Tuesday, June 23, 2020

Judging A Judge

In a matter involving allegations against a sitting judge, the Oklahoma Supreme Court ordered that the judge be publicly reprimanded, publicly admonished, deferred final discipline and probation

the Petition is hereby adopted and the Chief Justice is authorized to execute and to file the Petition in the Court on the Judiciary. 

The petition is linked here. 

The court's order in part

 Judge Coleman's admitted and unexcused violations of the Ethics Commission rules governing campaign financing and reporting are another matter. These rules protect the integrity of the election process. Compliance with these rules is a duty that every candidate, especially candidates for judicial office, owes to the people and electorate of this state. While Judge Coleman's efforts to rectify her delinquent reports is commendable, they do not relieve her of accountability and discipline for this serious violation of the Code of Judicial Conduct. In order to deter Judge Coleman and future candidates for judicial office from failing to comply with Ethics Commission campaign rules, we hereby Reprimand Judge Coleman for this violation and will make this Reprimand public by publishing this opinion.

 Judge Coleman's neglect to pay over sixty parking tickets, and similar neglect to attend to various county, state and federal tax obligations for several years, reflect adversely upon her judicial service, because such neglect raises a reasonable concern that she may likewise neglect her judicial duties. While her belated payment of the parking tickets and recent efforts to rectify her tax delinquencies demonstrate a sense of responsibility to attend to important matters, this Court believes an Admonishment is warranted to impress upon Judge Coleman the imperative of timely addressing all personal legal obligations that arise during or reflect upon her judicial service. As in the case of the Reprimand for failure to timely file Ethics Commission reports, this Admonishment is made public by publication of this order.

The last issue this Court must address is the pending felony charge that arose from Judge Coleman's neglect of her state tax obligations. This Court finds that final discipline should be deferred until this charge is resolved. In the meantime, Judge Coleman is on Probation with conditions (1) to report monthly to the Council on Judicial Complaints concerning the status of the various tax delinquencies, (2) to complete at least five mentoring sessions pending final discipline with Retired Justice Daniel Boudreau, Retired Judge April Sellers White, or another experienced judge and (3) to comply with all local, state and federal laws, and the Code of Judicial Conduct. Failure to comply with these conditions for deferred final discipline can be the basis for additional discipline and the Council on Judicial Complaints is authorized to bring any breach of these conditions to this Court through the complaint process provided by the Rules Governing Complaints on Judicial Misconduct.

RESPONDENT PUBLICLY REPRIMANDED, PUBLICLY ADMONISHED, FINAL DISCIPLINE DEFERRED, PROBATION WITH CONDITIONS

The disagreement on the relief

REIF, S.J., with whom COLBERT, J., joins, concurring in part and dissenting in part

I concur in the decision to file a petition invoking the jurisdiction of the Trial Division of the Court on the Judiciary. I believe a trial is necessary to resolve disputed allegations of judicial misconduct on the part of District Judge Kendra Coleman (Respondent). I write separately to emphasize that the allegations of judicial misconduct set forth in the petition are not accusations by this Court, but represent conclusions drawn by the Council on Judicial Complaints, following the Council's investigation of complaints against Respondent...

The first report dealt with Respondent's failure to timely fulfill personal duties regarding parking tickets, tax returns and campaign reporting, and events involving her conduct as a judge. She has not disputed her neglect of the personal obligations or the occurrence of the events involving her judicial conduct. She has, however, steadfastly maintained that none of these instances constitute a willful violation of the Code of Judicial Conduct or other legal grounds that warrant removal from office. A majority of this Court assumed the truth of the matters set forth in the report and found that Respondent's omissions and conduct did not rise to a ground for removal as a matter of law. The majority did find discipline was appropriate and reprimanded Respondent for failing to timely file campaign reports, admonished her to be diligent in fulfillment of personal obligations and placed her on probation pending resolution of a felony charge related to her failure to file a tax return. One of the conditions of this probation was that Respondent comply with the Code of Judicial Conduct.

The second report presents a wide ranging group of complaints of misconduct and alleged violations of the Code of Judicial Conduct. They range from the serious (alleged oppressive treatment of attorneys and parties) to the trivial (wearing a tee shirt to a judges meeting and rearranging chairs in her courtroom). Unlike the first report, assuming the truth of the matters set forth in the second report cannot alone lead to the appropriate disposition of the complaints therein. In her response, Respondent has sufficiently raised a question of whether the Council's findings of fact and conclusions of law are the only outcomes that reasonable minds might reach from the record. In addition, Respondent disputes that many of the events transpired as related in the report. Moreover, the disputed issue of whether Respondent violated any provisions in the Code of Judicial Conduct must be independently determined before any decision can be made that Respondent violated her probation. If the Trial Division of the Court on the Judiciary were to find Respondent committed one or more violations of Code of Judicial Conduct as recounted in the second report, such a violation would terminate her probation and be relevant to the ultimate issue of removal. 

Finally, I dissent to recommending suspension pending trial of the complaints against Respondent. Proceedings for removal are penal in nature and predicated upon wrongdoing. Any judge or other elected office holder who is subject to removal proceedings should have the benefit of being presumed innocent and afforded every reasonable measure of due process prior to any sanction being imposed that interferes with performance of the duties of their office.

WINCHESTER, J., with whom KANE, J. and WISEMAN, S.J., join, dissenting:

The Council on Judicial Complaints thoroughly investigated the numerous allegations of misconduct against Judge Coleman, including a review of all evidence presented and the testimony from several witnesses. The Council found multiple violations of the Code of Judicial Conduct worthy of her removal from office. Pursuant to 20 O.S.2011, § 1658, the Council recommended her removal and referred the matter to this Court for further proceedings.

I would refer this matter to the Court on the Judiciary for trial, which is the appropriate next step given the extensive evidence of the appearance of impropriety. I will not minimize blatant misconduct. While the various alleged infractions might not necessitate removal from office when considered individually, accumulatively they indicate a clear pattern of disrespect for the judicial office. I dissent from the majority's decision today because I believe Judge Coleman's actions warrant a trial on the matter.

In her short time on the bench, a span of less than one year, Judge Coleman has been the subject of numerous reports. The Council heard from several witnesses and reviewed all the evidence submitted, determining that the multiple instances of misconduct required Judge Coleman's removal from office. The Council ultimately found that Judge Coleman lacked the judicial temperament requisite of a judge, was guilty of oppression in office, and failed to follow the law and appreciate the importance of a fair and impartial judiciary.

If found to be true, the accumulation and sheer numerosity of the allegations against her reflect a pattern of lack of integrity or respect for the law. The majority's decision shields Judge Coleman's actions from review by her peers and erodes the confidence of her fellow judges and the public in the judicial system's willingness to discipline its own members. Accordingly, I dissent.

Kane, J., with whom Wiseman, S.J. joins, dissenting:

The Council on Judicial Complaints ("the Council") has submitted a recommendation for the Supreme Court to file a Petition to convene the trial division of the Court on the Judiciary ("the Court on the Judiciary") regarding allegations against the respondent judge. A majority of this Court concludes that a more proper exercise of our discretion in this matter would be to divert the subject of the proceedings from the statutory and constitutional processes in place, and proceed, instead, with an ad hoc Order, tailored to the responding judge, based upon the alleged facts suggested in the Council's report, without the benefit of a trial.

While I believe that this Court does have the power to undertake relief in the nature proposed by the majority, I do not believe that this exercise of power has precedence, and I further do not believe that it is a wise or warranted exercise of our power under the facts presented in this case. I believe that a Petition, based upon the concerns expressed by the Council on Judicial Complaints' report, should have been prepared and presented to the Court on the Judiciary for a trial. I therefore dissent.

(Mike Frisch)

June 23, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Profane Justice Removed

The New York Court of Appeals accepted the removal of a village court justice

Petitioner has been a Justice of the Northport Village Court in Suffolk County, a part time position, since 1994. He is an attorney who, during the relevant time period, also maintained a private law practice. The Commission’s formal written complaint alleged, among other things, that petitioner repeatedly used degrading and profane language in communications with his legal clients, whom he represented through his private law practice. The charge against him is based, in large part, on conduct that occurred during his representation of two clients in a Family Court matter against their daughter in which the clients were seeking visitation with their grandchild. Over the course of several months, petitioner sent a series of emails to his clients providing legal advice in which he repeatedly insulted other participants in the legal process, including a litigant, opposing counsel, and the presiding court attorney referee, using vulgar and sexist terms. Among other things, petitioner used an extremely crude gender-based slur to describe opposing counsel.

The court

Here, petitioner’s statements were manifestly vulgar and offensive, and his repeated use of such language in written communications to insult and demean others involved in the legal process showed a pervasive disrespect for the system, conveyed a perception of disdain for the legal system, and indicated that he is unable to maintain the high standard of conduct we demand of judges. Petitioner repeatedly denigrated a litigant, opposing counsel, and the presiding court attorney referee while acting as an officer of the court representing clients in an ongoing litigation—a professional function integral to our legal system. Indeed, his derogatory comments impugned not just the particular referee involved in this case but all judges, and with it, the judiciary. In this context, petitioner’s conduct undermined the dignity and integrity of the judicial system. Moreover, his use of an intensely degrading and “vile” (Matter of Assini, 94 NY2d 26, 29 [1999]) gendered slur to describe a female attorney, as well as petitioner’s demeaning reference to her as “eyelashes,” are especially disturbing; it is critical to our judicial system that judges “conduct themselves in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving  their lives, liberty and property” (Matter of Duckman, 92 NY2d 141, 153 [1998] [internal quotation marks and citation omitted]). Petitioner’s misconduct cannot be explained as an isolated or spontaneous slip of the tongue, as the statements—repeated multiple times— were included in deliberative, written communications petitioner made to these clients relating to their legal representation. Such a pattern of conduct, engaged in over several months and combined with a prior caution by the Commission for making sarcastic and disrespectful comments to litigants during a court proceeding, constitutes an unacceptable and egregious pattern of injudicious behavior that warrants removal.

Under these circumstances, the fact that petitioner’s comments were contained in emails sent to only two clients, which he believed would not be shared, does not excuse the wrongfulness of his conduct. There is no question that judges are accountable for their conduct “at all times,” including in conversations off the bench (Matter of Backal, 87 NY2d 1, 8 [1995] [citations omitted]).

Syracuse.com reported on the conduct

Senzer, who was representing an old acquaintance in a Family Court matter, unleashed a torrent of “vile” language over the course of nine emails in 2014 and 2015, the commission found.

  • Called his client’s daughter a “b*tch” several times, and “*sshole” once
  • Called the daughter’s attorney a “cu*t on wheels” and “eyelashes”
  • Called employees at his client’s grandson’s school “*ssholes"
  • Called the daughter and her ex-husband “two scumbags”
  • Called a “judge” (actually a court referee) an “*sshole”

In one case, Senzer even told his client not to quote his vile language. The other “lawyer is a cu*t on wheels (sorry for the profanity ... and don’t quote me), so be prepared."

Senzer admitted to the “atrocious” language, but argued that he should keep his job because the emails were personal and insisted he was just trying to show empathy for his client. He added that it hadn’t occurred to him that the language had any bearing on his role as judge.

(Mike Frisch)

June 23, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Life After Bar Admission

Mother Jones has a profile of our friend Tarra Simmons 

This story was published in partnership with The Marshall Project, a nonprofit newsroom covering the US criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Twitter and Facebook.

One of the first things Tarra Simmons tells voters when asking for their support isn’t the prestigious fellowships she’s won or the legislation she’s helped write. It’s about the years she spent behind bars.

It’s a story Simmons, a candidate for state representative in Kitsap County, Washington, has shared at countless campaign events, which these days are entirely online: How she lost her car, her house, her nursing license, her voting rights. How after coming home in 2013, most of her minimum-wage paychecks from Burger King were taken to pay the $7,600 she owed in court fees. How she managed to climb out of that life, get a law degree and begin a civil rights nonprofit. And how all of it made her realize that only those who have lived through the system can fully understand how to fix it. 

“I went to prison. It’s not something I’m proud of, but I understand how people end up there,” Simmons said at a May campaign fundraiser via Zoom, her digital background set to a generic corporate lobby. “Our criminal justice system is just a Band-Aid; I want to prevent [incarceration] from happening to begin with.”

Simmons is one of a new crop of political candidates in 2020 for whom being formerly incarcerated isn’t a disqualifier or a political liability. It’s an identity—one they say is vital to represent in state capitals and the hallways of Congress, as lawmakers try to overhaul a system that spends billions to lock up mostly Black and brown people. 

My connection is through my Georgetown colleague

After her release in 2013, Simmons enrolled at Seattle University School of Law. She graduated with honors and won a prestigious Skadden Fellowship for recent grads working in public interest law. Governor Jay Inslee appointed her to lead a new statewide reentry council. But her own criminal history would yet again get in the way.

The “character and fitness board” of the Washington State Bar Association wouldn’t let her take the exam required to be a licensed lawyer, claiming that she minimized her drug abuse in her application. “[S]ome of the attitudes she expressed in the record and at the hearing signal that her acquired fame has nurtured not integrity and honesty, but a sense of entitlement to privileges and recognition beyond the reach of others,” board members wrote. 

Simmons enlisted her friend and mentor Shon Hopwood—another formerly incarcerated attorney and Georgetown Law professor—and appealed the decision to the state’s highest court. 

“They let someone with five armed bank robberies into the bar,” Hopwood said, referring to himself. “Losing my shit is the nicest way to describe how I felt. There are few people on this planet who have overcome the things that she has.” 

The Washington State Supreme Court handed back a unanimous decision the same day they heard arguments. She won. 
 
I encourage professional responsibility professors to show Shon's oral argument on behalf of Tarra's admission to their classes. (Mike Frisch)

June 23, 2020 | Permalink | Comments (0)

Permanent Disbarment Proposed

An attorney's conviction for possession of marijuana with intent to distribute and failure to cooperate in the resulting bar investigation should result in permanent disbarment according to a hearing committee recommendation in Louisiana,.

The committee reports that a search warrant executed at the attorney's residence led to the discovery of "marijuana separated into numerous, vacuum- sealed bags indicating an intent to distribute."

The attorney pleaded guilty to the criminal charges. 

The Louisiana Supreme Court disbarred the attorney for unrelated misconduct in November 2019.

The earlier matter also involved drugs

Like the attorney in Mecca, respondent’s conduct includes both the soliciting and purchasing of prescription medication from a client. However, unlike the attorney in Mecca, respondent has taken no responsibility for her actions and there is no indication that she has ever sought treatment for her drug use. Like the attorney in Aucoin, respondent failed to perform legal services for her client, which caused injury to her client, and failed to refund unearned fees. Considering the totality of her misconduct, along with her failure to cooperate with the ODC in its investigation, we agree that disbarment is the appropriate sanction in this case.

The Louisiana Record covered the disbarment case. (Mike Frisch)

June 23, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 22, 2020

Harleysville

A former Fox Rothschild partner has been suspended for four years by the Pennsylvania Supreme Court as a consequence of a federal criminal conviction.

Philadelphia Business Journal reported on the conviction

A former Fox Rothschild partner was sentenced to six months in prison for insider trading after making moves with stock of Harleysville Group in advance of the 2011 announcement of a $760 million merger between the insurance carrier and Nationwide Mutual Insurance Co.

A federal judge in Philadelphia also sentenced Herbert Sudfeld, 64, of Doylestown, Pennsylvania to three years supervised release and 50 hours of community service. He was not fined.

Sudfeld was convicted in February of insider trading and making a false statement following an indictment last summer. At that time, he had been a partner at Bucks County law firm Curtin & Heefner since August 2012.

When the Harleysville-Nationwide deal was announced, he was a real estate partner for Fox Rothschild, which was representing Harleysville in the deal.

While he was not working directly on the transaction, prosecutors said he learned the merger announcement was imminent from a conversation between an attorney working on the transaction and their shared legal assistant.

On September 28, 2011, prior to the public announcement of the merger agreement, federal prosecutors in Philadelphia said Sudfeld allegedly contacted his stockbroker to purchase Harleysville stock.

The next day, the two companies’ publicly announced the merger and Harleysville stock rose by more than 85 percent over the prior day’s trading.

Prosecutors said Sudfeld then sold the shares he had bought a day earlier, netting personal profits of approximately $75,530.

The indictment further alleged that Sudfeld falsely told FBI agents, who were investigating insider trading, that he was not aware of the Harleysville stock transactions until several days to a week later.

Prosecutors said Sudfeld also falsely told investigators that he had informed his broker that he could not be involved in trades of Harleysville stock due to his position at his law firm. Prosecutors said he also falsely claimed that he did not discuss Harleysville trades with his broker until after they were completed.

This is the second insider trading case in as many years involving the Harleysville-Nationwide deal.

In February 2015, Joel J. Epstein of Huntingdon Valley agreed to pay $495,627 to settle charges that he took insider information from his son, whose girlfriend worked at Fox Rothschild as an administrative assistant for a lawyer working on the deal, and tipped off four other people who also acted on the inside information.

The saction was imposed retroactive to an interim suspension. (Mike Frisch)

June 22, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 21, 2020

Interim Suspension Continues For Alleged Crime

The Vermont Supreme Court has denied a petition to dissolve the temporary suspension of an attorney 

Respondent was charged with reckless endangerment after allegedly pointing a loaded firearm at a store clerk. She represents herself in that criminal matter and has pleaded not guilty.

Our prior coverage is linked here and quotes the Caledonia Record

A Walden attorney has been accused of pulling a gun on a store clerk because she was upset about a social distancing sign.

Disciplinary Counsel had been unable to contact the attorney when the petition to suspend was filed

We granted the petition pursuant to Administrative Order 9, Rule 18(A), on the ground that respondent “committed a violation of the rules of professional responsibility as adopted by the Court” and she “presently poses a substantial threat of serious harm to the public.”

The present motion

On May 26, 2020, respondent filed a “Confidential Motion to Vacate Order and Seal Records.” Disciplinary Counsel responded to this motion. On June 5, 2020, respondent filed a “Confidential Motion to Dissolve and Dismiss” the interim order. She filed an additional pleading immediately before the June 15, 2020 hearing on her motion to dissolve. In these filings, respondent contends that she did not receive notice of Disciplinary Counsel’s petition for interim suspension sufficient to comply with the applicable rules and due process. She points to the fact that Disciplinary Counsel made calls to her from an out-of-state telephone number, explains that she has had problems with email because she has been the target of hackers, and contends that she had no notice of this proceeding until she received this Court’s interim suspension order. Respondent emphasizes that she is entitled to invoke her Fifth Amendment rights in declining to answer Disciplinary Counsel’s inquiries. In addition, she argues that the Court’s prior order contained insufficient findings. She also contends that this Court should dissolve the interim suspension because it did not schedule a hearing within two days of her motion. She further argues that she is entitled to a transcript of the prior hearing pursuant to Administrative Order 9, Rule 16(F). Finally, she asks that we treat the prior order and these proceedings as confidential.

The court

Unless and until respondent responds to Disciplinary Counsel’s requests for information about her current law practice, active cases, trust accounts, whether a disability status may be warranted, and other matters about which Disciplinary Counsel seeks to inquire, we conclude that respondent poses a threat to the public. Respondent’s behavior has significantly impaired Disciplinary Counsel’s ability to fulfill her obligation to protect the public and warrants immediate interim suspension of respondent’s license to practice law.

As to her 5th Amendment rights

Respondent is not required to answer questions that implicate her right against self incrimination and may invoke that right if Disciplinary Counsel asks a question that would require such a waiver. But at least some of the matters Disciplinary Counsel has indicated she seeks to investigate may not implicate respondent’s Fifth Amendment privilege.

(Mike Frisch)

June 21, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Issues Ethics Opinions

A staff report from the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct has issued two opinions to replace opinions it previously issued under the former Code of Professional Responsibility. The board also withdrew a 1994 opinion in light of the adoption of a rule that addresses the content of the opinion.

Advisory Opinion 2020-04 advises lawyers about the dual representation of clients in unrelated and separate matters. The opinion examines the need for lawyers and their law firms to consider material limitation conflicts that may arise when a lawyer seeks to represent separate clients who both have an interest in the outcome of the same matter. 

The board advises withdrawal from the representation of one client if the lawyer or firm cannot obtain the informed, written consent of both clients to the conflict. The opinion replaces Adv. Op. 88-021.

Advisory Opinion 2020-05 approves, in limited situations, a law director acting as an advocate at a trial when another lawyer in the same office will testify as a witness in the case. The limited situations include when the witness’ testimony is permitted by common law, when the testimony is related to an uncontested matter or the nature and value of legal services rendered, or when the disqualification of the law director or assistant law director would work a substantial hardship on the client city.

The determination of whether there is a substantial hardship requires the consideration of multiple factors, including whether the testimony is available elsewhere.  The board advises that the law director must ensure that the employee-witness is not involved in the prosecution of the case and is effectively screened.  The opinion replaces Adv. Op. 2003-05.

The board also withdrew Advisory Opinion 1994-07 that addressed the ethical obligation of a lawyer who provides law-related services through an ancillary business.  The advice contained in the 1994 opinion is now addressed in Rule 5.7 of the Ohio Rules of Professional Conduct.

(Mike Frisch)

June 21, 2020 | Permalink | Comments (0)

Friday, June 19, 2020

Workplace Sex Harassment Draws Suspension

The Iowa Supreme Court imposed a suspension of at least six months in a matter involving findings of sexual harassment by an elected county attorney against two employees.

We disagree with the [Grievance C]ommission’s recommended sanction of thirty days and suspend the attorney’s license to practice law for an indefinite period with no possibility of reinstatement for six months from the filing of this opinion.

The attorney

Abraham Watkins graduated from law school in 2004. He was not a licensed attorney and primarily supported himself by playing poker until he and his wife, Renee, decided to move to Iowa in 2012.

..In September 2014, Watkins hired Jane Doe,  who was then twenty years old, as a legal assistant. Two months later, Watkins was elected as the Van Buren county attorney, and he assumed office on January 1, 2015.

The allegations of Ms. Doe and an assistant county attorney ("ACA")

Several of the complaints involved the sexual-harassment allegations at issue in this case. Watkins appeared before Doe on at least two occasions wearing only his boxer briefs. He told Doe that “he just wished he had a wife that had sex with him all the time,” and he was glad he kept naked pictures of his former girlfriends. Watkins made a sexually driven “joke” about a floor cleaner called “Bona” in the presence of Doe and the women who were cleaning his office.

In reference to a female client, Watkins told Doe, “Man, I wouldn’t want to see her naked.” In discussing a courthouse employee, Watkins told Doe that he needed to see if she “wore a padded bra or if her boobs were really that big.” He referred to a local attorney as “T.Queef,” which is a term that describes the emission of air from the vagina. Moreover, Watkins told Doe that her “boobs [were] distracting him” and that she should wear that same shirt if she “ever went clubbing.” He also asked Doe on multiple occasions if “her vagina was still broke” after she missed work for a gynecology appointment.

Watkins also showed Doe and the ACA private images of his wife. Specifically, he showed Doe a picture on his cell phone of his wife’s vagina. He also showed her a video of his wife squirting breast milk in the back seat of Doe’s vehicle. Watkins kept nude photographs of his wife on his computer, and he showed the ACA one of these photos in which his wife was pregnant, nude, and covered in blue paint.

The court on the violations

The “ ‘[g]arden variety’ gender harassment . . . includes ‘woman bashing’ jokes, insults about [women’s] incompetence, the irrelevance or sexual unattractiveness of older women, and comments that women have no place in certain kinds of jobs.” Fitzgerald & Cortina at 7. In a “more pernicious form,” it includes “referring to women by degraded names for body parts, pornographic images, [and] crude comments about female sexuality or sexual activity.” Id. This discrimination does not require an individual woman to serve as its target or unwanted sexual overtures, nor does it need to be explicitly linked to any job or consideration. Id. at 7–8, 26.

Watkins’s behavior in this case virtually ran the whole gamut of the actions mentioned above. For example, Watkins made a sexually driven “joke” about a floor cleaner called “Bona” in the presence of Doe and the women who were cleaning his office. In reference to a female client, Watkins told Doe, “Man, I wouldn’t want to see her naked.” On another occasion, he told Doe that he needed to see if a certain courthouse employee “wore a padded bra or if her boobs were really that big.” He referred to a local female attorney as “T.Queef,” which is a term that describes the emission of air from the vagina. 

Moreover, he told Doe that her “boobs [were] distracting him” and that she should wear that same shirt if she “ever went clubbing.” Watkins also asked Doe on multiple occasions if “her vagina was still broke” after she missed work once for a gynecology appointment. Further, Watkins told Doe that “he just wished he had a wife that had sex with him all the time” and that he was glad he collected and kept naked pictures of his former girlfriends.

Watkins showed Doe a picture on his cell phone of his wife’s vagina. On another occasion, Watkins showed Doe a video of his wife squirting breast milk in the back seat of Doe’s vehicle. Watkins also kept naked photographs of his wife on his computer, and he showed the ACA one of these photos in which his wife was pregnant, nude, and covered in blue paint. Additionally, Watkins appeared before Doe wearing only his boxer briefs on at least two occasions. Based on these facts, we agree with the commission that Watkins violated rule 32:8.4(g).

The court did not consider his removal from office and subsequent reinstatement as a mitigating factor. 

The court's sanction analysis noted the power imbalance and harm caused by workplace sexual harassment

Watkins created and fostered a culture of sexual harassment that persisted for two years. Doe had the courage to resign and speak up about Watkins’s behavior. Much of Watkins’s misconduct reads like textbook examples of what not to do in the workplace. He abused the public’s trust and confidence as an elected official and the county attorney tasked with seeking justice for victims of other forms of harassment. He undermined the virtues that we hold in high regard within the legal profession.

Despite his admitted embarrassment over the public backlash he received during his removal proceedings, Watkins still continues to minimize and make excuses for his behavior. The commission’s thirty-day suspension sends the message that sexual harassment in the form of gender discrimination is less harmful than other forms of sexual harassment, which have received harsher sanctions. Sexual harassment in all forms is unacceptable and unethical.

...The proper sanction in this case is the suspension of Watkins’s license to practice law for an indefinite period with no possibility of reinstatement for six months from the filing of this opinion.

The briefs are linked here. 

The Des Moines Register reported in July 2018

A Minnesota hotel clerk says a southern Iowa county attorney who was temporarily removed from office for sexual harassment spent hours in March "intensely" pursuing her for sex and drugs while his wife and children were in their room. 

Trissa Lind, 21, a clerk at the Home2 Suites hotel in Minnetonka, Minnesota, told the Des Moines Register that the incident involving Van Buren County Attorney Abraham Watkins occurred in March — the same time the Iowa Supreme Court was reviewing Watkins' removal from office.

Lind told the Register that Watkins asked her where he could find marijuana, suggested she would be a good stripper, talked about sex with his wife and made comments that included how he likes puzzles and wanted to "figure out the puzzle to making me orgasm."

“He had told me he was a lawyer and I was thinking: 'What lawyer would ever act like this?' I didn't believe a thing I heard," Lind said.

After pestering her for about four hours, Watkins finally fell asleep in the hotel lobby, Lind said.

Watkins said he didn't "specifically recall" the incident and declined to confirm whether he had stayed at the hotel, instead referring questions to his attorney, Alfredo Parrish. Parrish also declined to say whether Watkins had stayed at the hotel and said he didn't believe Lind's allegations to be credible.

(Mike Frisch)

June 19, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 18, 2020

Steele Dossier SLAPP

The District of Columbia Court of Appeals affirmed the dismissal of claims brought by plaintiffs alleging defamation in the Steele Dossier

Appellants challenge an order of the Superior Court which granted appellees’ special motion to dismiss, brought under the District of Columbia Anti-SLAPP Act. D.C. Code §§ 16-5501-5505 (2012 Repl. & 2019 Supp.). Appellants present three primary arguments: (1) the Anti-SLAPP Act does not apply to the facts of this case; (2) assuming that the Anti-SLAPP Act does apply, appellants have demonstrated that their claim is likely to succeed on the merits; and (3), in any event, the court erred by granting the special motion to dismiss without allowing appellants to conduct targeted discovery. Finding appellants’ arguments unpersuasive, we affirm the trial court’s judgment dismissing the case.

The case

According to appellants’ complaint, in advance of the 2016 presidential election, Washington, D.C.-based Fusion GPS hired appellees Christopher Steele and his company Orbis Business Intelligence Limited (“Orbis”) to conduct opposition research about then-candidate Donald J. Trump. While appellees were initially hired by Mr. Trump’s Republican opponents, once it became clear that he would be that party’s nominee, appellees began working for the Democratic National Committee and Hillary Clinton’s campaign. Beginning that summer,  appellees investigated what if any connections Mr. Trump and his campaign might have to Russia and Russian President Vladimir Putin, and compiled the results of their investigation into Company Intelligence Reports (“CIRs”). The complaint states that by the end of October 2016 appellees had created seventeen CIRs, which collectively became known as the Steele Dossier.

Appellants Mikhail Fridman, Petr Aven, and German Khan are “ultimate beneficial owners” of Alfa Group (“Alfa”), a “Russian business conglomerate.” They claim that one of the reports in the Steele Dossier, CIR 112, defamed them.

Below

The Honorable Anthony C. Epstein granted appellees’ special motion to dismiss and denied the Rule 12(b)(6) motion as moot. Judge Epstein determined that appellees had made a prima facie showing that the Anti-SLAPP Act applied to the conduct at issue because it involved a right of advocacy on an issue of public interest. Regarding the right of advocacy, Judge Epstein held that, “[e]ven if Mr.  Steele did not meet with the media in a public place or forum, he engaged in expression involving communicating information to members of the U.S. public through the media.” Indeed, the court explained, “Plaintiffs challenge Mr. Steele’s provision of his dossier to the media precisely because he expected and intended the media to communicate the information to the public in the United States and around the world.”

Here

even drawing reasonable inferences in appellants’ favor, they have failed to proffer evidence capable of showing by the clear and convincing standard that appellees acted with actual malice.

Associate Judge Fisher authored the opinion. (Mike Frisch)

June 18, 2020 in Current Affairs | Permalink | Comments (0)

Advice Of Counsel Defense In Bar Proceedings

The Florida Supreme Court has remanded a bar discipline matter

This case arises entirely out of Herman’s personal bankruptcy proceeding. More specifically, the case is about certain final disclosures that Herman allegedly failed to make in that proceeding. The disclosures at issue relate to bonus compensation that Herman hoped to receive after filing his Chapter 7 bankruptcy petition. In November 2017, The Florida Bar (Bar) filed a complaint with this Court alleging that Herman “had an obligation to be forthright” in his bankruptcy financial disclosure forms and that he failed to live up to that obligation.

In the bankruptcy issues arose concerning disclosures about an expected fee

At the conclusion of that trial, the bankruptcy court entered a seventy-one page order denying Herman’s petition for discharge. The court concluded that Herman had deliberately concealed his expected bonus share of the $10 million fee and that Herman had done so with the intent to hinder, delay, or defraud his creditors. In re Herman, 495 B.R. at 595-97. The bankruptcy court did not consider an advice of counsel defense, because Herman did not timely plead one. The United States District Court for the Southern District of Florida affirmed the bankruptcy court’s order. Herman v. CIB Marine Capital, LLC, No. 13-cv-62251- KMM (S.D. Fla. Sept. 29, 2014). In light of the nature of the bankruptcy court’s findings and the district court’s affirmance, the district court forwarded the matter to the U.S. Attorney for the Southern District of Florida and to the Bar.

His attorney testified in the bar proceeding

Our decision to remand this case to the referee for further proceedings turns on Herman’s advice of counsel defense, so we will start there.

The court finds that its precedents do not preclude such a defense in these circumstances

While we do not fault the referee for interpreting this Court’s precedent as he did, the general principle we articulated in Adorno is not so unyielding as to preclude consideration of Herman’s advice of counsel defense in this case. The reason an advice of counsel defense is usually unavailable in Bar discipline proceedings is that the Bar rules themselves charge Florida lawyers with knowledge of the rules and of “the standards of ethical and professional conduct prescribed by this court.” R. Regulating Fla. Bar 3-4.1. But here, Herman does not claim that he relied on the advice of counsel as to the meaning and requirements of any Bar rule. Nor does this case have anything to do with Herman’s work as an attorney serving clients. Instead, Herman himself was the client, and the charges in this case are inextricably intertwined with Herman’s
obligations under federal bankruptcy law. The Bar rules at issue did not require of Herman anything over and above what federal bankruptcy law already required— honesty and good faith in completing his bankruptcy schedules. To the extent that federal bankruptcy law permits an advice of counsel defense to negate a finding of bad intent, we conclude that such a defense should also be available to Herman in this Bar discipline proceeding.

The Adorno precedent (a very interesting case) is linked here. 

The Bar's burden

To establish that Herman is guilty of misconduct, the Bar would have to prove by clear and convincing evidence not only that Herman’s bankruptcy disclosures were false or misleading, but also that Herman knew that they were false or misleading. Put differently, the Bar would have to prove that Herman’s answers to the questions on his bankruptcy schedules were not made in good faith. The advice Herman received from counsel, along with whether Herman relied on that advice in good faith, is relevant to determining whether the Bar can prove its case.

Without prejudging the merits, we believe that Herman’s advice of counsel defense is sufficiently plausible that it cannot be taken off the table without consideration by the referee.

On remand

For the benefit of the referee and the parties, we conclude by commenting on two aspects of the referee’s report that might come up again on remand. First, as a partial explanation of his decision not to consider Herman’s advice of counsel defense, the referee indicated that Herman negated the defense by conducting his own legal research about the requirements of schedule B. Herman and Houston testified that this research consisted mainly of Herman reading a handful of cases that Houston provided him. Without more, we do not see how this “legal research” cuts against Herman’s advice of counsel defense—especially considering that the defense turns in part on whether the debtor/client’s reliance on counsel was reasonable and in good faith.

Second, we note that the relevant inquiry in this Bar discipline proceeding is not the prudence of Herman’s answers on the bankruptcy schedules. The referee here concluded that the conflicting testimony of the “two learned experts” in this case “serves only to underscore what the District Court Judge observed in his order: ‘Clearly, the better course of action in the case of a possible difference of opinion about the law is to air [sic] on the side of disclosure.’ ” To respond to Herman’s advice of counsel defense and to justify a conclusion that Herman is guilty of intentional misconduct, it will not be enough for the Bar to prove that Herman did not resolve close calls by erring on the side of disclosure.

To sum up: we hold that, under the circumstances here, Herman is entitled to present an advice of counsel defense to rebut the charge that he was intentionally dishonest in the schedules to his personal bankruptcy petition. Earlier in this opinion we have described the nature of that defense and the preconditions to its assertion. Here the referee declined to consider Herman’s advice of counsel defense at all. And the referee relied significantly (though not exclusively) on a bankruptcy court order that also did not consider the defense and that the court decided under a lower standard of proof than the clear and convincing evidence standard that governs in a Bar discipline case. Of course, though Herman bears a burden of production to come forward with the evidence necessary to support his advice of counsel defense, the ultimate burden of proof always remains on the Bar.

(Mike Frisch)

June 18, 2020 in Bar Discipline & Process | Permalink | Comments (0)

No Innocence, No Recourse

The Wisconsin Supreme Court affirmed the dismissal of a legal malpractice claim

David Skindzelewski committed a crime, pled guilty, and spent time in jail as a consequence for committing that crime until a circuit court vacated his conviction because the statute of limitations rendered the conviction erroneous. In this action, Skindzelewski sued his criminal defense attorney for legal malpractice because his attorney failed to raise the statute of limitations as an affirmative defense in his criminal case. Neither the circuit court nor the court of appeals permitted his suit to proceed to trial because Skindzelewski could not prove he was actually innocent of the crime of which he was convicted. Skindzelewski asks this court to reverse the unpublished court of appeals opinion affirming the circuit court's grant of summary judgment.

The actual innocence rule requires a criminal defendant who sues his defense attorney for legal malpractice to establish the defendant did not commit the crime of which he was convicted. Skindzelewski concedes his guilt but advocates the formulation of an exception to the actual innocence rule. We decline to create one under the facts presented by Skindzelewski's lawsuit. Nothing about Skindzelewski's case warrants developing an exception to the actual innocence rule; recognizing one under these circumstances would reward criminality. As a matter of law, Skindzelewski cannot succeed on his legal malpractice claim. We affirm the decision of the court of appeals.

Rationale

Skindzelewski took money from his victim in advance payment for work he never performed. Instead of returning the money, Skindzelewski converted it to his own use. Skindzelewski pled guilty to the crime of theft-by-contractor. Once postconviction counsel discovered the statute of limitations had lapsed prior to the State charging Skindzelewski, he was released from jail after serving only a portion of his sentence. Despite his guilt, the law afforded Skindzelewski a remedy for the erroneous conviction——namely, his liberty. The law does not, however, give him an additional monetary remedy against his negligent lawyer. Doing so would be tantamount to rewarding this guilty defendant for his crime, which "would . . . shock the public conscience, engender disrespect for courts and generally discredit the administration of justice."

Justice Dallet dissented

Because the rationale for the actual innocence requirement does not apply in Skindzelewski's case, I would create a narrow exception in legal malpractice cases where defense
counsel's failure to raise a valid statute of limitations defense results in an unlawful conviction. Accordingly, I would reverse the court of appeals and remand the case to the circuit court with an order to grant Skindzelewski summary judgment on liability and to conduct further proceedings on damages.

The Court of Appeals opinion is linked here. (Mike Frisch)

June 18, 2020 | Permalink | Comments (0)

Ohio Denies Bar Admission

The Ohio Supreme Court has denied an application for admission

In Phares’s application to register as a candidate for the July 2019 bar exam, he reported that he had been employed by Ohio Link from March through August 2016 and that he left that employment because he was starting law school. He answered “no” to another question that asked, “Have you ever been terminated, suspended, disciplined, laid off, or permitted to resign in lieu of termination from any job?” In response to an inquiry from the National Conference of Bar Examiners, however, Ohio Link reported that it terminated Phares’s employment in August 2016 and that it would not rehire him.

His job  

Phares and his Ohio Link supervisor, Beth Miller, offered similar accounts about how the incident that ended his employment began. As an Ohio Link community-reentry specialist, one of Phares’s duties was to check on clients who were serving home detention.

He tested positive for marijuana. 

The circumstances of his departure

Based on Miller’s and Banks’s testimony, the board concluded that Phares was suspended from his job on the day of his accident and later terminated based on his failed drug test. Although the board acknowledged that Phares may not have taken affirmative steps to remain at Ohio Link because he was going to start law school in just a few weeks, it found that his registration application “gross[ly] mischaracteriz[ed]” what actually transpired. Phares then compounded the problem by giving false testimony to the panel at both of his admissions hearings. Indeed, the board found that Phares made the conscious decision to maintain that he had quit his job and that he had not initiated or engaged in any contact with anyone at Ohio Link since the day of his accident—despite Miller’s and Banks’s independent testimony to the contrary.

Result

Here, Phares engaged in a pattern of dishonesty that began with his omission of potentially damaging information in his November 2017 registration application and his certification that he had answered all the questions in the application “fully and frankly.” Phares’s pattern of dishonesty culminated with his giving false testimony under oath at his admissions hearings in May and October 2019—after he had graduated from law school. On these facts, we agree with the board’s finding that Phares has failed to carry his burden of proving by clear and convincing evidence that he currently possesses the requisite character, fitness, and moral qualifications to practice law in Ohio.

He may reapply in July 2022. (Mike Frisch)

June 18, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Downward Departure

A lawyer who also served as a police officer has been censured by the New Jersey Supreme Court for criminal conduct that involved illegal cocaine use. 

From January 2011 until August 2018, the Montvale Police Department in Bergen County, New Jersey employed respondent as a police officer and as a detective. During the same timeframe, respondent practiced law, on a per diem basis, in association with a law firm.

He had failed to report for work which led to the police checking up on him.

That led to the discovery of cocaine residue items in his residence. 

Based on their observations, the officers arrested respondent and advised him of his constitutional rights. Respondent waived his rights and admitted that he had used two-and-one-half bags of cocaine throughout the night and had last ingested cocaine forty-five minutes before the officers’ arrival.

He was granted pretrial intervention.

The Disciplinary Review Board (excerpts quoted above) had recommended a downward departure from a presumptive three-month suspension

Regardless of the nature of the criminal offense, the quantum of discipline typically is enhanced when the attorney is a member of law enforcement or a public servant at the time of the RPC 8.4(b) violation.

..The Court rarely has departed downward from the standard three-month suspension. Such a departure has occurred only when the attorney has established significant rehabilitation and remorse.

Here

On balance, we assign significant weight to the great strides respondent has made since his arrest. His rehabilitation from his period of drug abuse is laudable. He has sought counseling, maintained his sobriety, and now fervently seeks to help others. Respondent’s significant and consistent steps towards rehabilitation, along with the other mitigating factors detailed above, persuaded us that respondent’s case is most akin to those of the attorneys in Filomeno, Simone, and De Sevo. We, thus, determine to impose a censure - a quantum of discipline less than the term of suspension presumed under McLaughlin. In return, to protect the public and preserve confidence in the bar, we impose conditions similar to those imposed in Simone and Filomena. Specifically, like the attorney in Simone, respondent is required to submit drug screens, on a quarterly basis for one year, to the OAE. The drug screens will be performed by an independent drug testing facility acceptable to the OAE. Moreover, pursuant to Filomeno, we further require respondent to continue to participate in self-help recovery meetings, on at least a monthly basis, for two years.

(Mike Frisch)

June 18, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Failure To Disclose Leads To Revocation

The New York Appellate Division for the Second Judicial Department revoked an attorney's license for a failure to disclose a pending disciplinary matter when he waived in from Texas

Question 33 on the application for admission to the New York Bar reads: “State whether you have ever been a complainant, party or witness to or otherwise involved in any civil or criminal action, proceeding or investigation not covered by answers to the above questions 28-32.” The respondent answered that question as follows: “Yes, I am an ADA Plaintiff in a civil case against an Urgent Care Center in San Antonio. The center does not provide services in accordance with the Americans with Disabilities Act. The case is filed in Federal Court in San Antonio, under 1:16-CV-1070. The case is still in litigation.” The respondent failed to disclose in his answer to Question 33 that, at the time, he was the subject of an ongoing investigation into his professional misconduct by the Disciplinary Committee of the United States District Court for the Western District of Texas.

Discipline was later imposed in Texas

By omnibus order issued by United States District Judge David Alan Ezra of the United States District Court for the Western District of Texas, San Antonio Division, filed July 11, 2017, the respondent was suspended from the practice of law before that court for three years. The respondent failed to report that suspension, as required by Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.13(d).

He was suspended for three years as reciprocal discipline 

By opinion and order of this Court dated August 21, 2019, in a prior separate disciplinary proceeding commenced under Appellate Division Docket No. 2018-15008, the respondent was suspended from the practice of law for three years, commencing September 20, 2019, based on the disciplinary action taken against him by the United States District Court for the Western District of Texas, San Antonio Division (see Matter of Rosales, 176 AD3d 107). The failure by the respondent to disclose the Texas disciplinary proceedings is at the heart of this proceeding.

Under the totality of the circumstances, we conclude that the appropriate sanction is revocation.

KXAN reported on the reciprocal matter

Attorney Omar Rosales, who filed hundreds of Americans with Disabilities Act lawsuits against Austin businesses on behalf a single client and was suspended from practicing in the Federal Western District of Texas for three years, has been suspended in the State of New York as well, according to an August 21 order.

The New York suspension will last three years. It is a “reciprocal” disciplinary measure resulting from misconduct in the Texas ADA cases, according to the New York order.

This suspension is the latest of several measures, including sanctions and lawsuits, taken against Rosales since he began filing ADA cases in Central Texas in 2015.

Rosales’ attorney, Gaines West, said he couldn’t’ comment on the New York decision until he read the order. However, he said, the order stems from a local federal order that forms the basis of a State Bar lawsuit against Rosales that is on appeal with the Third Court of Appeals.

“I am confident that the Third Court of Appeals will apply the law properly in that appeal and dismiss the claims against my client,” West said in an emailed statement.

On behalf of a single client named John Deutsch, Rosales filed over 380 federal cases alleging technical violations of ADA law in 2015 and 2016. The violations were focused on parking lot issues, such as improperly sized handicap parking spaces, lack of signage, ramp inclines and the size of front-door thresholds, according to hundreds of cases reviewed by KXAN.

Each property and business owner said they had never seen Deutsch or Rosales prior to receiving a lawsuit in the mail. In two cases, KXAN obtained demand letters accompanying the lawsuits saying the businesses could fix the violations and settle the suit for $7,000, which was negotiable.

KXAN first reported on the serial litigation in 2016. At that time, Rosales was fighting several cases against Jim Harrington, a prominent civil rights attorney and founder of the Texas Civil Rights Project. Harrington opted to defend a handful of the ADA cases pro bono.

Rosales defended his actions in the past, saying the lawsuits he filed were meant to correct violations and help the disabled community.

Harrington said Rosales’ lawsuits would have a negative effect and undermine ADA law, and Rosales needed to be stopped. In six of the cases defended by Harrington, Rosales was ultimately sanctioned about $175,000 in federal district court for misconduct, fabricating an email, disparaging Harrington and acting in bad faith, according to a 2017 order.

A federal judge found Rosales had filed a frivolous restraining order and criminal complaint alleging Harrington made a terroristic threat. Rosales also made dozens of false and inflammatory statements about Harrington in multiple court pleadings, according to federal court filings and orders.

Rosales was sanctioned an additional $60,500 by the 5th U.S. Circuit Court of Appeals for filing a frivolous appeal to the sanctions.

Following the parking lot ADA lawsuits, Rosales began sending letters to healthcare providers throughout the state demanding $2,000 to settle unfiled lawsuits that alleged the providers’ websites were not ADA compliant, according to records obtained by KXAN and court filings.

The State Bar’s Commission for Lawyer Discipline sued Rosales in September of 2017 in Travis County District Court for misconduct related to the website ADA letters. The district court dismissed the disciplinary commission’s case, handing Rosales a win in February of 2018. However, the disciplinary commission appealed to the Third Court of Appeals, the trial court’s decision was reversed and the case was remanded back down to district court to be continued, said Claire Reynolds, public affairs counsel with the Office of the Chief Disciplinary Counsel.

Adding another wrinkle to that case: the Third Court of Appeals found the Texas Citizens Participation Act applied to attorney disciplinary actions. (Rosales initially got the case dismissed through the TCPA.) The disciplinary counsel is filing a petition for review with the Texas Supreme Court arguing TCPA should not apply to these disciplinary cases, Reynolds said.

West said the appeals court had “correctly determined’ that the TCPA should apply to attorney discipline.

The disciplinary commission sued Rosales a second time in April of 2018 alleging other misconduct related to his ADA work. That case is also still playing out in court. Rosales filed a motion to have the second lawsuit dismissed, which was denied; now, he is appealing that denial to the Third Court of Appeals, Reynolds said.

(Mike Frisch)

June 18, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 17, 2020

Courtroom Encounter Draws Sanction

A 179 day suspension has been imposed by consent by a tri-county hearing panel of the Michigan Attorney Discipline Board, with credit for time served on a interim suspension. 

The sanction was a result of a misdemeanor conviction. 

The parties agreed, and the panel accepted, that good cause exists to make the discipline retroactive to May 2, 2018, because respondent already served a suspension of more than seven months on the basis of his felony conviction that was subsequently set aside.

A separate order reinstated the attorney. 

The Macomb Daily reported

A Macomb County lawyer convicted of two counts of assault for attacking a police officer in a courtroom was sentenced to 45 days in jail but won a new trial on one of the counts.

Nijad Mehanna, 42, of Roseville, received the sentence Wednesday from Judge Carl Marlinga, who delayed Mehanna’s jail reporting date to Jan. 2 to give him time to seek a stay of his sentence with the state Court of Appeals.

Mehanna earlier this year was convicted by a jury of misdemeanor assault and battery and felony assault of a police officer for a March 2016 confrontation with Roseville police Lt. Mitch Berlin in a courtroom at 39th District Court in Roseville. Mehanna, representing a client in a criminal case, was attempting to enter Judge Mark Santia’s chambers when Berlin, who was not the courtroom baliff, blocked the door. Mehanna shoved him, and when Berlin announced he was under arrest, Mehanna punched him multiple times.

Mehanna wanted to talk to Santia about Berlin preventing him from talking to a witness in a criminal case in which Berlin was involved.

Marlinga on Wednesday scolded Mehanna from the bench, saying that while Berlin acted inappropriately and called Mehenna an obscene name, it didn’t justify his reaction.

“There are a whole range of rational, reasonable reactions a person could’ve taken, should’ve taken, but you, Mr. Mehanna, decided that, ‘I am going to resort to violence as an attorney in the courtroom against a police officer,’” Marlinga said. “That is wrong on any scale of justice.”

Marlinga denied a new trial in Macomb County Circuit Court on the assault-and-battery charge but granted a new trial for the police-officer assault, explaining the jury wasn't formally told Berlin acted outside the scope of his duties when he tried to stop Mehanna.

“It was not part of his duties. It wasn’t his job,” Marlinga said. “A courtroom is a neutral place. … He (Berlin) had no right to control access in that courtroom. It’s also troubling that in doing so he was taunting (Mehanna) by calling him a ‘little b----‘.”

In addition, Marlinga said Mehanna may not have had the time to realize he was under arrest due to how fast the incident occurred.

Assistant Macomb Prosecutor Josh Van Laan said he plans to appeal the ruling, gaining a stay on that charge for an appeal. Van Laan argued the trial jury “heard it all” and was properly instructed.

“I think it’s just not for this court to interfere with a jury’s decision,” Van Laan said. “This is something that if the appellate court wants to pick up, it may end up going to the Supreme Court and argued.”

Berlin, who spoke in court for the sentencing, told Marlinga he believes Mehanna is not remorseful, hasn’t taken responsibility for his behavior, “misrepresented” the facts in court and has been criticizing him publicly.

“He continues to lash out publicly against myself,” and portrays himself as the victim, he said.

He said he suffered bruises and cuts on his face, a loose tooth, an injured ankle and broken glasses.

Marlinga awarded him $900 in restitution: $650 for new glasses and $250 for overtime he lost due to the incident.

Berlin also filed an injury lawsuit against Mehanna in circuit court.

Mehanna’s attorney, James Thomas, said Mehanna has not shown remorse because he pleaded not guilty and “asserted his right to a trial.” Remorse could be held against him legally, he said.

Mehanna and Thomas told Marlinga that he and his family have suffered from the incident.

“This case has been giving me nightmares,” Mehanna said in court.

Mehanna began talking about the facts of the case when he was cut off by Thomas. He argued that Berlin, who outweighed Mehanna by about 100 pounds, provoked Mehanna.

“There was clearly provocation, in my view, planned by a very calculating police officer,” he said.

Thomas argued against Mehanna getting jail due to ramifications from the incident. Mehanna has stopped practicing law until the case is resolved and could face sanctions from the state Attorney Discipline Board.

Mehanna’s wife, attorney Alyia Hakim, has suffered. She ran for judge at 39th District, advanced from the August primary to the general election but lost in November to Kathy Tocco.

Thomas argued Berlin “took the position he would do whatever he could to make it (Hakim’s loss) happen.”

Van Laan, in arguing for jail time, said Mehanna not only failed to show remorse but couldn’t admit he acted unprofessionally.

“In my opinion, he would do it again,” Van Laan said.

Berlin is the brother of Roseville Police Chief James Berlin, whose last day on the job was Friday. He is retiring from his post as of Dec. 31.

(Mike Frisch)

June 17, 2020 in Bar Discipline & Process | Permalink | Comments (0)

More Than Banter

The Minnesota Supreme Court has imposed an indefinite suspension of an attorney for at least two years

The petition alleged that Kennedy violated Minn. R. Prof. Conduct 8.1(a), 8.4(a), 8.4(c), 8.4(d), and 8.4(g), by bartering with his client for sexual favors and making false statements to police and to the Director about his misconduct with knowledge that those statements were false. The supplementary petition alleged that Kennedy violated Minn. R. Prof. Conduct 1.15 and Appendix 1 by failing to provide checkbook registers to the Director as required.

The attorney was admitted in 1976

Kennedy’s disciplinary history includes a public reprimand, multiple suspensions, and multiple periods of probation. Some of Kennedy’s past misconduct has included improper communication with clients. Kennedy has violated the probation conditions each time he was placed on probation.

While on probation, Kennedy was retained by 22-year-old K.P. in April 2015. K.P. was charged with fifth-degree possession of a controlled substance (three Adderall pills). Outside of a single speeding ticket, K.P. had no prior involvement with the criminal justice system. K.P. was embarrassed and ashamed that she was charged with a crime and wanted to avoid public attention.

K.P. owed owed a $4,700 balance of an $11,500 fee but

Shortly after retaining Kennedy, K.P. told others that she was uncomfortable with Kennedy. K.P. recorded conversations with Kennedy using her cell phone during two meetings in June 2015. K.P. met with police in September and gave them her cell phone to retrieve those conversations. Police met with Kennedy regarding K.P.’s claim that Kennedy had attempted to obtain sexual favors from her in exchange for payment of legal services. Kennedy denied the allegation. He was not charged with a crime arising out of his representation of K.P.

The Director subsequently interviewed Kennedy. Kennedy denied engaging in any sexual conversations with K.P., stating that “none of that happened.” When asked if he was being truthful, Kennedy responded that he was being truthful.

At the disciplinary hearing

At Kennedy’s disciplinary hearing, K.P. testified that, throughout their attorney client relationship, Kennedy had repeatedly made sexual remarks to K.P. For example, when discussing legal fees during an initial meeting, Kennedy said, “A cute girl like you,  you should not have to pay anything, right?” In addition to comments related to K.P.’s appearance, Kennedy asked where K.P. lived, the location of her bedroom in her home, and whether she lived with other people. Kennedy also requested to come to K.P.’s home after business hours, or alternatively, proposed that she come to his office after business hours to make payments on her attorney fee obligations. K.P. testified that she believed his comments and suggestions were an effort by Kennedy to obtain sexual favors as payment for her outstanding bill for legal services.

The cell phone recordings made by K.P. were also admitted at the hearing. A recording from June 2, 2015, included a number of sexual comments by Kennedy that were interspersed with the discussion of K.P.’s case.

E.g.

I promise 14 inches. Think about that when you’re thinking about this case...

Kennedy: And then I want you to do like you’re doing now.
K.P.: Be serious.
Kennedy: Yeah. You’re not smiling. You’re not acting goofy. You don’t have your tits sticking out and stuff like that. Not that I don’t like that, but not -- it’s not for court...

In the same meeting, Kennedy also told K.P. that a former client who worked at a hair salon had offered him oral sex for legal services in a criminal case

The court

The referee determined that Kennedy’s repeated unwelcome sexual comments harassed K.P. in violation of Rule 8.4(g). The referee also found that Kennedy’s conduct was motivated by an attempt to have sexual relations with K.P. and that this conduct violated Rule 8.4(a), which prohibits lawyers from “attempt[ing] to violate the Rules of Professional Conduct.” Kennedy argues that his comments to K.P. were the product of consensual sexual banter, and therefore he did not violate the Minnesota Rules of Professional Conduct. We disagree.

...During client meetings with K.P., Kennedy made comments related to K.P.’s appearance, such as whether or not her breasts were “sticking out,” and stating that she was “a cute girl.” Throughout the span of their professional meetings, Kennedy made clear that she was charged with a serious crime. When discussing her payments of attorney fees, he repeatedly tied those conversations to sexual activity by asking to pick up her payments owed at her home after business hours, by discussing other clients offering to pay him with sexual favors, and by inquiring about a “nap.” Others observed the effect of Kennedy’s behavior on K.P. and noticed her discomfort. K.P. was sufficiently concerned about Kennedy’s behavior that she recorded conversations with Kennedy and she went brought those recordings to the police. Under these circumstances, we find that the referee did not clearly err by concluding that this conduct was not mere consensual banter, but rather harassment, and therefore Kennedy’s conduct violated Rule 8.4(g).

The court upheld the referee's conclusion that the attorney was attempting to violate the sex with client prohibition.

Sanction

Kennedy abused his position of power and trust to exploit a client in an attempt to achieve his sexual desires. He then, while on probation, repeatedly made false statements to police and the Director about the conversations with K.P. His disciplinary history and probationary status warrant substantial discipline, and under these circumstances, we conclude that the referee’s recommended discipline, a 2-year suspension, is appropriate.

(Mike Frisch)

June 17, 2020 in Bar Discipline & Process | Permalink | Comments (0)

False Report Of Email Harassment Draws Suspension

The Oklahoma Supreme Court imposed a one year suspension for an attorney's false report of email harassment.

The action was

based upon Respondent Julia Marie Ezell's plea of guilty to two misdemeanor counts of (1) Falsely Reporting a Crime in violation of 21 O.S.2011, § 589, and (2) Use of a Computer to Violate Oklahoma Statutes in violation of 21 O.S.2011, § 1958.

An interim suspension for the conviction was ordered in November 4, 2019. The court here (over three dissents) granted credit for time served on that suspension.

The offense

Ezell became General Counsel for the Oklahoma State Department of Health (OSDH) in November 2017. The agency tasked Ezell with drafting the rules and regulations to govern the implementation of legalized medical marijuana in Oklahoma. Ezell contends interested parties within the Oklahoma state government and the Oklahoma State Board of Health were attempting to influence the promulgation of the administrative rules, pushing to include two unlawful rules which required pharmacists in each dispensary and banning "smokables." Ezell voiced her concerns regarding the unlawful rules, but the interested parties told her to draft the rules to include the two constraints.

Ezell experienced extreme stress due to the pressure to draft the medical marijuana rules, including those she believed were unlawful, and problems in her personal life. On account of the stress, Ezell began sending threatening emails from a fictitious email address to her official government email address that appeared to be authored by proponents of the medical marijuana referendum. She obtained the fictitious email address from protonmail.com (Proton Mail). From July 8, 2018, until July 12, 2018, Ezell sent ten emails to herself with escalating threats to her safety.

Ezell immediately reported the first email to an investigator at OSDH. On July 9, 2018, OSDH requested that the Oklahoma State Bureau of Investigation (OSBI) investigate the threatening emails. The Edmond Police Department provided surveillance at Ezell's workplace and home. The Edmond Police Department also escorted Ezell from work and checked Ezell's personal vehicle for a GPS device. The University of Oklahoma Health Sciences Center's Police Department provided Ezell further security while she was at her workplace. OSBI placed pole cameras in Ezell's neighborhood to monitor Ezell's house and the traffic in the neighborhood.

After OSBI launched its investigation, Ezell continued to send emails with escalating threats to herself. Ezell also provided to OSBI names of individuals that she believed could have access to her phone or be sending her threatening emails. As a result, OSBI obtained information on medical marijuana proponent groups and contacted law enforcement across the United States requesting information on similar threats. OSBI, through the assistance of a Mutual Legal Assistance Treaty (MLAT) request to Switzerland, ultimately determined that the Proton Mail account was registered to Ezell's husband.

On July 12, 2018, Ezell turned her phone over to OSBI, who performed a forensics examination of the phone. OSBI determined Ezell was responsible for creating the Proton Mail email account and sending the emails at issue. On July 13, 2018, OSBI met with Ezell to discuss the results of the forensics examination of her phone. Ezell continued to implicate other individuals who could be responsible for the emails and did not take responsibility for her actions. It was not until OSBI confronted Ezell with the information gathered from the forensics examination that Ezell admitted her wrongdoing. Ezell then confessed to OSBI that she was responsible for the threatening emails.

On July 17, 2018, the Oklahoma County District Attorney charged Ezell with two felonies, Presenting False Evidence at Trial and Using a Computer to Violate Oklahoma Statutes, and one misdemeanor, Falsely Reporting a Crime. The Oklahoma County District Attorney eventually dismissed one felony charge and reduced the other felony charge to a misdemeanor. Ezell pled guilty to two misdemeanor counts, Falsely Reporting a Crime and Use of a Computer to Violate Oklahoma Statutes. The district court ordered her to pay $21,810 in restitution for the costs involved in the OSBI investigation, which Ezell paid upon entering her plea of guilty. The district court deferred sentencing until October 15, 2024. Ezell fully paid all court costs, fees, and probation fees in advance.

The offense merited discipline

Ezell's criminal conduct reflects adversely on her honesty and fitness to practice law in violation of ORPC Rule 8.4(b) and (c) and RGDP Rule 1.3 and warrants discipline. Ezell sent emails to herself containing escalating threats and falsely reported the emails to OSDH, which launched an OSBI investigation that cost over $20,000. Ezell was not forthcoming with the truth when confronted with the information obtained by OSBI regarding the source of the threatening emails. Ezell's attempts to cover up her involvement in this scheme obstructed OSBI's investigation, and Ezell implicated a co-worker, a former high school acquaintance, and medical marijuana proponents as potential suspects. Ezell's actions resulted in the misuse and waste of state resources. Ezell admittedly had a motive and purpose to deceive her coworkers and law enforcement--even if the motive was for law enforcement to obtain evidence regarding potential fraud in the promulgation of the medical marijuana rules. State ex. rel. Okla. Bar Ass'n v. Besly2006 OK 18, ¶ 43, 136 P.3d 590, 605. Ezell pled guilty to the crimes of falsely reporting a crime--undoubtedly a crime involving dishonesty, fraud, and deceit--and the use of a computer to do so. Her conduct warrants discipline.

Sanction

 Ezell's actions provide clear and convincing evidence of engaging in conduct that reflects adversely on the legal profession in violation of her professional duties pursuant to ORPC Rule 8.4 and RGDP Rule 1.3. The conduct serves as a basis for the imposition of discipline, which we must determine. We appreciate Ezell's remorse regarding her actions, and we are mindful of Ezell's mitigating circumstances, specifically her efforts to get counseling. This is the right course for her to take. Considering the Olmstead and Kinsey cases, we conclude the Trial Panel's recommendation is appropriate. This Court suspends Ezell from the practice of law for one year, effective from the date of her interim suspension.

Justice Combs dissented and would impose a suspension of two years and a day

The main reason I find this case so egregious is the fact that prior to being caught the Respondent continued to falsely and knowingly implicate other individuals and groups for her crime. These included a co-worker, a high school acquaintance and the medical marijuana proponents. Had the investigation been protracted, it is not hard to see how those individuals' lives and the proponents' cause would have been negatively and possibly irreparably affected. The Respondent's actions were also the subject of intense state and national media coverage. In my dissent in State ex rel. Oklahoma Bar Ass'n v. Hastings, I disagreed with the majority's final discipline of a two-year suspension from the practice of law. 2017 OK 43, ¶1, 395 P.3d 552 (Combs J., dissenting). I found the nature of Hastings' conduct deserved a suspension of two years and one day which would place significant requirements on seeking reinstatement. Id. Part of my reasoning was based upon Hastings' conduct which was the subject of intense media coverage and "thoroughly embarrassed and undermined the legal profession as a whole." Id., ¶3. Like Hastings, the majority opinion notes that Respondent's actions "gained wide-spread media attention on both the local and national level." Her actions have brought disrepute and harmed the public image of the legal profession. See also Olmstead, 2012 OK 71, ¶7, 285 P.3d 1110.

... The Respondent's deferred sentence will last another four years. I have repeatedly expressed my concern on how this Court can protect the integrity of the legal profession if we allow a lawyer to practice law while on probation. State ex rel. Oklahoma Bar Ass'n v. Bernhardt, 2014 OK 20, ¶6, 323 P.3d 222 (Combs J., dissenting); State ex rel. Oklahoma Bar Ass'n v. Brown, 2013 OK 40, ¶3, 303 P.3d 895 (Combs J., dissenting). During this time a lawyer is subject to an accelerated judgment and sentence upon a violation of the terms and conditions of the order of deferred sentence. This is especially a problem where, as here, there is a lengthy deferred sentence. I believe a suspension from the practice of law for the duration of her deferred sentence is appropriate here. Upon successfully completing the terms of the deferred sentencing and when the criminal charges are dismissed, she could seek reinstatement of her license to practice law pursuant to Rule 11, RGDP. At the very least, I would suspend her for no less than two years and one day

(Mike Frisch)

June 17, 2020 | Permalink | Comments (0)

Please Please Please

The South Carolina Supreme Court overturned a surviving spouse claim against the James Brown estate

Disputes over the estate of entertainer James Brown (Brown) have persisted in the years since his untimely death on December 25, 2006. In this case, the Court considers an action by Tommie Rae Brown (Respondent) to establish that she is the surviving spouse of Brown under the South Carolina Probate Code. The issue arose in the context of Respondent's claims filed in the Aiken County Probate Court for an elective share or an omitted spouse's share of Brown's estate.

Uncertainty as to Respondent's marital status existed because Respondent did not obtain an annulment of her first recorded marriage until after her marriage ceremony with Brown. Respondent's claims were transferred to the circuit court, which granted Respondent's motion for partial summary judgment and denied a similar motion by the Limited Special Administrator and Trustee (LSA). The circuit court found as a matter of law that Respondent was the surviving spouse of Brown. The court of appeals affirmed. In re Estate of Brown, 424 S.C. 589, 818 S.E.2d 770 (Ct. App. 2018). This Court granted a petition for a writ of certiorari filed by several of Brown's children (Petitioners) to review the decision of the court of appeals. We reverse and remand.

The Hollywood Reporter (a source we rarely cite) reported on the controversy

When James Brown, the "Godfather of Soul," died at the age of 73 in 2006, he left behind quite a legacy — as well as one hell of a mess. The iconic musician behind such hits as "I Got You (I Feel Good)" and "Papa's Got a Brand New Bag" was married at the time of his death to Tomi Rae Hynie. Or was he? Together, Brown and Hynie had a child named James Brown II. Or did they?

In the 12 years since Brown's death, such mysteries have haunted a South Carolina probate court tasked with figuring out how to divide Brown's assets. Hynie and James II have thus far been successful in overcoming challenges to their assertion of being the surviving spouse and legitimate son, respectively, which would put them in position to collect a big portion of what Brown left behind — an estate valued as high as $100 million.

But a family feud is hardly over. Earlier this year, nine children and grandchildren from Brown's previous marriages filed a new lawsuit alleging dishonesty on the part of Hynie and the administrators running the estate. This new case deals with progeny of a different sort — Brown's copyrights — and has the potential to shift estate battles involving famous songwriters into a much bigger arena, a federal court, which typically has exclusive jurisdiction over copyright matters. At stake will be the balance of power for heirs of authors (perhaps irrespective of a songwriter's express wishes) as well as future postmortem dealmaking and administration of the most famous songs in American history.

So who is Tomi Rae Hynie?

A former Janis Joplin impersonator in Las Vegas, she became a backup singer for Brown and eventually, in 2001, his fourth wife. But she had a secret: At the time of the nuptials with Brown, Hynie was already married to another man, Javed Ahmed, and had been since 1997. Ahmed, in turn, had his own secret: When he married Hynie, he already was married to at least three other women in Pakistan, according to Hynie. He told her about these wives after the ceremony and disappeared without consummating the marriage. He was only interested in U.S. citizenship.

Hynie, now 49, got her marriage to Ahmed annulled in 2004, but by then her relationship with Brown had become rocky. That year, Hynie and Brown got into a physical altercation. The singer was arrested for domestic assault, which led to a separation. Brown then sought his own annulment, and she countersued for divorce. The question of whether the two were really legally married was not resolved at the time. Months after the separation, Brown and Hynie informed a court of a settlement wherein she would waive any claim of a common law marriage. Hynie says she then reconciled with Brown and they lived together until his death.

But Hynie wasn't in Brown's will, because he never updated it during their relationship. She petitioned to correct this upon his demise.

The issue of bigamy upon bigamy partially explains the longevity of the probate case, which has traveled up the appellate circuit, down again, and up once more as judges in South Carolina wrestled with the implication of marrying someone married to someone else married to yet others. In July, a South Carolina appeals court affirmed a decision that because the state doesn't recognize bigamous marriage, Hynie and Ahmed were never really married. Therefore, Hynie "had no impediment to her valid marriage to Brown," the court ruled.

Meanwhile, there is the son, James II, who, like his mother, wasn't included in Brown's will. The doubts regarding his lineage stem from word that in the 1980s Brown had a vasectomy specifically to avoid paternity suits — and James II was Brown's only child born in the aftermath.

James II proved himself the son after undergoing a DNA test — twice. There are lingering bad feelings about making him go so far. In a court brief on Sept. 11, a lawyer for the administrator of the James Brown Estate noted that several of Brown's other children "have failed to submit to the probate DNA protocol."

But, of course, the fight isn't over. There's continued appealing wherein Brown's other children are arguing that the story of Ahmed's Pakistani wives relies on inadmissible hearsay without any discovery on the true facts. "We are extremely optimistic that Tomi Rae's spousal status will be swiftly reversed by the South Carolina Supreme Court as it is contrary to law on so many levels," says Marc Toberoff, the attorney now representing nine heirs of James Brown.

In January, these heirs — Deanna Brown-Thomas, Yamma Brown, Kenisha Brown, Michael D. Brown, Nicole C. Brown, Jeanette Bellinger, Sara Fegan, Ciara Pettit, and Cherquarius Williams — filed a separate complaint in California. The lawsuit has since been moved to South Carolina federal court (Brown was born in Barnwell, South Carolina). Hynie is accused in the suit of having "embarked on a series of duplicitous business machinations calculated to deprive Brown's children of their rightful interests in Brown's music under the Copyright Act."

To understand the basis and import of the lawsuit, one must first know a little something about an increasingly important realm of copyright law known as termination rights. In the 1970s, Congress extended the copyright term. In doing so, lawmakers chose to recognize that many who had created works at the early stage of their careers had assigned rights to publishers without much bargaining power. So authors — or their heirs — were allowed to terminate those deals 35 years after their work was published and reclaim rights during the later years of the copyright term. Many songwriters including Bob Dylan, Tom Petty, Prince and David Byrne have either done so or threatened to do so as they renegotiated royalty deals. Given the year (1978) when the law went into effect and the 35-year wait period, these termination rights are just beginning to make a big impact in probate cases and elsewhere (like celebrity divorces).

As a surviving spouse, Hynie would be entitled to 50 percent of the termination interest, with the other 50 percent shared by the surviving children (or grandchildren if the child is deceased). Importantly, because of her huge stake, Hynie is in position to veto any move to reclaim song rights. And, of course, if there's no termination, then under existing song publishing agreements, royalties flow to the estate, which distributes the money in accordance with Brown's will and any court-ordered alterations. Before he died, Brown earmarked some of his estate to go to charitable endeavors. According to the estate, although the intention has been to donate money for scholarships to needy children, "to date not one penny has been available for those scholarships because the probate litigation has continued."

In the new lawsuit, Brown's children (other than James II) recount the battle over marriage and paternity, although they say they are not seeking to "re-litigate" Hynie's and James II's status as surviving spouse and child at least in the federal action. The latest case focuses most heavily on "back-room agreements." 

Beginning in 2013, according to the complaint, a consultant for the estate attempted to get the children to sign away their copyright termination interests in return for cash payments. States the complaint: "Defendants deliberately concealed the underhanded nature of these proposals by orchestrating their pressure campaign through go-betweens who falsely professed to be working in Plaintiffs’ best interests."

As the administrators of the estate were allegedly orchestrating a plan to rob the children of their termination interests, Hynie and James II served notice on Warner/Chappell Music, the publisher and rights holder of James Brown's back catalog, that they were exercising termination rights on 138 of Brown's compositions. The two didn't tell the other heirs.

Then, in 2015, continues the complaint, Hynie came to a $1.875 million deal with Warner/Chappell to transfer back rights to five of the songs. The suing children claim that the deal was written in a manner that leaves intact a royalty structure that favored the estate to the disadvantage of Brown's children. Hynie, whose status as surviving spouse is no longer being challenged by the estate thanks to a settlement, is essentially accused of trading away the family's copyright termination powers. The children and grandchildren, sensing they've been largely cut out, think the back-room dealing stinks to high heavens.

How might this all end?

Hynie and the estate administrators are seeking dismissal with the argument that the children really do wish to rehash a lot of the issues already dealt with in probate court and on appeal. They say the children have "failed to achieve their goals" in prior proceedings and are using this as a "backup." They argue that the litigation doesn't belong in federal court, and that copyright law provides no remedy to invalidate the types of agreements at issue. 

This case has the potential of upending family dynamics and the typical division of assets for deceased musicians (and other authors). If copyright law prevents pre-assigning termination rights, can a surviving spouse make deals pre-assigning the proceeds from a family's termination interests? Can a surviving spouse cut out other heirs by making deals with third parties not to exercise termination rights? Must the estates of authors now be settled in a different legal forum than everyone else in the country because of these strange legal mysteries? How will those currently planning estates for authors, especially those with large families, possibly navigate the madness at hand to prevent more decade-long legal wars? 

"[Termination] is becoming a bigger deal," says Zia Modabber, a managing partner at the Katten law firm who a few years ago handled a copyright termination dispute involving Smokey Robinson and his ex-wife. "A lot of the music has now been out long enough that copyright termination is coming up for the first time. We're going to see more of that. And the rules and facts are so complicated, it's getting to be very messy."

(Mike Frisch)

June 17, 2020 | Permalink | Comments (0)

"A Multi-Year Disbarment"

The Maine Supreme Judicial Court has disbarred an attorney who was placed on interim suspension in August 2018

In August 2018, Bar Counsel became aware of Hull’s alleged conversion of approximately $26,750.00 from two non-profit entities, hereinafter referred to as “CP” and “ST.” Bar Counsel’s office commenced an investigation and obtained Damariscotta Police Officer Erick Halpin’s August 8, 2018 Affidavit and Request for Arrest Warrant concerning Hull. Officer Halpin’s Affidavit detailed incidences of illegal conduct by Hull. In response to the Board’s subsequent allegations concerning those same events, Hull offered minimal dispute and explanation.

With respect to the above allegations

the Court finds that Hull engaged in violations of M. R. Prof. Conduct 1.7(a)(2) [conflict of  interest]; 4.1(a) [truthfulness in statements to others]; and 8.4(a)(b)(c) [misconduct; illegal conduct; fraud, deceit or dishonesty].

As to a second complaint

Relevant to the complaint are the circumstances leading up to Hills’s interaction with Hull. In May 2017, Ms. Hills visited Hull at his law office and then authorized a $1,000.00 charge on her credit card intended as a single payment toward Hull’s representation of Chad Nickerson (Hills’s son) in a family matter action. Hull did not prepare a written fee agreement with her, but had prepared one for the client, Chad Nickerson. Several months later (February 2018), Hull improperly charged an additional $3,480.88 on Ms. Hills’s credit card to be applied towards the fees in Hull’s representation of Mr. Nickerson. When contacted by Ms. Hills later that day objecting to that charge, Hull immediately reversed the charge before receiving any funds. In making that credit card charge, Hull committed a violation of MRPC 8.4(c) [fraudulent conduct] by not requesting Ms. Hills’ authorization to incur the $3,480 charge..

Beyond that incident, Hull also failed to attend a court hearing dealing with Nickerson’s custody matter. His failure constituted a violation of M. R. Prof. Conduct 1.3 [diligence] and 8.4(d) [conduct prejudicial to the administration of justice].

Another count

In May 2008, Mr. Hull was serving as Personal Representative (PR) of the Estate of Wayne Plummer. Years later, information from the Estate bank account revealed that from 2009-2010, Hull withdrew approximately $47,300 from Estate funds without explanation. Hull did so by issuing checks from the Estate account payable to himself. Sometime in 2010, Hull started to incrementally repay the Estate but there was still an outstanding balance of funds not repaid.

Sanction

As is evident, the aggravating factors enumerated herein outweigh the mitigating factors. Recognizing the serious harm resulting from Hull’s misconduct, this Court concludes that the appropriate sanction to impose is a multi-year disbarment. Hull acknowledges that his actions warrant the Court’s imposition of such a sanction.

Accordingly, and consistent with the parties’ agreement, the Court hereby Orders that Jonathan C. Hull is disbarred for a period of five years from the practice of law as of the date of this order. The Court further orders that any subsequent reinstatement of Jonathan C. Hull shall occur only through his petition filing and after Court action on that petition, pursuant to the Maine Bar Rules.

He must reimburse the Lawyers' Fund for Client Protection for awards made as a result of the misconduct. (Mike Frisch)

June 17, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Social Insecurity

The Indiana Supreme  Court has disbarred an attorney for two counts of misconduct.

One matter involved neglect of a client matter; the other

Respondent employed “Assistant” from 2005 until Assistant quit in early 2018. During that time Respondent withheld money for Social Security from Assistant’s earnings, but instead of depositing those sums with the federal government, he instead converted those funds for his own personal use.

In late 2017 Assistant received a Social Security statement showing she had no earnings for any of the years she had worked for Respondent. Assistant confronted Respondent about this and Respondent promised he would get it corrected, but Respondent never did so. Respondent also failed to respond to the Commission’s demand for information on this matter.

Sanction

Respondent stole earnings from Assistant (his sole employee) during the entire twelve plus years of her employment, violating both state and federal criminal law in the process. Respondent severely neglected Client’s case, resulting in financial detriment to Client. Respondent has shown absolutely no remorse for, or insight into, his misconduct. Respondent refused to cooperate with the Commission’s investigations, has refused to meaningfully participate in these disciplinary proceedings, and has filed no petition for review, brief on sanction, or responsive brief in this Court. Under these circumstances, and based on the record before us, we conclude that Respondent should be disbarred.

(Mike Frisch)

June 17, 2020 in Bar Discipline & Process | Permalink | Comments (0)