Legal Profession Blog

Hard Drive Damage

A recent public censure is summarized on the web page of the Colorado Presiding Disciplinary Judge

In 2012, the Office of the Alternate Defense Counsel (“OADC”) appointed Mrachek to represent an incarcerated client in the client’s resentencing matter. From 2012 until 2019, Mrachek investigated her client’s case by conducting multiple interviews, obtaining expert reports, communicating regularly with the client, and coordinating work on a mitigation video. Though Mrachek’s OADC timekeeping records show that she drafted a motion for a resentencing order in 2019, she never filed the motion with the presiding court.

In July 2020, Mrachek learned that she lost her client’s file after her computer and external hard drive were damaged. When OADC notified Mrachek in late 2020 that it reassigned the case to substitute counsel, she still had not told her client that his file was lost. In fact, Mrachek never communicated with her client at all after the first week of July 2020, including about assisting him to apply for an early release program available to individuals at high risk for contracting COVID-19.

(Mike Frisch)

No Basis To Disqualify

A motion to disqualify a municipal judge lacked merit and was properly denied, according to an opinion of the Ohio Supreme Court

Schmaltz argues that Judge Schooley should be disqualified from presiding over the underlying civil case because the judge has violated the Code of Judicial Conduct, his constitutional rights to due process and equal protection, and his right to a fair hearing and trial. As proof of the allegations, Schmaltz points to three issues that arose in the trial court. First, Schmaltz asserts that when he attempted to file his answer and counterclaim, clerk’s-office staff insisted that he make “some clerical changes and split up the answer and counterclaim.” After making the requested changes, Schmaltz alleges, the staff still refused to allow him to file his counterclaim.

Second, Schmaltz asserts that this is not the first time an employee of the Madison County Municipal Court has prevented him from exercising his legal rights. Schmaltz claims that in Schmaltz v. DK Hardware Supply, Madison M.C. No. 2300063, the magistrate refused to allow him to clarify his claim before dismissing his case. Schmaltz contends that after he moved to set aside the magistrate’s order, Judge Schooley denied the motion without providing any legal
reasoning.

Lastly, Schmaltz maintains that Judge Schooley’s denial of his motions for continuance in the underlying case, despite the fact that the judge “must know that court cases take time,” contributed to a violation of his fundamental rights under the United States Constitution.

The court

Because there is no evidence to support a finding that Judge Schooley is disqualified for reasons other than interest, relationship, or bias or prejudice, the affidavit of disqualification lacks merit.

(Mike Frisch)

Deplorable

The South Carolina Supreme Court disbarred an attorney for "deplorable misconduct"

On October 8, 2021, Respondent Cory Howerton Fleming was placed on interim suspension following reports of his misconduct in connection with Richard Alexander Murdaugh in various legal matters related to the death of Gloria Satterfield. In re Fleming, 434 S.C. 382, 864 S.E.2d 546 (2021). Respondent subsequently pled guilty to numerous state and federal criminal charges and was sentenced to an aggregate term of thirteen years and ten months in prison. Based on the following facts taken from the public record, we disbar Respondent for his deplorable misconduct and shocking abuse of the legal system in South Carolina.

Facts

The facts presented during the August 23, 2023 plea colloquy in Hampton County demonstrate that Respondent and Murdaugh worked independently and in conjunction to steal from clients over the course of at least a decade using various dishonest schemes. One scheme involved fabricating fraudulent litigation expenses that were never actually incurred. Respondent repeatedly stole settlement funds disguised as reimbursements for sham litigation expenses and disbursed other fraudulent litigation expenses directly to Murdaugh. Another scheme involved a pattern of retaining in trust an amount of settlement funds sufficient to cover any pending medical liens, then negotiating with medical providers to accept a lesser amount in satisfaction of those liens. However, rather than disbursing the remaining funds to the client after satisfying the reduced medical liens, Respondent converted certain excess funds for his personal use and fraudulently disbursed the remainder to Murdaugh.

A third scheme involved creation of a bank account intended to imitate Forge Consulting, LLC, a Georgia-based consulting company that specializes in brokering structured settlement annuities for lawsuit proceeds, among other things. Murdaugh created a bank account using the name "Forge" to make it appear as though client funds deposited into that account were being transferred into legitimate structured settlements. Respondent repeatedly claimed he did not know the imitation Forge bank account was an illegitimate vehicle through which Murdaugh stole millions from unsuspecting clients. However, the State's evidence proves otherwise. Specifically, the State's hearing exhibits plainly demonstrate Respondent knew the legitimate Forge Consulting entity merely assists in arranging structured settlements; it does not accept disbursements of settlement funds. Accordingly, "Forge" would never be a proper payee in disbursing escrow funds intended for a structured settlement on behalf of a client. The evidence also demonstrates Respondent knew that, for tax reasons, proceeds pursuant to a structured settlement agreement are not disbursed to a client or lawyer prior to being turned over to the settlement fund; rather, the funds must be disbursed directly from the settling insurance company to the settlement fund. Despite this knowledge, Respondent repeatedly directed that insurers forward settlement proceeds directly to his law firm. Respondent then directed that various disbursements of client funds be made out to the intentionally ambiguous payee of "Forge" and forwarded those funds to Murdaugh personally or to a post office box in Hampton, South Carolina, with no identifying cover letter, client identifiers, or
other information specifying the proper allocation of the funds into structured annuities. Respondent's actions in diverting client funds to the imitation Forge account enabled Murdaugh to steal millions from unsuspecting clients.

Proof

Based on Respondent's guilty pleas in state and federal court, there is no factual dispute about whether Respondent engaged in dishonest conduct, and it is conclusively established that Respondent engaged in conduct that violates the Rules of Professional Conduct. This satisfies ODC's burden of proving that same misconduct in connection with the pending disciplinary proceedings.

...we dispense with further investigation by ODC and further proceedings before the Commission. Respondent is hereby disbarred from the practice of law in South Carolina. To the extent additional acts of misconduct by Respondent are subsequently discovered, this Court may issue a supplemental order detailing any such additional acts of misconduct and imposing additional sanctions where appropriate.

(Mike Frisch)

Focus On Florida

Oral argument is scheduled on December 6 before the Florida Supreme Court in a bar discipline matter.

Tampa Bay Times reported

A judge tasked with investigating a campaign finance scandal involving former state representative and Miami Beach commissioner Michael Grieco is recommending a 90-day suspension of Grieco’s law license, according to a report released Tuesday.

The report, issued by Miami-Dade Circuit Court Judge George Sarduy as part of a Florida Bar case, calls on the Florida Supreme Court to find Grieco guilty of violating the state’s rules for lawyers related to conduct involving dishonesty or a “criminal act that reflects adversely” on the attorney.

The state Supreme Court will now make the ultimate decision on whether and how Grieco should be disciplined. In addition to the recommended suspension, Sarduy’s report calls for Grieco to pay the Florida Bar’s unspecified costs in the proceedings.

Grieco, a prominent South Florida criminal defense attorney who is rumored to be considering a run for Miami Beach mayor later this year, was not immediately available for comment Tuesday evening. His attorney in the Florida Bar case, Ben Kuehne, said in a statement that Grieco “respects the recommendation of the Referee.”

“It will be the Florida Supreme Court’s responsibility to determine the outcome for these long ago allegations,” Kuehne said. “Since that time, Michael Grieco has continued to fight for his clients and represent the best interests of the community.”

Kuehne added that “Miami Beach voters have known of this topic and have elected and re-elected [Grieco] to the Florida Legislature.”

Grieco, 47, resigned as a Miami Beach commissioner in 2017 amid the campaign finance scandal. He was elected as a Democratic state representative in 2018 and ran unopposed two years later. He filed to run for state Senate against incumbent Ileana Garcia in 2021 but dropped out of the race last summer.

A spokesperson for the Florida Bar, Jennifer Krell Davis, declined to comment on the case. The Bar filed its formal complaint against Grieco in July 2017.

The case relates to Grieco’s conduct during a failed bid for Miami Beach mayor in 2017. That year, Grieco pleaded no contest to a misdemeanor charge that a political committee he was secretly running accepted $25,000 of foreign money funneled through a straw donor.

In 2021, the Miami-Dade Commission on Ethics and Public Trust found Grieco had falsely portrayed his involvement with the committee, People for Better Leaders, first when he told the Miami Herald he had nothing to do with the committee and again when he told the Herald: “It is absolutely untrue . . . You can look right into my soul.”

Sarduy, the referee in the Florida Bar case, concluded that Grieco had made statements “intended to mislead the press and public regarding his true involvement” with the PAC.

The 64-page referee’s report is dated Sept. 30, 2022, and was posted on the public online case docket Tuesday.

It notes that Grieco initially said through his attorney that he was acting as the PAC’s lawyer but later testified under oath in the referee’s investigation that he was not doing so.

“Accordingly, it is clear that Respondent’s narrative and testimony on this topic change depending on the audience to whom it is presented, and the goal Respondent wishes to accomplish,” Sarduy wrote.

Grieco, Sarduy added, “made misrepresentations in these proceedings, under oath before me, regarding his involvement” with the committee.

Kuehne said Grieco “presented a full and accurate presentation of the facts to the referee.”

Grieco’s troubles began during the 2017 mayoral run. On the campaign trail, he presented himself as a straight shooter who would fight special interests at City Hall. But a Herald investigation found he was quietly operating a PAC raising money from some of those special interests, including developers, lobbyists and city vendors. Donors to the committee said Grieco himself had asked them to contribute.

When questioned by the Herald, Grieco denied in the strongest possible terms that he was involved.

“I do not have a [political committee],” Grieco said. “I didn’t set up one. I haven’t solicited for one.”

That statement and other similar denials were found to be untrue, first by the Miami-Dade ethics commission and now by the referee.

In issuing his recommendation for discipline, Sarduy noted that Grieco had previously received a public reprimand by the Florida Supreme Court in 2008, related to his conduct as an assistant state attorney. The Bar charged that Grieco had interfered in the assault case of a friend by leading detectives to believe he was involved with the case and later asking that his friend receive special treatment.

Also on tap that morning

This case considers [States Attorney Monique] Worrell’s petition challenging her August suspension from office by Governor DeSantis. Worrell argues that the Governor’s executive order did not contain sufficient proof that she neglected her duty and exhibited incompetence in office to satisfy the constitutional requirements for suspension.

(Mike Frisch)

An Odd And Unprofessional Manner

The North Dakota Supreme Court has placed an attorney on disability inactive status

The hearing panel concluded Overboe’s conduct demonstrates the presence of a mental condition that adversely affects her ability to practice law.

In November of 2022, Overboe interacted with the Clerk of the North Dakota Supreme Court in the form of electronic communications from Overboe to the Clerk’s personal cell phone. The Clerk had not previously provided Overboe her personal phone number, nor did they have a personal relationship prior to or since these interactions. The Clerk felt the communications were unprofessional and inappropriate, and when Overboe was confronted, Overboe admitted she was intoxicated when she sent the communications.

Overboe had a second interaction with the Clerk similar to the first, ten days later. Overboe again admitted to being intoxicated and expressed problems with her mental clarity. A short time later, Overboe interacted with the Clerk in an odd and unprofessional manner.

The hearing panel concluded Overboe’s communications and attitude demonstrated a likely substance abuse disorder, coupled with an underlying mental illness, rendered Overboe unable to competently serve her clients and presented a danger to the public and profession.

Shortly after Overboe’s interactions with the Clerk, Overboe submitted filings in her personal divorce that she had “been seeing and hearing things that could be considered delusional. I have been told that I am delusional. I have been diagnosed with PTSD according to my therapist…My mental illness has made it difficult for me to do basic math.” Additionally, Overboe advanced rumors and allegations of inappropriate relationships between members of the North Dakota State Bar and inappropriate relationships between her husband and his attorneys.

(Mike Frisch)

AV Rating On Website

Disclosure issues in a Colorado bar application drew a censure from the Kansas Supreme Court

The Hearing Panel findings of misconduct were far more extensive than found by the court, as the panel had found that

The respondent violated KRPC 7.1 when she published a website containing materially false information, including masses of information copied from the Roth Davies website (leading searchers to land on her website when actually searching for Roth Davies), her bar association memberships, her alleged Martindale-Hubbell A/V rating, and her alleged experience, particularly in motorcycle and wrongful death cases. This was exacerbated when, having removed the website upon receipt of the complaint in this matter, she put the offending website back up within a few months thereafter. As such, the hearing panel concludes that the respondent violated KRPC 7.1(a).

Colorado bar application

In the present case, respondent intentionally failed to include her employment with the Boys and Girls Club, as well as her employment with Crystal Specialties and Colorado State University-Pueblo in her application for admission to the Kansas bar.

Additionally, respondent failed to disclose a number of matters, and misstated a number of facts to the Colorado bar authorities in her several applications to that bar...

The court

We conclude that our court has subject-matter jurisdiction to discipline Morton for conduct related to her 2019 Colorado bar application and that Morton inadequately briefed her due-process challenges. But we agree with Morton that the facts and law do not support many violations the panel found. We also agree with her that the discipline recommended by the Disciplinary Administrator (disbarment) and the hearing panel (indefinite suspension) is too severe. Giving due consideration to the violations supported by clear and convincing evidence, Morton's state of mind, the injury she caused, and the applicable aggravating and mitigating circumstances, we conclude that the appropriate discipline is a censure to be published in the Kansas Reports.

Jurisdiction

we have subject-matter jurisdiction to consider whether Morton's out-of-state conduct— including statements and omissions in her Colorado bar application—violated Kansas' professional-conduct rules.

The court rejected a host of asserted due process violations.

As to the website

Clear and convincing evidence does not support the panel's finding that the use of the Martindale-Hubbell A/V Preeminent was an "intentional misrepresentation." There is no dispute that Morton had not received that rating. But the record shows only that the logo was on the website for some time until a complaint was filed, that Morton promptly removed it, and that she did not republish it on her July 2021 website. The Disciplinary Administrator argues that we should infer that Morton knowingly violated the rule simply because she controlled the contents of her website. But we cannot agree. No evidence suggests that Morton's use of the logo was intentional, as the panel found, rather than inadvertent or negligent. And the Disciplinary Administrator has not argued that lawyers are strictly liable for a KRPC 7.1 violation or that a lawyer may violate the rule by way of ordinary negligence. We therefore reject the panel's conclusion.

Nor do we agree that Morton's use of the Roth Davies material violated KRPC 7.1. That rule prohibits a lawyer only from making "a false or misleading communication about the lawyer or the lawyer's services." (Emphasis added.) (2023 Kan. S. Ct. R. at 423). But Morton's inclusion of the Roth Davies material—whether inadvertent or intentional—was not a communication about Morton or her services. Instead, it consisted of summaries of Kansas and federal caselaw, a question-and-answer section about Kansas domestic-violence law, and an explanation of the criminal-trial process. Perhaps Morton's use of the materials violates a different rule of professional conduct (a possibility we address, in part, below), but KRPC 7.1 is simply inapplicable under these facts. We therefore conclude that the November 2020 version of Morton's website fails to support any KRPC 7.1 violations.

Bar application disclosures

The panel concluded that Morton had violated that rule when she (1) "intentionally failed to include her employment with the Boys and Girls Club, as well as her employment with Crystal Specialties and Colorado State University-Pueblo" in her Kansas bar application; (2) stated in "her several applications" to the Colorado bar that she had "voluntarily quit her employment with Boys & Girls Club" and "had not been a member of any bar associations"; and (3) had failed to disclose this disciplinary case to the Colorado attorney-admissions authorities. We address these violations in order, noting that neither the panel nor the parties have addressed how each alleged violation fits into each subsection of KRPC 8.1.

First, we mostly agree with the panel's conclusion about Morton's failure to disclose prior employment on her Kansas bar application. Question 22 of the Kansas bar application required Morton to disclose 10 years of employment history. Morton filed her application in March 2016, meaning that she needed to disclose all employment dating back to March 2006. Morton was an employee of the Boys & Girls Club in late 2007, so she needed to disclose that employment. That omission was material because Morton's supervisor testified that she was fired for misconduct, and "employment misconduct" is one of the factors considered when establishing character and fitness qualification for the Kansas bar. Supreme Court Rule 712(d)(3) (2023 Kan. S. Ct. R. at 574). And because Morton had listed her Boys & Girls Club employment on her earlier Colorado bar applications, it is reasonable to infer that she intentionally omitted it from her Kansas application. Even so, we disagree that there is evidence in the record suggesting that Morton's failure to disclose her employment with Crystal Specialties or Colorado State University-Pueblo was material, so those omissions do not support the violation.

While some of these alleged non-disclosures were not material

we agree with the panel that Morton violated KRPC 8.1 by failing to disclose her Kansas disciplinary complaint to the Colorado attorney-admissions authorities while her 2019 Colorado bar application was pending. That application asked if the applicant was the subject of any complaints or disciplinary or grievance actions. Morton answered no, which was accurate when she submitted the application in June 2019. But when she submitted the application, Morton acknowledged that she had a continuing obligation to timely update the information on the application until she  was admitted to practice in Colorado. And she acknowledged that an amendment was considered timely when made "no later than 10 days after any occurrence that would change, or render incomplete, any answer on" her application. As a result, when Morton learned of the pending Kansas complaint against her in February 2021, she needed to timely update her Colorado bar application, which was still pending. Her failure to do so was a material omission.

Rule 8.4

We agree with the panel that clear and convincing evidence supports a KRPC 8.4 violation for Morton's statement that she "voluntarily" quit her employment with the Boys & Girls Club. Her supervisor's testimony clearly and convincingly supports the panel's finding that Morton was fired for misconduct. Morton's statement involves a material misrepresentation and adversely reflects on her fitness to practice law. We also agree that clear and convincing evidence supports a KRPC 8.4 violation for Morton's failure to disclose her Kansas disciplinary complaint to Colorado attorney-admissions authorities while her Colorado bar application remained pending. The record shows that Morton acknowledged that she had a continuing obligation to update the information on the application until she was admitted to practice in Colorado. Her failure to disclose the complaint is a material misrepresentation or deceitful, and it adversely reflects on her fitness to practice law.

Website issues

But we have not yet discussed Morton's use of the Roth Davies material because we concluded that such content did not represent a communication about Morton or her services under KRPC 7.1. KRPC 8.4 contains no such limitation, so we agree with the panel that it may sometimes apply when a lawyer misappropriates materials for a professional website. But the record before us contains no evidence showing that Morton's use of the Roth Davies material was anything more than inadvertent or negligent. Thus, we "discern mistake rather than malevolence," and cannot agree that clear and convincing evidence establishes that Morton engaged in conduct that involved dishonesty, fraud, deceit, or misrepresentation under KRPC 8.4(c) or that adversely reflects on her fitness to practice law under KRPC 8.4(g). In re Pyle, 283 Kan. at 827

Having rejected most of the violations found below, the court imposed a published censure. (Mike Frisch)

Trespass And The First Amendment

The Iowa Supreme Court affirmed a hate crime conviction

In recent years, in our country, the rainbow flag has come to symbolize support for LGBTQ+ rights. Several individuals in Boone displayed that flag or a decal of it on the front of their properties. Another person entered their premises without permission and taped anonymous notes to the doors urging, “Burn that gay flag.” This individual was later found out and convicted of trespass as a hate crime. See Iowa Code § 716.8(3) (2021). He now asserts on appeal that his conviction violated the First Amendment to the United States Constitution and article 1, section 9 of the Iowa Constitution. We disagree. The statute in question does not criminalize speech, but rather conduct with a specific intent—namely, trespassing on property because of the property owner or possessor’s association with persons of a certain sexual orientation. The individuals’ display of the LGBTQ+ flag or flag decal on their own properties was an exercise of First Amendment rights; the defendant’s surreptitious entry onto those properties to post his harassing notes was not. For these reasons, and because we are not persuaded by the defendant’s other appellate arguments that would require us to construe the hate crime statute implausibly or to overturn a soundly reasoned forty-year-old precedent, we affirm the defendant’s convictions and sentence.

The conduct

In June 2021, renters and homeowners who displayed LGBTQ+ Pride flags or decals in Boone began receiving handwritten notes taped on their front doors.

The first note, discovered on June 16 and shaped like a warning sign, said, “Warning due to high levels of flaggotry an investigation has been launched to control the spread of HIV/AIDS. We are sad to say the bare back orgy has been canceled. Burn that gay flag.” The renters, who displayed an LGBTQ+ Pride flag or decal on their premises, contacted the Boone Chief of Police about the note and filed a police report. They specifically asked for information on whether the Boone Police Department “keep[s] track of crimes against LGBTQ people within the City of Boone” and “how many incidents against LGBTQ people have been reported to the Boone Police so far in 2021 and in each of the past five years.”

On June 19, four additional notes were located, omitting the opening words and stating simply, “Burn that gay flag.” The notes had the same handwriting. The recipients reported that they found the notes to be “alarming, annoying, and/or threatening.”

Video surveillance footage at some of the homes revealed a man approaching with a piece of paper in his hand and leaving a short time later. Based on the surveillance, Robert Geddes was identified as the individual. Geddes did not have prior permission to enter any of the five properties.

MCDERMOTT, Justice (dissenting).

The Iowa Code states that a crime becomes a “hate crime” when it is committed because of either “[(1)] the person’s [(i.e., the victim’s)] race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability, or [(2)] the [victim]’s association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability.” Iowa Code § 729A.2 (2021) (emphasis added).

The record in this case tells us almost nothing about the people on whose doors Geddes posted his notes except for one key fact: they each displayed a Pride flag or flag decal on their property. The court thus cannot find that Geddes committed a hate crime under (1) since we have no information about any of the homeowner’s characteristics. We have nothing that tells us, in other words, the homeowner’s race, religion, sexual orientation, or any other characteristic to show that the crime was committed because of the homeowner’s own characteristics. As the majority correctly concludes, “There is no evidence to indicate whether the recipients of Geddes’s notes were themselves members of the LGBTQ+ community or whether Geddes believed they were.”

So we turn to whether Geddes committed a hate crime under the alternative presented in (2). For this, the State must prove that Geddes left the note because of the homeowner’s “association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability.” Id. (emphasis added). So we must ask: Who is the other “person” (or other “persons” since we assume singular nouns can be plural, see id. § 4.1(17)) that the homeowner is associated with?

The record doesn’t provide an answer. We have no information about any homeowner’s actual connection to a person having any of the characteristics mentioned in the statute or about Geddes’s beliefs on this subject. Without being able to identify the homeowner’s association with a person of a certain protected characteristic, then under the plain terms of the hate crime statute, we lack evidence to uphold Geddes’s hate crime convictions. This failure is fatal to the State’s hate crime charge and requires reversal.

(Mike Frisch)

Failure To Cooperate

The Indiana Supreme Court has suspended an attorney for failure to cooperate in a bar investigation.

Respondent is already under an order of suspension for continuing legal education noncompliance and dues nonpayment. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26)

The Indiana Lawyer reported on criminal charges

An Indianapolis attorney has been convicted of two federal misdemeanors in connection with the Jan. 6, 2021, riot at the U.S. Capitol.

Quentin G. Cantrell was convicted at a bench trial Tuesday of entering and remaining in a restricted building and parading, demonstrating or picketing in a Capitol building.

But Judge Trevor McFadden of the U.S. District Court for the District of Columbia found him not guilty of two other misdemeanors: disorderly and disruptive conduct in a restricted building and disorderly or disruptive conduct in a U.S. Capitol building or grounds.

Cantrell has been released on a personal recognizance bond. His sentencing is scheduled for June 26.

Also convicted on Tuesday was Jared Cantrell, who was charged alongside Quentin and a third relative, Eric Cantrell. The Cantrells are referred to in court documents as the “Cantrell cousins.”

Jared was convicted of the same two counts as Quentin, as well one count of disorderly and disruptive conduct in a restricted building.

Eric pleaded guilty in February to the parading, demonstrating or picketing charge. He was sentenced to three months’ probation, a $10 special assessment, $500 in restitution and a $1,000 fine.

According to government court filings, “The (Cantrell) defendants were among the rioters who illegally entered the U.S. Capitol grounds and then entered the U.S. Capitol building itself” on Jan. 6, 2021, the day when a mob attempted to stop the certification of President Joe Biden’s electoral victory.

The Cantrell cousins had driven to Washington, D.C., one day earlier to attend the “Stop the Steal” rally featuring then-President Donald Trump. After the rally on Jan. 6, the Cantrells “marched down Constitution Avenue toward the West Lawn of the U.S. Capitol.”

Once at the Capitol, the government’s trial brief says the Cantrells spent about 19 minutes on the Upper West Terrace. A fire exit located on that terrace was breached at 2:34 p.m. and an alarm began sounding.

The cousins entered the Capitol through the breached fire exit about three minutes later.

“Quentin Cantrell remained in the Capitol for approximately two minutes along with many other rioters whose numbers greatly outnumbered law enforcement as law enforcement was attempting to secure the Capitol. Quentin Cantrell exited out the Upper West Terrace door and made his way back to the northwest stairs … . At 3:07 p.m., Quentin Cantrell attempted to climb over the stair wall and down (to) the ground,” according to the government’s brief.

For his part, Jared made his way to the Capitol Rotunda and captured video before exiting the building at about 2:47 p.m. He later posted to Facebook, “I was one of the first 50 in.”

A separate statement of offense says Eric remained in the Capitol building for one minute and 38 seconds.

The cousins eventually returned to Indiana together.

The maximum prison sentence for each misdemeanor Quentin has been convicted of is six months, plus any applicable fines and/or probation. Sentencing memoranda for both Quentin and Jared — who are scheduled to be sentenced on the same day — are due by June 19.

Indiana Lawyer has reached out to Quentin’s counsel, David Issa of Houston, for comment.

At the time of his arrest in March 2022, Quentin was listed online as working for the Indianapolis firm of Woodard Emhardt Henry Reeves & Wagner LLP. He was removed from the firm’s website soon after his arrest, and he currently has no contact information listed on the Indiana Roll of Attorneys.

The Roll of Attorneys also does not list any previous or pending disciplinary actions against him.

The case in the Washington, D.C., District Court is United States of America v. Cantrell, et al., 1:22-cr-00121.

(Mike Frisch)

Florida Men

From the December 2023 Florida Bar discipline summaries

Leon Menas Boyajan, II, 2303 Highway 44 W., Inverness, suspended for one year, effective 30 days following a November 2 court order. (Admitted to practice: 1983) Boyajan engaged in a pattern of neglect and lack of communication in multiple matters. He also engaged in a conflict of interest when he consulted with three co-defendants regarding their criminal matter, and then represented two of the three co-defendants in the matter. With Boyajan’s assistance, the state obtained proffers from his clients implicating the third co-defendant in the crime, who was also a former client of Boyajan’s. Boyajan failed to explain the advantages and risks involved or obtain his clients’ informed consent with regard to the joint representation, and never sought waivers of the conflict of interest. (Case No. SC23-0630)

Michael Thomas Dolce, 3228 Gun Club Rd., West Palm Beach, disciplinary revocation without leave to apply for readmission effective 30 days following a November 22 court order. (Admitted to practice: 1995) On or about April 4, 2023, Michael Thomas Dolce was criminally charged by indictment with possession of material containing child pornography. The criminal case disposition is pending. (Case No. SC23-1365)

Joseph Anthony Sorce, 999 Ponce De Leon Blvd., Suite 1020, Coral Gables, suspended for two years, effective nunc pro tunc to August 7, 2023. (Admitted to practice: 1994) Sorce pled no contest to charges of felony reckless driving with serious bodily injury, possession of cocaine, and two counts of misdemeanor DUI. Adjudication was withheld as to the felony charges, and Sorce was sentenced to five years of probation. (Case No. SC23-1100)

Michael M. Stover, 134 Masters Dr., St. Augustine, suspended for six days followed by a three-year period of probation effective 30 days following a November 22 court order. (Admitted to practice: 2015) Stover was arrested for the purchase of illegal narcotics in exchange for legal services. The Office of the State Attorney charged Stover with purchasing or possessing with intent to purchase a controlled substance, a third-degree felony. Stover entered into a Pretrial Intervention (PTI) Contract with the State, which he successfully completed. The State Attorney’s Office filed a Notice of Completion of Pre-Trial Intervention Agreement and Nolle Prosequi dismissing the criminal charges based on Stover’s completion of the PTI contract. (Case No. SC23-1204)

(Mike Frisch)

Litigation Misconduct Draws Reciprocal Censure

The New York Appellate Division for the First Judicial Department has imposed a reciprocal public censure for litigation misconduct in Massachusetts federal court

This matter arises out of respondent's conduct after he was admitted pro hac vice in March 2016 to serve as the plaintiffs' lead and effectively only counsel in a case before the U.S. District Court for the District of Massachusetts. In November 2020, the plaintiffs obtained new counsel, but the defendants nevertheless moved for sanctions and to refer respondent for disciplinary proceedings on account of his inappropriate behavior throughout the litigation process. Respondent opposed and the plaintiffs' new counsel moved for respondent's withdrawal, which the court allowed subject to resolution of the motion for referral. By January 12, 2021 order and decision, the district court found that there was credible evidence that respondent likely committed professional misconduct and granted the defendants' motion to the extent of referring the matter to the presiding judge for review and possible disciplinary action.

By order dated September 7, 2021, the District of Massachusetts found that there was clear and convincing evidence that respondent had engaged in litigation-related professional misconduct, including, inter alia, attempting to represent his clients without local counsel; repeatedly failing to conform his clients' second amended complaint to Federal Rules of Civil Procedure 8 (requiring a pleading contain "a short and plain statement of the claim showing the pleader is entitled to relief") and 9 (requiring that fraud claims must be pled with particularity) despite repeated warnings to do so; failing to produce appropriately relevant documents after litigation was reasonably anticipated; repeatedly interrupting proceedings even after he was judicially reprimanded; failing to comply with rules governing discovery motions; repeatedly failing to include memoranda with motions despite repeated specific warnings; repeatedly failing to confer with opposing counsel; repeatedly missing discovery deadlines; and repeatedly and brazenly threatening an opposing party with criminal prosecution during a deposition.

The district court directed respondent to file both the order that set forth its findings and the referral order that initiated the disciplinary proceedings with all jurisdictions in which he is admitted. Respondent must also file the orders with all jurisdictions in which he presently appears, seeks to appear pro hac vice, or seeks admission for a period of five years. No additional discipline was imposed. The United States Court of Appeals for the First Circuit affirmed on appeal.

The Attorney Grievance Commission sought a three-month suspension

Contrary to respondent's position, the infirmity of proof defense does not apply. Respondent received notice of the misconduct allegations against him and mounted a full and vigorous defense, as evidenced by his 37-page response to the district court's order to show cause, his testimony at the disciplinary hearing and his unsuccessful appeal to the First Circuit. Further, the district court found clear and convincing evidence of his professional misconduct based on the well-developed record, and such misconduct would also constitute misconduct in violation of New York Rules of Professional Conduct (22 NYCRR 1200.0) rules 1.3(a), 3.3(f)(4), 3.4(c), 3.4(e), and 8.4(h). As a result, the two other enumerated defenses also do not apply.

We find that the appropriate sanction is public censure of respondent, which is both commensurate with the discipline imposed by the federal court and in accord with our precedent involving comparable misconduct. Although the AGC argues that departure from the imposed federal discipline is necessary under the circumstances, the federal court did not suspend or revoke respondent's pro hac vice status. Instead, it directed respondent to file the order finding him guilty of misconduct, along with the referral order for disciplinary proceedings, with the jurisdictions in which he is admitted and, for a period of five years, with the jurisdictions in which he presently appears, seeks to appear pro hac vice, or seeks admission.

Consequently, the federal court in essence imposed a public censure by confining the discipline to finding respondent guilty of misconduct and ordering him to disseminate the orders referring him for disciplinary proceedings. This is generally consistent with New York precedent involving similar transgressions (see e.g. Matter of Mumford, 171 AD3d 180 [1st Dept 2019]; Matter of Gluck, 153 AD3d 301 [1st Dept 2017; Matter of Vialet, 120 AD3d 91 [1st Dept 2014]; see also Matter of Shanley, 136 AD3d 118 [4th Dept 2015]; Matter of Monaghan, 295 AD2d 38 [2d Dept 2002]

(Mike Frisch)

Disbarment Proposed For Double Murder

The Illinois Review Board recommends disbarment for an attorney convicted of the murder of a client with whom he had had a personal relationship and her infant daughter

In 2013, the Administrator brought a one-count complaint against Respondent charging him with committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the 1990 Illinois Rules of Professional Conduct. Respondent was convicted in 2013 of two counts of first-degree murder for killing a young woman and her daughter in 2009. The complaint was filed pursuant to Illinois Supreme Court Rule 761, which governs disciplinary hearings arising from an attorney’s conviction.

The disciplinary proceedings against Respondent were stayed in 2013 while Respondent appealed his convictions. In May 2021, after Respondent’s direct appeals were exhausted, the stay was lifted, and the disciplinary matter proceeded. The disciplinary hearing was held on February 15, 2022.

At the disciplinary hearing, where Respondent appeared pro se, the Administrator presented documentary evidence of Respondent’s convictions. The Administrator’s Exhibits 1 and 2 were admitted into evidence, namely, Respondent’s convictions, and the Appellate Court order affirming the convictions. The Administrator did not call any witnesses. Respondent testified on his own behalf, and his Exhibits 1 through 4 were admitted.

Following the disciplinary hearing, the Hearing Board found that Respondent had violated Rule 8.4(a)(3) as charged, which was established by his convictions for the first-degree murder of two people. The Hearing Board recommended that Respondent be disbarred.

On appeal, Respondent challenges the decision to lift the stay of the proceedings, as well as the Hearing Board’s finding that Respondent violated Rule 8.4(a)(3); he also argues that the Administrator acted in bad faith by making certain statements in his appellate brief. Respondent does not challenge the recommended sanction. The oral argument before the Review Board was held on October 13, 2023. Respondent proceeded pro se on appeal.

For the reasons that follow, we reject Respondent’s arguments. We affirm the decision to lift the stay of the disciplinary proceedings and we affirm the Hearing Board’s finding that Respondent violated Rule 8.4(a)(3). We also find that the Administrator’s statements in the appellate brief were made in good faith. Additionally, we agree with the Hearing Board’s recommendation that Respondent be disbarred.

USA Today reported

A jury has convicted a Chicago attorney of murdering former NBA center Eddy Curry's ex-girlfriend and infant daughter four years ago.

Fredrick Goings showed no reaction when the jury's guilty verdict was read Tuesday in the January 2009 shooting deaths of 24-year-old Nova Henry and her and Curry's 10-month-old daughter, Ava.

Goings represented Henry in a child custody case against the former Chicago Bulls, New York Knicks and Miami Heat center, and was also romantically involved with her. Prosecutors say Henry tried to end her relationship with Goings and moved out with her and Curry's two children.

They say Goings shot Henry in her home while she was holding the infant. Her and Curry's son, who was then 3 years old, was also in the home but wasn't harmed.

(Mike Frisch)

May I Have The Envelope Please?

The Oregon Supreme Court reversed and remanded a decision of the Court of Appeals in a claim brought by Pricewaterhousecoopers against their former law firm

In this action, which was filed in 2017, plaintiffs alleged that defendant law firm had negligently advised plaintiffs—in 2003—regarding potential tax ramifications of a proposed business transaction. Plaintiffs also alleged that, as a result of that negligent advice, they had incurred over $2 million in legal fees defending an Internal Revenue Service claim for back taxes related to the transaction and that they expected to incur approximately $20 million in liability for back taxes, penalties, and interest. Defendant moved to dismiss plaintiffs’ negligence claim, contending that the pleadings showed that the claim was time-barred under ORS 12.115(1). See ORCP 21 A(1)(i) (providing that a defendant may raise by motion a defense “that the pleading shows that the action has not been commenced within the time limited by statute”). The trial court granted defendant’s motion and entered a limited judgment, from which plaintiffs appealed.

The Court of Appeals reversed the limited judgment, concluding that the statutory phrase “negligent injury to person or property” does not encompass plaintiffs’ claim because the injury alleged was for purely financial losses. Marshall v. PricewaterhouseCoopers, LLP, 316 Or App 416, 432, 441, 505 P3d 40 (2021). We allowed review and now conclude that the trial court correctly concluded that ORS 12.115(1) applied to the type of claim alleged by plaintiffs. Accordingly, we reverse the decision of the Court of Appeals and remand for that court to address plaintiffs’ remaining assignment of error.

Limitations

Based on the text, context, and helpful legislative history, we are persuaded that the legislature did not intend to spare actions for negligent injury to economic interests from the ultimate cut-off date that it prescribed in ORS 12.115(1) for “any action for negligent injury to person or property.” Thus, the trial court correctly rejected plaintiffs’ argument that ORS 12.115(1) does not bar claims for negligent injury to economic interests. Because the Court of Appeals held otherwise, it did not address plaintiffs’ alternative, second assignment of error, which challenged the trial court’s conclusion that ORS 12.115(1) bars plaintiffs’ claims. Our contrary construction of the statute makes it appropriate to remand to Court of Appeals, for that court to now consider plaintiffs’ second assignment of error.

There are two dissents. (Mike Frisch)

"Eye Candy"

The Ontario Law Socirty Tribunal Hearing Division ordered a three-month suspension of an attorney

The respondent’s misconduct was offensive and serious. There were four separate incidents, the first three in 2011 and the last one in 2015.

First, Mr. Suh yelled at [legal intern] FJ in a manner she described as “intimidating”, “demeaning and mean”, when he criticized her drafting of a statement of claim without justification and called it “a piece of shit”. He failed to act towards FJ with courtesy and civility.

Second, he brought FJ into his office to yell at her and call her “a piece of shit” for leaving the office at 6pm the previous evening, and to tell her that no one would hire her as a lawyer. The incident was traumatic and verbally abusive for FJ, causing her to be completely shocked and to cry. Again, Mr. Suh failed to act towards FJ with courtesy and civility.

Third, Mr. Suh made unwelcome sexual suggestions to FJ on one occasion, when they were going out for networking at a restaurant. He told her she should unbutton her blouse and “use her assets” as “eye candy”. FJ did not say anything in response, because she was in a dependent and vulnerable role as a “legal intern”. She wanted to article, respected the respondent, and wanted him to like her. FJ was conscious of his role as a rainmaker at the law firm. Mr. Suh’s remarks about FJ’s clothing and her body were unwanted, demeaning, humiliating and offensive. She testified that the incident left her scared, confused and uncomfortable with Mr. Suh.

Fourth, the respondent engaged in unwanted sexual touching of FJ’s upper thigh and her bottom while she was in a vulnerable state, in distress due to some combination of grogginess, sickness and consumption of alcohol at a karaoke salon. Mr. Suh’s touching was unjustified, unwelcome, and constituted sexual harassment, which is inherently disrespectful. It was physical conduct that could reasonably be expected to cause insecurity, discomfort, offence or humiliation to FJ.

Broadly speaking, Mr. Suh’s misconduct cuts across two intersecting areas of licensee behaviour – uncivil or disrespectful conduct, and inappropriate words and actions of a sexual nature – that have been the subject of increasing attention and an evolution in understanding by the legal professions and society over the last ten to 15 years.

Sexual harassment or unwanted sexual touching by licensees has resulted in penalties that have generally increased in severity over this period in recognition of the harmful impact that is inflicted on women lawyers or clients when they are treated unequally and disrespectfully, and their gender is a factor in this mistreatment. Gender or sex is a ground of protection from discrimination under the Ontario Human Rights Code[1] and the Rules of Professional Conduct.[2]

Disrespectful or abusive conduct, and verbal or physical sexual misconduct in particular, affect the reputation of the legal professions, and penalties must be calibrated to send a message that such conduct is serious and unacceptable. The public has a right to expect personal behaviour, particularly in relation to the staff or members of a lawyer’s firm or his colleagues elsewhere in the profession, that is beyond reproach. This is achieved in part by deterring both Mr. Suh and other licensees from engaging in conduct that denies the right of women who interact with members of the legal professions to equal treatment and respectful communications and actions from licensees.

Other charges were either dismissed or not proven

The evidence in support of Mr. Suh’s position on costs is largely found in our reasons on finding from paras. 131-154, which we will not repeat in full. We will only list a few aspects that illustrate the “identifiable flaws” in the credibility and reliability of KT and MT that rendered their allegations doomed to failure:

•           Many central and significant inconsistencies in the evidence of KT and MT.

•           The firm and unshaken denial by the respondent.

•           The inherent improbability of the events including, centrally, that Mr. Suh spent the night in a hotel room with his two clients.

•           The evident motivation to get back at Mr. Suh for what MT regarded as unfairness (and worse) by lawyers generally, including the respondent...

Thus

 In our view, virtually all of the reliability and credibility issues we have outlined above were evident before the hearing or during KT’s and MT’s testimony, which was part of the Law Society’s case. The respondent did not need to take the witnesses through each of these pieces of their evidence, and Mr. Suh’s evidence on these points was essentially a blanket denial that he had behaved in such a bizarre way. Even prior to his testimony, the allegations concerning MT and KT were very unlikely to succeed.

For all of these reasons, this is one of the rare cases in which costs relating to these allegations should be awarded to the successful respondent. The respondent is entitled to 40% of his costs, or $19,000, to be set off against the award of $25,000 in favour of the Law Society.

The findings are linked here

The respondent Lawyer Sang-Kyun Suh (often referred to as Phil Suh) has carried on a busy and complex plaintiff-side personal injury practice for most of his two decades at the Bar. In his testimony, he referred to himself as “intense” and “a perfectionist” who works very long hours and prides himself on his diligence. He has high expectations of the people he works with and recognizes that he has shown his frustration and used profanity when others do not meet his standards. Mr. Suh also said he is “animated”, “normally loud” and “flamboyant” at the office and acknowledged “I wear my emotions on my sleeves sometimes.”

(Mike Frisch)

The Very Definition Of A "Softball Question"

A new opinion of the Florida Judicial Ethics Advisory Committee

SUBJECT

A judge presiding over criminal cases may attend a softball game between the county sheriff’s office and police department would be permissible as long as the judge's attendance is neither promoted, advertised, or made a focal point during the game; would not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. While attending the game, Canon 2A requires the judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.  Fla. Code Jud. Conduct, Canons 2A, 5A, 5B, 5C(3), 5C(3)b and Commentary to Canon 2A, 5A, 5B, 5C(3), 5C(3)b.

ISSUE

Whether a judge presiding over criminal cases may pay for a ticket and attend a softball game between the county sheriff’s office and police department. 

ANSWER:  Yes, the inquiring judge’s mere attendance at the game would be permissible so long as the judge's attendance is neither promoted, advertised, or made a focal point during the game;  would not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. While attending the game, Canon 2A requires the judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

FACTS

The inquiring judge wishes to attend a softball game held one-time per year between the county sheriff’s office and police department, but seeks an opinion as to whether doing so would conflict with the judicial canons. The event is not promoted as a fundraiser, but tickets for seats at the softball field are sold on-line through an unrelated third party.  The flyer indicates “proceeds going towards both sides on the field.”  The inquiring judge presides over criminal cases where members of both the police and sheriff’s office come before them.

DISCUSSION

Canon 2A is applicable to this inquiry. Canon 2A provides: “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 

If the inquiring judge attends the softball game, the inquiring judge must avoid all appearances of impropriety. "The test for the appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Commentary to Canon 2A.

In addition, Fla. JEAC Op. 2019-02  provides a list of “factors for a judge to consider when deciding whether to engage in an extrajudicial or quasi-judicial activity with or without compensation.”  We explained that “[i]f the answer to any one of the following eight questions is yes, then it is recommended the judge decline to engage in the activity.”  The eight factors are: 

1. Whether the activity will detract from full time duties; 
 
2. Whether the activity will call into question the judge’s impartiality, either because of comments reflecting on a pending matter or comments construed as legal advice; 
 
3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage; 
 
4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters; 
 
5. Whether the activity will lend the prestige of judicial office to the gain of another with whom the judge is involved or from whom the judge is receiving compensation; 
 
6. Whether the activity will create any other conflict of interest for the judge; 
 
7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court; and 
 
8. Whether the activity will lack dignity or demean judicial office in any way. 

In Fla. JEAC Op. 1992-34, our Committee agreed that a felony judge may attend ceremonies during Law Enforcement Recognition Week to honor officers killed in the line of duty. The JEAC concluded that there was not an appearance of impropriety, because it did not believe that reasonable people would conclude that the judge's appearance at those ceremonies would significantly undermine public confidence in the integrity and impartiality of the judiciary.  Some Committee members suggested that the judge should not attend the ceremonies if the judge were presiding over the case involving the death of the police officer being honored.

In Fla. JEAC Op. 1995-41, our Committee agreed that it was permissible for the inquiring judge to attend a Mothers’ Against Drunk Driving (MADD) candlelight vigil. There was no advocacy involved, the judge was not participating in any way except as an attendee, and their attendance was not announced or promoted. With these particular facts, the Committee concluded that the judge’s mere attendance would not run afoul of the Canons. Three Committee members advised the inquiring judge not to attend if their presence was going to be given any type of special recognition.

Canons 5A, B and C are also applicable to this inquiry. Canon 5A provides that:

A judge shall conduct all of the judge's extra-judicial activities so that they do not:

1. cast reasonable doubt on the judge's capacity to act impartially as a judge;
2. demean the judicial office;
3. interfere with the proper performance of judicial duties.

Canon 5B provides that “[a] judge may...participate in other extrajudicial activities concerning non-legal subject, subject to the requirements of this Code."

Canon 5C(3)(b)(1) provides that a judge “shall not personally participate… in the solicitation of funds.”

The softball game is not being promoted as a fundraiser. However, one article about the event indicated proceeds from ticket sales will be divided between the teams. Nevertheless, the Commentary to Canon 5C(3)(b) states that “mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of Canon 5C(3)(b).”  See also, Fla. JEAC Op. 1998-32 (commentary to Canon 5C(3) states  mere attendance at a fundraising event is permissible so long as judge does not personally participate in the solicitation of funds or other fund-raising activities.)

This Committee concludes that the inquiring judge may attend the softball game if doing so would not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. The Committee cautions the judge to be careful while attending the game to not comment on pending criminal cases, or make remarks that could lead to disqualification.  Additionally, the inquiring judge may wish to caution the organizers of the event to not promote, advertise, or make the judge’s attendance a focal point during or after the game ends. Of course, while attending the game, Canon 2A requires the judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(Mike Frisch)

A Shakespearean Reversal

The Massachusetts Supreme Judicial Court reversed a murder conviction

On the afternoon of June 14, 2016, Marcus Hall (victim) was shot and killed outside a barbershop (shop) where he brought his four year old son for a haircut. A grand jury indicted the defendant, William Omari Shakespeare, for the victim's murder and related firearms offenses. At trial, the defendant argued that another person present in the shop at the time of the murder, Mark Edwards, was the shooter. The jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty and of all firearms charges.

Appealing from his convictions and the denial of his motion for a new trial, the defendant argues that the evidence that the defendant committed the killing was insufficient; that the judge committed prejudicial error in failing to allow Edwards's grand jury testimony in evidence where Edwards was deceased and the evidence supported the defendant's third-party culprit defense;that Boston police Sergeant Detective Michael Stratton impermissibly testified about his observations of the video evidence; and that trial counsel was ineffective for failing to object to Stratton's testimony and for pursuing a particular line of questioning with Stratton that the defendant alleges diminished counsel's credibility with the jury. The defendant also asks us to reduce his verdict of murder in the first degree  or order a new trial pursuant to our power granted by G. L. c. 278, § 33E.

We conclude that it was error to prohibit counsel from introducing Edwards's grand jury testimony and that such error was not harmless beyond a reasonable doubt. As a result, we must reverse all the defendant's convictions, as his convictions on the firearm charges were intertwined with his murder conviction. Holding that the evidence was sufficient for the defendant's conviction of murder in the first degree, however, we reverse and remand the case for a new trial. Pursuant to our decision in Commonwealth v. Guardado, 493 Mass. 1 (2023) (Guardado II), the defendant may also be retried on the firearms offenses. Because the remainder of the issues raised by the defendant may recur at a new trial, we address them and hold that Stratton's testimony was admissible and counsel was not ineffective.

A Long Wait

Dan Trevas has a summary of a bar discipline decision issued today by the Ohio Supreme Court

A Columbus attorney was suspended today by the Supreme Court of Ohio for making his client wait nine years to receive a portion of her divorce settlement.

In a per curiam opinion, the Supreme Court suspended Douglas Bulson for 18 months, with 12 months stayed. Once his suspension ends, Bulson must serve a year of monitored probation.

The Columbus Bar Association, which brought the complaint against Bulson on behalf of Amy Shepherd, had asked the Court to order Bulson to pay between $7,900 and $35,000 in restitution to Shepherd. The bar association presented evidence that she could have earned investment income somewhere in that range if Bulson had made the court-ordered transfer in a timely fashion.

The Court voted 4-2 not to grant restitution, stating the matter is best suited for a separate legal malpractice lawsuit that Shepherd can pursue.

Justices R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined the per curiam opinion.

Chief Justice Sharon L. Kennedy also joined the majority opinion but wrote separately to state that she would impose specific conditions for Bulson’s probation that would give guidance to the monitoring attorney and provide greater protection to the public.

In a separate opinion, Justice Patrick F. Fischer agreed with the sanctions imposed by the Court but added that he would grant restitution to Shepherd. Justice Joseph T. Deters joined Justice Fischer’s opinion. Justice Jennifer Brunner did not participate in the case.

Previously Suspended Attorney Failed to Follow Settlement Order
This is Bulson’s third Court-ordered suspension. He was suspended for 10 days in 2005 for missing the deadline to register as an active attorney. In May 2020, the Court suspended Bulson for 18 months, all stayed, for neglecting three client matters, failing to return fees he did not earn, and refusing to cooperate with disciplinary investigations.

In September 2022, the Columbus Bar Association filed a complaint with the Board of Professional Conduct, arguing that Bulson committed multiple ethical violations in his representation of Shepherd.

As part of a divorce settlement, the Madison County domestic relations court issued an order that directed Shepherd’s ex-husband to execute a qualified domestic relations order (QDRO) that would transfer $19,247 from his 401(k) account to Shepherd. The court directed Bulson to prepare the QDRO.

Despite repeated phone calls and emails from Shepherd, Bulson did not take the necessary steps to finish the QDRO. In April 2021, Bulson told Shepherd he would complete the order within 30 days. After making that commitment, he did not accept or return any of Shepherd’s phone calls.

Client Filed Grievance Against Lawyer
In June 2021, Shepherd filed a grievance against Bulson with the bar association, which sent a letter to Bulson. In October 2021, Bulson acknowledged that he delayed preparing the QDRO, citing a problem retrieving files from his computer. He told the bar association his next step would be to have the appropriate pension administrator “pre-approve” the order to ensure it could be accepted by the court and stated that would take up to 30 days.

Although he wrote to the bar association that he would take the steps to get the document preapproved, he did not immediately submit it. It was not until April 2022 that Bulson received an entry from the Madison County court approving the QDRO. A month later, the pension administrator acknowledged receiving the QDRO and told Bulson they would review the document to determine if it qualified under their plan.

Following the administrator’s review, the money was transferred to Shepherd in November 2022, nine years after the initial court order.

The Board of Professional Conduct found that Bulson violated several rules, including rules that required him to act with reasonable diligence in handling a client matter and to keep a client reasonably informed about the status of the client’s legal matter.

“Recognizing that the fully stayed suspension we imposed for Bulson’s prior misconduct did not adequately protect the public, the board concluded that Bulson’s misconduct in this case warrants a period of actual suspension,” the Court’s opinion stated.

Neither Bulson nor the bar association objected the board’s recommendation that Bulson be suspended for 18 months, with 12 months stayed on the condition that he complete continuing legal education focused on law office management and serve a year of monitored probation. The Court imposed that sanction.

Bar Association Sought Restitution for Client
In addition to the suspension, the bar association asked the board to recommend that the Court order Bulson to pay restitution to Shepherd. At his disciplinary hearing, the bar association presented a financial expert who testified that Shepherd lost out on investment opportunities because the QDRO was not promptly settled when first ordered in 2013.

The expert provided a range of investment fund options that could have earned Shepherd between $7,900 and $35,000 over the nine-year period.

The board responded that the evidence of lost investment income was “speculative at best.” It stated that the subject of lost revenue was best suited for a malpractice case that Shepherd should pursue separately from the attorney discipline case.

The Court agreed with the board. The opinion stated the bar association failed to cite any prior cases where the Court ordered restitution based on lost investment income as part of a disciplinary case. The Court noted that in most cases where restitution was ordered, it was to direct an attorney to repay fees collected for work that was not performed or for charging an excessive fee.

The Court stated that Shepherd seeks damages, not restitution. The opinion explained that the bar association, not Shepherd, argued for restitution, and a malpractice case is the best course to seek damages. The Court noted that because of the nature of disciplinary cases, Shepherd did not have a chance to present her own evidence documenting her lost income.

“Simply stated, an attorney-discipline proceeding is not a proper substitute for a legal malpractice action,” the Court concluded.

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

Client Entitled to Restitution, Separate Opinion Maintained
In an opinion concurring in part and dissenting in part, Justice Fischer noted that in prior cases, the Court had ordered restitution to be paid by attorneys who failed to follow through with the work. In those cases, it was not because the attorney kept legal fees but to reimburse the client when the client had to hire another attorney to finish the legal work. He cited Lorain Cty. Bar Assn. v. Lewis, a case where an attorney failed to complete a QDRO. In that case, the attorney was ordered to pay the cost of hiring another attorney to complete it.

Justice Fischer argued that, in this case, restitution is justified “due to the extraordinary delay” and because Shepherd was deprived of investment income for nine years. He wrote that the board received enough evidence to decide on how much to award. If concerned about providing Shepherd too much, the board could have selected the lowest amount suggested by the investment expert, the opinion stated.

2023-0470. Columbus Bar Assn. v. Bulson, Slip Opinion No. 2023-Ohio-4258.

 View oral argument video of this case.

(Mike Frisch)

Pressing Need

An attention-grabbing opinion of the United States District Court for the District of Columbia (Chief Judge Boasberg)

In an attention-grabbing development last summer in the classified-documents case against former President Donald J. Trump, the Government raised a potential conflicts issue. This Court thus held a hearing to determine whether attorney Stanley Woodward’s simultaneous representation of Waltine Nauta — one of the former President’s co defendants — and an individual referred to as “Trump Employee 4” gave rise to any ethical conflicts. In the course of seeking a similar conflicts hearing in the Southern District of Florida some days later, the Government publicly released many but not all of the documents related to the hearing conducted in D.C. Believing that newsworthy information may lie behind closed doors, a Press Coalition now seeks to unseal the remaining materials. The Government, for its part, concedes that most of the documents in dispute can be released with minor redactions. It, however, strongly opposes the Application as to one of the filings made in support of its request for a hearing. Although the Court has ordered much material to be released, it draws the line at this last request.

Grand jury secrecy

The Press’s basic error lies in its assumption that all of the relevant materials are now subject to disclosure just because some of them are...

Taking the disclosures made to date and the documents still in dispute together, the Court agrees with the Government that the disputed filings should remain under seal at this time. These documents are “replete with still-secret matters that occurred before the grand jury,” material that is well beyond the scope of the Government’s disclosures in the Southern District of Florida. See Opp. at 8. Since this material does not come within the disclosures made thus far and has not been otherwise authoritatively disclosed by the Government or a grand-jury witness, “Rule 6(e) protections remain intact.” In re New York Times Co., 2023 WL 2185826, at *10 (D.D.C. Feb. 23, 2023). As such, these materials “must be kept under seal” until an authoritative disclosure that covers this information is made. See Fed. R. Crim. P. 6(e)(6).

The judge entered a separate order as to Twitter

As part of the Special Counsel’s investigation into election interference, the Government sought and obtained a search warrant for Twitter’s records associated with the @realDonaldTrump account. After the investigation yielded an indictment of former President Trump, a Press Coalition and Twitter sought to unseal documents associated with the warrant. Since then, large swaths of these proceedings have been unsealed with the Government’s consent, though several documents remain under lock and key. The Court now concludes that further disclosure is not warranted and will thus deny what remains of the Press Application.

A question of balance

As any reader keeping score has observed, the Hubbard analysis in this case is mixed. Ultimately, the undeniable need to protect an ongoing criminal investigation tips the balance toward the Government’s request to continue sealing. There may yet come a time when press access becomes appropriate, but at present the Application is a premature bid for sensitive information pertaining to an active investigation.

(Mike Frisch)

Praise But No Recompense

The New Jersey Appellate Court affirmed the denial of fees in a guardianship matter

In this guardianship action, which was initiated by the Office of Adult Protective Services (APS), court-appointed attorney Steven J. Kossup, Esq., and court-appointed temporary guardian Brian C. Lundquist, Esq., appeal from an order denying their respective applications for fees and costs. Having consolidated their appeals, we now affirm.

Can't put this in the bank

Although pursuant to Rules 4:42-9(a)(3) and 4:86-4(e), the judge may have had the authority to grant a fee application "in such other manner as the court shall direct," the judge did not have the authority to grant appellants' fee applications in the manner – payment by APS – appellants had requested. Accordingly, we perceive no misapplication of law or abuse of discretion in the judge's decision, and we affirm the order denying appellants' fee applications.

In reaching that conclusion, we are mindful of the temporal and financial sacrifices appellants and their firms made in their laudable efforts on behalf of Hank, the court, and the legal profession in this case. We acknowledge in particular Lundquist's firm's payment of Dr. Williams's fee. We join the judge in her praise and expressions of gratitude, but given the applicable statutes and court rules, we can do no more. Like our Supreme Court, we "have no license to amend" statutes, and, unlike our Supreme Court, we have no constitutional authority to create court rules "to make our civil justice system more fair." DiFiore, 254 N.J. at 228.

(Mike Frisch)

At Risk

The New Jersey Supreme Court has accepted an attorney's consent to disbarment.

Law.com reported

The U.S. Court of Appeals for the Third Circuit upheld a Pennsylvania lawyer’s embezzlement and fraud charges Monday.

Pennsylvania lawyer and businessman David Shulick owned Delaware Valley High School Management Corp., a for-profit education company, and was contracted with the School District of Philadelphia to run its Southwest School, an institution designed to help some of Philadelphia’s most at-risk children, according to the federal appeals court’s opinion. The program’s business model was to contract with school districts to handle its operation, such as implementing the curriculum and hiring and firing staff. 

From the court opinion in the criminal appeal

Lawyer and businessman David Shulick owned a for profit education company through which he contracted with the School District of Philadelphia to run its Southwest School, an institution designed to help some of Philadelphia’s most at risk children. Under the contract, Shulick received over $2 million to provide teachers, counselors, security, and special services to the charter school’s students. But instead of spending the money on the students as the contract required, he embezzled funds for his personal benefit and the benefit of his co-conspirator, Chaka Fattah, Jr.

After a complex, multiyear fraud investigation, Shulick was ultimately charged and convicted. He now appeals, alleging a number of errors, ranging from speedy trial right violations to errors in evidentiary rulings, faulty jury instructions, and sentencing miscalculations. After careful review of each claim, we conclude there was no reversible error in the proceedings and will therefore affirm.

Particulars

Despite the contract’s clear requirements, Shulick failed to provide the services and staff he agreed to. He failed to employ the dedicated security personnel the contract required. He hired fewer teachers, provided those whom he did hire with far fewer benefits than the budget allocated, and paid his educators salaries of only $36,000 a year—$9,000 less than promised. Shulick then reduced their salaries even further if they elected health insurance. He even attempted to lay off teachers at the end of the school year to avoid paying them the final few months of their salaries. Overall, Shulick represented to the School District that he would spend $850,000 on salary and benefits each year but spent under half of that: about $396,000 in 2010-11 and about $356,000 in 2011-12. In all, of the over $2 million in funds he received, he spent only $1,186,001 on expenditures designated for Southwest.

Shulick’s failure to spend these funds on Southwest was part of an elaborate conspiracy to embezzle money. Shulick directed the unspent funds to co-conspirator Chaka Fattah, Jr., an employee and confidante of Shulick and the son of former U.S. Representative Chaka Fattah, Sr. The two agreed that Fattah, Jr. would use the funds to pay off various liabilities incurred across Shulick’s business ventures, while also keeping a cut of the embezzled money for himself.

(Mike Frisch)

It Sure Doesn't Taste Like Potato Chips

A divided Ohio Supreme Court has suspended an attorney who threw a Pringles can full of sh*t

Respondent, Jack Allen Blakeslee, of Caldwell, Ohio, Attorney Registration No. 0001005, was admitted to the practice of law in Ohio in 1976.1 In a November 2022 complaint, relator, disciplinary counsel, charged Blakeslee with professional misconduct for throwing a feces-filled Pringles can into the parking lot of a victim-advocacy center involved in a capital-murder case in which Blakeslee was representing the defendant. Blakeslee waived a probable-cause determination and, in his answer, admitted many of relator’s factual allegations and the single alleged rule violation. The parties also submitted joint stipulations of fact, misconduct, and aggravating and mitigating factors.

After conducting a hearing, a panel of the Board of Professional Conduct issued a report finding by clear and convincing evidence that Blakeslee had committed the charged misconduct and recommending that we publicly reprimand him for that misconduct. The board adopted the panel’s findings and recommendation. For the reasons that follow, we adopt the board’s finding of misconduct but suspend Blakeslee from the practice of law for one year with six months stayed on the condition that he engage in no further misconduct.

The proof was in the pudding (can, actually)

The trial court scheduled another pretrial hearing in Wells’s case for November 30, 2021, at 8:30 a.m. Before leaving his home on the morning of that hearing, Blakeslee deposited his feces into an empty Pringles can. He then drove approximately 20 minutes from his home in Coal Ridge to Cambridge with the open can of feces. Between 8:10 and 8:15 a.m., Blakeslee turned his vehicle down an alley where the Haven of Hope parking lot is located, approximately two-tenths of a mile from the Guernsey County Common Pleas courthouse. A sign on the building at the entrance to the alley indicated “Haven of Hope Administrative Offices” above a bold arrow pointing down the alley. Surveillance video shows that Blakeslee slowed his vehicle as he initially passed Haven of Hope’s parking lot. He continued driving further down the alley, passing several other parking lots, before turning around. He slowed again as he passed Haven of Hope’s parking lot a second time, threw the Pringles can containing his feces into the lot, and then drove to the courthouse for the 8:30 a.m. pretrial hearing in Wells’s case.

Carpenter Wilkinson saw Blakeslee throw the can out his vehicle toward the Haven of Hope parking lot. After Blakeslee drove away, Carpenter Wilkson approached the item and discovered that it was a Pringles can containing what appeared to be human feces. She then left for the courthouse to attend Wells’s pretrial hearing. Upon arriving at the courthouse, she noticed that Blakeslee was also present for the hearing.

Later that day, after discussing the matter with a prosecutor assigned to the Wells case, Carpenter Wilkinson filed a report with the Cambridge Police Department. Thereafter, Blakeslee was charged with and pleaded guilty to minor misdemeanor charges of disorderly conduct and littering. He ultimately paid $248 in fines and court costs for those offenses.

A means of expression

During his disciplinary hearing, Blakeslee testified that he had engaged in similar misconduct on at least ten other occasions that year and that he randomly chose the locations where he deposited the Pringles cans containing his feces. He also specifically denied having any knowledge that the parking lot in question belonged to Haven of Hope when he threw the can from his vehicle on November 30, 2021.

Court majority

We acknowledge that Blakeslee does not appear to have harbored any animosity toward Carpenter Wilkinson, her colleagues, or their work as victim’s advocates. Nor did he intend to intimidate them. While the record demonstrates that Blakeslee regrets his misconduct, it also shows that he lacks sufficient insight into the origin of and motivation for his inappropriate behavior to effectuate positive change. We therefore reject the board’s assessment that there is no factual basis for concluding that the public needs to be protected from additional violations, and we conclude that the appropriate sanction for Blakeslee’s misconduct is a one-year suspension with six months stayed on the condition that he engage in no further misconduct.

A dissent would make the suspension longer but fully stayed

DEWINE, J., concurs in judgment only. FISCHER, J., concurs in part and dissents in part and would impose a two year suspension, all stayed, and two years of probation.

(Mike Frisch)