responsibility thereof[,]” and we see no reason to disturb the  finding. The testimony of Mr. Perry’s past employers, evidence of his youth assistance, and clean public record since his suspension also indicate rehabilitation. Most significantly, the ten-year suspension permitted Mr. Perry time to accrue a record of reputable conduct, which he did by maintaining employment and coaching youth sports, among other things. Mr. Perry’s required Continuing Legal Education (CLE) and supervised practice will promote legal competence despite Mr. Perry’s lengthy absence from the profession.

ARMSTEAD, Justice, dissenting:

David D. Perry was rightfully suspended from the practice of law by this Court for serious ethical issues stemming from his prurient pursuit of sexual favors from his jailed client’s wife in exchange for a reduced legal fee. It is difficult to imagine a factual scenario that may do more to undermine public confidence in the integrity of the legal profession in our state. Such conduct was a serious affront not only to Mr. Perry’s client and his then wife, but also cast a shadow on our state’s legal profession as a whole.

The favorable recommendation is "inexplicable"

In addition, the majority recognizes, in Footnote 9 of the memorandum decision, that some Mr. Perry’s statements in the HPS proceedings and his brief “caused skepticism” of HPS’s findings of remorse and responsibility. Mr. Perry’s statements from his brief, as cited by the majority in Footnote 9, certainly do not reflect remorse or acceptance of responsibility by Mr. Perry for his actions. Instead, they appear to cast blame on others, including his client’s now exwife from whom he sought sexual favors.

Based on the egregious conduct in which Mr. Perry has engaged, and the fact that he has not shown appropriate remorse or proven adequate rehabilitation, I believe reinstatement of Mr. Perry to the practice of law does not safeguard public confidence in our legal system. Accordingly, I respectfully dissent from the majority’s opinion in this matter.

(Mike Frisch)

November 10, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Inhumane

The Detroit News reported on a guilty plea that has led to an attorney's interim suspension by the Michigan Attorney Discipline Board

A Wayne County attorney pleaded guilty to embezzling money from a dead client's trust intended for the Michigan Humane Society, state officials announced Wednesday.

Anthony Semaan, 64, entered his plea Tuesday in Wayne County Circuit Court to embezzlement of $50,000 to $100,000, a 15-year felony, the Michigan Attorney General's Office said in a statement.

The Grosse Pointe Park resident's conviction will be reported to the State Bar of Michigan. Sentencing is scheduled for Dec. 9, according to the release.

Authorities reported that Semaan drafted the  trust in 2011 and the client, who died two years later, had half allocated to the Michigan Humane Society. Since the assets were intended for a charity, the law required the Attorney General’s Office to be involved.

In 2016, Semaan was to distribute the trust's funds after all expenses were paid but instead placed $262,732.68 in his escrow account, distributed two payments to individuals named in the trust and never told the Michigan Humane Society about the 50% disbursement, investigators said.

Semaan was charged in April.

“Older individuals who use professionals for estate planning should be able to rely on those professionals to follow the law and make sure the money is distributed in accordance’s with their wishes," said Michigan Attorney General Dana Nessel in a statement.

(Mike Frisch)

November 10, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Indefinite Suspension For Child Porn Conviction

Dan Trevas reports on a discipline decision issued today by the Ohio Supreme Court

An attorney formerly of Toledo serving a 10-year prison sentence for child pornography-related charges was indefinitely suspended by the Ohio Supreme Court today.

In a unanimous per curiam opinion, the Supreme Court noted that Stephen Long and the Toledo Bar Association proposed to the Board of Professional Conduct that Long be indefinitely suspended with no credit for the time served under a prior suspension. The board agreed with the recommendation, and the Court adopted the sanction.

Attorney Suspended After Conviction
In May 2017, Wood County law enforcement officers searched Long’s home. Based on the evidence obtained, he was indicted on five second-degree-felony counts of pandering sexually oriented matter involving a minor and one fifth-degree felony count of possessing criminal tools. A Wood County grand jury later indicted Long on eight additional counts of pandering sexually oriented matter involving a minor and two counts of illegal use of a minor in nudity-oriented material or performance.

In December 2018, Long pleaded no contest. He was sentenced to 10 years in prison and designated a Tier II sex offender. Long appealed to the Sixth District Court of Appeals, which affirmed his convictions in August 2020.

Based on his conviction, the Court suspended Long from the practice of law on an interim basis in March 2019. In a July 2019 complaint to the board, the Toledo Bar Association sought additional sanctions based on the conduct underlying Long’s criminal convictions.

Long did not seek a board hearing to contest the ethics violations. The parties stipulated and the board found that Long violated two rules governing the professional conduct of Ohio lawyers, by committing an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness, and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.

In addition to the suspension, Long was ordered to pay the costs of the disciplinary proceedings.

2021-0751Toledo Bar Assn. v. LongSlip Opinion No. 2021-Ohio-3967.

(Mike Frisch)

November 10, 2021 in Bar Discipline & Process | Permalink | Comments (0)

How Do You Sue Carnegie Hall?

A previously admonished attorney has received a public censure from the New York Appellate Division for the First Judicial Department

The parties agree that the appropriate sanction for respondent's conduct is a public censure. While respondent has received four admonitions, one was imposed over 20 years ago and another over 10 years ago, and of the two admonitions received in the last six or so years, only one of them was for misconduct similar to that presently charged. Moreover, the mitigation presented includes respondent's efforts to remedy his neglect and bad conduct. Indeed, the sanction proposed by the parties is supported by case law cited by the parties, which involved neglect that, as here, was not accompanied by any additional serious misconduct (see Matter of Thomas, 159 AD3d [1st Dept 2018]; Matter of Gilbert, 131 AD3d 171 [1st Dept 2015]; Matter of Salomon, 78 AD3d 115 [1st Dept 2012]. In light of this precedent, we see no reason to disturb the sanction to which the parties have agreed.

The attorney was the subject of five charges including

With respect to charges two and three, respondent conditionally admits that he was retained on January 3, 2012 and paid a fee and filing fees to commence a lawsuit against Carnegie Hall for breach of contract. A few days later, he showed his client a letter to Carnegie Hall and summons with notice he had drafted but did not file. In August 2012, respondent sent Carnegie Hall a letter similar to the one he drafted in January and attached a summons with notice that did not have an index number; he did not file the summons and complaint. In April 2016, respondent purchased two separate index numbers and emailed his client two summonses with endorsed complaints (one for $25,000 and the other for $100,000), but still did not serve the defendant with the summons. Finally, on November 28, 2017, respondent filed a summons with notice against Carnegie Hall for breach of contract for $500,000; however, due to his error in dating the breach of contract as December 22, 2017 instead of December 22, 2011, he had to file an amended summons on December 1, 2017. In June 2018, Carnegie Hall's motion to dismiss under CPLR 3211(a)(7) was granted.

And

Respondent conditionally admits that by filing an order to show cause to stay the Queens County action after having entered into a stipulation of discontinuance with prejudice on the same matter in New York County, he knowingly advanced a claim that was unwarranted under existing law for purposes of delaying or prolonging the action, in violation of rule 3.1(b)(1) and (2); and by leaving [*3]a voicemail with expletive language for Goldberg, he engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of rule 8.4(h).

(Mike Frisch)

November 10, 2021 in Bar Discipline & Process | Permalink | Comments (0)

It's Business, Not Personal

An oral argument scheduled this morning before the Ohio Supreme Court

Disciplinary Counsel v. Hon. Thomas M. O’Diam, Case No. 2021-0971
Greene County

A Greene County probate court judge faces a six-month suspension without pay because of his treatment of a man who publicly questioned whether the judge should preside over cases in which his daughter represents a party in the matter.

Prior to his 2013 appointment as Greene County probate judge, Thomas O’Diam practiced estate planning and probate law for 27 years as a member of the O’Diam, Steck & Sove Law Group. While he was still in private practice, Judge O’Diam’s daughter, Brittney, was admitted to practice law and joined the firm.

After Judge O’Diam took the probate court bench, the firm reorganized and arranged a plan to buy out the judge’s interest through payments that ended in 2021. Brittney continued to work at the new firm and gained an ownership interest.

Daughter Represents Family in Probate Matter
In 2018, Carolee Buccalo died and her granddaughter, Yvonne Martin, was named executor of Buccalo’s estate. Martin hired Brittney to represent her in administering the estate in the probate court in which Judge O’Diam is the sole judge.

After opening the estate, Brittney presented waivers of disqualification to participants in the Buccalo estate, including three that required the signature of Grant Buccalo, a son of the deceased.

All the waivers stated that “circumstances exist that may disqualify Judge O’Diam from presiding over this proceeding” and that his prior law firm is indebted to the judge under a stock-redemption agreement. The waivers also stated that Brittney O’Diam is the daughter of Judge O’Diam, and noted those signing “acknowledge that these circumstances may lead someone to reasonably question Judge O’Diam’s impartiality,” but that the signers “trust that Judge O’Diam will act impartially and fairly.”

Buccalo signed the waivers, and Brittney worked on probating the will.

Judge, County Commissioners, and Beneficiary Intersect
While the Buccalo probate matter was pending, Judge O’Diam was engaged in a legal dispute with the Greene County Commissioners regarding courthouse space for the probate court. The matter escalated to the Ohio Supreme Court, which in early May 2019 ruled that Judge O’Diam couldn’t force the county to designate that a courtroom be reserved exclusively for probate cases three days a week.

About two weeks after the Supreme Court decision, Buccalo called the county commissioners and requested to speak on matters at their weekly meeting, which was granted. At the meeting, Buccalo expressed his belief that Judge O’Diam should recuse himself from cases in which “family members” represent parties. Buccalo stated that “justice depends on the appearance as well as the reality of fairness in all things. Otherwise, it erodes public confidence in the legal system.”

Buccalo spoke for about two-and-a-half minutes, stating he wanted to make sure the commissioners were aware of the practice. He didn’t specifically mention’s his mother’s estate case or express any concern about his own involvement with Judge O’Diam. He concluded by stating he intended to file a grievance against the judge with the Office of Disciplinary Counsel.

Judge O’Diam became aware of Buccalo’s comments and requested a recording of the meeting. Buccalo submitted his grievance, which the disciplinary counsel’s intake division dismissed without investigation.

Judge and Daughter Grill Beneficiary on Stand
Judge O’Diam spoke to his daughter and arranged a status conference on the estate. The judge ordered Martin, Buccalo, and three other beneficiaries of the will to appear and stated that failure to appear “will be deemed contempt.”

Judge O’Diam discussed the matter in advance with Brittney, and each prepared exhibits and questions for the conference. Buccalo wasn’t informed by the court about the conference’s purpose and didn’t know he would be called to testify under oath. Buccalo didn’t request his lawyer to appear at the proceeding.

At the conference, Judge O’Diam explained a “very disturbing incident” had taken place and it needed to be resolved that day. He played the recording of Buccalo at the commission meeting. Judge O’Diam then placed Buccalo on the witness stand and proceeded to question him for more than an hour.

Judge O’Diam accused Buccalo of slandering him at the commissioners’ meeting and accused Buccalo of telling the commissioners the judge was behaving inappropriately. He asked Buccalo if he understood the waivers and, if he didn’t, questioned why he would sign them. Buccalo told the judge he did not see his comments to the commissioners as something Judge O’Diam should take “personally.” Judge O’Diam replied, “Oh, I see this as very personal.”

After an hour, Judge O’Diam turned the questioning over to Brittney, who also questioned if Buccalo had any concerns signing the waivers. She also accused Buccalo of impugning her character at the county commission meeting.

At the end of the status conference, Judge O’Diam recused himself from the estate matter and announced he was asking the Supreme Court to appoint a visiting judge. Judge O’Diam told Buccalo his actions were going to delay the case. Brittney informed Buccalo the matter created additional legal work and increased the costs the estate would have to pay to settle the estate.

In September 2019, an anonymous grievance was submitted to the disciplinary counsel regarding the judge and his daughter’s questioning of Buccalo. Judge O’Diam stated he believed Buccalo filed the grievance.

A week after the status conference, Judge O’Diam and Brittney appeared at a county commission meeting and told the commissioners that Buccalo was being untruthful when he spoke to them the month before. The judge told the commissioners that Buccalo’s accusations were “despicable.”

Board Rules Judge Behaved Inappropriately
The disciplinary counsel filed a complaint against Judge O’Diam with the Board of Professional Conduct, charging that the judge violated the Ohio Rules of Judicial Conduct. Nearly two years after Buccalo made his comments, and weeks before a three-member board panel was to consider the matter, Judge O’Diam sent a letter to Buccalo apologizing for the way he treated Buccalo during the status conference.

The panel found Judge O’Diam violated the rule requiring judges to be “patient, dignified, and courteous” to those involved in legal matters and require similar conduct of lawyers and others “subject to the judge’s direction and control.” The board indicated the way Judge O’Diam conducted himself and allowing his daughter to grill Buccalo violated the rule.

Judge O’Diam and the disciplinary counsel agreed the matter was a one-time occurrence and that the judge had no prior disciplinary record. They jointly proposed that the board recommend a public reprimand.

However, the panel maintained that the judge’s actions were not an isolated incident. The panel noted the judge arranged and prepared materials for a status conference without giving Buccalo any warning of the nature of the proceeding and then “interrogated him for over an hour in a disparaging manner.” Coupled with allowing his daughter to also interrogate Buccalo without restriction, then going to the county commission meeting to complain, constituted a pattern of misconduct. The panel recommended that Judge O’Diam receive a fully stayed six-month suspension with the condition that he not commit further misconduct.

The board amended the panel’s recommendation and suggested the Supreme Court suspend Judge O’Diam for six months without pay, and that he completes six hours of continuing judicial education focused on judicial demeanor, civility, and professionalism.

Judge Objects to Sanction
Judge O’Diam objects to the proposed sanction, noting that he admitted to violating the rule and expressed remorse for his actions. In his brief, he maintains the proposed “punishment is overly punitive and unprecedented.” The judge has cited several cases where similar judicial misconduct resulted in a public reprimand or a fully stayed suspension.

Judge O’Diam notes that during the disciplinary proceedings and after the conclusion of the panel hearing, the disciplinary counsel shared his assessment that this matter was an isolated incident, and not a pattern of misconduct that warrants a reprimand. He argues that none of the board findings that would justify increasing the sanction were supported by the necessary clear and convincing evidence.

Suspension Appropriate, Disciplinary Counsel Asserts
The disciplinary counsel acknowledges it recommended a public reprimand, but states that based on the board’s findings and conclusions, it agrees that a six-month suspension, at a minimum, is the appropriate punishment.

The office maintains that the judge was wrong to berate Buccalo for expressing concerns at a county commission meeting and argues in its brief that any member of the public “should be assured that they are able to express concern with their elected officials without fear of retaliation from that public official.”

The disciplinary counsel maintains that considering the aggravating factors, the case law supports imposing a six-month suspension, with the only question being whether the suspension should be stayed. The office also supports the conditions proposed by the board that Judge O’Diam would have to meet to lift the suspension.

 Dan Trevas

(Mike Frisch)

November 10, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)