Monday, January 4, 2021
Happy New Year to any and all readers of this blog.
We have been on line for over 14 years, sustained by the constant stream of bar discipline and legal ethics issues that arise.
The things that get lawyers in ethical hot water (sometimes quite literally) appear to have found a niche in the harsh and unforgiving blogging world.
I note with sadness the recent passing of former Attorney General Richard Thornburgh, who was perhaps best known in legal ethics circles for the Thornburgh Memorandum dealing with state bar regulation of federal prosecutors.
I used to do some ethics training at what was then Kirkpatrick & Lockhart when he was practicing there. I guess he needed some ethics CLE as he attended one of the two-hour sessions.
He came up to me afterward, introduced himself and thanked me for the talk. We chatted for maybe 15 minutes.
I came away deeply impressed with with him as a person and former public servant.
Note: I was tangentially involved in the case that litigated the Thornburgh memo.
The complaint came to me at the D.C. Bar Counsel and I learned that the attorney was admitted only in New Mexico. I called my colleague Ginny Ferrara and sent it along.
Ginny always said that she would be best remembered for the ensuing litigation - United States v. Ferrara - that made her sound like a drug dealer.
Editor's note: The regulation glitch that exempted D.C. AUSAs from the court's jurisdiction if not admitted in D.C. was later fixed. (Mike Frisch)
Thursday, December 31, 2020
The New Jersey Appellate Division has held that double jeopardy does not prevent the retrial of a murder charge that was mistried due to the pandemic.
A jury had been empaneled when the shutdown occurred
On October 26, 2020, seven months after the judge suspended the trial, [the judge] sua sponte declared a mistrial and entered the order under review
We hold that the COVID-19 pandemic—an unexpected, untoward, and undesigned public health crisis, which does not bespeak bad faith, inexcusable neglect, inadvertence, or oppressive conduct by counsel—coupled with the unique facts of this case, presents a legally sufficient reason and manifest necessity to terminate defendants' trial. In analyzing whether to sua sponte terminate a trial due to the COVID-19 pandemic after a jury has been impaneled and sworn, trial judges should consider: (1) the circumstances that created the urgent need to discontinue the trial, including whether it was due to bad faith, inexcusable neglect, inadvertence, oppressive conduct, or prosecutorial or defense misconduct; (2) the existence of viable alternatives; (3) the extent of any prejudice to a defendant by a second trial; (4) whether a second trial accords with the ends of public justice and judicial administration; and (5) any other relevant factors unique to the facts of the case.
Here, the judge considered these factors and did not abuse his discretion by sua sponte declaring the mistrial.
My own experience with double jeopardy came in this appeal where a mistrial was ordered after three weeks of trial due to the judge's health. (Mike Frisch)
A former Suffolk County prosecutor has been suspended for two years by the New York Appellate Division for the Second Judicial Department for violations of discovery obligations in a felony murder trial
The respondent has admitted violating his prosecutorial obligations under both Brady and Rosario. Further, according to the unchallenged findings of the Special Referee, the petitioner adduced substantial evidence that the respondent failed to disclose 48 items that should have been disclosed under Brady—including materials implicating an alternative suspect, John Doe No. 1, as the shooter and murderer of the victim, as well as information that undermined the credibility of the People’s main trial witnesses—from Booker’s former girlfriend and Jane Doe No. 1. We need not discuss all 48 items; it is sufficient to discuss items that the respondent admits are violations.
The court affirmed the referee's misconduct findings
the Special Referee found that the respondent engaged in a deliberate pattern of avoidance, or willful blindness, in his handling of the documents in the police file. The respondent understood that there was a high probability of the existence of Brady-type materials and he took deliberate, volitional, and extraordinary actions to attempt to avoid learning of the existence of Brady-type materials in the Booker case. He blinded himself to the Brady material by not conducting a Brady review or analysis. He consciously delegated his duties under Brady to Detective O’Hara, whom he expected to alert him to exculpatory information. But he never asked Detective O’Hara whether there was any exculpatory or Brady-type information in the police file, and Detective O’Hara disavowed any meaningful insight into Brady.
The court here notes that prosecutors "have been the subject of disciplinary proceedings in New York courts for at least one century."
The respondent was a seasoned prosecutor with extensive experience. His conduct in relation to the Booker case merits the strongest possible condemnation because his actions deprived the defendant of a fair trial and also deprived the victim’s family of a determination as to whether the defendant was responsible for the homicide and, if so, the imposition of a just sentence.
Against the grave violations of professional standards committed by the respondent, we give weight to the extensive evidence in mitigation, credited by the Special Referee. There was no showing of intentionally malicious or venal conduct. While the respondent committed extensive misconduct in one case, there was no showing that he engaged in any similar conduct in any other cases notwithstanding the respondent’s assertion to the effect that he customarily delegated responsibility for compliance with Brady to the police. The respondent accepted responsibility and demonstrated remorse. He cooperated with the petitioner in this proceeding to the extent that he admitted his misconduct, though he did backtrack somewhat during the hearing conducted by the Special Referee. The respondent has no prior disciplinary record. The Special Referee found that the respondent presented substantial, credible evidence of his reputation and good character. It is unlikely that the respondent will engage in similar misconduct in the future given his resignation from the Suffolk DA’s office. He has engaged in community service outside of his prosecutorial duties. We consider as well the Special Referee’s finding that a member of the respondent’s family had a medical issue which created a burden upon the respondent and this should be considered in mitigation.
The defendant pleaded to burglary in the second degree after the misconduct was uncovered in the course of the trial. (Mike Frisch)
Wednesday, December 30, 2020
The New York Judicial Conduct Commission has imposed an agreed public censure of a supreme court justice.
From the commission press release
From January 2018 through March 2018, Judge Panepinto publicly supported the teachers at Buffalo City Honors School (“CHS”) in connection with a lawsuit brought by their union (the Buffalo Teachers Federation) against the Buffalo Board of Education. Her daughter attended the school.
Judge Panepinto admitted to:
making repeated public comments about the issues and people involved in the litigation, in person, by email and on social media platforms in which she was publicly identified as a judge;
providing legal information and advice to parents of CHS students;
signing advocacy letters;
speaking about the pending and impending lawsuits with Board of Education members;
joining the Federation’s lawyer in the courthouse and outside the courtroom prior to a case conference; and
executing an affidavit in support of the Federation’s case, which was attached as an exhibit to court papers.
The Commission found that the judge’s “numerous violations of the Rules [Governing Judicial Conduct] during the relevant three-month period undermined public confidence” and that her conduct “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.”
The judge had joined a Facebook group and gave legal advice to group members.
She "publicly criticized" the school principal and posted a Facebook comment to a newspaper editorial, which disclosed her judicial status
Respondent avers that she did not know that Facebook settings would automatically identify her by her judicial title. Respondent concedes that she should have familiarized herself with such Facebook protocols prior to posting the comments at issue.
On or about February 14, 2018, respondent spoke to a group of more than 100 people at a BBOE meeting at Buffalo City Hall, where she criticized CHS’s plans to transfer teachers. Respondent did not identify herself by her judicial title, but respondent’s appearance and comments were reported in the Buffalo News, which identified her as “a state Supreme Court justice.”
Photographed with counsel in the courthouse hallway
Particularly troubling was respondent’s decision to stand with counsel for the union and two CHS parents in the Buffalo Supreme Court facility where respondent presides. Respondent stood with them in a hallway outside the courtroom of the judge presiding over the union’s case immediately before a case conference was held. By standing with union counsel in the courthouse where she serves, respondent, who spoke repeatedly and publicly in favor of CHS teachers, undermined confidence in the impartiality of the judiciary
There is no suggestion that the justice was motivated by anything other than a sincere interest in her daughter's education but
Respondent’s numerous violations of the Rules during the relevant three-month period undermined public confidence in the integrity and impartiality of the judiciary. The totality of evidence demonstrated that respondent’s extra-judicial conduct was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.
A federal criminal conviction merits disbarment - but not permanent disbarment - according to a report and recommendation of the Louisiana Attorney Disciplinary Board.
In 2015, the Respondent was convicted by a jury in the United States District Court for the Eastern District of Louisiana on eight felony counts
involving conspiracy and wire fraud arising from fraudulent claims and submissions to obtain tax credits under a program instituted by the State of Louisiana that affords tax credits for expenditures made in Louisiana involving the movie film industry. The tax credits were claimed in connection with the renovation of an old building to become a studio for post-production film work at Esplanade Avenue in New Orleans.
...It is undisputed, and the parties agree, that the Respondent was convicted of multiple felonies (see Verdict Form, ODC Exhibit 2). The gist of the conviction was that Respondent submitted paperwork falsely claiming that costs & expenses had been incurred for the studio, when they had not been.
The Times-Picayune reported on the criminal case
Railing against “unchecked prosecutorial zeal,” a federal judge on Wednesday spared a well-known New Orleans lawyer from a potentially lengthy prison term, sentencing him to four years of probation for his role in an unusual fraud scheme involving state filmmaking tax credits.
U.S. District Judge Martin Feldman, who described the proceedings against Michael Arata as an overreach, said he received more than 130 letters on the attorney’s behalf and cited the poet Melvin B. Tolson in explaining that, in some cases, “mercy must be a component of justice.”
The judge added that Arata’s sentence — which includes a $15,000 fine and 300 hours of community service — “protects the Constitution” and “promotes respect for the law.”
As he has before in the case, Feldman criticized the administration of the Louisiana Motion Picture Incentive Act, a program that was in its infancy when Arata and two business partners set out to renovate a dilapidated mansion into a post-production film studio at the edge of the French Quarter.
Arata was later accused of conspiring with Hollywood producer Peter Hoffman and his wife, Susan, to bilk the state out of more than $1 million in tax credits by misleading auditors and state officials about how much they spent renovating the three-story mansion.
“This case presents a classic example of bewilderment resulting from confusion caused by inconsistent applications of the law as to what might be a criminal hoax,” Feldman said, adding that the state regulations surrounding the film tax program lacked “coherence and leadership.”
The Advocate covered the appeal of the conviction
A movie producer and a lawyer who were spared prison time in a fraud case involving Louisiana's "Hollywood South" film tax credit program faced renewed legal woes Thursday when a federal appeals court reinstated some of the convictions a judge had thrown out.
Producer Peter Hoffman and attorney Michael Arata were granted probation last year after U.S. District Judge Martin Feldman threw out some of their 2015 jury convictions.
But a three-judge panel of the 5th U.S. Circuit Court of Appeals reinstated most of the convictions Thursday and also ordered re-sentencing.
The two men were convicted in a scheme involving fraudulent documents to get more than $1 million in tax credits for turning a dilapidated New Orleans mansion into a film production facility.
The New York Appellate Division for the First Judicial Department has rejected a referee's proposed public censure of an attorney in favor of suspension
The petition alleges that respondent made offensive remarks to and about three attorneys from Brooklyn Legal Services that were his adversaries in landlord-tenant matters. Respondent admitted some of the factual allegations but denied all the charges. Respondent's law practice largely consisted of representing clients in landlord-tenant court; he was an active practitioner in Brooklyn's Housing Court and frequently litigated matters against tenants represented by attorneys from Brooklyn Legal Services.
Charge one alleges that respondent violated rule 3.3(f)(2) by engaging in undignified or discourteous conduct while appearing before a tribunal by using gender pejorative language, specifically, on January 13, 2017 respondent repeatedly referred to opposing counsel as a "bitch" in front of her clients and other witnesses in the hallway adjoining a courtroom at the Brooklyn Housing Court. Charge two relies on the same facts as charge one and states that respondent violated rule 8.4(h) by engaging in conduct that adversely reflects on his fitness as a lawyer.
The complainant testified that on January 13, 2017, she was at Brooklyn Housing Court representing tenants in a case in which respondent represented the landlord. She was in a packed hallway of the courthouse speaking with her clients and was not ready to have her case called because she needed to consult with her supervisor. Respondent, the complainant's adversary, insisted that he was going to have the case called. The complainant stated she sternly told respondent not to do it, and he said something to the effect of "Well excuse me, Ms. Boss-ma'am" and "You don't have to be a bitch about it." The complainant testified she was shocked and appalled by the use of those terms and asked respondent to repeat what was said, and he repeated "I said you are a bitch," and then called her a "bitch" loudly a few more times in front of the complainant's clients and colleagues. The complainant estimated that respondent called her a "bitch" five times. She testified that she pointed a finger at respondent but did not touch him. The Committee's witnesses confirmed her version of events, including that respondent repeated the word "bitch" when the complainant asked him what he had called her.
The complainant stated that respondent never apologized to her and that "I felt like the comments were racist like the comments were sexist, and I feel like if I was a white man, no matter what my years of experience in this practice, he would not have said that. And so, I think that my position as a young black woman enabled him to — made him feel comfortable talking down to me and in treating me like I am not too — a licensed attorney practicing in this state."
In addition, she testified that there was one occasion when she witnessed respondent refer to "her former supervisor as "Che" or "Che Guevara" outside of his presence, which shocked her.
Respondent attempted to justify his actions. He stated that he only used the word "bitch" once, which is contradicted by the testimony of the witnesses who observed the incident. He implied that his behavior was warranted because the complainant became physically aggressive and poked him on the forehead with her finger about three or four times. None of the witnesses, including all six of respondent's witnesses, observed the complainant poking or making any physical contact with respondent. He had also initially stated that the complainant slapped him, but subsequently admitted that she did not, and withdrew the allegation.
The court noted a prior admonition for discourteous conduct.
In this matter, respondent repeatedly denied the scope of his wrongdoing and attempted to justify his actions. His claim that he only stated the complainant "acted like a bitch", instead of calling her one, is mere semantics. His claim that the use of the gender pejorative language was the result of the "atmosphere" in the Brooklyn Housing Court neither justifies nor excuses his actions. Respondent initially misrepresented to the Committee and the Referee that the complainant slapped or poked him, implying that her actions somehow justified his use of pejorative language.
Respondent never apologized directly to the complainant. His generalized public apology made at a May 2017 meeting of the Brooklyn Landlord and Tenant Bar -where a list compiled by female attorneys from Brooklyn Legal Services was circulated, containing sixty (60) specific references of inappropriate behavior by male attorneys, and which did not include the name of the complainant- is not an apology and is not proof of genuine remorse. Furthermore, the complainant's supervisor testified that respondent made an insincere apology to him immediately after the incident, which is further evidence of a lack of genuine remorse. Finally, respondent received an Admonition for prior similar behavior.
respondent is suspended from the practice of law for a period of three months, and until further order of this Court, and respondent is directed to engage in counseling for a period of one year, as determined and monitored by the New York City Bar Association's Lawyer Assistance Program, which must include training in anger management and on diversity, inclusion, and elimination of bias, in addition to that mandated by New York State CLE requirements.
Tuesday, December 29, 2020
I have mentioned previously that I am a big fan of the web page of the Vermont disciplinary system, which provides easy access to all pleadings in bar cases.
An interesting pending matter involves a petition charging misconduct filed by a Special Disciplinary Counsel ("SPC") against an attorney who is also an ordained rabbi.
On or about March 18, 2019, Stuart Jay Robinson, a licensed Vermont attorney, presented, participated in presenting, or threatened to present criminal charges in order to obtain an advantage in a civil matter; to wit: in a letter threatening civil litigation against Verne Backus, MD, and sent to Dr. Backus, the Respondent threated to present criminal charges, in violation of Vermont Rule of Professional Conduct 4.5. (“A lawyer shall not present, participate in presenting, or threaten to present criminal charges in order to obtain an advantage in a civil matter.”).
The client had filed a civil suit for an accident involving a state trooper; Dr. Backus performed the IME for the defendant State of Vermont.
The jury found the state trooper liable but awarded no damages.
Respondent then filed a suit alleging that the doctor had committed perjury.
According to the allegations, the Vermont Supreme Court rejected the claims in the underlying litigation against the State.
The civil action against the doctor was dismissed.
The correspondence between SDC and Respondent is somewhat noteworthy and is described at length in the petition.
The SPC generally uses the salutation Attorney.
Respondent in a September 23, 2019 reply signs off
L’Shanah Tova, Happy New Year 5780.
Rabbi Stuart Jay Robinson, Esq
This seems to occur throughout the correspondence between them.
When Respondent noted that the Sukkot celebration had delayed his response, the SPC's rejoinder included this
I’ve been aware of when the Jewish Holidays fall since completing my first year of Hebrew School at the age of 5.
The Respondent is alleged to have delayed the proceedings and refused to make his client available for an interview with the bar prosecutor.
Respondent’s Counsel: Self
Special Disciplinary Counsel: Adrian, Edward
Docket Number: PRB Docket No. 2020-007
Status: On December 11, 2020 a Petition of Misconduct was filed. Answer is due on December 31, 2020. Hearing Panel to be assigned.
Friday, December 25, 2020
The web page of the District of Columbia Board on Professional Responsibility has been improved to add hearing committee proceedings to its video library.
A hearing committee matter held on December 23 raises a significant issue of discipline by consent.
The procedure of a consent hearing is itself interesting, roughly following the inquiry required for entry of a criminal guilty plea.
The prosecutor offers the stipulated facts and the attorney is asked under oath to admit the facts and alleged violations.
In In re Agwumezie, the respondent and Disciplinary Counsel have agreed to a three-year suspension with fitness for reckless misappropriation (among other violations) that would otherwise merit disbarment.
Thus, the public gets the protection of a prompt disposition that removes the attorney for a significant period and requires proof of fitness to resume practice.
Respondent gets to avoid disbarment ( which is in effect a five-year suspension with fitness) and is afforded a somewhat earlier opportunity to prove himself worthy of reinstatement.
Even if the parties had stipulated to these facts, without the consent procedure this process would have taken at least three years and likely much more.
And the Respondent would be free to practice for most of that time.
The hearing committee notes that the Court of Appeals recently remanded a similar proposed consent disposition to the Board for its input.
Deputy Disciplinary Counsel here explains the merits of resolving the matter as proposed.
She correctly notes that any misappropriation charge is fraught with uncertainty as to outcome but guaranteed to take years.
As proof of that assertion, see here.
As a strong proponent of consent discipline, I have my fingers crossed that the Hearing Committee and Court will adopt this negotiated disposition. (Mike Frisch)
Thursday, December 24, 2020
The Nevada Supreme Court affirmed the imposition of a public admonishment of a hearing master
During juvenile court proceedings, Hearing Master Henry questioned a minor about her cell phone. When the minor's attorney, Aaron Grigsby, refused to answer the question on his client's behalf and interfered when Hearing Master Henry attempted to question the juvenile directly, Hearing Master Henry shouted "enough" at Grigsby several times. Hearing Master Henry also threatened to call the attorney who assigned Grigsby's conflict cases based on his continued objections to Hearing Master Henry's questions and his request to transfer the case to another judge. Hearing Master Henry then increased her probation recommendation regarding the minor from six months to nine months because the minor would not answer her question.
The court affirmed the misconduct findings and evidentiary rulings below.
The case is In The Matter of the Honorable Jennifer Henry. (Mike Frisch)
The Oregon Supreme Court has conditionally admitted a bar applicant, rejecting the adverse recommendation of a majority of its Board of Bar Examiners.
The court described a pattern of misconduct that began in 2009 with a woman he had arrested on a warrant.
A police investigation began in 2012.
He was not candid in response and resigned.
The board had relied on the J.F. allegations.
The applicant sought therapy after leaving the police department revealing
Admission is subject to a number of conditions mental health treatment with 48 months of monitoring including
Oregon Live reported on the application. (Mike Frisch)
The New York Appellate Division for the Third Judicial Department has imposed reciprocal discipline based on a Florida disbarment
In July 2020, respondent was disbarred from the practice of law by the Supreme Court of Florida based upon sustained charges that she had, among other things, engaged in threatening behavior and used online social media to make disparaging remarks about a member of the Judiciary and to engage in an extensive and unjustified public attack against two attorneys.
As to misconduct
As for the proof supporting the sustained misconduct, respondent does not deny that she was the author of the inappropriate social media and other communications directed at her perceived adversaries; in fact, her submissions to this Court clearly set forth her apparent entrenched position that her actions were justified and that she is somehow exempt from the disciplinary rules that all licensed attorneys are required to follow. Significantly, the First Amendment does not grant an attorney the right in this state to advance unsubstantiated and baseless criticisms of the Judiciary.
The court concluded that disbarment was the appropriate reciprocal sanction.
The Miami Herald reported on the Florida proceedings when the attorney was suspended on an emergency basis
In an article she wrote for her law firm’s website titled “When You Don’t Let Female Lawyers Talk, We’ll Only Get Louder,” Krapacs, 33, described both Williams and Kaplan as an “old white male” and, of the April 12 hearing, “I realized that I was going to lose that hearing regardless of how strong my argument was. The bias in that hearing was so subtle, I didn’t fully detect it in the moment. But, after listening to the recording, it was clear as day.”
The Bar found issue with calling the 56-year-old Williams and the 60-year-old Kaplan “old white males,” as well as the accusation of bias. The Bar quotes a hearing transcript as evidence Krapacs’ claims of mistreatment and bias are spurious. Krapacs’ response “denies that the transcript is accurate.”
The ABA Journal also covered the Florida case.
Krapacs called Williams “a moron and a sexist and a bully” and said Bacchus was “a backstabbing traitor” for representing “misogynist pigs, misogynist bullies” like Williams.
“She’s a door lawyer,” Krapacs said. “Which is basically a lawyer who takes anything that walks in the door in any area of law.” In later posts about Bacchus, Krapacs used hashtags that included #sellout and #womanhater.
Bacchus sought the injunction against stalking after Krapacs posted a Home Alone meme showing a shotgun pointed at a perpetrator. Krapacs added the caption “when opposing counsel tries to use the same exact trick you saw in your last case.”
The origins of the controversy are described in this opinion of the Florida Fourth District Court of Appeal overturning a cyberstalking injunction granted against the attorney
This case initially sprang from Krapacs’ own petition for an injunction against her former boyfriend due to domestic violence concerns. Attorney Russel J. Williams represented the former boyfriend before the trial court while Krapacs, also an attorney, represented herself. After her petition was denied, Krapacs wrote an article stating that Williams lied to the judge on the record during these proceedings. As a result, Williams hired attorney Bacchus to sue Krapacs for defamation. Krapacs responded by hiring an attorney and writing several social media posts disparaging Bacchus with personal insults for representing Williams in the defamation suit against her.
...Krapacs’ actions do not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.
Disbarment seems pretty severe for this, in my opinion. (Mike Frisch)
A decision of the Maryland Court of Appeals suggests a departure from the court's dishonesty equals disbarment precedent
Respondent fraudulently submitted the will to further her client’s final testamentary wishes, not for personal enrichment. Respondent received life insurance proceeds from her client, but these proceeds passed outside of the probate. Respondent safeguarded these assets in a trust account and spent the balance in furtherance of her client’s final testamentary wishes. Respondent had no legal obligation to allocate these funds towards her client’s estate. These good faith efforts, combined with a distinguished career, an absence of prior discipline, and a showing of high moral character, reduced the severity of discipline from disbarment to indefinite suspension with a right to reapply in six months.
The attorney was admitted in 1985.
The matter involved a series of wills she drafted for her longtime client, who was unusually proactive in changing the disposition of his estate.
After the client died
In March of 2018, the Respondent submitted the 2018 will, with her signature affixed as a witness, for probate to the Register of Wills. The Respondent admitted that she knowingly and falsely stated in her filing that she had been a witness to the signing of the will.
She acted as the estate personal representative and self-reported the misconduct.
As a result of the fraudulent submission of the will to probate, the Respondent appointed by the court as The Personal Representative.
The hearing judge found significant mitigation
The hearing judge identified no prior disciplinary history in Respondent’s thirty-five years of practice. The hearing judge found no personal benefit from signing as a false witness. The hearing judge also found no selfish or dishonest motive because Respondent pursued this course of action to further Mr. Wilson’s final wishes and stored the insurance proceeds in an attorney trust account instead of a personal account.
Respondent also took immediate steps to correct her misdeeds.
The court rejected a host of exceptions of Bar Counsel, in particular with respect to alleged trust account violations.
As to the alleged misconduct in the client making the attorney a beneficiary, the court granted the attorney's exception
Respondent excepts to the hearing judge’s conclusion of law that Respondent violated Md. Rule 19-301.8(c) because according to Petitioner’s own admission, Respondent never requested, encouraged, or solicited Mr. Wilson to become the beneficiary of his life insurance policy. On the contrary, Mr. Wilson named Respondent without her knowledge, and when Respondent learned about it eighteen months later, Mr. Wilson refused to change the designation. Respondent attempted to mitigate any conflicts by drafting language in the will directing her use of funds that otherwise might have passed without restriction.
The attorney contended that she fit into the "close familial relationship" exception
Respondent sought to memorialize her friend’s final wishes in a will that reduced the amount she would have otherwise received. We sustain Respondent’s exception. Respondent received the life insurance proceeds by operation of Mr. Wilson’s life insurance contract, not through the will. Maryland Rule 19-301.8(c) imposes a non-waivable obligation on attorneys to avoid drafting testamentary instruments that bestow a substantial gift to themselves. Respondent drafted testamentary language that allocated the life insurance proceeds towards Mr. Wilson’s estate, but she was under no legal obligation to do so.
The self-report and cooperation mitigated sanction along with "sterling" character testimony.
Bar Counsel had sought disbarment but failed to persuade the court that such a draconian sanction was appropriate
Respondent seriously breached her professional obligations by submitting a will with a knowingly false witness attestation. This misconduct occurred because of Respondent’s misguided intent to further the last wishes of her client. She acted without selfish motive and took action to try and mitigate the potential conflict of interest and protect the interests of Mr. Wilson’s estate and legatees. Her conduct comes after a long respected career in the legal profession and the circumstances suggest an unlikely repetition of the misconduct. Respondent’s conduct warrants an indefinite suspension, with the right to apply for reinstatement no sooner than six months after entry of this judgment.
Judge Watts concurred
I concur with the sanction imposed by the Majority, namely, an indefinite suspension with the right to apply for reinstatement no sooner than six months, and I join the majority opinion insofar as to the sanction imposed. From my perspective, this case does not involve the type of intentional dishonesty that this Court’s holding in Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 418-19, 773 A.2d 463, 488
(2001), was intended to prevent. I am convinced that in signing the will as a witness after Keith Wilson’s death, Mary Theresa Keating, Respondent, intended to give effect to what she believed were her client’s last wishes and was not intentionally seeking personal benefit of any sort. For this reason, in my view, although certainly better judgment should have prevailed, the type of intentional dishonesty addressed by Vanderlinde is not implicated and a departure from the sanction normally required for such dishonesty, i.e., disbarment, is warranted
Oral argument linked here. (Mike Frisch)
A Staff Report from the web page of the Ohio Supreme Court
The Ohio Board of Professional Conduct has issued an advisory opinion addressing the use of registered service marks by law firms.
The Rules of Professional Conduct permit the use of a registered service mark by Ohio lawyers and law firms, provided the service mark is not false, misleading, or unverifiable, concludes Advisory Opinion 2020-12.
A service mark identifies a business that provides a service or services compared with a trademark, which identifies the source of goods.
The board specifically found that the use of the word “pro” or “pros” in a service mark is not permissible.
A service mark may communicate a limitation or concentration in a particular field of law, the opinion states. The board also advises lawyers that the use of a service mark must be accompanied by the formal name of a law firm and cannot be used in lieu of a law firm name.
Wednesday, December 23, 2020
An incident in a Manhattan delicatessen has drawn an agreed public censure from the New York Appellate Division for the First Judicial Department.
On May 15, 2018, respondent unleashed a verbal tirade in a Manhattan delicatessen that was so offensive as to rise to the level of professional misconduct.
Respondent went to an establishment in Manhattan known as "Fresh Kitchen" to order a sandwich. Respondent heard a counter worker, Adrian Luna, conversing in Spanish with patron Santo Castillo. Respondent loudly confronted them for not speaking in English which included telling Castillo to "get the [expletive omitted] out of my country." He also asked Castillo, "Why don't you speak English?" "What do you have against my country?" "What's wrong with you?" and "Why don't you like English?" Respondent also told Castillo to "Get a [expletive omitted] dictionary and assimilate."
Upon turning his attention to Luna, respondent said, "You shouldn't be talking Spanish. That's improper. I'll tell your boss and I'll call ICE [Immigration and Customs Enforcement] and have each one of you [expletive omitted] deported." Respondent also addressed Luna as "ICE" when demanding to know the whereabouts of the sandwich he ordered.
Upon respondent's reiterating to Luna that he "shouldn't be talking to customers that way," a patron, Emily Serrano, intervened and told respondent that he "shouldn't be talking to a human being  that way either, you shouldn't." In response, respondent told Serrano to "assimilate." Serrano replied by stating "assimilate what?" Respondent then retorted, "You don't know what it means? Get a dictionary." Serrano told respondent that he was "very ignorant." The exchange with Serrano deteriorated further [*2]with respondent telling her that he was brighter, better looking, and slimmer than she was. He also suggested more than once that Serrano should refrain from eating so she could "lose some [expletive omitted] weight," and he accused Serrano of threatening him and told her that her husband (whom Serrano referenced during their exchange) should speak English.
Upon returning his attention to Luna, respondent stated, "My complaint is that the staff here should not be speaking Spanish to customers." Luna responded that this was respondent's "personal opinion" at which point the restaurant's manager, Stan Kong Hyunsik, presented himself and inquired as to the problem. Serrano then began recording respondent with her smart phone. Respondent told Hyunsik, "My problem is that your clients and staff are speaking Spanish to customers when they should be speaking English." Respondent then identified at least three people who had spoken Spanish, he stated that he wanted his complaint forwarded to the CEO, and he asserted that he would follow it up. In addition, during the exchange with Hyunsik, respondent guessed that the Fresh Kitchen's workers were "not documented" and his "next call [would be] to ICE to have them kicked out of my country." Additionally, respondent stated, "They have tire balls to come here and live off of my money. I pay for their welfare. I pay for their ability to be here. The least they could do is speak English . And if you intend on running a place in Midtown Manhattan your staff should be speaking English not Spanish."
Someone, possibly Serrano, began to comment on "people like" respondent and the state of "our nation." Respondent interrupted and stated, "Honey, I'm calling ICE." Respondent again suggested to Serrano that she "take a break from the food." In response, Serrano suggested that respondent get hit by a car and used an expletive to refer to him. Serrano also stated that she was going to call the police and respondent replied, "Go ahead, sweetheart." Respondent then stated, "You're gonna let her call the cops on me for voicing my opinion; I'm not subsidizing your establishment."
A video recording of the incident was posted to the internet and widespread dissemination ensued, including coverage by television and print media. Respondent's identity and profession became known and resulted in adverse consequences for him that included expulsion by his commercial landlord, the resignation of his associate, public denunciation by some of his clients, and a crowd-funded Mariachi band playing outside his apartment house.
Approximately one week after the incident at issue, respondent posted an online apology stating —
"[t]o the people I insulted, I apologize. Seeing myself online opened my eyes — the manner in which I expressed myself is unacceptable and is not the person I am. I see my words and actions hurt people, and for that I am deeply sorry. While people should be able to express themselves freely, they should do so calmly [*3]and respectfully. What the video did not convey is the real me. I am not a racist. One of the reasons I moved to New York is precisely because of the remarkable diversity offered in this wonderful city. I love this country and this city, in part because of immigrants and the diversity of cultures immigrants bring to this country. Again, my sincerest apologies to anyone and everyone I hurt. Thank you."
While respondent conditionally admits the above facts, he asserts that he does not have first-hand knowledge of certain of the facts adduced by the AGC but, "for purposes of this [joint] motion [he] accept[s] the [AGC's] representations."
The court granted Respondent's motion to seal two video recordings that he had provided to bar authorities. (Mike Frisch)
From the headnotes to a decision of the Maryland Court of Appeals
The Court of Appeals held that rap lyric evidence has heightened probative value, and is admissible as substantive evidence of a defendant’s guilt, when the lyrics bear a close nexus to the details of an alleged crime. When a defendant’s rap lyrics bear a close nexus to the details of an alleged crime, those lyrics exceed the low relevance threshold of Maryland Rule 5-401, and are therefore admissible under Maryland Rule 5-402, because they make it more probable that the defendant committed the alleged crime. Petitioner’s rap lyrics had a close nexus to details of an alleged murder because the lyrics had a close factual nexus to the details of the murder, had a close temporal nexus to the murder, and recited “stop snitching” references that were published on social media to potentially intimidate witnesses to the murder. As a result of this close nexus, Petitioner’s rap lyrics tended to prove his involvement in the murder and served as substantive evidence of his guilt.
This case is about the admissibility of jailhouse rap lyrics composed by Lawrence Montague as substantive evidence that he shot and killed George Forrester. In the early morning hours of January 16, 2017, Mr. Forrester was shot and killed by a drug dealer after he attempted to purchase cocaine using a counterfeit $100 bill. Mr. Forrester’s cousin, Tracy Tasker, accompanied him to purchase the drugs and, after witnessing the shooting, fled in Mr. Forrester’s vehicle. Ms. Tasker was later arrested for unrelated warrants and identified Mr. Montague as the shooter. Mr. Montague was later indicted for Mr. Forrester’s murder.
Three weeks before trial, while incarcerated in the Anne Arundel County Detention Center, Mr. Montague made a telephone call to an unidentified male using another inmate’s personal identification number passcode. Mr. Montague requested that the unidentified male record his rap, which included lyrics that matched the details of Mr. Forrester’s murder. The rap lyrics also made references to shooting “snitches” and the recording was subsequently uploaded on Instagram. The State sought to introduce the recorded telephone call containing the rap lyrics as substantive evidence of Mr. Montague’s guilt, and Mr. Montague moved in limine to exclude the recording. The circuit court admitted the raplyrics and, on appeal, the Court of Special Appeals agreed that the lyrics are admissible under Maryland Rules 5-401, 5-402, and 5-403.
Tuesday, December 22, 2020
A 25-month suspension has been imposed by the Colorado Presiding Disciplinary Judge based on a conditional admission of misconduct
In June 2020, Noffsinger, who had worked as a prosecutor until 2016, was sentenced to two years of criminal probation, with conditions, for an act of domestic violence. A jury found him guilty of extortion, a class-four felony, and harassment, a class-three misdemeanor.
Noffsinger’s conviction arose from a March 2019 Facebook messaging conversation that he initiated with a former romantic partner, who was subject to a criminal protection order barring her from contact with him. Noffsinger messaged the victim to express his love for her in anticipation of his undergoing surgery the following day. She inquired whether he was trying to use something against her in court, and he replied, “Not if you can be kind.” When she asked him to stop contacting her, Noffsinger wrote, “Then we will do it that way. Enjoy your weekend in jail and your additional charge unless you say otherwise in the next 10 minutes.” He also wrote, “2 minutes then I have no choice but to send your criminal ass to jail again,” and “Oh babe . . . please don’t make me send you to jail again.” Noffsinger then called the police and tried to persuade them to arrest the victim.
In a separate incident, Noffsinger traveled to Tennessee with a different romantic partner. Bystanders summoned the police after they heard a woman screaming “get off me” and “someone help me!” Noffsinger was not cooperative with the officers and stepped between the officers and the victim, who declined to answer the officers’ questions. The victim seemed frightened, was crying, and appeared to have bruising on her arms and shoulders and a swollen, bleeding bottom lip. There was also blood on the bed sheets. Though Noffsinger was arrested, the victim did not wish to prosecute and charges were dismissed.
Finally, in a domestic relations client matter, Noffsinger did not reasonably communicate with his client about a case management order setting forth upcoming dates, and he did not provide the client a later court order clarifying an earlier ruling. Nor did he take reasonable steps to safeguard the client’s interests pertaining to those orders. Noffsinger was immediately suspended in July 2020. Though he sent the client a letter terminating the relationship, he did not withdraw as counsel of record.
The United States Court of Appeals for the Fourth Circuit has affirmed the denial of a motion for new trial and an evidentiary hearing sought by a former chief justice of the West Virginia Supreme Court of Appeals
After the former Chief Justice of the Supreme Court of Appeals of West Virginia, Allen H. Loughry II, was convicted of mail fraud and wire fraud for the misuse of public assets, he filed a motion challenging the fairness of his trial on the grounds that a juror — referred to by the district court and the parties as Juror A — allegedly engaged in misconduct and was biased. He requested a new trial or at least a hearing on his motion.
The district court denied Loughry’s motion, concluding that the evidence Loughry presented was insufficient to sustain his claims or even to justify a hearing.
The court thereafter sentenced Loughry to 24 months’ imprisonment, imposed a $10,000 fine, and ordered restitution.
From the district court’s judgment dated February 25, 2019, Loughry filed this appeal, alleging only that the district court abused its discretion in denying his request for an evidentiary hearing to investigate Juror A’s potential misconduct and bias.
For the reasons that follow, we affirm.
The criminal charges
In October 2017, the news media in Charleston, West Virginia, began investigating and reporting about lavish spending of public funds by justices of the West Virginia Supreme Court of Appeals for renovation and refurbishing of their offices, and shortly thereafter a federal investigation ensued. The investigation led to evidence that Loughry removed a historical desk from the court to his home; that he improperly used state vehicles and gas credit cards for personal use; and that he obstructed justice during the course of the investigation. The historical desk, which became prominent in the news coverage, was one that was selected for use in the courthouse in the 1920s by Cass Gilbert, a prominent architect who designed the West Virginia State Capitol, the United States Supreme Court building, the Woolworth building in New York, and other well-known buildings. The desk was thus referred to as the “Cass Gilbert desk.”
In June 2018, a grand jury returned a 25-count indictment charging Loughry with mail fraud, wire fraud, and related crimes. During the same period, the West Virginia Judicial Investigations Commission filed a complaint against Loughry, alleging numerous violations of the state Judicial Code of Conduct, and the Judiciary Committee of the West Virginia House of Delegates began impeachment proceedings against Loughry, as well as three other sitting justices of the West Virginia Supreme Court
The alleged juror misconduct involved Twitter "likes" and retweets
The district court also rejected Loughry’s separate claim that Juror A engaged in misconduct by using Twitter during trial. The court explained that it had never admonished the jurors to make no use of social media during trial. “Rather, the jury was informed repeatedly that the jurors were not to use social media to learn or discuss anything about ‘this case,’” and Juror A’s Twitter activity does not show that she read tweets about “this case.” (Emphasis added).
The court concluded that “[w]ithout even a threshold showing of juror misconduct,” it would not “expend its resources to allow the defendant to pry into a juror’s pretrial conduct and fish for evidence of bias.”
At bottom, we conclude that the district court did not abuse its discretion in denying Loughry’s motion for an evidentiary hearing under Remmer because Loughry failed to make a credible allegation that an improper contact occurred.
The court also affirmed the finding that the juror was not dishonest in voir dire responses.
The long and short of this case is that evidence indicates that Juror A had some pretrial exposure to news of the investigations of the West Virginia Supreme Court justices and participated modestly in the public dialogue via a few “likes” and retweets on Twitter. But evidence further indicates that she engaged in no prohibited contacts or communications during trial. As we have noted, social media does heighten the risk that jurors will be exposed to external information about the case, but here Loughry has failed to make a threshold showing that that risk was realized. In this case, all the evidence points to a fair trial. The jury, including Juror A, assured the court that it was “capable and willing to decide the case on the evidence before it.” McDonough, 464 U.S. at 554 (quoting Phillips, 455 U.S. at 217). And its verdict reflects just that, as the jury acquitted Loughry on several charges.
At bottom, we conclude that the district court, which carefully scrutinized the evidence advanced by Loughry in support of his motion, did not abuse its discretion in denying Loughry’s request for an evidentiary hearing.
Circuit Judge Diaz dissented
The district court—and my friends in the majority—fault Loughry for failing to prove with certainty that Juror A saw the reporters’ tweets. But again, there’s simply no way Loughry could do so without being allowed, at minimum, to question Juror A about her Twitter use during the trial...
My colleagues also express concern that granting Loughry’s request for a Remmer hearing would open the floodgates to a hearing any time a defendant presents evidence that a juror used social media during a trial. Not so. The mere fact that Juror A used Twitter during the trial isn’t what warrants a hearing here. Rather, Loughry is entitled to hearing because of Juror A’s past Twitter activity, coupled with who she follows (reporters) and the fact that those reporters used Twitter repeatedly to report and comment on Loughry’s trial.
A public censure has been imposed on a Court of Appeals judge by the North Carolina Supreme Court.
The judge had hired a longtime and close personal friend to supervise his law clerks, resulting in a toxic work environment
Mr. Tuite also regularly used profanity during the workday, belittled others and used fear and intimidation while interacting with and supervising the law clerks. Mr. Tuite frequently used the word “fuck” and referred to female law clerks on more than one occasion as “bitch” or “bitching.”
The judge knew about and implicitly condoned the behavior as well as Tuite's dishonesty and lack of diligence
After learning of Mr. Tuite’s dishonesty and lack of diligence on multiple occasions, Respondent failed to address these issues directly with Mr. Tuite...
during a cold workday while outside with Ms. Suber, Mr. Tuite stated that he would like to see her in a “wife beater” tank top and shorts on a cold day. Mr. Tuite, on or about the following day, asked Ms. Suber to come into Respondent’s office (when Respondent was away from the office), kept the lights off and sat down beside her and told her that he “was married but not blind” or similar words in an apparent attempt to apologize for the inappropriate sexual remark from the previous day. Ms. Suber was offended and upset by the inappropriate and suggestive sexual remarks and non-apology when they occurred, felt unsafe as a result and feared it would occur again.
On another occasion, during the summer of 2017, while reviewing a female law clerk’s application, Mr. Tuite intentionally and in the presence of Respondent, Ms. Suber and Ms. Scruggs, repeated derogatory and belittling online comments about the female applicant comparing her breasts to “fun bags.”
Several other workplace transgressions are described by the court.
In response to the complaint
Respondent downplayed, minimized and mischaracterized Mr. Tuite’s workplace misconduct in his December 3, 2017 email to Ms. Jabbar. Respondent did so because his conduct and judgment were influenced by his close personal friendship with and loyalty towards Mr. Tuite...
Notwithstanding Respondent’s knowledge of Mr. Tuite’s extensive workplace misconduct, from the period from December 1, 2017 until January 5, 2018, Respondent regularly assured his close personal friend Mr. Tuite and indicated to others that his employment at the Court of Appeals would continue. On December 1, 2017 and prior to ascertaining if Mr. Tuite had made any sexually inappropriate comments to Ms. Suber, Respondent assured his friend Mr. Tuite that his job was secure. Mr. Tuite again texted Respondent on or about December 4, 2017 and stated to Respondent that he was “glad you have my back.” On Tuesday, December 5, 2015, Mr. Tuite texted Respondent, to whom he referred to as “Dude,” and expressed concern for his job security. Respondent texted back and again reassured his close friend: “You are not losing your job. This sucks tremendously for everyone, especially given what I expect to be an easy resolution when the smoke clears.” On December 11, 2017, Respondent contacted Ms. Jabbar and informed her that he wanted Mr. Tuite to return to the office, to which Ms. Jabbar replied that Mr. Tuite “should not return to the office for any reason” until the investigation is complete. On January 4, 2018, Respondent also advised his chambers that he was planning for Mr. Tuite’s return to work and intended to move Mr. Tuite’s desk from the EA area into Ms. Scruggs’ private law clerk office in the hallway.
The court rejected the judge's sufficiency of evidence contentions as well as his suggestion that he was being sanctioned for the conduct of Tuite
Respondent’s vindictive behavior toward Mr. Cooper immediately before and after his resignation violates these canons. Respondent was neither courteous nor dignified, nor did he require courteous or dignified behavior from his staff. Similarly, respondent’s failure to address Mr. Tuite’s inappropriate comments about a female applicant, angry outbursts, and frequent use of profanity against law clerks in the chambers amount to violations of Canons 3A(3) and 3B(2).
The Court recognizes that respondent was not immediately made aware of the entirety of Mr. Tuite’s misconduct in chambers. The incidents for which respondent was present, however, were sufficient to warrant corrective action with regard to Mr. Tuite. Instead, respondent continued to turn a blind eye. This shortcoming is not, as respondent contends, simply a matter of managerial style. Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward respondent’s law clerks and the impact on the law clerks of such unprofessional behavior.
Progressive Pulse reported on the decision. (Mike Frisch)
The North Carolina Supreme Court has publicly reprimanded a judge who held a probable cause hearing in the absence of counsel, who was late for a scheduled 2 pm hearing.
The judge held the hearing at the end of his calendar at about 2:50
Unlike the trial court in Simpkins, respondent rushed to hold a hearing without counsel present, he failed to explore other options regarding counsel prior to commencing the proceeding, and he made comments about “making a point” after the proceeding. This conduct demonstrated a disregard for the defendant’s statutory and constitutional rights, and that disregard undermines public faith and confidence in the judiciary.
The court adopted the recommendation of the Judicial Standards Commission.
Justice Earls dissented
Because it is not clear to me that respondent’s conduct, while misguided, was so egregious as to be prejudicial to the administration of justice, I would have remanded to the Judicial Standards Commission for the issuance of a private letter of caution rather than issue a public reprimand from this Court
Justices Newby and Davis joined the dissent. (Mike Frisch)
Monday, December 21, 2020
In a lengthy opinion, the Maryland Court of Appeals disbarred an attorney for, among other things
threatened to “blow up” [the] building in which physical therapy facility that had filed complaint against him was located
The court described the misconduct
This attorney discipline proceeding involves an attorney who engaged in what can best be described as a one-man misconduct wave over the course of several years in connection with numerous client matters. The attorney, chief among various forms of serious misconduct, failed to competently and diligently represent his clients’ interests, failed to sufficiently and timely communicate with his clients, failed to refund unearned legal fees to clients, misappropriated funds for his own personal use, fraudulently altered checks, made misrepresentations or outright lied to clients and third parties, and threatened to “blow up” a building in which a physical therapy facility, whose owner had filed a complaint on behalf of the facility against him, was located.
In this case, Darryl Russel Armstrong, Respondent, a member of the Bar of Maryland, represented eight clients in various civil and criminal matters and an immigration matter, and in addition represented several other clients who were injured in motor vehicle accidents and sought medical treatment at a physical therapy facility. Six clients, two clients’ mothers, and the owner of the physical therapy facility filed complaints against Armstrong with Bar Counsel.
In addition to the numerous serious client-related violations
Armstrong also violated MARPC 8.4(d) with respect to CJB when he visited the CJB office and twice threatened to “blow up” the building before he would let CJB “take [his] license.” Armstrong’s threats led CJB’s employees to report the incidents to the Baltimore Police Department and a police report was prepared.