Wednesday, February 13, 2019

No Pulpit For A Bully

A former judge has been disbarred by the New York Appellate Division for the Second Judicial Department, which concluded that his judicial misconduct warranted his removal from the legal profession. 

Charge one alleges that the respondent, a former justice, inter alia, of the Village Court of the Village of Spring Valley, was removed from the bench, based on the factual findings made by the Commission, which were sustained by the New York Court of Appeals, that the respondent engaged in judicial misconduct, and that by virtue of that judicial misconduct, the respondent engaged in conduct prejudicial to the administration of justice, in violation of rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0).

By per curiam opinion and order dated October 20, 2016, the Court of Appeals sustained the Commission’s factual determinations and accepted its recommendation that the respondent be removed from the bench. The Court of Appeals held:

“The record reflects that, among other things, [the respondent] used a sanction—a tool meant to ‘shield’ from frivolous conduct—as a ‘sword’ to punish a legal services organization for a perceived slight in an inexcusable and patently improper way. The record is also replete with instances in which [the respondent] used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that [the respondent] engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker.” “Those actions are representative of an even more serious problem. [The respondent]—in what allegedly was a grossly misguided attempt to motivate—repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats ‘exceeded all measure of acceptable judicial conduct’ (Matter of Blackburne [State Commn. on Jud. Conduct, 7 NY3d 213, 221 [2006]), and we are particularly troubled by the testimony of one court officer, who suggested that
[the respondent’s] threats were so common that they became ‘a joke.’ The matter may have been a laughing one to that officer, but it was not to others.” “Significantly, too, [the respondent’s] hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co judge and an apparent political adversary, [the respondent] willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against [the respondent’s] assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench. [The respondent’s] misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct—all of which renders suspect his guarantees of better behavior” (Matter of Simon [State Commn. on Jud. Conduct], 28 NY3d at 39-40 [citation omitted]).

Sanction

Based on the findings of the Court of Appeals that the respondent “used his office and standing as a platform from which to bully and to intimidate, . . . engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker, . . . repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process, . . . [and] injected himself into the political process involving the election of an office other than his own” (id. at 39),—misconduct qualifying as “truly egregious” (id. [internal quotation marks omitted]), we find that a disbarment is warranted (see Matter of Mogil, 250 AD2d 343). Most disturbing, notwithstanding the passage of time, the respondent continues to lack insight into the effect of his behavior, and continues to fail to recognize the inappropriateness of his actions or attitudes. The respondent’s misconduct, inappropriate and unacceptable as a judge, is equally inappropriate and unacceptable as an attorney and counselor-at-law.

(Mike Frisch)

February 13, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

The Requisite Moral Change

The Minnesota Supreme Court has reinstated a suspended attorney with probationary conditions notwithstanding the concerns of the OLR

The Director of the Office of Lawyers Professional Responsibility challenges a number of the panel’s findings and disagrees with the panel’s recommendation.

The court summarized the misconduct

Severson was admitted to practice law in Minnesota in 1975. On February 18, 2015, we indefinitely suspended Severson, with no right to petition for reinstatement for a minimum of 1 year, for improper business dealings with a client and misrepresentation. In re Severson, 860 N.W.2d 658, 662–63, 674–75 (Minn. 2015). The misconduct for which Severson was disciplined centered on his dealings with D.S., a young woman whose parents had died when she was an infant and who lived with Severson’s family as a teenager. Id. at 663. D.S. was the beneficiary of insurance proceeds following her parents’ deaths, and her inheritance was placed in a conservatorship. Id. After her eighteenth birthday in April 1996, D.S. received approximately $500,000, the funds that had been in the conservatorship. Id.

Severson offered to invest the $500,000 that D.S. had received from the conservatorship, and in June 1996, the two entered into an investment agreement. Id. At that time, an attorney-client relationship existed between D.S. and Severson. Id. at 667.

The investment agreement created a conflict of interest, and Severson’s failure to obtain the consent of D.S. was a violation of Minn. R. Prof. Conduct. 1.7(b) (1996). Severson, 860 N.W.2d at 668. Severson also violated Minn. R. Prof. Conduct. 1.8(a) (1996), when he entered into the investment agreement with D.S. Severson, 860 N.W.2d at 668. The terms of the investment agreement were unfair and unreasonable because they did not provide “security for D.S.’s investment, limit the types of investments Severson could make, or provide for a penalty, or the recovery of her funds if Severson did not comply with the agreement.” Id. Severson also “did not adequately explain the transaction to D.S. or advise her to seek independent counsel.” Id. at 672.

In 2007, D.S. asked Severson to return the $500,000. Id. at 664. Severson did not repay D.S., and by 2008, Severson “was in serious financial trouble.” Id. In 2007, Severson acquired an equine facility that he later sold on a contract for deed. Id. The purchasers defaulted on the contract for deed and Severson then assigned his seller’s interest in the facility to D.S. as security for what he owed her “and had D.S. sign a $250,000 mortgage regarding their interest in the equine center.” Id. Severson once again violated Minn. R. Prof. Conduct 1.7(a)(2), 1.7(b), and 1.8(a), when he assigned his seller’s interest to D.S. Severson, 860 N.W.2d at 665, 666 n.5. He also acted dishonestly, in violation of Minn. R. Prof. Conduct 8.4(c) (2008), by having D.S. assign and mortgage her interest in the equine center to his creditors without telling D.S. that his financial insecurity necessitated the assignments and that her funds could be at risk. Severson, 860 N.W.2d at 669.

D.S. eventually hired an attorney to help her recover the $500,000 principal. Id. at 664. She sued Severson, and the parties reached a settlement in December 2010. Id. After paying her attorney fees, D.S. recovered just $300,000 of the original $500,000 that she had given to Severson to invest. Id.

Severson made misrepresentations to D.S. during the course of their legal dispute and to the Director during the disciplinary investigation, in violation of Minn. R. Prof. Conduct 8.1(a)–(b), 8.4(c)–(d). Severson, 860 N.W.2d at 664–65, 669, 672. Severson gave the attorney for D.S. misleading invoices for purported past legal services he had provided to D.S., in an attempt to reduce the amount he owed her. Id. at 664–65, 672. Severson also made a number of misrepresentations to the Director regarding where the funds of D.S. were invested and the legitimacy of his invoices for legal services. Id.

As Sam Cooke might sing, a change is gonna come

The requisite moral change “must be such that if the petitioner were reinstated, ‘clients could submit their most intimate and important affairs to him with complete confidence in both his competence and fidelity.’ ” Kadrie, 602 N.W.2d at 870 (quoting In re Herman, 197 N.W.2d 241, 244 (Minn. 1972)). In general, “to prove moral change a lawyer must show remorse and acceptance of responsibility for the misconduct, a change in the lawyer’s conduct and state of mind that corrects the underlying misconduct that led to the suspension, and a renewed commitment to the ethical practice of law.” Mose, 843 N.W.2d at 575. The evidence of this moral change “ ‘must come not only from an observed record of appropriate conduct, but from the petitioner’s own state of mind and his values.’ ” Id. (quoting In re Swanson, 405 N.W.2d 892, 893 (Minn. 1987)).

The court found that he had demonstrated remorse (a finding OLR challenged) and had accepted responsibility for the misconduct

With respect to this factor, the panel relied primarily on the testimony of Severson’s therapist, K.A., and her notes from her therapy sessions with Severson. The panel found that while Severson “continued to be defensive and to deflect responsibility” in his initial sessions with K.A., “after working with her regularly for several months, he began to change.” Although Severson’s progress has been inconsistent, K.A. believed that he was “sincere in his efforts to understand what he did wrong and sincere in his desire to accept responsibility.”

In sum, based on our independent review of the record, we hold that the panel’s findings and conclusions that Severson has proven that he has undergone the requisite moral change are not clearly erroneous. Severson met his burden of showing by clear and convincing evidence that he satisfied each of the requirements for reinstatement to the practice of law. We reinstate Severson, order him to complete payment of his annual registration fee within 30 days of the filing of this decision, and place him on probation for a period of 2 years, subject to certain conditions...

The conditions include mental health treatment, practice supervision and denial of access to entrusted funds with safeguards. (Mike Frisch)

February 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 12, 2019

Stayed Judicial Suspension

The Ohio Supreme Court imposed a fully-stayed one-year suspension of a judge who previously had been reprimanded for criticizing in open court a jury's not guilty verdict.

In a complaint certified to the Board of Professional Conduct on December 4, 2017, relator, disciplinary counsel, alleged that Salerno’s conduct in two criminal cases she presided over violated the Code of Judicial Conduct. The parties stipulated to the admission of facts, aggravating and mitigating factors, and 11 exhibits. Salerno agreed that she failed to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and avoids the appearance of impropriety; failed to uphold and apply the law and perform the duties of her judicial office in a fair and impartial manner; and engaged in ex parte communications.

In a felony case

Based on [defense counsel] Brehm’s ex parte communications, Salerno reconsidered Mendoza’s bail and then telephoned the clerk’s office and lowered the amount from $350,000 to $85,000. Mendoza posted bond and was released from custody later that day. But Salerno never informed the prosecutor of Brehm’s ex parte communications or the fact that she had reduced Mendoza’s bond; instead, the prosecutor learned of Mendoza’s release through the media.

In a traffic case

At her disciplinary hearing, Salerno testified that after her efforts to assist the parties in reaching a plea deal proved unsuccessful, she tried the improper-turn case. She explained that she attempted to achieve what she believed was a “fair” result by finding Toe guilty of that offense, in the hope that the prosecutor would then agree to dismiss the slow-speed case. She candidly admitted that she became frustrated when the prosecutor—whom she described as “brand new,” “overzealous,” “abrupt,” and “rude”—rejected her proposed resolution and that that frustration probably led her to change her guilty finding in Toe’s improper turn case. Noting that there was no dispute that Salerno’s frustration and loss of her temper changed the outcome of that case, the board agreed that her conduct violated Jud.Cond.R. 1.2 and 2.2 (requiring a judge to uphold and apply the law and to perform all duties of the judicial office fairly and impartially).

Sanction

the board concluded that the appropriate sanction for Salerno’s misconduct is a one-year suspension, stayed in its entirety on the conditions that she (1) complete a minimum of six hours of CLE focused on judicial ethics that includes training specifically related to proper judicial demeanor, civility, and professionalism, in addition to the CLE requirements of Gov.Bar R. X and Gov.Jud.R. IV, (2) engage in no further misconduct, and (3) pay the costs of this proceeding. We agree.

(Mike Frisch)

February 12, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, February 11, 2019

Taxi Driver

The taxi cab sex, lies and videotape saga has resulted in a year and a day suspension from the Louisiana Supreme Court

On April 6, 2012, respondent was a passenger in a taxi cab driven by Hervey Farrell. Respondent was highly intoxicated. At some point, Mr. Farrell and respondent had a sexual encounter in the vehicle. Mr. Farrell then used his cell phone to take a sexually explicit video of respondent.

Following the encounter, Mr. Farrell called 911 to report that he had been sexually assaulted by respondent. As a result, respondent was charged in New Orleans Municipal Court with simple battery. Mr. Farrell also filed a civil suit against respondent on March 1, 2013, alleging that he suffered tort damages as a result of her sexual advances in the cab.

On April 5, 2013, one year after the incident, respondent went to the Third District Station of the New Orleans Police Department to report that she was the victim of the crimes of extortion and video voyeurism perpetrated by Mr. Farrell.

According to the police report, respondent claimed that her friend and attorney, Brigid Collins, flagged down a cab in the French Quarter and told the driver, Mr. Farrell, to take respondent to an address in Lakeview. Respondent admitted that she was intoxicated during the ride and got into the front seat and began kissing Mr. Farrell. Mr. Farrell later stopped the cab in the Lakeview area and used his cell phone to record a video of respondent, during which she exposed her genitalia.

Respondent claimed that Ms. Collins received a copy of the video via e-mail and that Mr. Farrell indicated that if he received $1,000, the video and the charges he filed would “go away.”

Mr. Farrell was later arrested on charges of video voyeurism and extortion. As a result of his arrest, Mr. Farrell spent about thirty hours in jail.

Following an investigation of respondent’s complaint against Mr. Farrell, on October 1, 2013, the state charged respondent with one count of false swearing for the purposes of denying a constitutional right, a felony, in violation of La. R.S. 14:126.2. Respondent was arraigned and pleaded not guilty. She subsequently elected a bench trial.

On April 2, 2014, while the state charges were pending, respondent was tried in Municipal Court on the simple battery charge brought by Mr. Farrell. She was found guilty of that offense and fined costs. Following the denial of respondent’s motion for new trial, her conviction of simple battery became final.

On June 13, 2014, the state amended the bill of information to charge respondent with one count of false swearing for the purposes of violating public health or safety, a felony, in violation of La. R.S. 14:126.1. On the same day, respondent pleaded not guilty to that charge.

On January 16, 2015, a one-day bench trial was held in Criminal District Court before Judge Arthur Hunter. The state called two witnesses: Ms. Collins and the police officer who took respondent’s criminal complaint. Ms. Collins testified that she never received an e-mail or any other communication from Mr. Farrell or his attorney requesting $1,000 for the charges and the video to “go away.” She stated that she did receive a copy of the video and that she received a demand for between $50,000 and $60,000 in connection with the settlement negotiations of the civil suit.

At the close of the state’s case, respondent moved for a judgment of acquittal. Judge Hunter deferred his ruling. Respondent then called several witnesses who testified to seeing the sexual encounter in the cab. The witnesses denied having any knowledge of the extortion attempt. Respondent also testified on her own behalf.

At the end of the trial, Judge Hunter denied respondent’s motion for a judgment of acquittal. Finding no evidence that Mr. Farrell or his attorney ever made a demand for $1,000 and crediting Ms. Collins’ testimony that the $60,000 demand was in connection with the civil suit, Judge Hunter found respondent guilty of the lesser included offense of criminal mischief, a misdemeanor, based on her false report of extortion. On February 25, 2015, Judge Hunter denied respondent’s motions for new trial and post-verdict judgment of acquittal. Judge Hunter sentenced respondent to serve one day in parish prison, suspended; one day of inactive probation with the condition that she not purchase or possess a gun during probation; and ordered her to pay costs.

The conviction was affirmed on appeal.

Sanction

Respondent was convicted of simple battery and criminal mischief, thereby violating Rule 8.4(b) of the Rules of Professional Conduct. By her convictions, respondent violated duties owed to the legal profession, causing substantial actual injury to the public and to Mr. Farrell, who spent about thirty hours in jail as a result of respondent’s false accusations of video voyeurism and extortion. These crimes, by definition, involve intentional acts. The baseline sanction in this case is suspension. The record supports the aggravating and mitigating factors as found by the disciplinary board... we agree that the one year and one day suspension recommended by the board is appropriate. 

Justice Crichton concurred

I agree with the Court’s imposition of a one year and one day suspension in this matter. I write separately to point out, as I have in the past, that I consider it troublesome when
attorney respondents fail to participate meaningfully in the proceedings against them. See In re: Klaila, 18-0093 (La. 3/23/18), 239 So. 3d 949 (Crichton, J., additionally concurring); In re: Reid, 18-0849 (La. 12/5/18), --- So. 3d --- (Crichton., J., dissenting) (noting that “lack of cooperation with ODC, the Hearing Committee, the Disciplinary Board, and this Court demonstrates [a] stunning indifference to this noble profession”). In my view, respondent’s disdain for the disciplinary process and her disregard for the Rules of Professional Conduct warrant the suspension imposed.

(Mike Frisch)

February 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Travelin' Man

The West Virginia Supreme Court of Appeals agreed with its Board of Bar Examiners to decline admission without examination to an applicant 

The petitioner is a graduate of the Cumberland School of Law of Samford University. In November of 1988, the petitioner was admitted to the practice of law by successful bar examination in the State of Texas. In April of 1990, the petitioner was admitted to the practice of law by successful bar examination in the State of Florida. The petitioner’s law practice in both Texas and Florida was primarily focused on various types of litigation. The petitioner’s Texas law license was suspended as a result of nonpayment of bar dues on September 1, 2001.

On April 26, 2002, the Supreme Court of Florida entered an emergency suspension of the petitioner’s license to practice law following an allegation that the petitioner misappropriated client funds while serving as an escrow agent. Following the emergency suspension, a formal disciplinary complaint was filed against the petitioner. The Supreme Court of Florida then suspended the petitioner’s license to practice law for three years, to be followed by a three-year probationary period. Following his suspension, the petitioner did not apply for reinstatement of his Florida law license.

While suspended from the practice of law in Florida, the petitioner was admitted to the practice of law by successful bar examination in the State of Tennessee in October of 2010. Following his admission to the Tennessee Bar, the petitioner again primarily focused his law practice on various types of litigation.

He applied for West Virginia admission in 2017.

The Board reviewed the hearing examiner’s report, together with the transcript of the hearing, the briefs filed by both parties, and the petitioner’s application file. The Board voted to deny the petitioner’s application for admission without examination based upon his failure to satisfy the provisions of Rule 4.2(a). He could not produce a certificate of good standing from each state in which he has been admitted to the practice of law as required by Rule 4.2(a).

The applicant had argued that he was eligible as he was in good standing in Tennessee, the only place where he is in active practice

The court interpreted the rule otherwise

our focus turns to whether the Board correctly concluded that the petitioner failed to satisfy the provisions of Rule 4.2(a). We conclude that it did. By failing to be able to provide a certificate of good standing from two of the three jurisdictions in which the petitioner has been previously admitted to the practice of law, the petitioner has failed to satisfy the requirements for admission without examination to the practice of law set forth in Rule 4.2(a). In order to be admitted to the practice of law in West Virginia, an applicant must satisfy the requirements set forth in Rule 4.2(a). Because the petitioner has failed to submit certificates of good standing from each jurisdiction in which he was previously admitted, he is ineligible for admission without examination to the practice of law in West Virginia. Id.

(Mike Frisch)

February 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Run Of Bad Luck

The Illinois Administrator has filed an amended complaint alleging that the attorney made false  statements in several venues

Respondent received a bachelor of arts degree in history and political science from McGill University in May, 1998.

In October, 2005, Respondent registered to take the Law School Admission Test ("LSAT") but cancelled taking the test. In December, 2005, Respondent took the LSAT and scored 158. In September, 2006, Respondent retook the LSAT and scored 173.1

In late 2005, Respondent applied for admission to the University of Chicago Law School, but was denied admission to the 2006 entering class.

 On or about December 4, 2006, Respondent submitted a second application for admission to the Juris Doctor program at the University of Chicago Law School. The application requested that Respondent submit, among other things, a resume and candidate statement as part of the application process. Respondent submitted his personal statement and an addendum which purportedly addressed gaps in Respondent’s academic record.

In his personal statement addendum, Respondent stated that in 1999 he had been diagnosed with a leiomyosarcoma (a form of stomach cancer) that he had undergone four separate surgeries to have tumors removed from his stomach, as well as radiation therapy and what he referred to as "countless" minor procedures to stop gastric bleeding. Respondent stated that the disease delayed completion of his MA degree, stalled work in the McGill University Ph.D program, and forced his withdrawal from the University of Michigan, where he had taken courses as a visiting scholar toward completion of a doctoral degree.

 In his personal statement addendum, Respondent further stated that although he had just undergone surgery in September, 2005 and was still receiving radiation therapy, he had sat for the October and December 2005 LSAT exams. Respondent explained that he was not healthy enough to have sat for the exams, but that in January, 2006, for the first time in six years, Respondent had been given a clean bill of health by his oncologist. As a result, he scored well on the LSAT, with a score of 173, and was finishing course work at the University of Michigan.

Respondent’s statements that he had been diagnosed with and received treatment for leiomyosarcoma were false.

Respondent knew the statements that he had been diagnosed with and received treatment for leiomyosarcoma were false because at no time prior to submission of his application to the law school had Respondent been diagnosed with or received treatment for leiomyosarcoma or any other cancer, nor did Respondent have an illness that affected his LSAT performance, and did not take the LSAT exam in October, 2005.

At the time Respondent submitted the false information in his application for admission to the University of Chicago Law School, Respondent knew the information was false and intended to mislead the law school in order to advance his chances for admission to the Law School.

Based upon Respondent’s false application to the University of Chicago Law School, Respondent was admitted to the school. At no time prior to the time he commenced his studies or since completion of his studies at the Law School did Respondent amend his application to provide truthful information to the Law School.

And in his Illinois bar admission

At no time prior to the February 21, 2018 voting of a complaint by the members of Panel C of the Inquiry Board, did Respondent advise the Committee on Character and Fitness that he had submitted a false information in his application for admission to the University of Chicago Law School. At no time prior to his admission to the Bar in the State of Illinois did Respondent amend or change his answer to question 53 of the questionnaire to provide the Committee on Character and Fitness information about the false information he included in his application for admission to the University of Chicago Law School.

He was admitted in 2011.

In a federal matter the illness that allegedly wasn't resurfaced

On December 15, 2015, Respondent sent an email to Assistant United States Attorney (AUSA) Gerard Brost, who represented the defendants in the Sulemani case, describing Respondent’s intention to file a motion for an extension of time to complete fact discovery, stating in part the following:

"...I know we had a lengthy fact discovery period in this case to begin with but I have been away from the office for most of the 4 months dealing with a serious medical issue (having tumors removed from my abdomen and stomach).

Respondent’s statement to AUSA Brost...that he had been away from the office for most of the previous four months dealing with a serious medical issue involving the removal of tumors from his abdomen and stomach was false.

Respondent knew the statement...that he had been away from the office for most of the previous four months dealing with a serious medical issue involving the removal of tumors from his abdomen and stomach was false, because Respondent was not ill with a serious medical issue involving removal of tumors from his abdomen.

And became infectious in a federal criminal matter

Respondent’s statement to AUSAs Hancock and Brock...that he had a child about to have surgery, was false.

Respondent knew his statement to AUSAs Hancock and Brock...that he had a child about to have surgery, was false because Respondent had no children, nor any child about to have surgery.

In a federal civil matter

On August 12, 2013 at 11:21 a.m., Respondent sent the following email message, in part, to defense counsel ASA Emmert and Lou Varchetto ("Varchetto") related to Respondent’s delay in completing discovery matters in the Johnson case:

"I apologize for not getting back to you sooner regarding the above captioned case. Unfortunately, I have been out of the office most of the last two months dealing with a serious medical issue that necessitated twice having surgery to have tumors removed from my stomach. While still receiving treatment, I am back in the office near full time. I realize that fact discovery in this case closes on August 31 but at this point I feel I have no choice but to file for a short extension of that deadline. ...Please let me know if you agree to allow me to file this motion as unopposed."

Respondent’s statement to ASA Emmert and Varchetto...regarding Respondent’s alleged absence from the office for the last two months due to a serious medical illness requiring Respondent to have surgery on two occasions, as the reason for delay in engaging in discovery is false.

And 

On November 9, 2014, at 7:07 p.m., Respondent sent an email to defense counsel ASA Emmert and Jasinski, the following message related to Respondent’s purported reason for requesting an extension to file plaintiff’s response to defendants motion for summary judgment in the Johnson case:

"I unexpectedly have to return home to Montreal for a funeral this week. I will be gone for 2 days and would like to ask the Court to extend my deadline to respond by the two days that I will miss. Please let me know if I can represent to the Court that you either agree.do not oppose the request."

Respondent’s statements to defense counsel...that Respondent had to return home to Montreal to attend a funeral was false.

 Respondent knew his statements to the defense counsel...that Respondent had to return home to Montreal to attend a funeral was false because Respondent did not need to travel to Montreal to attend a funeral, as none of his family or acquaintances had died and no funeral was scheduled at which Respondent’s appearance was necessary in Montreal.

The amended complaint also alleges false statements in the bar investigation. 

The attorney's Answer is linked here.  (Mike Frisch)

February 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, February 9, 2019

Like A Virgin (Islands Attorney)

As we previously had reported, the Supreme Court of the Virgin Islands is concerned about unauthorized practice by attorneys not admitted in the jurisdiction

This matter comes before this Court pursuant to the response of Karin A. Bentz, Esq. and Applicant Anne Elder Kershaw to this Court’s January 18, 2019 order, which required them to show cause, in writing, as to whether pro hac vice admission should be denied in light of an allegation that Kershaw has engaged in the unauthorized practice of law in the Virgin Islands. For the reasons that follow, we deny pro hac vice admission, and refer this matter to the appropriate authorities.

The story

Bentz moved for the pro hac vice admission of Kershaw—a New York attorney—in early 2018 to represent the defendants in De Leon v. Bentz, Super. Ct. Civ. No. 182/2015 (STX). Although this Court granted the motion in a January 14, 2019 order, it stated that Kershaw’s pro hac vice admission would only take into effect “upon execution of the Oath with the Clerk of the Court.” On January 15, 2019, a representative from Bentz’s law office arranged for the Clerk to administer the pro hac vice oath of office on January 25, 2019.

On January 17, 2019, Lee J. Rohn, Esq., counsel for the plaintiff in the De Leon matter, filed an emergency motion for this Court to reconsider Kershaw’s pro hac vice admission because Kershaw had purportedly engaged in the unauthorized practice of law. The motion was accompanied by an affidavit in which Rohn swore, under penalty of perjury, that Kershaw had appeared as counsel for the defendants at a mediation that occurred on January 17, 2019, even though she had not taken the pro hac vice oath of office.

The court entered a show cause order

Bentz and Kershaw filed a joint response with this Court on January 23, 2019. In that response, they concede that Kershaw appeared as counsel for the defendants at the January 17, 2019 mediation, despite not having been administered the pro hac vice oath. However, they maintain that Kershaw was authorized to do so pursuant to American Bar Association Model Rule of Professional Conduct 5.5(c).

The court rejected reliance on the ABA Rule

Bentz and Kershaw’s reliance on the ABA Model Rules is misplaced. Although former Supreme Court Rule 203 did at one point provide that the ABA Model Rules governed the conduct of Virgin Islands attorneys, this provision was repealed effective February 1, 2014, and replaced with the Virgin Islands Rules of Professional Conduct. In re Adoption of the Virgin Islands Rules of Professional Conduct, S. Ct. Prom. No. 2013-001, slip op. at 1 (V.I. Dec. 23, 2013). Significantly, this Court expressly declined to adopt ABA Model Rule 5.5(c) when it enacted the Virgin Islands Rules of Professional Conduct...

Moreover, ABA Model Rule 5.5(c) was never applicable to the Virgin Islands in the first place. In its first unauthorized practice of law decision involving a bar applicant, this Court held that the statutory definition of the unauthorized practice of law codified in section 443 governed to the exclusion of the ABA Model Rules of Professional Conduct. In re Campbell, 59 V.I. 701, 711 (V.I. 2013) (“By its own terms, [former] Rule 203 establishes that the Model Rules govern the conduct of individuals who have actually been admitted to the Virgin Islands Bar, and makes no reference to extending the Model Rules to govern the conduct of nonmembers . . . . More importantly, Rule 203 expressly states that the Model Rules only supersede previously promulgated court rules ‘pertaining to disciplinary enforcement,’ and does not purport to modify the statutory definition of unauthorized practice of law found in section 443.”) (emphases in original). Since then, this Court has repeatedly held that incorrect reliance on ABA Model Rule 5.5 is not a defense to the unauthorized practice of law in the Virgin Islands.

The mediation appearance was unauthorized practice

Accordingly, we deny the petition to admit Kershaw pro hac vice. Since the underlying conduct may potentially warrant action beyond the denial of pro hac vice admission, we also refer this matter to the Office of Disciplinary Counsel, the Board on Professional Responsibility, the Board on Unauthorized Practice of Law, and the Virgin Islands Attorney General, for the purpose of taking any additional action which they may find appropriate with respect to Bentz and Kershaw’s conduct in this matter.

As admission had been granted and awaited only administration of an oath, I find this response disproportionate to the conduct. (Mike Frisch)

February 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, February 8, 2019

No Interlocutory Suspension For Child Pornography Charges

The Tribunal Hearing Division of the Upper Canada Law Society denied a motion for interlocutory suspension

Mr. Rooney (“the Licensee”) has been charged with making, distributing, possessing and accessing child pornography. At the time of the hearing, he had not yet received disclosure of the prosecution’s case  against him, although his bail had been set and conditions imposed.

The Law Society submitted that this case was different from other cases in which criminal charges such as these have been laid and interlocutory suspension denied. The Licensee submitted that this case does not differ from previous cases dealing with such charges, where there has been no allegation of physical contact, and where the licensee’s client base does not include minors.

The situation

The Licensee was called to the Bar in 2015. He was an associate at a law firm doing primarily tax, wills and estates work. The Licensee is no longer employed. He has no criminal record and no discipline history.

On October 12, 2018, the Law Society learned that the Licensee had been charged with a number of criminal child pornography offences. The Information lists two counts of making child pornography, one count of distributing child pornography, one count of possessing child pornography and one count of accessing child pornography, all on or about September 18, 2018.

The Crown synopsis indicates that the charges arise from chats between the Licensee and the complainant, supplemented by pictures. There is no suggestion that the Licensee has carried out any of the acts referred to during the chats.

The Licensee was granted bail with a $10,000 surety and a number of terms...

He is presumed innocent

We note that the Licensee reported the charges immediately, and requested that his counsel ensure he was in compliance with the Law Society’s rules. There is no connection between the misconduct and the Licensee’s practice as his type of practice would rarely, if ever, bring him into contact with minors. In addition, the Licensee is no longer employed in a practice, and his bail conditions would make it difficult, if not impossible, for him to be so employed. There has been some media coverage but as of the date of the hearing, it had not been extensive.

As to potential penalty, we note this is not an offence that would normally lead to presumptive revocation of licence. The presumptive penalty of revocation is imposed in cases of fraud or theft, or the sexual assault of a minor, which is not alleged here.

Motion to suspend denied. (Mike Frisch)

February 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

When No Response Is The Correct Response

A public reprimand summarized on the web page of the Massachusetts Board of Bar Overseers

The respondent, who was admitted to practice in 1977, received a public reprimand for sending multiple emails to an opposing party, who she knew was represented, concerning the subject of the representation, when she was handling the matter for a client.

In 2015, the respondent represented a husband in a divorce. At one point during the divorce, the wife emailed the respondent and blamed the respondent personally for causing the proceeding to become protracted. The respondent knew that the wife was represented by counsel but replied to the wife with a copy to the wife’s attorney to refute the wife’s allegation. Counsel for the wife responded promptly telling the respondent that he disapproved of the respondent contacting his client. Thereafter, the respondent sent two more emails to the wife about the divorce with copies to the wife’s counsel.

The wife terminated the representation of her prior counsel and hired a new lawyer. Although the respondent knew that the wife was represented by new counsel, the respondent sent an email directly to the wife concerning property that was a subject of the divorce. Counsel for the wife replied promptly objecting to the respondent’s communication.

By contacting a person that she knew was represented by counsel, on behalf of her client, concerning the subject of the representation, the respondent violated Mass. R. Prof. C. 4.2.

(Mike Frisch)

February 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Salts Of The Earth: Former DA Sanctioned For Phony Facebook Page

The Pennsylvania Supreme Court has approved a year and a day suspension of a former elected District Attorney as proposed by its Disciplinary Board.

The board reports contains extensive findings that the DA (who had been an Assistant in Clearfield County before her 2009 election in Centre County) engaged in a series of ex parte contacts with judges in criminal matters. 

In response to a recusal motion brought in light  of a close relationship with a particular judge, both the DA and judge falsely denied the allegations.

But the more interesting misconduct findings were that she had "created, disseminated and used a fictitious Facebook page." 

The story involved pending legislation to make the sale of bath salts illegal. The judges of Centre County had declared such sales a public nuisance and enjoined sales at three stores. 

In order to monitor these stores, Respondent created a phony Facebook page in the name of Britney Bella, who was given a false backstory. 

The page attracted "likes" and friend requests presumably from the pro-bath salts crowd. The page was friended by defendants who were being prosecuted by the DA's office.

The DA had the page adorned with images of "young female individuals to enhance the page's allure." 

She also emailed her staff telling them that she had "made a Facebook page that is false for us to befriend people and snoop."

The information led to a raid of the three stores.

Notably, the DA had not sought ethics advice on the Facebook idea.

The board found that the Facebook conduct violated a number of disciplinary rules .

The Centre Daily Times reported on the bar charges with an update here.  (Mike Frisch)

February 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Topless In New Hampshire: Crime Or Gender Discrimination?

The New Hampshire Supreme Court has affirmed three public nudity ordinance violations. 

Defendant Pierro

The following facts are drawn from the trial court’s order on the defendants’ motion to dismiss or are otherwise supported by the record. On May 28, 2016, Pierro went to Endicott Park Beach in Laconia. At the hearing on the defendants’ motion to dismiss, Pierro testified that she “was topless” and was there “to enjoy the beach.” She agreed with defense counsel that she was “performing yoga on the beach.” She stated that she “was violently harassed” by “[s]everal citizens,” but that “out of everybody on the beach, there were only actually a handful that were upset.”

Sergeant Black of the Laconia Police Department testified that, on that same day, he and Officer Callanan responded to the beach because the department had “received several calls about a female . . . doing nude yoga.” Callanan testified that they approached a woman, later identified as Pierro, who was “not wearing any shirt and her breasts, as well as her nipples, were both exposed.” Callanan stated that she “made attempts to speak to” Pierro, but that Pierro “continued to do her yoga poses.” She explained that “after
about a minute or so, [Pierro] looked up and acknowledged that we were, in fact, trying to speak to her.” She testified that they “explained to [Pierro] that the reason [they] were making contact with her was in reference to a Laconia City Ordinance, since her nipples were exposed on the beach in a public place.” Callanan stated that they asked Pierro “multiple times to cover up, to put her bathing suit top back on, or put her shirt back on,” but that Pierro “refused.

Defendants Sinclair and Libbey

In 2015, Sinclair became involved in the “Free the Nipple” movement. Sinclair testified that she was one of the people who “started” the movement in New Hampshire after having her son and realizing “that there was a very big stigma on breastfeeding.” She explained that she believed that breasts, specifically nipples, are “hypersexualize[d]” and “consider[ed] pornographic and taboo,” which she stated results “in that stigma” and “contributes to the low breastfeeding rates that the United States has compared to the rest of the world.” Sinclair told Lilley about the movement, which Lilley then joined. Lilley testified that she is “a feminist” and joined the movement because she “believe[s] in the equality of the male and female.”

On May 31, 2016, Sinclair and Lilley went topless to Weirs Beach in Laconia. While at the beach, they were arrested for violating the ordinance. Sinclair testified that she “purposely engaged in civil disobedience knowing that the City of Laconia has an ordinance against the exposure of the female nipple and areola.” She stated that she was “protesting [Pierro’s] case where she had been arrested a few days prior.” Lilley testified that she was also protesting Pierro’s arrest and that she “announced to the arresting police officer that [she] was acting in a protest and that [she] did not believe that [she] could be arrested for protesting.” She further agreed with the prosecutor that, on that day, she “chose to take it upon [herself] to violate the ordinance to give attention to [her] cause.”

The court majority rejected both Constitutional and state claims raised by the defendants.

LYNN, C.J., and DONOVAN, J., concurred; BASSETT, J., with whom HICKS, J., joined, concurred in part and dissented in part.

We agree with our colleagues in most respects: Laconia’s ordinance does not violate the defendants’ rights to freedom of speech and expression; it falls within the regulatory authority of the City of Laconia; it is not preempted by statute; and it does not violate RSA chapter 354-A. However, we part company with the majority when it rejects the defendants’ equal protection claim. We strongly disagree that rational basis is the lens through which the defendants’ equal protection challenge should be analyzed. Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard “visible to the public,” the woman is engaging in unlawful behavior— but the man is not...

We agree with the reasoning of the Seventh Circuit. Public nudity ordinances such as the ordinances in Chicago and Laconia — i.e., those that use explicit, gendered language to make it unlawful for a female to engage in certain behavior, while the same behavior is lawful for a male — clearly classify by gender. The majority asserts that such reasoning is “flawed” and “deceptively simple.” We fail to see the flaw or deception in our simple reasoning: when a law uses the word “female” to classify between those who
can violate the ordinance — females — and those who cannot — males — it contains a gender-based classification. We freely acknowledge that the question of whether basic physiological differences between the sexes justify disparate treatment of men and women is a more nuanced and complicated question. But classification and justification present different questions.

Respectfully, we find the reasoning of the majority — which obscures the simple threshold question — needlessly convoluted and artificially complex. Indeed, a court upends the safeguards of equal protection if it reasons that, because a law is premised upon physiological or anatomical differences between the sexes, the law does not classify by gender and therefore it need not be analyzed under strict scrutiny. For example, because women have a longer life expectancy than men, by the majority’s reasoning, a hypothetical law that mandates that women work four years longer than men in order to qualify for a pension, or prevents women from retiring until age 70 as opposed to age 66 for men, or reduces a woman’s social security benefits if she retires at the same age as a man, does not classify on the basis of gender. Such a law would be constitutional so long as it was “rationally related to a legitimate government interest.” Boulders, 153 N.H. at 641. Analyzing whether a law comports with equal protection does not require that the court be blind to basic physiological or anatomical differences. In some cases, applying the constitutionally required level of scrutiny, this court might conclude that such differences justify disparate treatment under the law. However, a court subverts the basic guarantee of equal protection if it concludes that, because men and women have physiological or anatomical differences, a law that classifies on the basis of those differences does not trigger strict scrutiny.

Thus 

A court would no longer say, as a Supreme Court Justice did over 100 years ago, that a woman did not have a right to practice law because “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. . . . This is the law of the Creator. . . . [T]he rules of civil society must be adapted to the general constitution of things . . . .” Bradwell v. The State, 83 U.S. 130, 141-42 (1872) (Bradley, J., concurring). We revisit that bygone era, and thwart the very protections the Equal Rights Amendment was enacted to provide, if we allow stereotypical notions about women’s bodies to alter our analysis of the straightforward question of whether Laconia’s ordinance classifies on the basis of gender. This is precisely why the New Hampshire Constitution requires that legislation which discriminates on the basis of a suspect classification be subject to strict scrutiny.

The law has often been used to perpetuate discrimination based on “public sensibilities” or “common understandings” about individuals on the basis of immutable characteristics — however misinformed or ill-motivated those understandings might be. “One of the most important purposes to be served by the Equal Protection Clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government.”

The ordinance does not withstand strict scrutiny

applying the strict scrutiny standard required by Part I, Article 2, we conclude that the State has not carried its burden to prove that its asserted interests are compelling and that Laconia’s ordinance is necessary and narrowly tailored.

...over four decades, we have fashioned an analytical framework which subjects laws that distinguish on the basis of gender to the highest level of constitutional scrutiny: strict scrutiny. See Holbrook, 140 N.H. at 189; Sandra H., 150 N.H. at 637; LeClair, 137 N.H. at 222. However, perhaps mindful of the State’s obvious failure to present evidence sufficient to meet the exacting burden of strict scrutiny in this case, the majority strains to conclude that an ordinance that prohibits women — but not men — from engaging in certain behavior does not discriminate on the basis of sex, but is, in fact, gender-neutral. Such an approach is not in service of our constitutional role: it is an abdication of it.

The Laconia Daily Sun covered the controversy. (Mike Frisch)

February 8, 2019 in Current Affairs | Permalink | Comments (0)

Nebraska Takes Duty To Cooperate In Bar Investigation Seriously

The Nebraska Supreme Court has disbarred an attorney

This is an attorney discipline case against Jeremy C. Jorgenson stemming from violations occurring after Jorgenson was administratively suspended from the practice of law in Nebraska for failing to satisfy mandatory continuing legal education (MCLE) reporting requirements...

Jorgenson admitted the charges, a judgment on the pleadings was entered, and a hearing on the question of appropriate sanctions was held before an appointed referee. The referee’s report following this hearing recommended Jorgenson be disbarred. Upon our de novo review and for the reasons set forth herein, we agree with the referee’s recommendation and conclude that disbarment is the proper sanction.

He admitted continuing to practice in several matters and explained

Jorgenson also testified to his remorse and embarrassment for the violations. Jorgenson testified that his life was in disarray both personally and professionally after being involved in a highly publicized murder trial and his decision to thereafter move to Illinois. Additionally, Jorgenson was undergoing marital discord when his wife moved to another state with their children, precipitating an ensuing custody battle. Jorgenson testified that he was severely depressed and drinking “a lot,” which attributed to the acts and omissions leading to the violations. 

The court noted

This matter represents the third disciplinary case in Nebraska to which Jorgenson has been a party.

Here

The facts alleged in the formal charges of this case and admitted to by Jorgenson display an ongoing neglect of Jorgenson’s duties to his clients and the judiciary. After admitting he received notice that he was administratively suspended, Jorgenson continued to practice law in violation of the suspension, failed to adequately notify clients that he could no longer represent them, failed to assist clients in obtaining new representation, failed to return client funds and provide an accounting thereof, held himself out as a member of a law firm in emails, and made filings on behalf of clients in court.

And

In addition, Jorgenson has repeatedly failed to cooperate with the Counsel for Discipline. Repeatedly ignoring requests for information from the Counsel for Discipline indicates a disrespect for our disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice. We consider an attorney’s failure to respond to inquiries and requests for information from the Counsel for Discipline as an important matter and as a threat to the credibility of attorney disciplinary proceedings.

His purported mitigation

Jorgenson did not present any evidence beyond his own testimony that he had depression and alcohol abuse issues and that he participated in group meetings. There was no medical evidence presented that Jorgenson suffered from depression, and there was no evidence presented that the depression was a direct and substantial contributing cause of his misconduct and that its treatment would substantially reduce the risk of further misconduct. Similarly, Jorgenson did not present any supporting evidence to establish that his use of alcohol was a direct and substantial contributing cause of his misconduct and that he is participating in treatment and ceased abusing alcohol so as not to make it an issue going forward.

State ex rel. Disciplinary Counsel v. Jorgenson can be accessed here.

The Omaha World-Herald reported on the aforementioned murder case.

The World-Herald also covered recent criminal matters involving the attorney.

A former attorney for quadruple-killer Anthony Garcia pleaded no contest Monday to four misdemeanors after a February ordeal in which he fractured his stepson’s arm.

Jeremy Jorgenson, 43, will be sentenced in December. He faces probation or up to a year in jail for each misdemeanor: two counts of child neglect and two counts of attempted tampering with a witness.

Jorgenson had been charged with felony child abuse and felony witness tampering. Those charges were reduced in return for his pleas to the four misdemeanors.

According to prosecutor Amy Schuchman, a deputy Douglas County attorney:

On Feb. 18, Jorgenson and wife Vicki Jorgenson were at their home near 30th Street and Poppleton Avenue in Omaha.

The couple were arguing when Vicki’s 7-year-old son came into the room and threw a toy at Jeremy, striking him.

Jeremy Jorgenson chased after the boy and picked him up by the shirt collar.

The 7-year-old boy told investigators at Project Harmony — a center that investigates child abuse — that the “defendant got angry, grabbed him by the back of the shirt, held him in the air ... making it hard to breathe and then dropped him on the stairs, which resulted in his wrist being broken,” Schuchman recounted.

Soon after, Vicki Jorgenson came running out of the residence, yelling: “He hurt him. He hurt him.”

Jeremy Jorgenson followed her out of the house saying, “We can’t go to the ER.”

The couple then got into a car to take the boy to urgent care.

“While in the motor vehicle ... the defendant had told them to get their story straight or he’d go to prison or kill himself,” Schuchman said.

All three told doctors that the boy had fallen while playing with a toy gun. After the doctor visit, Jorgenson and his wife took the boy to a Don & Millie’s restaurant to get a cheeseburger and ice cream, according to court documents.

Jorgenson shook his head through parts of the prosecutor’s account Monday. Outside court, he alleged that the 7-year-old “never said those things” to investigators.

Asked by Judge Patricia Lamberty how far he had gone in school, Jorgenson said he had obtained a juris doctorate.

Jorgenson was indefinitely suspended from practicing law after he skipped oral arguments on behalf of a defendant in a federal drug case. That discipline followed another disciplinary case in which Jorgenson came under scrutiny for his handling of civil cases and was assigned an attorney mentor.

Toward the end of the Garcia case, Jorgenson jumped on board to help Chicago attorneys Robert Motta Jr. and Robert Motta Sr. defend the man who eventually was convicted of killing four Omahans as revenge for his firing from Creighton University.

Jorgenson handled much of the questioning of DNA experts in the Garcia case.

(Mike Frisch)

February 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 7, 2019

More Ante Upping In New Jersey

On the recommendation of its Disciplinary Review Board, the New Jersey Supreme Court imposed a three-month reciprocal suspension rather than a one-month suspension and probation imposed in California.

The DRB described the fee petition filed by the attorney in a class action suit

In respect of respondent’s attorney fees, she first produced a hard copy of her time records, reflecting that, for a twenty-two month period, she had worked nearly all day (up to 16.75 hours), seven days a week, including holidays. Ibid. Consequently, in October 2006 and January 2007, Toshiba subpoenaed computer data and files related to respondent’s time records. Ibid. At the time, respondent’s time records were contained in Word files, which she then converted to PDF format, redacted those portions that she claimed were protected from disclosure by the attorney-client and work product privileges, and produced the PDF to Toshiba’s counsel. Id. 562-64.

When respondent converted the Word files to PDF format, she deleted the original Word files, including metadata, with the "Wipe and Delete" program. Id. at 564.3 Toshiba persisted in its request that she produce a "searchable electronic copy" of her time records. Id. at 563.

On January 26, 2007, the Los Angeles Superior Court held a hearing on respondent’s objections to Toshiba’s discovery requests. Ibid. The judge asked respondent and her counsel whether they "really" believed that he would award her $24 million in attorney fees without her being deposed and producing any documents. Ibid. The judge described the amount of fees  requested as "staggering" and ordered respondent to appear for deposition and to produce electronic time records in "native  format . . . or at least something . . . searchable." Ibid.

From there followed civil sanctions and bar discipline.

Bloomberg BNA reported on the California action

The California Supreme Court suspended a lawyer who balked at producing her computer for a court-ordered inspection of her electronic time records supporting a multimillion-dollar fee request in a class action.

Lori J. Sklar received a one-year stayed suspension with two years of probation, beginning with a 30-day period of suspension ( In re Sklar , 2017 BL 95065, Cal., No. S238847, 3/22/17 ).

Sklar filed a petition for certiorari with the U.S. Supreme Court on June 20.

The disciplinary order is the latest chapter in a long-running fight over sanctions for Sklar’s conduct in seeking fees as plaintiffs’ counsel in a class action suit involving defective Toshiba laptop covers.

During litigation over her fee request, Sklar said she couldn’t produce her time records in “native form” with associated metadata because she scrubbed her computer daily to eliminate metadata.

Sanction Order, Then Disciplinary Case

The California Court of Appeal upheld an order sanctioning Sklar and sent a copy of its opinion to the California state bar.

After a four-day trial in Sklar’s disciplinary case, a hearing judge found that she misled the court in the class action about the amount of her fee request and disobeyed orders to produce her computer so an expert could examine backup files.

The California State Bar Court, Review Department, rejected Sklar’s challenges to the hearing judge’s findings. She violated California Business & Professions Code §6068(d) (misleading a judge) and §6103(disobeying court orders), the court said in an unpublished opinion.

The California Supreme Court denied review and imposed the discipline recommended by the state bar court.

‘Wipe and Delete’

The state bar court said that when Sklar initially made a $24 million fee request in the class action, the judge allowed discovery about the amount of time she actually worked on the case, and ordered her to produce electronic time records in “native format.”

Sklar turned over hard copies of her time records and Microsoft Word files of the records, but not electronic, searchable copies in their “native form” with associated metadata. Sklar claimed those records no longer existed because she used a program called “Wipe and Delete” to scrub her computer daily and eliminate metadata.

Toshiba moved for sanctions, claiming Sklar had deleted or destroyed responsive records. The judge ordered the parties to select a neutral expert to search Sklar’s computer backup files and produce anything that wasn’t privileged.

Sklar fought the order and nearly a year later, the inspection still hadn’t occurred. The judge then ordered the inspection to take place on a particular date. Sklar challenged that order too, and the inspection never took place.

The judge ultimately imposed $165,000 in sanctions against Sklar for misuse of the discovery process. The court of appeal upheld the sanction, saying she had unquestionably flouted the court-ordered inspections.

Sklar, of Minneapolis, represented herself. She’s still authorized to practice law in Minnesota, according to her official listing there.

To contact the reporter on this story: Joan C. Rogers in Washington atjrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers atsbowers@bna.com

For More Information

Full text of California Supreme Court opinion is athttp://src.bna.com/qDO.California state bar court's opinion can be viewed athttp://www.statebarcourt.ca.gov/Portals/2/documents/opinions/Sklar.pdf.

(Mike Frisch)

February 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, February 6, 2019

Ante Upped By New Jersey Supreme Court

Is the New Jersey Supreme Court waking up?

In a reciprocal discipline matter involving a two-year Pennsylvania suspension, the court rejected the censure proposed by its Disciplinary Review Board and imposed identical discipline.

The DRB

The OAE recommended the imposition of a reprimand or a censure. For the reasons detailed below, we determine to impose a censure...

Here, respondent’s gross neglect, failure to communicate with a client, practicing while ineligible, and failure to cooperate with ethics authorities is deserving of a reprimand. His misconduct was serious and caused harm to his client, who was forced to retain other counsel, at her own expense, to complete the task for which she had retained respondent. In addition, respondent defaulted in respect of the Pennsylvania disciplinary proceedings, failing to offer any excuse or mitigation for his serious misconduct. Such additional misconduct beckons enhanced discipline. Specifically, "[a] respondent’s default or failure to cooperate with the investigative authorities acts as an aggravating factor,which is sufficient to permit a penalty that would otherwise be appropriate  to be further enhanced." In re Kivler, 193 N.J. 332, 342 (2008). The only mitigation for us to consider is respondent’s lack of prior discipline. On balance we determine  that a censure is the appropriate quantum of discipline in this matter.

Not today. Even in New Jersey. (Mike Frisch)

February 6, 2019 in Bar Discipline & Process | Permalink | Comments (0)

The Quiet Lawyer

The Ohio Board of Professional Conduct has posted a complaint alleging that an attorney engaged in misconduct by, among other things, refusing to participate in his client's criminal  trial.

The allegations of the Erie County Bar Association include a number of continuances sought for a variety of reasons.

One motion contended that Ohio Bike Week would complicate parking near the courthouse; another involved his son's Las Vegas wedding. 

The Sandusky Register reported on the reversal of the ensuing conviction

An Ohio appeals court said a Sandusky pastor previously sentenced to life in prison for child rape must receive a new trial.

Richard Mick, 56, who was sentenced in Erie County Common Pleas Court in 2016, had his conviction overturned Friday by the Sixth District Court of Appeals. A jury originally found Mick guilty of four felony charges of rape and gross sexual imposition.

Mick, formerly a pastor at Lighthouse Baptist Church, appealed his conviction after his trial was notably marked by his then-attorney K. Ronald Bailey refusing to participate in the trial.

Bailey, in 2016, argued the trial should have been delayed, and Judge Roger Binette held him in contempt of court after Bailey told Binette he was “not participating” in the trial. Bailey eventually served a 30-day sentence in the Erie County jail for the contempt charge.

Bailey did not respond to requests for comment Friday afternoon.

Mick’s appeal, filed by his new Cleveland-based attorney, Russell Bensing, alleged Bailey’s refusal to participate in the trial violated his right to effective counsel, according to the appeal.

The appeals court agreed with Mick, according to a court opinion written by Judge Thomas Osowik.

“Although Mick could have waived his constitutional right to counsel, the record shows he did not,” Osowik said.

There are not any court dates set following the overturned conviction Friday.

Mick has another pending court case in Erie County Common Pleas Court, where he faces more counts of gross sexual imposition, according to court records. He has a pretrial in that case set for May 16.

From the Ohio Court of Appeals for the Sixth Appellate District

On the morning of trial, as voir dire was set to begin, Mick’s attorney announced that he “cannot and will not be able nor willing to proceed today.” He cited five reasons: (1) his own failure to secure his private investigator to testify at trial; (2) his client’s poor health; (3) inadequate time (five days) to review the jury questionnaires, (4) his own mental and physical fatigue due to “travelling approximately 4,000 miles in four days” before trial; and (5) the trial court’s denial of additional funding for an expert witness. Mick’s attorney suggested that the trial court declare a mistrial, based on his own refusal to participate in the proceedings...

In this case, the state argues that the decision by Mick’s attorneys not to participate at trial was a deliberate attempt to cause the court to declare a mistrial. Indeed, the transcript leaves no room for doubt that this was indeed their motive. Moreover, counsel actively defended Mick prior to, and even during the trial, albeit outside the presence of the jury. Thus, while we agree with the state, even deliberate trial tactics may constitute ineffective assistance of counsel if they fall “outside the wide range of professionally competent assistance.” Strickland at 689. A trial strategy consisting of a refusal to participate has been found to be objectively unreasonable. Martin v. Rose,
744 F.2d 1245, 1250 (6th Cir.1984), citing Strickland.


Ineffective assistance

We agree with Mick that the cumulative effect of his counsel’s decision not to conduct voir dire, to make an opening statement or closing argument, to cross examine any of the state’s witnesses, to call any witnesses or offer any evidence on behalf of Mick, or to proffer jury instructions amounts to a complete failure to test the prosecution’s case. Therefore, the narrow exception set forth in Cronic applies. Counsel’s abandonment of their client throughout the most critical phase of the government’s case against Mick deprived him of his constitutionally protected right to counsel. Mick need not show that he was prejudiced by his counsel’s representation...

Though the record discloses no discord between Mick and his counsel over their decision to abandon him during trial, there is no evidence of waiver. In fact, the trial court expressed its reluctance to question Mick directly on the subject, for fear of violating his attorney-client privilege and/or risking another motion to recuse. As explained above, however, the court could, and should, have questioned Mick to ascertain whether he understood the implications and consequences of his attorneys’ strategy to cause a mistrial. Any concern that counsel might seek to have the judge recuse himself must be secondary to Mick’s constitutional right to counsel. We find that Mick did not waive that right.

(Mike Frisch)

February 6, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Ex Parte Conversation Did Not Taint Judge

The Minnesota Supreme Court affirmed a murder conviction notwithstanding an ex parte communication between the judge and defense counsel

Immediately before opening statements, an ex parte conversation occurred between Mouelle’s trial counsel ("Counsel") and the district court judge in chambers in the presence of the court reporter. During the conversation, Counsel informed the court that if Mouelle chose to testify, Counsel was "going to have to . . . do as well as [he could] under Whiteside." Counsel also told the court that he and Mouelle could not agree on whether Counsel should give an opening statement before the State presented its evidence. In describing the disagreement, Counsel quoted parts of a conversation that he had with Mouelle. Based on the ongoing disagreement, Counsel explained that he would request a short recess after the prosecutor’s opening statement. The judge said, "I’m not going to comment any further about your conversations with your client as they are privileged. We will take a recess after the prosecution’s opening statement . . . and you can let me know if you’re ready."

The State gave its opening statement and, as promised, the court took a brief recess. Counsel then gave an opening statement. After the State rested its case, Mouelle chose to testify. Counsel presented Mouelle’s testimony in the traditional question-and-answer format.

Not reversible error

we conclude that an objective, unbiased layperson with full knowledge of the facts and circumstances would not question the district court’s impartiality. After the ex parte conversation ended, Counsel’s concerns were never again mentioned during the remainder of the jury trial. Critically, the jury—the fact finder here— was never exposed to the concerns about Mouelle’s testimony that Counsel raised during the ex parte conversation.5 Moreover, Counsel’s decision to present Mouelle’s testimony in the usual question-and-answer format suggests that Counsel’s Whiteside concerns, as well as his disagreement with Mouelle, had been resolved before Mouelle testified. Certainly nothing in the manner that Mouelle’s testimony was presented suggested to the jury that anything was amiss. And, as discussed in more detail below, the record does not reflect any behavior by the district court that would lead a reasonable examiner, with full knowledge of the facts and circumstances, to question the judge’s impartiality. Consequently, we conclude that Mouelle failed to establish that the Code of Judicial Conduct required the district court judge to recuse herself. Because Mouelle failed to show even the appearance of partiality, we hold that no error occurred, structural or otherwise, when the district court judge presided over his jury trial.

Nix v. Whiteside, of course, is a United States Supreme Court decision. (Mike Frisch)

February 6, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, February 5, 2019

To Tell The Truth

A law firm associate who stipulated to ethics violations was suspended for three months by the New York Appellate Division for the First Judicial Department

From 2008, through May 2, 2017, respondent was employed as an associate with a law firm, and both allegations in the present petition stem from work he performed for one partner (the partner) at this firm.

In the first instance, respondents's law firm was representing a commercial landlord in a real estate litigation matter. At the request of the partner, respondent was tasked with drafting the client's appellate opposition brief to be submitted to this Court. In or about February 2017, respondent filed the client's brief without the partner's knowledge or direction.

In or about March 2017, not knowing that respondent had already filed the client's brief, the partner asked respondent for his work so that he could review it. Rather than tell the partner that he had already filed the brief, respondent gave the partner what he falsely represented as a draft of the brief. The partner, believing the brief to be only a draft, made revisions which he then gave to respondent. When the partner discovered respondent's actions, he confronted respondent, who acknowledged that he had filed the brief prior to allowing the partner to review it.

In the second instance, respondent's firm was representing a plaintiff in connection with a real estate matter. The client's appellate brief, drafted by the partner, was due to be filed with this Court in November 2016. Respondent, at the partner's request, was tasked with sending the brief and record on appeal to the firm's printing vendor for service upon the opposing counsel and for filing with this Court. Respondent forwarded the relevant documents to the printing vendor, however, he failed to instruct the vendor to serve and file said documents. Nevertheless, respondent falsely told the partner that he had instructed the vendor to file and serve the documents.

In order to conceal from the partner that he failed to properly instruct the vendor, in or about late December 2016, respondent falsely told the partner that there had been a stipulation between himself and opposing counsel to permit an extension for the brief to be filed in late January 2017. To further conceal his misrepresentation, respondent fabricated an opposition brief, which he provided to the partner as though it were genuine. Respondent constructed a false chain of emails to make it appear as if he had received the fabricated brief from opposing counsel, which he forwarded to the partner.

The partner, who believed the opposition brief to be genuine, drafted a reply brief, which respondent falsely told the partner was due on February 10, 2017. The partner forwarded the reply brief to the client for review.

Respondent also falsely told the partner that the client's appeal was calendared for this Court's June 2017 term. On May 1, 2017, when this Court released its June 2017 calendar, the client's appeal was not on it. After noticing the appeal had not been calendered, the partner told respondent he was going to call opposing counsel to find out why the appeal had not been calendared. Respondent then admitted to the partner that he failed to inform the printing vendor to serve and file the subject documents and admitted his deceptions. On May 2, 2017, respondent tendered his resignation from the firm.

Mitigation

The parties agree that there are no aggravating factors outside of respondent's misconduct itself. Moreover, the parties have stipulated to the following facts in mitigation: there was no irreparable harm to any client as a result of respondent's misconduct; during the period at issue, respondent's father was diagnosed with a terminal illness and passed away in May 2018, the stress of which caused respondent to be distracted at work for a significant period of time; and he has no prior disciplinary history in more than 20 years of practicing law.

(Mike Frisch)

February 5, 2019 in Bar Discipline & Process | Permalink | Comments (0)

New Rules Proposed In D.C.

From the web page of the District of Columbia Bar

Bar Seeks Comment on Proposed Amendments to Certain D.C. Rules of Professional Conduct

February 4, 2019

The D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on April 5, 2019.

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.

1. Technology and Confidentiality

Amend Comment [5] to Rule 1.1 to specify the continuing responsibility of lawyers to stay abreast of changes in technology as a matter of competence. Amend Rule 1.6 and Comments to address a lawyer’s duty to exercise reasonable care to prevent unauthorized access to electronic information and the reasonableness of security measures to be taken by a lawyer when using and storing electronic communications. Amend Rule 4.4 and Comments to clarify a lawyer’s obligations after receiving inadvertently sent information or metadata.

2. Outsourcing

Amend the Comments to Rules 1.1 and 5.3 to address a lawyer’s duties when outsourcing legal work or when using “outside” or contract lawyers. The proposed changes include language requiring the lawyer to inform the client about the identity of the other lawyers who will participate in the representation and the contemplated division of responsibility among them, as well as amendments to better address situations where the client, not the lawyer, is directing the outsourcing.

3. In Re Kline

Amend Comment [1] to Rule 3.8 to make it consistent with the District of Columbia Court of Appeals holding in In re Kline, 113 A.3d 202 (D.C. 2015), a disciplinary matter in which the Court was asked to determine whether a federal prosecutor had improperly withheld potentially exculpatory evidence during the prosecution of a criminal matter and should be disciplined under D.C. Rule 3.8(e). The court rejected the suggestion in existing Comment [1] to Rule 3.8 that Rule 3.8(e) is coextensive with and bounded by constitutional principles applicable in the criminal context.

4. Post-Conviction Exculpatory Information: Special Responsibilities of a Prosecutor

Amend Rule 3.8 and Comments to make them more closely aligned with ABA Model Rules 3.8(g) and (h), but with some significant differences. In May 2015, the District of Columbia Court of Appeals asked the Bar to reconsider paragraphs (g) and (h) of ABA Model Rule 3.8, which impose duties on prosecutors to disclose certain post-conviction exculpatory information, and to determine whether the District of Columbia should adopt similar provisions.

5. Nondiscrimination and Antiharassment

Amend Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, to substantially align it with ABA Model Rule 8.4(g) addressing discrimination and harassment in conduct related to the practice of law. The Rules Review Committee also recommends amending Comment [3] to Rule 8.4 to cross-reference Rule 9.1.

For Information and to Submit Comments

More information about this call for public comment, including the Committee’s final draft report and recommendations, can be found here.

Written comments should be submitted by email to ethics@dcbar.org or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001, no later than April 5, 2019. For hard copies of the report, please contact Duane Tolson at 202-780-2777.

(Mike Frisch)

February 5, 2019 | Permalink | Comments (0)

Monday, February 4, 2019

Pohland Sprung

A former assistant attorney general's conviction for official misconduct was reversed by the Alaska Court of Appeals

We previously reported that the attorney was disbarred in Alaska and Pennsylvania for shoplifting shoes. 

Here

Erin A. Pohland, a former assistant attorney general, appeals her conviction for official misconduct, AS 11.56.850(a). The State alleged that Pohland used her position as legal advisor to the Alaska Labor Relations Agency to benefit her personal friend, Skye McRoberts.

Much of the evidence against Pohland was based on information obtained during a search of her personal computer. This computer was seized when the state troopers executed a search warrant for Skye McRoberts’s house — where Pohland was renting an apartment. The troopers were looking for evidence of McRoberts’s potential business and financial crimes, but they seized Pohland’s computer under the theory that McRoberts might have hidden evidence of her crimes in any computer or electronic storage device located within the house — even Pohland’s personal laptop, which was found in Pohland’s apartment.

Evidence suppressed

As we explain in this opinion, the troopers did not have probable cause to believe that Pohland’s personal laptop computer contained evidence of her landlord’s financial and business crimes. Moreover, rather than confining their search to documents and spreadsheets (i.e., computer files that were more likely to contain evidence of
financial and business crimes), the troopers obtained much of the evidence against Pohland by combing through thousands of Pohland’s personal text messages. (Pohland was using her laptop computer as a backup device for the data stored on her smart phone.)

The State was investigating McRoberts and consulted with Pohland

 the State alleged that Pohland failed to tell the Agency that she was close friends with McRoberts, that she lived in an apartment within McRoberts’s home, that she had regularly discussed the unionization effort with McRoberts, and that she had assisted McRoberts in this effort. The State further alleged that Pohland’s advice to the Labor Relations Agency was designed to shield her friend McRoberts from any official investigation into the possibility that McRoberts had forged, or had colluded in forging, the employee interest cards.

The  search - conducted before there was probable cause to believe Pohland committed crimes - brought these facts to light.

While the troopers were searching Pohland’s apartment, they seized a laptop computer. At the time, the troopers conducting the search presumed that the laptop belonged to Pohland. A subsequent examination of the laptop’s hard drive confirmed this assumption. The laptop contained numerous documents belonging to Pohland, as well as thousands of text messages between Pohland and various people (backup copies of texts from Pohland’s mobile phone).

Many of these text messages were exchanged between Pohland and McRoberts, and some of these text messages appeared to discuss the campaign to unionize the university workers. These text messages became part of the State’s case against Pohland when she was later charged with official misconduct for the advice that she gave to the Labor Relations Agency.

The laptop search was unconstitutional

the search warrant application in Pohland’s case did not assert that McRoberts had committed a computer-based crime, nor did it assert that Pohland was actively participating in McRoberts’s criminal scheme. And as we have explained, the mere fact that Pohland’s laptop was physically located in an apartment within McRoberts’s house did not give rise to the inference that McRoberts could access the contents of the laptop’s hard drive, nor did it give rise to the inference that McRoberts was likely to hide evidence of her own crimes on a computer that was controlled by Pohland.

Accordingly, we hold that the search warrant application did not establish probable cause to seize and search Pohland’s laptop computer...

But when the troopers searched Pohland’s laptop, they did not restrict their search to business and finance documents that Skye McRoberts might have hidden on Pohland’s computer. Instead, the troopers conducted a comprehensive examination of the contents of Pohland’s laptop — including Pohland’s backup of the text messages from her mobile phone. The troopers examined thousands of these text messages, looking for any communication between Pohland and McRoberts, and some of the most important evidence against Pohland was discovered among these text messages.

By searching through these text messages, the troopers exceeded the boundaries of any search that the warrant might reasonably have authorized, given the warrant’s description of what could be seized.

February 4, 2019 | Permalink | Comments (0)

D.C. Court Thanks Those Caught "In A Period Of Stressful Uncertainty"

Posted on the web page of the District of Columbia Court of Appeals Committee on Admissions

The District of Columbia bar exam is administered twice a year – February and July – as designated by the National Conference of Bar Examiners (NCBE). As many of you are aware, the District of Columbia Court of Appeals’ Committee on Admissions (COA) was closed from December 22, 2018 to January 25, 2019 as a result of the government shutdown. One of the primary functions of the COA is processing applications for individuals seeking admission to the District of the Columbia Bar – either through examination or via waiver from another jurisdiction – and swearing-in candidates who’ve been certified for admission to the DC Bar. During the recent government shutdown, approximately 950 applications were submitted to take the upcoming bar exam that will be administered on February 26 and 27, 2019. Since the COA was closed for processing applications, and planning for the administration of the bar exam, the 950 applicants – through no fault of their own – were caught in a period of stressful uncertainty concerning: (a) whether or not they would be able to take the exam in the District of Columbia, and (b) if not, where else they would be able to take the exam; particularly given the fact that application deadlines in other jurisdictions were either closed or were soon-to-be closing.

Under the leadership of Chief Judge Anna Blackburne-Rigsby, the District of Columbia Court of Appeals worked with a number of outside stakeholders who stepped forward to offer assistance in ways that would lessen the adverse impact that the government shutdown was having on people who applied and paid to take the upcoming bar exam in the District of Columbia. The Executive Office of Mayor Muriel Bowser, and the Office of Attorney General Karl Racine, made significant contributions towards assisting the District of Columbia Court of Appeals formulate contingency plans, as well as navigate the uncertainties associated with the government shutdown. Judith Gundersen, President of the NCBE, worked tirelessly to secure “courtesy seating” for DC applicants to take the exam in other jurisdictions. Herbert Rouson, then Chief Deputy Clerk of the Court of Appeals, commented that “Judith’s leadership in working with jurisdictions across the country, and her active collaboration with our leadership team here at the Court, played a vital part in helping us work to solutions that addressed the stress and uncertainty of our applicants…” District of Columbia Bar President Esther Lim and Chief Executive Officer Bob Spagnoletti offered the support of their staff in an effort to ensure that administration of the February 2019 bar exam could move forward, regardless of whether the government was shutdown or not. The final and significant component of the District of Columbia Court of Appeals’ contingency plans were made possible by the Board of Directors, and Executive Director Aaron Taylor, of AccessLex Center for Legal Education Excellence – who offered grant funding in support of any contingency plans associated with the administration of the DC bar exam.

The District of Columbia Court of Appeals wishes to thank all of the aforementioned stakeholders – for their generosity, collaboration, and shared interest in ensuring that the Court’s mission of providing access to justice to the residents of the District of Columbia goes forward. Additionally, a tremendous note of thanks is owed to The Honorable Phyllis Thompson, Julio Castillo – Clerk of the District of Columbia Court of Appeals, and Marie Robertson – Acting Chief Deputy Clerk of the District of Columbia Court of Appeals, for their strategic leadership and insightful collaboration in working through this challenge. Finally, the District of Columbia Court of Appeals wants to express its appreciation to all of the applicants for their patience. We understand that the uncertainty surrounding the February DC bar exam made an already challenging and stressful time all the more so. Our dedicated Committee on Admissions team is pleased to be back, and is working diligently to execute plans for administering the upcoming exam; and we wish the applicants success in this important endeavor.

A period of stressful uncertainty seems to be where the country is these days. (Mike Frisch)

February 4, 2019 | Permalink | Comments (0)