Thursday, June 23, 2022

Slave Descendants Have Claim Against Harvard Reinstated

The Massachusetts Supreme Judicial Court has remanded the dismissal of a claim brought by a descendant of slaves against Harvard for use of photographic depictions of her ancestors.

The oral argument is linked here from Suffolk Law's web page. 

Editor's note: Benjamin Crump's pro hac vice argument is nothing short of brilliant. A model of effective appellate advocacy.

The court

In 1850, the Harvard professor Louis Agassiz arranged to have daguerreotypes made of Renty Taylor and Delia Taylor, who were enslaved on a plantation in South Carolina. Renty was ordered to disrobe. His daughter, Delia, was stripped naked to the waist. Their images were then captured in four daguerreotypes. These daguerreotypes were later used by Agassiz in an academic publication to support polygenism, a pseudoscientific racist theory for which Agassiz, a prominent scientist, was a vocal proponent.

Identifying herself as a descendant of Renty and Delia Taylor, the plaintiff, Tamara Lanier, contacted Harvard University seeking recognition of her ancestral connection to Renty and Delia and requesting information regarding Harvard's past and intended use of the daguerreotypes. When the university dismissed Lanier's claim of descent from Renty and Delia and ignored her requests, continuing to use and display images of Renty without informing her, she brought this action against the defendants, the President and Fellows of Harvard College, the Harvard Board of Overseers, Harvard University, and the Peabody Museum of Archaeology and Ethnology (collectively, Harvard), seeking relief for emotional distress and other injuries, as well as restitution of the daguerreotypes to her.

A judge of the Superior Court granted Harvard's motion to dismiss, determining that each of the claims Lanier raised failed as a matter of law and that the facts as alleged in her second amended complaint did not plausibly suggest an entitlement to relief.

Because we conclude that the alleged facts, taken as true, plausibly support claims for negligent and indeed reckless infliction of emotional distress, we vacate the dismissal of the plaintiff's claim for negligent infliction of emotional distress and remand the case to the Superior Court to allow the plaintiff to amend her complaint to incorporate allegations of reckless infliction of emotional distress. The dismissal of Lanier's other claims, however, we affirm.

When the daguerreotypes were re-discovered

In 1976, the daguerreotypes were discovered in a wooden cabinet in a corner of the Peabody Museum's attic by a museum researcher. Although the researcher who made the discovery expressed concern for the families of the men and women depicted in the daguerreotypes, Harvard did not act on the researcher's concerns. Rather, it simply claimed the daguerreotypes as its property. The discovery itself attracted national media attention, as the daguerreotypes were believed to be the "earliest known photographs of American slaves."

The family connection was discovered fulfilling a dying wish of the plaintiff's mother as in the story of "Roots"

The plaintiff's mother, Mattye Thompson, often told the story of their family, which began with a man named Renty Taylor, also known as Papa Renty or "the Black African." Papa Renty was an indomitable man who defied slavery's tyranny by teaching himself and others to read and by conducting secret Bible readings and study on the plantation where he was enslaved. As a reminder to never forget the family history that began with Renty Taylor, Mattye Thompson repeatedly told her children and grandchildren, "Always remember we're Taylors, not Thompsons."

She brought her concern to the attention of then-President Drew Gilpin Faust ("a distinguished historian of the antebellum South and the Confederacy"), who advised her that the daguerreotypes were part of an "ongoing project" and that Harvard "agreed to be in touch..."

A broken promise.


In 2017, Renty Taylor's image from one of the daguerreotypes at issue was used on the cover of the thirtieth anniversary edition of "From Site to Sight," a volume on anthropology and photography published and marketed by Harvard University Press. Harvard also used the image at a national academic conference it hosted on universities' historical connections with slavery in March of that year. At the conference, which the plaintiff attended with her own daughters, Renty's image was projected on a large screen onstage and was also featured on the front cover of the conference program, where it was accompanied by the following caption:

"The man you see on the program's front cover, Renty, lived and worked as a slave in South Carolina in 1850, when his photograph was taken for the Harvard professor Louis Agassiz as a part of Agassiz's scientific research. While Agassiz earned acclaim, Renty returned to invisibility."

According to the plaintiff's complaint, this description "took [her] breath away," not only because it omitted the "racist and dehumanizing" nature of Agassiz's work, but also because it "relegate[d] Renty to 'invisibility,'" in "flagrant disregard for [her] repeated attempts to share Renty's story and restore a measure of the humanity that Agassiz [had] stripped from him."

She then demanded that the daguerreotypes be "immediately relinquished" to her and sued when rebuffed.

Justice Cypher concurred and would keep an order to return the property on the table

The making of the daguerreotypes was a horrific harm to Renty and Delia, inflicted by their enslavers and by Louis Agassiz, a Harvard professor who ordered that the daguerreotypes be created. I agree with the court that the judge properly dismissed the specific property causes of action pleaded in the plaintiff's complaint based on our existing jurisprudence. However, if the plaintiff ultimately prevails on the surviving tort causes of action articulated by the court, the trial court will not be able to award the plaintiff with possession of the daguerreotypes, which was the plaintiff's primary reason for bringing suit...

Failing to recognize that the plaintiff, as a descendant of Renty and Delia, may have a claim to the daguerreotypes superior to Harvard's is precisely the sort of miscarriage of justice that the late Chief Justice Gants warned us against perpetuating. We are faced with an aggrieved plaintiff who has pleaded facts that, if proved, demand a full remedy and nothing less. It is within this court's authority to provide such remedy by recognizing the cause of action I have articulated today.

Notably, an amicus brief on behalf of the descendants of Louis Agassiz supports Ms. Lanier

We, the descendants of Louis Agassiz urge the Court to side with Ms. Lanier and we implore Harvard University, an institution with which our family has been intertwined for hundreds of years, to release the daguerreotypes to Ms. Lanier and provide the restitution she requests. We also call on the University to publicly apologize for the damage Agassiz and Harvard have done, not only to Ms. Lanier, but to generations of African-Americans. This gesture would begin an honest accounting of what is owed for Harvard’s historical support for slavery and elevation of Agassiz, who used his reputation and position at the university to enshrine the racist myth of white superiority...

As Ms. Lanier has said many times, it is because she grew up hearing stories about an enslaved ancestor, Papa Renty, or Congo Renty, that she began to uncover her relation to the man in the daguerreotype. Papa Renty’s efforts — and the oral history lovingly passed down through the generations to Ms. Lanier — have prevailed in heroic defiance of the legacy of chattel slavery, an institution that functioned to sever family ties and erase lines of ancestry for enslaved Africans. The history of our family, and that of Harvard, will forever be linked to that same odious institution. We do not choose our ancestry, but we can choose to learn from a history that has given us prestige, privilege and wealth at the expense of others. 

(Mike Frisch)

June 23, 2022 in Current Affairs | Permalink | Comments (0)

Driving While Naked Draws Ohio Indefinite Suspension

The Ohio Supreme Court has indefinitely suspended an attorney with a history of exposing himself, as explained by Dan Trevas

The Supreme Court of Ohio today indefinitely suspended a Hamilton, Ohio, attorney for repeatedly driving naked and exposing himself to other motorists.

In a per curiam opinion, the Supreme Court noted that Scott Blauvelt is in treatment for a bipolar disorder and has expressed remorse for his behavior. But the Court also noted that he still struggles with the urge to engage in his illicit behavior. To be reinstated to the practice of law in Ohio, Blauvelt will have to meet several conditions, including proving that he is in full compliance with his mental-health treatment plan and orders from the Butler County Area III Court.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the opinion. Justice Sharon L. Kennedy did not participate in the case.

Repeat Suspensions Issued for Public Indecency
During an October 2018 traffic stop, Blauvelt was charged with public indecency and reckless operation of a vehicle when it was discovered that he was driving nude. Blauvelt pleaded guilty to the charges. Based on the incident, the Supreme Court in June 2020 imposed a two-year, fully stayed, suspension. In that opinion, the Court noted Blauvelt has a history of public nudity. In 2006, when he was the Hamilton city prosecutor, security cameras recorded him naked after hours in the government building housing the prosecutor’s office. The city fired him.

Three months after his 2020 suspension, the Butler County Bar Association requested an interim remedial suspension on the grounds that Blauvelt was twice again arrested for nude driving and exposing himself, and that he posed a substantial threat of serious harm to the public. The Court issued an interim suspension, barring him from practicing law, which remains in effect.

Today’s suspension is based on a subsequent complaint filed by the Butler County Bar Association in June 2021, which alleged that Blauvelt had been convicted of three additional counts of public indecency since he was first suspended. Blauvelt pleaded guilty or no contest to all the charges. His sentences included fines, a total of 14 days in jail, and probation terms ranging from two to five years.

Blauvelt also admitted that he has engaged in other similar acts of public indecency for which he was not arrested.

Attorney Participates in Treatment, Counseling
The opinion noted that since his most recent conviction, Blauvelt has participated in the Butler County Area III Court’s mental-health court, and began a two-year outpatient treatment program for compulsive-sexual behavior. He continues to see a psychiatrist to treat his bipolar disorder.

Blauvelt previously testified before a panel of the Board of Professional Conduct that although he has mostly managed his bipolar disorder, alcohol abuse — more specifically, binge drinking — has at times diminished his ability to moderate his behavior. Blauvelt stated he had abstained from
alcohol since June 2019 and started attending Alcoholics Anonymous meetings.

At his most recent disciplinary hearing, Blauvelt testified that he does not want to engage in acts of public indecency, but wrestles with the urge to do so. He said he intended to complete his outpatient treatment program but acknowledged that his mental-health issues will likely persist throughout his life, and he may need to remain in treatment indefinitely.

The board found Blauvelt engaged in conduct that adversely reflects on his fitness to practice law. The board’s report to the Court indicated it was troubled by Blauvelt’s continued misconduct despite his previous discipline, and his knowledge that his conduct was causing harm to others.

The Court agreed with the board’s recommendation to indefinitely suspend Blauvelt “to protect the public and ensure that Blauvelt cannot resume the practice of law until he is able to conform his conduct to the ethical and professional standards incumbent on lawyers in this state.”

To be reinstated, Blauvelt not only must demonstrate proof of compliance with his treatment plan, but also must continue to abstain from consuming alcohol, and meet all the conditions imposed under his June 2020 suspension. If he is reinstated, he must serve a period of monitored probation. The Court also ordered Blauvelt to pay for the costs of the disciplinary proceedings.

2022-0149Butler Cty. Bar Assn. v. BlauveltSlip Opinion No. 2022-Ohio-2108.

(Mike Frisch)

June 23, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 22, 2022

The Mask Of Disbarment

The Colorado Presiding Disciplinary Judge has approved a stipulated disbarment as set forth in this summary

In January 2021, a court entered default judgment against Bachar’s business, Empowerment Health LLC, in a civil case that included claims for breach of contract, negligent misrepresentation, and unjust enrichment. The plaintiff brought the claims after Empowerment failed to honor a purchase order with the plaintiff for N95 masks and thereafter refused to return the plaintiff’s initial payment for the masks. The court awarded the plaintiff damages of $700,000.00, plus interest and attorney’s fees. Bachar has not yet paid the awarded amount.

In another civil case involving other plaintiffs, Bachar and Empowerment defaulted on claims that included conversion and civil theft of more than $1,000,000.00 in Federal Emergency Management Agency-reimbursable funds paid to Empowerment by the State of Wisconsin. Bachar and Empowerment had agreed to transfer the funds to the plaintiffs as reimbursement for personal protective equipment that the plaintiffs had procured for and delivered to Wisconsin under an emergency purchase order during the COVID-19 pandemic. The funds were also meant to finance the acquisition and delivery of additional equipment to complete the emergency purchase order. In May 2021, the court entered a default judgment against Empowerment and against Bachar personally, resulting in their liability for nearly $4,000,000.00, which Bachar has not paid.

The conduct violated Rule 8.4(c). (Mike Frisch)

June 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Litigation Financier Disbarred

A federal conviction drew disbarment from the New York Appellate Division for the First Judicial Department

Here, respondent's convictions under 15 USC §§ 78j(b) and 78ff were sufficient to trigger Judiciary Law § 90(4)(a)'s automatic disbarment provision.

This press release from the United States Attorney for the Southern District of New York described the offense

U.S. Attorney Audrey Strauss said: “Jaeson Birnbaum conned investors through a series of lies about his litigation finance business, Cash4Cases.  He used Cash4Cases to steal cash for himself and then tried to cover up his scheme by directing a subordinate to falsify books and records.  Now Birnbaum awaits sentencing for his fraudulent conduct.”

USPIS Inspector-in-Charge Philip R. Bartlett said: “Everything Mr. Birnbaum told his investors was a lie framed around the idea of a good investment.  Postal Inspectors see these cases all the time and remind investors to thoroughly check the fine print on any investment offer, and if the return seems too lucrative or unreal, pass it by to make sure your money goes to fund your lifestyle and not the criminal’s.”

According to the Information and statements made in Court:

From at least in or about 2017 through in or about 2019, BIRNBUAM obtained more than $3 million in investments for Cash4Cases based on fraudulent misrepresentations.  These investments were in the form of promissory notes, titled “Investor Security Agreements” (“ISAs”), which purported to provide the relevant investors with a security interest in the recoveries associated with certain specified lawsuits that were ostensibly purchased by Cash4Cases.  In fact, in some instances, the lawsuits that were either never funded by Cash4Cases or BIRNBAUM had previously pledged their recoveries to other parties.

To help carry out his fraud, BIRNBAUM directed an employee to falsify his company’s books and records to make it appear that the recoveries from lawsuits that had already been paid out were still available to be pledged as collateral to new investors.

BIRNBAUM also misappropriated a substantial portion of investors’ funds for his personal use and to make promised payments to earlier investors.  As one example, BIRNBAUM obtained a $1 million investment for Cash4Cases in September 2019.  Prior to this investment, BIRNBAUM told the investor that Cash4Cases would use the money exclusively for advances to litigants.  However, contrary to this representation, on the same date that Cash4Cases received the $1 million investment, BIRNBAUM used the money to send a $530,000 wire toward the purchase of a house in New Jersey.

(Mike Frisch)

June 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

The Bondsman's Toil

The Georgia Supreme Court has publicly reprimanded a circuit court judge

On July 5, 2019, the Athens Banner-Herald published an article about a defendant who had an outstanding bench warrant for failing to appear in court for the retrial of his rape charges. Judge Norris had presided over the first trial, which resulted in a mistrial, and released the defendant on his own recognizance. On that same day, Nathan Owens, a bail bondsman who works in Clarke and Oconee counties, reposted the story to his personal Facebook page and to a large Facebook group called “Overheard at UGA”; Owens included his thoughts of Judge Norris’s handling of the case and his opinion that the defendant should not have been released on his own recognizance. Owens’s post gained a lot of attention, eventually prompting Judge Norris to contact another bondsman, John Elliott, in an effort to get in contact with Owens. On July 9, at the suggestion of Elliott, Owens texted Judge Norris, and Judge Norris told Owens to meet him in his office at 9:00 a.m. the following morning.

On the morning of July 10, Owens went to the courthouse with Elliott and another bondsman, Scott Hall. When the trio arrived at Judge Norris’s chambers, an armed deputy took their cell phones. Judge Norris then arrived, visibly upset, and instructed Elliott and Hall to remain in the lobby while Owens went into Judge Norris’s office. A deputy stood in the only apparent doorway. With his lip quivering and hands shaking, Judge Norris instructed Owens to “sit down and listen to what I have to say.” In a raised voice, Judge Norris began reading from the statutory bondsman code of conduct, which he had printed out in preparation for the meeting. Becoming nervous, Owens requested to have his lawyer present, but Judge Norris ignored this request. Instead, Judge Norris allowed Elliott and Hall to come into his office, and Owens asked them to witness that he wanted to leave or have his attorney present. Owens felt that he was not free to leave, sat quietly, and did not respond to Judge Norris’s berating. Ultimately, Judge Norris went on for about 30 minutes, chastising and lecturing Owens, implying that Owens did not have “good moral character,” insinuating that Judge Norris had the power to affect Owens’s livelihood as a bondsman, and reprimanding Owens for attacking him online and spreading “fake news” about the rape case.

Owens filed a judicial complaint.


While we are also unable to find a Georgia case where a respondent like Judge Norris exhibited planning or pre-meditation before his or her intemperate behavior, courts in other jurisdictions have imposed a range of sanctions against judges for acts of intemperance where the conduct required some planning, including public reprimand, censure, and suspension...

Here, Judge Norris’s violations were based on non-habitual conduct, with no evidence that he used vulgar language or engaged in any sort of physical altercation on the occasion in question. But Judge Norris’s deliberate and conscious planning of this confrontation is particularly problematic, as his misconduct was not the result of a sudden or brief loss of temper. In fact, Owens’s Facebook post was posted a full five days before the meeting with Judge Norris, Judge Norris had to reach out to another bondsman to get in contact with Owens, Owens and Judge Norris exchanged multiple texts to arrange the meeting, Judge Norris set the meeting in his chambers, during business hours, Judge Norris printed out the statutory bondsman code of conduct, and then Judge Norris delivered an angry 30-minute monologue in a raised voice while
Owens was required to sit and listen with an armed deputy standing in the doorway. Judge Norris also denied Owens’s request to leave or have an attorney present and intimated that Judge Norris could harm Owens’s position as a bail bondsman. Moreover, Judge Norris “offered various justifications for his meeting with Owens,” but the Panel found the testimony “inconsistent and contradicted by other evidence.” Panel Report at 10. Thus, unlike the judge in Hays, Judge Norris has not fully accepted responsibility for this incident.

The court declined to order the judge to apologize

Judge Norris’s failure to apologize to Owens on his own initiative suggests that a public apology compelled by this Court, even if permissible, would be insincere at best.

The worst, most intense chambers tongue-lashing I ever received was for being late for a chambers conference by District Judge C. Stanley Blair.

Still smarting after 47 years! (Mike Frisch)

June 22, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Information Please

There are two bar discipline matters currently being live- streamed before District of Columbia Hearing Committees.

One case apparently involves alleged mishandling of a bankruptcy matter; the other apparently involves allegations of unauthorized communications with a represented person.

I say "apparently" because when one googles the names of the Respondents in both matters, the web page says as follows

"0 results"

The Specification of Charges in both matters are public records that should be readily available to any interested observer.

Transparency fails when a bar web page has significant gaps in posting information concerning matters of public interest.

My many years of pointing out this issue to the responsible persons have made me the Cassandra of the D.C. Bar.

Update: The charges are now posted in both matters. (Mike Frisch)

June 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Difficult Duty

The Oklahoma Supreme Court has disbarred an attorney


The respondent was admitted to the practice of law in Oklahoma in 1997. He is a solo practitioner in Sapulpa, Oklahoma. In 2005, the Court suspended the respondent for one year from the practice of law for:

1) having a sexual relationship with a client during a divorce representation;
2) sending a threatening letter to the husband's divorce counsel;
3) threatening counsel with litigation for filing a grievance against him;
4) commingling and converting a client's retainer; and
5) failing to respond to the Bar regarding a grievance.

Although it is not clear precisely how many, the record reflects that the respondent has had other informal complaints previously filed which resulted in diversionary classes relating to client neglect, communication, and law office management, along with at least two letters of admonition. On May 24, 2022, the Court suspended the respondent for noncompliance with mandatory continuing legal education requirements for the year 2021.

The opinion in the 2005 matter is linked here.

There were three counts in the present matter

The first grievance concerns loan and business transactions with a client. In November of 2008, the respondent borrowed $130,000.00 from his client, Ken Robertson, for the purchase and remodeling of an office building in Sapulpa. The respondent did not make timely payments on the loan. On March 5, 2009, the respondent received a settlement check on Robertson's behalf from the sale of land in Texas, deposited the check in his IOLTA account, and without the client's knowledge, "borrowed" another $80,000.00 from the settlement funds.

Subsequently, the respondent confessed to the client that he had taken the funds, and in November of 2009, the respondent executed a new loan agreement for $95,000.00 to memorialize the promise to repay the funds taken without permission. The combined amount of funds which the respondent owed the client was now $205,726.96. The respondent again failed to make the required, regular payments.

The client hired new counsel to collect and filed a bar complaint; the client died in 2020.

A second grievance involved a client seeking to expunge a criminal record.


Ronald Gilmore hired the respondent in May of 2012 to file a probate after Gilmore's daughter and son-in-law were killed in a car crash. The decedents left behind Gilmore's five-year-old granddaughter. Respondent filed the probate in Payne County on April 3, 2012, but, according to Gilmore, the respondent failed to timely resolve the matter, and failed to communicate with him thereafter. The respondent admitted that the case took too long, but blamed part of the delay on strategy of allowing a foreclosure of the decedent's real property first to protect the assets of the estate. After years of unexplained and unreasonable delay, Gilmore fired the respondent in July of 2019, and hired another lawyer. The matter was then resolved in about a year.

The court cited its "difficult duty to withdraw the license to practice law" when required to protect the public and uphold the integrity of the profession. (Mike Frisch)

June 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Forum Shopping Claim Rejected In Defamation Action

The United States District Court for the District of Columbia denied efforts of OAN to dismiss the defamation claims of Smartmatic and the remove the case to a California federal court

In November 2021, Smartmatic filed this lawsuit, claiming that OAN made numerous statements actionable as defamation about Smartmatic and the company’s role or lack thereof in the election.


OAN also notes that Smartmatic appears to be engaged in forum-shopping, striving to avoid a jurisdiction with an anti-SLAPP provision. See OAN’s Reply at 8; see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made A Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 YALE L.J. FORUM 708, 712 (2021) (discussing the advent and evolution of anti-SLAPP provisions). The Court’s exercise of specific personal jurisdiction over OAN comports with the requirements of the Due Process Clause. Indeed, if § 13-423(a)(1) has been satisfied then any added requirement emanating from the Due Process Clause has been satisfied, too. See GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). And although forum-shopping is not a trivial concern, a plaintiff may pick the forum and venue so long as the law allows it.

District Judge Nichols authored the opinion. (Mike Frisch)

June 22, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, June 21, 2022

"I Had No Role"

An attorney who used a Morris Bart LLP colleague's name and bar number in an Illinois proceeding should be suspended for six months with five months stayed, according to a recent recommendation of the Louisiana Attorney Disciplinary Board.

Respondent and Mr. Lubecki are not social acquaintances, and they have not worked together on any cases at Morris Bart, LLC.

Respondent is licensed to practice law only in Louisiana. Mr. Lubecki is licensed to practice law both in Louisiana and Illinois.

Respondent named Mr. Lubecki as counsel in state court litigation against Abbott Labs without permission or authority.

Communication between them ensued after Mr. Lubecki got notice of a proposed removal of the case to federal court.


Mr. Lubecki...responded to Respondent's January 24, 2019 email: "Rick, My role? I had no role. There was no discussion. You forged my signature and filed a lawsuit in my name without my knowledge or consent." During his sworn testimony, Mr. Lubecki explained why he responded this way: "[Respondent] admits to certain things in this email, but sort of the big elephant that's missing from this is the fact that he never had permission to do any of this .... [Respondent] never mentions the crux of what this is about, which is his fraud filing of this petition without permission. And so that angered me, so I just responded as I did."

Morris Bart, LLC hired its own counsel to review Respondent's conduct regarding the Litigation. That counsel prepared a draft recommended self-report for Respondent to submit to the ODC. Respondent thereafter chose not to self-report his misconduct to the ODC.

Mr. Lubecki made the ODC report.


Mr. Root is charged with a single instance of false representation to the court and the other parties in the Illinois litigation. His conduct did not cause harm to a particular client, rather he caused potential harm to the legal system and the profession. Given the above case law, and considering the totality of the circumstances of this matter including his lack of a disciplinary history, the Board concludes that a six-month suspension, with five months deferred is the appropriate sanction for Respondent’s misconduct.

(Mike Frisch)

June 21, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Marital Criming Was Protected

The New Jersey Supreme Court has held that the marital communications privilege was not (as is the attorney-client privilege) subject to the crime-fraud exception prior to a legislative enactment

In this appeal of defendant Ashley D. Bailey’s conviction of two counts of second-degree official misconduct, we determine whether the crime-fraud exception to the marital communications privilege governed text messages that defendant exchanged with her husband on September 16, 2014 -- after the Court proposed the exception, but before the Legislature enacted it into law.

The trial court held that the crime-fraud exception properly applied to the text messages without raising ex post facto concerns and admitted the messages into evidence at defendant’s trial. The Appellate Division affirmed.

We disagree that the crime-fraud exception can be properly applied to marital communications that preceded the Legislature’s amendment of N.J.R.E. 509. We find no evidence that the Legislature intended that amendment to retroactively apply to otherwise privileged marital communications that occurred prior to that amendment. We therefore hold that the trial court’s admission of the text messages constituted error. However, we view that error to be harmless given the extensive evidence presented by the State in support of defendant’s official misconduct convictions.

Accordingly, we modify and affirm the Appellate Division’s judgment.

(Mike Frisch)

June 21, 2022 in Privilege | Permalink | Comments (0)

"Cases Of Public Interest"

The District of Columbia Bar has a new link on its discipline web page to "Cases of Public Interest"

First and only case listed is In re Rudolph Giuliani.

Respondent is represented by Barry Kamins and John Leventhal of Aidala, Bertuna and Kamins.

An order entered by the Ad Hoc Hearing Committee on June 13 extends the time for Respondent's answer to the charges to July 15, 2022.

The order is signed by Committee Chair Robert Bernius, a former Chair of the Board on Professional Responsibility. (Mike Frisch)

June 21, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 20, 2022

Mental Health Question May Be Axed In Ohio

An announcement on the web page of the Ohio Supreme Court

Two proposed changes to the rules governing the process of assessing the character and fitness of candidates for admission to the practice of law in Ohio are now open for public comment.

The Supreme Court of Ohio is accepting comments until July 25 on the standards used by admission committees conducting character investigations into those who have applied to be members of the Ohio bar. The changes contain two modifications of the Supreme Court Rules for the Government of the Bard of Ohio, Rule I, Section 13.

Under Section 13(D)(3), an applicant may be approved for admission if the applicant’s record of conduct justifies the trust in clients, adversaries, courts, and others with respect to the professional duties owed to them. Admission committees consider several factors before making a recommendation about the applicant’s character, fitness, and moral qualifications.

The proposed rule amendment eliminates one of those factors: “Evidence of mental or psychological disorder that in any way affects or, if untreated, could affect the applicant’s ability to practice law in a competent and professional manner.”

The change reflects reports that  law students across the nation are not seeking mental health assistance in law school due to concerns regarding the ramification of disclosure during the character and fitness process.

The Conference of Chief Justices has passed Resolution 5, urging jurisdictions to eliminate of questions about mental health diagnosis and focus solely on conduct or behavior that calls into question the applicant’s character and fitness to practice law. The prosed rule amendment does not mean that mental or psychological disorders are never relevant to the process, just that the applicant must have engaged in conduct or behavior that calls into question the applicant’s ability.

The Court also proposes to modify Section 13(D)(6), which includes a list of factors admission committees shall not consider because they “do not directly bear on a reasonable relationship to the practice of law. The proposed list removes the factor of “sex,” and adds “gender, sexual orientation, and marital status,” to the list that includes age, race, color, national origin, and religion.

Comments on the proposed amendments should be submitted in writing no later than July 25, 2022. Comments made by mail or emailed to:

Gina Palmer, Attorney Services Division Director
Supreme Court of Ohio
65 South Front Street, 5th Floor
Columbus, Ohio 43215-3431

Email submissions should include your full name and mailing address.

June 20, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 19, 2022

Car Trouble

The Nevada Supreme Court ordered a fully stayed six month suspension with conditions for a concurrent client conflict of interest

Substantial evidence supports the panel's conclusion that Leventhal borrowed a client's personal vehicle for more than one year without obtaining a conflict of interest waiver and failed to return the vehicle after numerous requests by the client, which forced the client to rent a vehicle for his own use. However, substantial evidence does not support the panel's finding that Leventhal violated RPC 1.8(a) in relation to his acceptance of stolen property as collateral from a second client.

The court reduced the proposed sanction of a stayed one-year suspension

Because we conclude that only one of the violations found by the panel is supported by substantial evidence, we conclude the panel's recommended discipline is too harsh.

Prior discipline

This factor is particularly aggravating, as Leventhal's prior discipline also involved a violation of RPC 1.8(a), in which Leventhal accepted personal and real property as payment from a client and then tried to evict the client from the real property while he was still representing her.

In re: Discipline of  Leventhal was decided on June 17. (Mike Frisch)

June 19, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 18, 2022

Unusual Circumstances, Indefinite Suspension

The Kansas Supreme Court has cited "unusual circumstances" in rejecting competing sanction proposals

Here, a majority of the court declines to follow the recommendations. A minority of the court would follow the recommendations or impose a longer defined period of suspension with probationary terms.

We reach these conclusions under unusual circumstances. We are faced with determining the appropriate discipline of an attorney reinstated to the practice of law following a disbarment—perhaps a first-of-its kind situation in our state's modern history of attorney discipline. The rarity of that circumstance and the realization that respondent has violated a privilege very few attorneys have been allowed weighs heavily in our consideration of the appropriate discipline.

Also, the totality of respondent's disciplinary history reveals patterns of frequent and similar misconduct that has led to escalating levels of discipline up to disbarment.

The court described that history

In addition to the disturbing frequency of respondent's misconduct, his disciplinary history reveals a similarity in the type of misconduct he commits. In the prior disciplinary proceedings, like here, the respondent's discipline arose because he failed to exercise diligence when managing the legal matters entrusted to him, failed to appropriately and timely communicate with his clients, and failed to fully cooperate with the disciplinary process.

There was mitigation

Against these considerations we balance mitigating circumstances surrounding respondent's behavior. The disciplinary panel found significant mitigating factors. Specifically, respondent suffered enormous personal losses and depression during the time of his latest ethical violations. We feel great empathy for the respondent's losses and recognize that depression is often a life-long struggle. We also acknowledge the record suggests respondent is a good person and a knowledgeable attorney who has helped many clients. But it also reveals that respondent struggles mightily to manage the stresses of the practice of law. He also fails to conform his office practices of trust accounting and other processes to our profession's ethical standards.


After carefully considering the evidence presented, as well as the Standards for Imposing Lawyer Sanctions, we adopt the panel's findings and conclusions and indefinitely suspend respondent under Supreme Court Rule 225(a)(2) (2022 Kan. S. Ct. R. at 281). Respondent must comply with Rule 232 if he later seeks reinstatement.

(Mike Frisch)

June 18, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 17, 2022


Reinstatement denied by the Massachusetts Supreme Judicial Court

The petitioner was admitted to the practice of law in Massachusetts in 1988, and thereafter practiced primarily as an appointed criminal advocate for indigent defendants. Between 2009 and 2011, the petitioner engaged in an insider-trading scheme amongst a group of golfing partners, which ultimately led to his conviction by guilty plea of conspiracy in violation of 18 U.S.C. § 371, and securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff(a).

The District Court's refusal to dismiss the indictment was affirmed by the United States Court of Appeals for the First Circuit which noted

There is no allegation that McPhail himself engaged in trading. Rather, the indictment posits that he solicited “getting paid back” by Parigian and the others with wine, steak, and visits to a massage parlor. Parigian assured him that “I will take you for a nice dinner at Grill 23.” Another tipped trader offered McPhail a free golf outing.

The court here found Petitioner had not demonstrated present learning in the law.

Moral character

The substantial evidence supports the board's conclusion that the petitioner failed to demonstrate that he has reformed his character during the period since he was convicted and sentenced for serious crimes. Before the panel, the petitioner did not present any witnesses or any letters attesting to his current moral character.

Unlearned lessons

Prior to his conviction, the petitioner was not only an experienced criminal defense attorney, but also was experienced in trading stocks over several decades. Between the mid-1980's and the time of his conviction, the petitioner amassed retirement savings of approximately one million dollars, primarily through investing in mutual funds and stocks through his personal and IRA accounts. Between June 2009 and April 2011, as the petitioner admitted during his 2015 plea colloquy, he "willfully" traded shares of a particular company on six separate occasions based on emails he received from a friend, Eric McPhail, which tipped him off to "material, nonpublic" business activity information for a particular company, including the content of upcoming quarterly earnings reports or the existence of as-yet unannounced major contracts. The scheme ended in April 2011, when the petitioner's last trade yielded a net profit of more than $200,000, and the  company was subject to a class action suit alleging financial malfeasance. The petitioner admitted that he had made all six trades "knowingly" and could "clearly" "infer" that the information upon which he acted was "confidential" from the content of McPhail's emails, including warnings to the petitioner to "SHHHHHHHH!!" and cautions against sharing the information with others because it might not "remain" "safe." The petitioner also specifically admitted that it was clear to him that the information was coming from an "improper source," and that "at some point during the conspiracy, he realize[d] that the information he [was] getting from McPhail [was] coming from an insider at [the company]," whom the petitioner met on the golf course.

Nevertheless, the petitioner materially contradicted or, at minimum, substantially qualified these admissions in his reinstatement petition and hearing testimony.

Citing Alger Hiss

Based on this record, there is substantial evidence supporting the panel's credibility-based conclusion, adopted by the board, that in seeking reinstatement, the petitioner pursued a "self serving and implausible insistence . . . that he did not know that insider trading could be a criminal offense, and that, even at the civil level, he was innocently caught up in a maze of uncertain legal rulings," leaving serious doubt "as to what [the petitioner] acknowledges he did wrong" and "what reform [the] panel should expect from him, and therefore, whether he has reformed at all." Like the panel, I conclude that the petitioner "back-track[ed] on [his] guilty plea," "confirm[ing] that he still has not fully accepted responsibility as a first step towards true reform."

He must wait one year to reapply. (Mike Frisch)

June 17, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Google And Departing Lawyers

A Memorandum Opinion of the United States District Court for the District of Columbia (District Judge Boasberg) dismissed litigation brought in the wake of a lawyer departure from his longtime firm

Perhaps it can be characterized as an occupational hazard, but disputes between law-firm partners tend to devolve into litigation. This case is no exception. Plaintiff William Lightfoot left Defendant Koonz, McKenney, Johnson & DePaolis LLP (KMJD) after working as a lawyer there for several decades. After his departure, KMJD retained the log-in credentials for Lightfoot’s Google My Business (GMB) page, which he used to advertise his services online. Lightfoot alleges that the firm subsequently accessed this page without his permission and also altered the telephone number there to KMJD’s own as a means to divert clients its way. He brings similar allegations with regard to the GMB page for his new law firm, Plaintiff May Lightfoot PLLC. Plaintiffs believe that KMJD’s actions violate two federal statutes — the Computer Fraud and Abuse Act and the Lanham Act — and constitute tortious interference with prospective advantage, negligence, and conversion under D.C. law. Defendant now moves to dismiss all counts. Because the Court finds in the firm’s favor on the federal causes of action, it will dismiss them and decline to exercise supplemental jurisdiction over the D.C.-based claims.

The opinion notes a post-departure development

Although he and his new firm have long since sorted out the [google] problem, Lightfoot is hardly disengaging, perhaps because an arbitrator socked him with nearly a half-million dollar award in favor of KMJD in 2021.

Merits of the federal claim

KMJD does not deny accessing Lightfoot’s page, but rejoins that such access could not have been unauthorized since it possessed the log-in credentials and, by Plaintiffs’ own description, “controlled” the GMB page during the relevant time period. 

So "unauthorized" is at least potentially at issue

Fortunately for the Court, it can allow these questions to percolate among those more learned in the field, since no resolution is necessary here. This is because Defendant’s third argument for dismissal carries the day.

That one urges the Court to find Count I insufficiently pled because the Complaint has not alleged a loss that meets the CFAA’s statutory requirement.

On that issue

First, although Plaintiffs allege that they suffered a “loss of more than $2,100,000.00,” they do not tie that loss to KMJD actions that occurred during the relevant timespan — namely, the brief period between February 6, 2020 (if the loss resulted from denial of access to the page) or February 14, 2020 (if it stemmed from the changing of the phone number) and February 20, 2020, when they gained control of Lightfoot’s GMB page...

Second, even assuming that lost revenues is a valid form of “loss” under the CFAA, Plaintiffs have not alleged that theirs resulted from an “interruption of service,” as the statute requires.

Lanham Act

Next up is Count II, in which Plaintiffs allege that KMJD violated the Lanham Act by “misappropriating and altering Mr. Lightfoot’s and Lightfoot’s GMB account” and “falsely designat[ing] the ownership, origin, and purveyor of the services advertised by Mr. Lightfoot’s and May Lightfoot’s GMB page in an effort to cause confusion and mistake as to the services offered and advertised by the May Lightfoot GMB page.” Compl., ¶ 39; id., ¶¶ 35–44. The firm believes that this count must be dismissed because Plaintiffs have not alleged the three elements of a trademark claim — namely, trademark rights, use of a trademark by KMJD, and likelihood of confusion.

This claim also was rejected, leaving only D.C. allegations. (Mike Frisch)

June 17, 2022 in Current Affairs | Permalink | Comments (0)

50 Years Ago

On the 50th anniversary of the Watergate break in, I am republishing my reminiscences from five years ago

I tend to avoid personal stories outside my area of expertise but I hope that readers of this blog will indulge me a few reflections in light of a story in the Style section of today's Washington Post about young staffers who worked for the Senate Watergate Committee in the memorable summer of 1973.

I had just finished my second year at Georgetown Law and was turning in my last assignment for the American Criminal Law Review when I noticed a job posting that looked more interesting than my plan to be a camp counselor at Town & County Day School in Wheaton Maryland.

I applied for the job and found myself interviewing the next day with Rufus Edmiston, who hired me as a research assistant for the Senate Select Committee on Presidential Campaign Activities (popularly known as the "Watergate" or "Ervin" Committee).

The primary function that I and several others performed was to read deposition and public testimony, review documents and dictate into hand-held tape machines summaries of the reviewed materials.

Every night, a (huge) computer in the Library of Congress ran an updated and comprehensive printout of the summaries for use by the committee in cross-checking witness testimony and preparing for the examination of future witnesses.

The computer run took all night. It being 1973, the males were assigned to the all-night duty and the females were excused.

It was actually quite exciting traveling through tunnels from the bowels of the LOC to the Senate in the company of armed guards taking the printout back to the Committee.

The people that I worked with were mostly behind the scenes. We rarely got to attend the hearings and become reality stars of the day.

To my memory I attended the hearings on two occasions.

When John Dean's prepared statement was the world's most closely held secret, it was given in its entirety to me to summarize for the computer analysis. Being one of a handful of people who had the statement in advance was an incredible thrill.

And an early test of my ability to adhere to the duty of confidentiality.

As a reward, I was allowed to attend the hearing and sit behind the Committee during Mr. Dean's reading of the statement. If you look closely at photos taken when he is sworn in, I swear that one of the long-hairs in the back is me.

The second occasion I will never forget. After lunch one day, a colleague and I were approached by a staff attorney named Marc Lackritz. Marc told us that we had done good work and should take in the afternoon hearing.

July 13, 1973.

Alexander Butterfield.

The next day that colleague and I were taken off the computer-dictation gig and assigned to do the legal research in aid of the Committee's efforts to subpoena the Nixon tapes.

That rather interesting bit of real-world legal research - my first ever - consumed the rest of the summer.

The Watergate job got me my first employment with the Maryland Federal Public Defender. The connection to my Watergate boss and beloved mentor Sam Dash played a large role in my return to Georgetown Law as Ethics Counsel in 2001.

This Saturday is the 45th anniversary of the break in.

The committee survivors are having a reunion in the famed hearing room tonight.

Through Assistant Committee Counsel (and longtime friend) David Dorsen, I've been fortunate to get to know, befriend and collaborate on ethics projects with John Dean.  Here we are at a Nationals-Cardinals game. 

Watergate has been very, very good to me [hat tip to Chico Escuela] (Mike Frisch)

May be an image of 2 people

June 17, 2022 | Permalink | Comments (0)

Thursday, June 16, 2022

Covid, Confusion Mitigates Unauthorized Practice

The Kentucky Supreme Court has reprimanded an attorney admitted in Ohio for practicing south of the Ohio River prematurely

In October of 2020, Rogalinski took and passed Ohio’s October 2020 bar examination.  In December of 2020, Rogalinski became licensed to practice law in the state of Ohio. She is not and has never been licensed to practice law in Kentucky. In August of 2021, Rogalinski filed an application with the Kentucky Office of Bar Admission (KOBA) seeking admission by her transferred score from her 2020 Ohio bar examination. State supreme courts and bar licensing agencies, including Kentucky and Ohio, had entered into Reciprocity Agreements by which October 2020 bar examinees, like Rogalinski, could submit their October 2020 scores from one jurisdiction to another and be credited with that result.

From April to October of 2021, Rogalinski was employed as a staff attorney by the Kentucky Department of Public Advocacy (DPA). While employed as a DPA attorney and despite being unauthorized to practice law in this state, Rogalinski represented clients in court and provided legal advice. DPA appears to have believed Rogalinski either had a limited license to practice law or was authorized to practice with the supervision of a licensed attorney. Rogalinski indicates that she was confused about her ability to practice law in Kentucky and believed she was acting appropriately. She attributes this confusion to the following circumstances: she had a limited license to practice law in Ohio during her final year of law school; she was seeking admission to the Kentucky bar; and she was permitted to represent clients by her superiors at DPA.

The result signals that the court accepted significant  mitigation

The KBA cites these cases to demonstrate that a public reprimand is an appropriate sanction. The KBA further notes that Rogalinski was confused about her ability to practice law in Kentucky and that this confusion appears to have been shared by her supervisor at DPA. This confusion is understandable, given that 2020 was the first year of the COVID-19 pandemic and all state supreme courts and bar admissions offices struggled with balancing public health and safety with the ongoing need to license recent law school graduates. This Court adopted supervised practice provisions to permit recent law graduates to practice under the supervision of a licensed attorney during the bar examination process, and these orders were issued and amended several times.  Finally, the KBA notes that there is insufficient evidence to determine that Rogalinski affirmatively misrepresented to DPA that she was authorized to practice law.

We have thoroughly reviewed the facts and relevant caselaw. Although the cases cited by the KBA all involve attorneys who were licensed to practice law in Kentucky but whose licenses were suspended, we find this distinction of little consequence. We agree with Rogalinski and the KBA that a public reprimand is appropriate here. The Character and Fitness Committee will consider Rogalinski’s actions in deciding whether she meets the good character and fitness standards required to obtain admission to the Kentucky bar. We urge the committee to act swiftly on Rogalinski’s application and to strongly consider in mitigation the unique situation within which Rogalinski found herself.

June 16, 2022 in Bar Discipline & Process | Permalink | Comments (1)

O Captain, My Captain

The South Carolina Supreme Court has reprimanded a Magistrate 

Respondent has been married since 1996. His wife was employed with the Marion County Sheriff's Office (Sheriff's Office) from 2000 until her recent retirement in February 2022. In 2007, the Respondent's wife was promoted to Captain of the Sheriff's Office's investigation unit, a role which required Respondent's wife to handle "administrative supervision" of certain Sheriff's Office deputies.

On June 30, 2009, Respondent was appointed to serve as a Marion County Magistrate. Respondent never presided over any case or hearing in which his wife appeared or was directly involved. However, prior to the ODC investigation in this case, Respondent regularly presided over bond hearings, traffic citations, preliminary hearings, and other matters in which Sheriff's Office deputies who were supervised by Respondent's wife appeared before him.

In cases involving the Sheriff's Office, it was Respondent's practice to call the court to order and state on the record "[m]y wife is a Captain with the Marion County Sheriff's Office, and she was not involved in your case, but I would be happy to disqualify myself and have another judge hear your case." After this statement (or something substantially similar), Respondent's practice was to ask whether a defendant objected, and if the defendant did not speak up, Respondent would preside over the hearing.

Agreed violation

The commentary to Canon 3F makes clear that the parties' consideration of whether to waive the judge's disqualification must be made independently of the judge and that the judge "must not solicit, seek[,] or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule."

Respondent admits that because his wife was employed with the Sheriff's Office, Respondent's impartiality might reasonably be questioned in matters involving the Sheriff's Office. Although Respondent disclosed his wife's role as Captain in each case involving the Sheriff's Office, Respondent violated Canon 3E(1), Rule 501, SCACR, by failing to disclose, when appropriate, that even though is wife was not involved in a particular matter, she nevertheless supervised Sheriff's Office deputies involved in a case, a fact which the parties might find relevant to a determination of whether to waive Respondent's disqualification and which therefore should have been disclosed.

(Mike Frisch)

June 16, 2022 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Innumerable Untruths

The District of Columbia Court of Appeals has disbarred an attorney

Both the Hearing Committee and the Board recommend that we disbar Mr. O’Neill. We agree that his intentional misappropriation of Mr. Fusco’s funds alone justifies disbarment. We further agree that his dishonesty is an independent reason why he cannot remain a member of the D.C. Bar. Over the years Mr. O’Neill has told innumerable untruths to Mr. Fusco, Mark Walsh (the solicitor who attempted to help Mr. Fusco reclaim his funds in Irish court), the High Court of Ireland, the  Hearing Committee, and the Board regarding whether he had transferred the funds to his client, why he had not done so, and where the funds were. Mr. O’Neill has admitted at various points that his representations were untrue, and then turned around and told new falsehoods. If his dishonesty does not qualify as flagrant, then nothing does. To allow him to remain a member of our bar in light of his demonstrated indifference to truth-telling would demean bar membership.

The court rejected the argument that it lacked jurisdiction

Mr. O’Neill’s jurisdictional argument is irreconcilable with the plain text of the Rules of Professional Conduct. In return for the privilege of D.C. Bar membership, all members agree to conform their conduct to the Rules of Professional Conduct “regardless of where [that] conduct occurs.” D.C. R. Prof. Conduct 8.5(a)...

The D.C. Bar’s jurisdiction arises from consensual covenant, not geographic location.

Respondent claimed he was not acting as an attorney in misappropriating entrusted funds

Here, the record conclusively establishes that Mr. Fusco hired Mr. O’Neill—who held himself out as an attorney on his letterhead—to act as his attorney. Mr. Fusco learned about Mr. O’Neill from his brother, for whom Mr. O’Neill had done legal work in Ireland. Mr. O’Neill gave Mr. Fusco legal advice about the negotiations regarding the sale of his share of his company, which were governed by Irish law; referred to Mr. Fusco as his client to other attorneys; ultimately received the proceeds of the sale of Mr. Fusco’s interest in his company (some of which he moved to an IOLTA account which is supposed to be used solely to hold entrusted funds, see supra note 1, only because he was Mr. Fusco’s legal representative during the mediation; and charged Mr. Fusco legal fees for his representation.


The circumstantial evidence of Mr. O’Neill’s larcenous intent is overwhelming. He failed to pay Mr. Fusco when Mr. Fusco repeatedly asked for his money. He failed to pay Mr. Fusco when the High Court of Ireland ordered him to do so (and fled Ireland after the court found him in contempt and sentenced him to twenty-eight days of imprisonment). He failed to pay Mr. Fusco after disciplinary proceedings were commenced against him. And, all along, he told one falsehood after another about where Mr. Fusco’s funds were and why he could not return them. Mr. O’Neill’s six years of inaction and deceit provide ample basis for us to conclude that, when he took Mr. Fusco’s money, he committed the crime of larceny under New York law and violated Rule 8.4(b).

Don't let the doorknob hit ya

Moreover, Mr. O’Neill may not be reinstated until he pays Mr. Fusco full restitution  plus interest, as well as the costs of litigating this action in Ireland.

Associate Judge Easterly authored the unanimous opinion. (Mike Frisch)

June 16, 2022 in Bar Discipline & Process | Permalink | Comments (0)