Tuesday, January 10, 2023

Judge Resigns

The New York Commission on Judicial Conduct reports that a Surrogate's Court judge has resigned in the face of pending misconduct allegations

Judge Thompson was charged in May 2022 with a Formal Written Complaint, alleging that she made inappropriate comments to and about employees and judges of the Unified Court System; displayed bias against various individuals and ethnicities; failed to administer Surrogate Court matters in a timely manner, leading to substantial delays; and, as a candidate for Surrogate in 2018, failed to complete mandatory campaign ethics education in a timely manner.

A formal hearing was scheduled to commence on January 17, 2023, before a Commission referee, Mark S. Arisohn.

After Judge Thompson produced a letter from her physician on November 30, 2022, claiming she was “not medically fit to stand trial at this time” and that further medical procedures were likely, the Commission authorized a Second Formal Written Complaint against her, dated December 16, 2022, alleging that she was medically unfit to remain in office.

In lieu of filing an Answer to the Second Complaint, Judge Thompson agreed to leave office permanently due to her medical situation. She also agreed to discontinue any lawsuits she had commenced against the Commission. Judge Thompson waived the statutory provision of confidentiality applicable to Commission proceedings, to the limited extent that the stipulation and the Commission’s order accepting it would be public.

Judge Thompson has served as a Judge of the Surrogate’s Court since 2019. Her current term would have expired on December 31, 2026. She previously served as a Judge of the New York City Civil Court from 2011 to 2018.

The City had reported on the matter

In December 2021, after a court inspector general’s report documented hateful statements that Brooklyn Surrogate Court Judge Harriet Thompson allegedly made in front of court staff about Hispanics, whites, gays, West Indians, the overweight and the ill, the state’s Office of Court Administration blocked the judge from hearing new cases. She was also made to surrender her keys and access cards to court facilities.

The inspector general referred the matter to the state’s judicial commission and Thompson remained on payroll during the still ongoing probe of the claims about her remarks.

On one occasion, the inspector general accused Thompson of insulting various members of the judiciary for their sexual orientation, allegedly saying, “Being gay is an abomination to mankind. Man shall not lay with man.”

On another occasion, the inspector general alleges, Thompson declared that she did “not like Hispanic people,” continuing: “They have a deceitful trait that goes way back to biblical times ... The men are always stealing, and the women are no better, they lie, steal, and use their vaginas for anything they want.”

The stipulation reached in the matter is linked here. (Mike Frisch)

January 10, 2023 in Judicial Ethics and the Courts | Permalink | Comments (0)

D.C. Court To Hear Aspect Of Trump V. Carroll Defamation Suit

An oral argument scheduled for this morning before the District of Columbia Court of Appeals

Tuesday, January 10, 2023 10:00 AM  ENBANC

No. 22-SP-0745 DONALD J. TRUMP, ET AL. V. E. JEAN CARROLL
Mark R. Freeman, Esquire
Jason C. Greaves, Esquire

Insider reported on the issues

A defamation lawsuit against former President Donald Trump will be heard by the District of Columbia Court of Appeals on Tuesday, and while the case stems from a rape allegation, what's at stake is whether presidents can be sued for comments they make in office. 

The case concerns longtime Elle advice columnist E. Jean Carroll's rape allegation against Trump, and his subsequent denials. 

In June 2019, Carroll wrote in an essay for New York Magazine that Trump forced himself on her in a dressing room at Bergdorf Goodman in the mid-1990s. 

Trump was president at the time Carroll went public with the rape claim, and he loudly denied her allegation in a series of statements to the press, in which he insulted her appearance and claimed she made the accusation up to sell her memoir. Trump went so far as to claim he never met Carroll, but that was quickly refuted with an image of the two chatting at a party in 1987. 

Carroll sued Trump for defamation in November 2019, saying her career suffered "as a direct result of Trump's defamatory statements."

Trump — and the Department of Justice, which later intervened in the case — have argued that he is protected by a federal law known as the Westfall Act.

The Westfall Act protects government employees from being sued for actions in the line of their work. A common use of the act is protecting US Postal Service workers from being sued for car accidents they're involved in. Instead, the US government becomes the defendant in such suits. 

The DOJ has argued in court filings that Trump's comments were protected by the Westfall Act because part of the job of being president is "speaking to the public and the media on matters of public concern — including, at times, responding to allegations about the elected official's own private conduct bearing on his fitness to hold office."

Carroll's legal team has countered that Trump "acted with private motives, and not in furtherance of any official federal purpose or function, in seeking to punish and humiliate Carroll for revealing his decades-old crime," according to their court filings. 

The legal question of whether Trump was protected by the Westfall Act has divided judges as the case has made its way through the courts. 

US District Judge Lewis Kaplan sided with Carroll's lawyers, ruling in October 2020 that Trump wasn't acting in his official capacity when he denied Carroll's rape allegation.

"His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States," Kaplan wrote. 

But when Trump's lawyers appealed Kaplan's decision to the US Court of Appeals for the Second Circuit, a three-judge panel was split on the issue, favoring Trump 2-1.

However, the panel agreed there was some uncertainty over whether Trump's comments were made within the scope of his employment, and ultimately passed the case to the DC Court of Appeals since the case focuses on DC law. That court will hear oral arguments in the appeal on Tuesday.

The DC Court of Appeals will be hearing the case "en banc," meaning every judge in the court will hear the case and offer an opinion — a situation reserved for particularly complex cases. 

What's at stake

The appeals court decision likely won't have too much of an impact on Carroll, since she filed a second lawsuit against Trump in November.

That lawsuit also stems from her rape allegation, and includes a defamation complaint over Trump calling her allegations a "Hoax and a lie" on his social media platform, Truth, in October 2022. Because he made those comments after leaving the White House, he won't be able to claim Westfall Act protection. 

The second lawsuit also includes a claim of battery. Previously, Carroll had not been able to sue Trump for the alleged rape itself, because the statute of limitations had expired. But a new New York law, the Adult Survivors Act, temporarily allows the filing of lawsuits claiming sexual assault in cases where the statute of limitations has expired. 

This means that one way or another, Carroll's allegations against Trump are likely to go in front of a jury — if Trump doesn't settle the case first. 

But the case is still important when it comes to determining just how much protection the Westfall Act offers a sitting president. 

If the court sides with Trump, it could further expand the protections a president is given, making it incredibly difficult to sue a president for anything he or she says while in office — even if those statements are libelous. It also means that the suit will likely be dismissed, since the federal government can't be sued for defamation. 

Denny Chin, the lone dissenter on the Second Circuit Court of Appeals, who sided with Carroll, underlined how Trump winning on this issue could have ramifications for the presidency: 

Chin wrote that "no President could be held accountable for damage done in front of a microphone or in an official meeting — whether defaming a citizen, exposing classified national security information, or inciting a riot."

"This is not, and should not be, the law," Chin wrote. 

Shanlon Wu, a partner at DC law firm Cohen Seglias, told Insider that the case is so specific to Trump's personal situation that a win for Trump wouldn't necessarily apply to future presidents. 

However, he said one potential consequence of the court siding with Carroll is that it could open Trump up to lawsuits from other people he verbally attacked in office. 

"That makes it very high stakes for Trump, but not as a matter of legal precedent," Wu said.

Another thing to keep in mind: if the court sides with Carroll, her case could be heard in a matter of months. 

Carroll's lawyers have petitioned to try both cases at the same time, and the current trial date for the first lawsuit is scheduled for April 10. 

The argument can be accessed in real time through a link on the court's web page. (Mike Frisch)

January 10, 2023 in Current Affairs | Permalink | Comments (0)

Monday, January 9, 2023

Recreation Of Billing Records Led To Overbilling

The Ohio Disciplinary Counsel and Respondent have reached a consent agreement for public reprimand in a case of overbilling by a court-appointed counsel for indigent defendants

Between at least 2019 and 2021, when it was time to submit a fee application form, respondent would recreate the time he had spent on a case by reviewing the case docket and his incomplete handwritten notes, and he would estimate both the time he had spent on a particular task, as well as the date on which he had performed the task.

For example, if a case involved a body camera video, respondent would review the case docket for the hearing date on which the body camera video came into question. He would then account for his time watching the video by entering time on his fee application form in an amount he believed he spent watching the video sometime during the week preceding the hearing date.

Respondent’s failure to maintain accurate and contemporaneous time records led to him filing numerous incorrect fee application forms with the Hamilton County Court of Common Pleas and the Hamilton County Municipal Court that reflected excessive amounts of hours on certain days.

In early 2021, the OPD became aware that several Hamilton County attorneys were generating a significant number of hours for court-appointed work. Accordingly, the OPD conducted an audit on fee application forms submitted by those attorneys on or after January 1, 2019. (Exhibit 3.)

The OPD audit revealed that respondent submitted certified fee application forms, which asserted that he had worked more than 24 hours on the following three dates:
• June 24, 2019 (29.4 hours);
• August 7, 2019 (27 hours); and
• September 23, 2019 (25.7 hours).
(Exhibit 4; Exhibit 5; Exhibit 6; Exhibit 7.)

The OPD audit also revealed that respondent submitted certified fee application forms, which asserted that he had worked between 20 and 24 hours on the following 13 dates:
• March 7, 2019 (20.6 hours);
• May 28, 2019 (22.2 hours);
• June 12, 2019 (23.2 hours);
• June 18, 2019 (20 hours);
• July 16, 2019 (22.9 hours);
• August 15, 2019 (20.2 hours);
• September 13, 2019 (21.6 hours);
• September 18, 2019 (20 hours);
• September 26, 2019 (22.8 hours);
• January 7, 2020 (20.1 hours);4
• January 22, 2020 (20.6 hours);
• June 24, 2020 (20.3 hours); and
• August 13, 2020 (21.9 hours).
(Exhibits 4 and 8 through 20.)

Finally, the OPD audit revealed that respondent submitted certified fee application forms, which asserted that he had worked between 16 and 20 hours on the following 22 dates:
• March 28, 2019 (17.6 hours);
• July 11, 2019 (17.2 hours);
• August 3, 2019 (Saturday) (16.3 hours);
• September 16, 2019 (16.9 hours);
• November 12, 2019 (18.8 hours);
• November 18, 2019 (16 hours);
• December 9, 2019 (16.3 hours);
• December 16, 2019 (17.7 hours);
• December 17, 2019 (17 hours);
• January 8, 2020 (17.1 hours);
• January 9, 2020 (17.1 hours);
• January 28, 2020 (16.6 hours);
• February 3, 2020 (16.1 hours);
• February 5, 2020 (18.9 hours);
• June 17, 2020 (18.7 hours);
• June 18, 2020 (19.9 hours);
• June 25, 2020 (16.5 hours);
• July 28, 2020 (17.5 hours);

• July 30, 2020 (18.6 hours);
• August 10, 2020 (19.4 hours);
• August 25, 2020 (18.1 hours); and
• September 21, 2020 (16.4 hours).
(Exhibits 4 and 21 through 42.)

Respondent’s fee application forms indicate that on August 7, 2019 – the day that respondent billed for a total of 27 hours – he spent 14.1 hours “in court” on behalf of his clients even though the Hamilton County courts are only open to the public for eight hours a day (8:00 a.m. to 4:00 p.m.) Monday through Friday. (Exhibits 4 and 6.)

Similarly, respondent’s fee application forms for September 23, 2019, and September 26, 2019, indicate that he spent 12.3 hours and 12.6 hours, respectively, “in court,” on behalf of his clients. (Exhibits 4, 7, and 16.)

Among the agreed mitigating factors was full restitution. (Mike Frisch)

January 9, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 6, 2023

Midnight At The Oasis

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

A press release from February 2016 of the District of Columbia Office of the United States Attorney

According to a statement of offense submitted at the plea hearing, Fogan was the executive director of the Oasis Foundation, a private charitable foundation located in the District of Columbia. The Board of Directors of the Oasis Foundation was comprised of Fogan, a professor, and a priest. The Oasis Foundation’s purpose was to make financial donations to various non-profit and charitable organizations that worked in educational development, innovation in science and technology, the promotion of arts and culture, developing families and strong communities, and the promotion of environmental awareness and protection.

Fogan enjoyed exclusive access to, and control of, the Oasis Foundation’s finances, including all bank accounts. From on or about Jan. 1, 2011, to at least May 31, 2013, Fogan illegally obtained in excess of $1 million from the Oasis Foundation.  Oasis Foundation accounts were replenished as Fogan continued to spend down the balances in each account.

 Fogan spent at least $1 million of the illegally obtained funds at casinos. Spending the funds in such fashion was contrary to the purpose and mission of the organization. The Board was unaware of such spending, and would not have approved of it. Fogan continued in the unlawful spending of these funds until he was caught by law enforcement.

   Of the numerous illegal transactions Fogan conducted, seven were for amounts in excess of $10,000, which comprise the money laundering charge. These seven transactions totaled $223,568.

  During this time period, the defendant made some legitimate expenditures related to the Oasis Foundation, which resulted in the commingling of funds.

(Mike Frisch)

January 6, 2023 in Bar Discipline & Process | Permalink | Comments (0)

An Atypical DUI

The California State Bar Court Review Department recommended a three-year suspension with credit for approximately 29 months served and fitness for a number of issues, primarily a driving while intoxicated offense.

The driving offense

On the morning of May 31, 2018, Madden drank “moonshine,”  as she had not planned on leaving the house. Madden allowed her boyfriend to borrow her rental car to pick up his medications. The boyfriend drove and Madden accompanied him as passenger—only she was on the rental car contract. While on the drive, they began to argue and the boyfriend eventually parked the car in a strip mall parking lot and walked away. Madden testified that the boyfriend had yelled at her and she felt abandoned when he left. She walked to a coffee shop and accidentally dropped her phone into a toilet. With no working phone, she decided to drive to a store to get a new one.

While driving, Madden testified that she began to feel the effects of the moonshine and decided she should turn around at the San Francisco International Airport (SFO) and go home. In the arrival lanes at SFO, Madden collided with a parked town car, owned and driven by Harbans Hunjan. Hunjan was outside the vehicle after loading his passenger’s luggage. The collision caused the town car to hit Hunjan, throwing him several feet into the street. He hit his head and lost consciousness. The passenger exited the town car to assist Hunjan. Madden remained in the rental car. Hunjan was transported to the hospital in an ambulance. He was hospitalized for three days, had three spinal fractures, bruising on his leg, and neck injuries, which required wearing a neck brace.

An interim suspension was ordered due to the ensuing conviction

The interim suspension went into effect on December 1, 2019, while Madden was serving her sentence in county jail and concluded on March 24, 2022, when we vacated the interim suspension imposed on August 29, 2019.

Charges of non-compliance with discipline orders and unauthorized practice were sustained but with mitigation

The surrounding facts and circumstances of Madden’s rule 9.20 violation do not excuse her misconduct, but they offer important context. Our August 29, 2019 order did not explicitly repeat the rule 9.20 directive from the earlier July 5 order. Also, the August 29 order stated that the interim suspension ordered on July 5 was “vacated.” But the rule 9.20 directive was not vacated, which was understood by Probation, who alerted Madden several times that she was to file rule 9.20 compliance before January 10, 2020. But Madden asserts that after the August 29 order, she believed she no longer had any rule 9.20 obligations, which is conceivable considering we stated the July 5 interim suspension order was vacated. She reported to jail on October 26, 2019, went on interim suspension on December 1, 2019, and remained incarcerated when she was required to file the rule 9.20 compliance declaration on January 10, 2020. She eventually sent a rule 9.20 declaration to Probation, but never filed one with the State Bar Court or verified with the court her obligations. We acknowledge that our August 29 order was not as clear as it could have been, and that Madden was incarcerated when compliance was due. Further, she attempted to file documents with the Supreme Court on August 29, before she was aware of the August 29 order.

The UPL Charge

Madden’s UPL violation also evidences important extenuating circumstances. She practiced law in Stancil, but was forthright in alerting the Supreme Court that she was in custody and had been enrolled as involuntary inactive, that she had tried to file a notice of her suspension with the Supreme Court on August 29, and that she remained on interim suspension. She sought confirmation that she could remain as an attorney on the case and asked for the case to be stayed until after her release from jail.

She also had slapped a postal employee

Her assault of a postal worker was serious misconduct, but did not constitute a crime involving moral turpitude, nor did it result in any appreciable harm to the victim. Her actions were moderately mitigated by personal stress in her life.

As to the DUI

Clearly, Madden should not have driven the car when she had been drinking. But the facts do not represent the typical situation of a driver who knows she is drunk and gets behind the wheel and drives. She never intended to drive, but events occurred that caused her to drive, and thereafter, she started to feel the effects of the alcohol.

Sanction

While Madden’s misconduct was very serious, she was on interim suspension for a long time: from July 29, 2019, until August 29, 2019, and from December 1, 2019, until March 24, 2022. To protect the public, she will not be relieved of actual suspension until she demonstrates her rehabilitation, fitness to practice, and present learning and ability in the general law.

(Mike Frisch)

January 6, 2023 in Bar Discipline & Process | Permalink | Comments (0)

The Grimm Reaper And The Dark Web

The Illinois Administrator has filed a complaint alleging criminal conduct

In or about 2019, Respondent used a fake South Carolina driver’s license to rent a United States post office box (“PO box”) in Chicago, Illinois, under the name “Joseph Borrel.”

Beginning in 2019, Respondent began acquiring ecstasy pills (MDMA) on the dark web. Respondent would purchase the pills using cryptocurrency and have the package shipped to Joseph Borrel at the PO box. Generally, there would be approximately 10 days between Respondent placing an order and receiving the package. After obtaining the pills, Respondent would then sell them to a known dealer for a net profit of approximately $5,000 per transaction.

Between 2019 and October 2020, Respondent ordered ecstasy pills from the dark web approximately 15 times, and with each transaction Respondent kept no more than 10 pills.

On or about October 13, 2020, Cook County Sheriff Investigator John Riggio was notified that a Customs and Border Protections Officer at the O’Hare International Airport Foreign Mail Unit conducted a border search on a parcel from Great Britain, and addressed to Joseph Borrel at a P.O. box in Chicago, Illinois. Upon examination, the parcel contained a vacuum sealed bundle of approximately 424 gray “Grimm Reaper” pills, suspected to be ecstasy (MDMA). Subsequent field tests were conducted and it was determined the pills were positive for MDMA.

On October 22, 2020, Judge Timothy Chambers signed an anticipatory search warrant and orders for a GPS and alarming devices to be installed on the parcel.

On October 23, 2020, investigators were alerted that Respondent had retrieved the parcel from the PO box. Investigators followed Respondent’s vehicle to a parking garage. Shortly thereafter, investigators received an alert from the alarming device, notifying them that the parcel had been opened. As an investigator approached the rear of Respondent’s vehicle, they observed Respondent with a bundle of pills in his hand and the open parcel in the trunk. Respondent was then arrested.


Respondent pleaded guilty to a Class 4 felony for possession of a controlled substance. (Mike Frisch)

January 6, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Hockey Night In Massachusetts

The Massachusetts Board of Bar Overseers recommends a fully served six-month suspension of an attorney, rejecting a hearing committee's proposal that the sanction be fully stayed.

The board also rejected the Respondent's motion to reopen the record.

He had been appointed represent a minor child in a care and protection action

Although the father had separate counsel, he and the respondent communicated. On March 8, 2019, the two discussed a party the father wanted to throw for the child. The respondent offered to pay for the party. On March 9, 2019, the father picked up the respondent and drove him to an ATM where the respondent withdrew money, which he gave to the father.

In the car were two minor children, the sister of the respondent’s client as well as her friend. During the car ride, the father offered the respondent a beer, which he accepted and which at the time (but not currently) violated Mass. G. L. c. 90, § 241 (the open container law). According to his own testimony, the respondent had been drinking heavily for several weeks and hoped that the beer would help him feel better. They then drove to a liquor store at the respondent’s suggestion. The respondent purchased a fifth of cognac for himself and one-ounce containers of whiskey for the father. He did so despite his knowledge that the Juvenile Court had concerns about the father’s alcohol use and had ordered him to abstain. Also, the respondent bought alcohol when he knew there were minor children in the back seat of the father’s car.

After dropping the respondent at his home, the father went to a hockey game. After becoming visibly intoxicated, he was unable to drive home. Authorities had to escort the father from the arena.

Based on the events at the hockey game, a report under Mass. G.L. c. 119, § 51A was filed against the father with DCF. The 51A report mentioned and implicated the respondent as a contributing factor to the father’s behavior. After an emergency hearing, the minor child was removed from the father’s custody and placed in the custody of DCF. The Juvenile Court judge ordered the respondent to withdraw from representing the child. The hearing committee found, based on substantial evidence, that the respondent’s conduct was a contributing factor to the father’s loss of temporary custody and that in providing alcohol to the father, the respondent acted contrary to the interests of his client, the minor child.

Alcohol use was not mitigation

As the hearing committee noted, the respondent’s misconduct was unrelated to his alcohol use issues. As an initial matter, he apparently did no work on the case. He had no information about the underlying family situation and whether the father was an appropriate custodial parent. He had some sort of relationship with the father of his minor client, in a case where the dispute centered on custody. He had frequent contact with the father, even though the father was represented by a lawyer. He allowed a person known to have issues with alcohol to give him a beer and drive a car with two children in the backseat. He bought whiskey for this person. His recklessness led to the father becoming belligerent to such an extent that he had to be removed from a hockey arena. The chain of events unsurprisingly ended in the respondent’s client being removed from the father’s home. None of this resulted from alcohol use.

Dissent favoring stay

We part with the majority regarding whether the suspension should be stayed for two years, as recommended by the hearing committee. As the respondent points out in his motion to reopen, he has taken significant steps toward recovery from alcohol use disorder. Although he may not have been completely and flawlessly successful, we do not view 100% success as the standard by which to impose a stayed suspension. We should not demand perfection.

Even against a high standard, the respondent has accomplished a great deal. As he explains in his motion to reopen, he successfully complied with a two-year monitoring agreement. After completing the monitoring program, he continued to attend voluntarily monthly LCL meetings as well as AA meetings four to five times per week. On his own initiative, he has attended fifty hours of mindfulness classes, which have helped him manage stress.

In rebuffing the respondent’s efforts at sobriety, the hearing committee imposed on him an unduly high burden. Unfortunately, our colleagues in the majority have perpetuated the misunderstanding. The committee derided the respondent’s own testimony as to his sobriety, apparently because it deemed the testimony self-serving. (Hearing Committee Report, ¶ 39). The analysis is both factually and legally incorrect. As a factual matter, the committee had before it (as do we) evidence of the respondent’s compliance with the two-year monitoring agreement as well as documents from Dr. Jeffrey Fortgang of LCL, in addition to the respondent’s testimony about his attendance at meetings. There was no evidence to contradict the respondent’s narrative. As a legal matter, we have relied on a similar quantum of evidence in concluding that a respondent has shown sufficient progress to merit a stayed suspension. Matter of Crowley, 9 Mass. Att’y Disc. R. 75, 76 (1989).

( Mike Frisch)

January 6, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Not Retroactive

A convicted attorney should not be eligible for retroactive treatment of his disbarment to the date of his earlier-imposed suspension, according to a memorandum of the Massachusetts Board of Bar Overseers

In this case, the respondent did not comply with the requirements of Section 17 of Rule 4:01. He did not provide the required notices to his clients and others, nor did he file with bar counsel and the court the necessary affidavits of compliance. He concedes as much, and blames the failure on his incarceration, which followed closely his administrative suspension. We appreciate the practical challenges of complying with Section 17 while in jail. However,
compliance was not impossible. The respondent has offered no explanation or evidence that he tried to comply but was frustrated in doing so. He does not provide evidence that he reached out to bar counsel for assistance or relief.

Although represented by counsel, he apparently did not ask his lawyers for help. What we are left with is unexplained noncompliance with the requirements of Section 17. Accordingly, we do not give the respondent “credit” for the time
since his administrative suspension. Amin requests that the court consider retroactivity based on his personal circumstances. (See November 7, 2022 letter). He recites a compelling personal story as an immigrant seeking asylum in the United States who successfully completed law school and admission to the bar. He urges us to consider the personal challenges that led to his criminality. These circumstances are irrelevant to the question at issue. We may consider personal circumstances in recommending a sanction, including factors the court has deemed mitigating. But those factors  must be litigated. The respondent would bear the burden of proving their applicability by a preponderance of the evidence. Here, we have nothing other than the respondent’s unsupported, unsworn, and un-tested assertions. In the absence of such evidence, we have no basis to confirm the statements in the respondent’s letter. In addition, we have no assurance that Amin has not practiced law since 2016.

The decision to retroactively disbar a lawyer rests with the discretion of the court, upon the recommendation of the board. We are mindful of our obligation to protect the public and promote confidence in the bar. If the court were to accede to the respondent’s request, he would be eligible for reinstatement in 2024, only two years after the entry of the disbarment order. He would receive this significant benefit based on no proof that he deserves it.

He agreed to resign from the Bar as part of the guilty plea in his criminal case. (Mike Frisch)

January 6, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 5, 2023

Hearing Ordered For Child Porn Conviction

The New York Appellate Division for the First Judicial Department concluded that an attorney's conviction of a serious crime did not equate to a New York felony that would require automatic disbarment.

Rather, the court continued an interim suspension and appointed a referee to recommend appropriate discipline.

The offense

On November 30, 2021, respondent was convicted, upon his plea of guilty, in the Superior Court of New Jersey of endangering the welfare of a child (possession of child sexual exploitation/abuse material, 100 or more items — third degree), in violation of New Jersey Statutes § 2C:24-4b(5)(b)(iii). On February 18, 2022, respondent was sentenced to two years' probation, as a condition of which he was to, inter alia, continue in clinical psychosexual treatment and not have any unsupervised contact with minors under the age of 18 years old. The sentencing court also imposed $905 in mandatory assessments and fines.

Respondent's conviction stemmed from his having been found in possession of child pornography in 2016. The superseding indictment to which respondent pleaded guilty charged him with possessing, viewing, or controlling 100 or more items depicting the sexual exploitation of a child, as defined by New Jersey Statutes § 2C:24-4b(1). In his plea allocution, respondent admitted to knowingly possessing 100 or more images, videos, or other materials commonly referred to as child pornography. Respondent admitted that these images and videos depicted children engaged in sexual intercourse. Neither the superseding indictment nor respondent's plea allocution states the age of any child in the images, videos, or other materials.

Dissimilarity

This Court has not previously compared the two statutes at issue. Although both statutes proscribe the possession of child pornography, the New Jersey statute defines a child as "any person under 18 years of age," whereas Penal Law § 263.16 prohibits depictions of sexual conduct "by a child less than sixteen years of age." Thus, the two statutes are facially dissimilar (see Matter of Zeas, 178 AD3d 66, 68 [1st Dept 2019]; Simels, 94 AD3d at 111-112).

When an attorney possesses at least one image depicting a child under the age of 16, both this Court and the Second Department have found a federal conviction relating to child pornography essentially similar to a conviction under Penal Law § 263.16 (see Matter of Serenbetz, 144 AD3d 21, 22-23 [1st Dept 2016]; Matter of Cooney, 205 AD3d 65, 66-68 [2d Dept 2022]; Matter of Groezinger, 77 AD3d 117, 118-119 [2d Dept 2010]; Matter of Lipton, 51 AD3d 207, 208-209 [2d Dept 2008]). Thus, if the record established that at least one image depicted a child under the age of 16 years, respondent would be automatically disbarred. No evidence in the record, however, refers to the age of any child depicted in respondent's images.

We have not previously addressed whether, in the absence of any such evidence, a child pornography statute with an age threshold of 18 is essentially similar to Penal Law § 263.16. Although we have previously found essential similarity without referring to the children's age, we did so on the basis of plea admissions in conjunction with the charging documents (see Matter of Duffy, 159 AD3d 98, 100 [1st Dept 2018]; Matter of De Sear, 124 AD3d 139, 142 [1st Dept 2014]). The issue before us was not whether the two convictions were essentially similar despite the difference in age threshold.

Here, unlike in Duffy and De Sear, the indictment and guilty plea do not supply the missing element for essential similarity (see Matter of Mahoney, 3 AD3d 197, 199-200 [1st Dept 2004]). On the limited record before us, we cannot find that respondent's offense would constitute a felony if committed in New York.

Here, unlike in Duffy and De Sear, the indictment and guilty plea do not supply the missing element for essential similarity.

(Mike Frisch)

January 5, 2023 in Bar Discipline & Process | Permalink | Comments (0)

A Sad Dispute

The New Jersey Appellate Division decided a "sad case" in favor of the mother in a divorced couple in a dispute, among other things, over the cremated ashes of their deceased son

Richard had ample opportunity to litigate Colleen's alleged alienation of their son's affection and interference with his parenting time and communication with his late son in the Family Part during the years leading up to his son's eighteenth birthday. He chose not to do so, and instead waited until the dispute over the cremation remains and personal effects erupted more than two years after their son turned eighteen to first raise those issues. We deem those issues waived and, in turn, conclude that a plenary hearing regarding the parties conduct during the last five years of their son's life is not required as the evidence overwhelming demonstrated that Colleen had a closer relationship with their son. We therefore hold that Colleen shall have control over the cremation remains and affirm in part and reverse and remand in part. We also provide guidance on the proper procedure to be utilized in future similar disputes.

The parties vigorously disputed the operative facts but this was not in dispute

Colleen did not advise Richard of Hendrix's death. Richard first learned of Hendrix's death from a third party on February 17, 2021. As a result, Richard was unable to participate in the memorial service held for Hendrix in Pennsylvania or the decision to cremate Hendrix's remains. Instead, Colleen unilaterally made those decisions. Through counsel, Richard requested one-half of the cremation ashes, copies of all photographs of Hendrix, and one-half of Hendrix's personal belongings, to keep in Hendrix's memory. Colleen refused.

Guidance

We provide the following guidance for future cases involving similar disputes in intestate estates. The proceedings contesting the funeral arrangements or disposition of remains should be brought by complaint in the Probate Part, rather than by application in the Family Part. The probate judge should consider appointing a pendente lite administrator who shall investigate the facts and attempt to resolve the issues. If a resolution is not reached, the probate court shall apply the test we have adopted and determine which parent or next of kin of equal standing shall control the funeral arrangements and disposition of remains, which should not involve protracted hearings relating to the history of the parties over multiple years leading up to the death. All unresolved aspects of the decedent's estate, including disposition of the decedent's assets and personal effects, should likewise be brought, and decided in the Probate Part.

(Mike Frisch)

January 5, 2023 | Permalink | Comments (0)

Tuesday, January 3, 2023

No Respect

Footnote 1 of a tax sale opinion issued today by the court formerly known as the Maryland Court of Special Appeals

All four entities are subsidiaries of Bronson Lee Partners Fund III, LLC, a Chicago-based “private investment firm specializing in distressed real estate and delinquent tax receivables located in Maryland and Washington D.C.” Bronson Lee Partners, bronsonlee.com (last visited Oct. 24, 2022), archived at https://perma.cc/U5AU-5LSA. Earlier opinions of this Court and the Supreme Court of Maryland (at the time named the Court of Appeals of Maryland)* have noted similarities between the names of the purchasing entities and characters played by Rodney Dangerfield in the 1980s classic comedies Caddyshack (Al Czervik, Ty Webb, and Danny Noonan) and Back to School (Thornton Melon). In its reply brief in these cases, Thornton Mellon insists that it “is not named after the infamous Rodney Dangerfield character, Thornton Melon, from Back to School,” that “the similarity in names is merely a coincidence,” and that although “[o]ne may question Appellants’ taste in movies, but Appellants would prefer that future readers of opinions involving their cases not mistakenly believe that they are bad spellers.” So noted. We note as well the similarity between the name of Thornton Mellon’s parent company and the 1974 martial arts film Bronson Lee, Champion, one in which Mr. Dangerfield played no role whatsoever, and let readers draw their own conclusions.

The court is now known as the Maryland Appellate Court. Let readers draw their own conclusions. (Mike Frisch)

January 3, 2023 | Permalink | Comments (0)

Reciprocal Sanctions In California

The California State Bar Court Review Department approved a public reproval of an attorney for misconduct that had led to a reprimand in South Carolina

This reciprocal discipline case originated following the finality of the unanimous memorandum opinion and order of the Supreme Court of South Carolina, filed January 27, 2021. It issued a public reprimand of Fisher as a result of her misconduct while appearing pro hac vice in family-related matters pending in the South Carolina state courts.

The South Carolina Supreme Court had found

[Fisher’s] great-aunt passed away in February 2009, and through a series of frivolous pleadings, motions, and appeals, [Fisher] raised various challenges to the will and protracted the related litigation for over ten years until the Supreme Court of the United States finally denied her petition for a writ of certiorari. [Citations.] In our opinion addressing the lower court’s award of sanctions against [Fisher], this Court concluded [she] lacked standing and repeatedly pursued claims that were meritless and wholly without evidence to support them.

Reciprocal discipline in California

For the past 36 years, California law, following the practice of sister jurisdictions, has provided a streamlined process for trial and adjudication of State Bar disciplinary proceedings when California attorneys have been found by another jurisdiction to have committed professional misconduct in that other jurisdiction.

The Review Department rejected Respondent's contention that the reciprocal proceeding embraced a review of the underlying probate litigation

The plain meaning of section 6049.1 is apparent that it concerns only the attorney disciplinary proceeding imposed on a California attorney in a separate jurisdiction, and not predicate court proceedings that may have led to the disciplinary proceeding. Accordingly, in this situation, no resort is needed to discern legislative history or to consult related interpretive sources.

Sanction

Significantly, California reciprocal disciplinary proceedings have more flexibility than found in many other states’ reciprocal proceedings in one key area, in that the degree of discipline is a completely open issue in California.

Public reproval was deemed appropriate in light of the aggravating and mitigating factors. (Mike Frisch)

January 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Grand Jury Abuse Draws Plea, Disbarment

The Maryland Supreme Court (it may take me awhile to get used to the name change) has imposed disbarment by consent of a former prosecutor

the Respondent, Adam Lane Chaudry, is disbarred from the practice of law in the State of Maryland for violation of Rule 8.4(a), (b), (c) and (d) of the Maryland Attorneys’ Rules of Professional Conduct...

A press release from the Maryland United States Attorney's Office describes a recent guilty plea

According to the plea agreement, from June 2009 to June 18, 2021, Chaudry worked as an Assistant State’s Attorney in the Baltimore City State’s Attorney’s Office (“BSAO”).  From September 2015 until he left the BSAO Chaudry worked in the BSAO’s Homicide Division.  Chaudry maintained a romantic relationship with Victim #1 from May 2005 through January 2018; and with Victim #2 from August 2017 through September 2020.  Victims #3, #4, and #5 were long-time friends of Victim #1.  At no point were any of the victims a witness or target of any criminal investigation or prosecution by the BSAO. 

As detailed in the guilty plea, between January 3, 2019, and February 22, 2019, Chaudry caused three grand jury subpoenas to be sent to a telecommunications company in Florida requesting all subscriber information, billing information, and toll records, including incoming and outgoing calls, from October 28, 2018 through February 22, 2019, for Victim #1’s phone number.  Chaudry caused the subpoenas to appear to be related to a “special investigation in the Circuit Court for Baltimore City”; to contain no identifying case number; and to further state, “The information sought in this subpoena is relevant and material to a legitimate law enforcement inquiry.”  The subpoenas directed that the records be produced “as soon as possible” directly to Chaudry at his BSAO address and stated, “Any and all questions should be directed to him.”  The grand jury subpoenas contained Chaudry’s signature, the name of the Grand Jury Foreperson, and the signature of the Clerk of Baltimore City Circuit Court.  Other subpoenas contained similar fraudulent information. 

In a similar manner, Chaudry caused grand jury and trial subpoenas to be issued to a telecommunications company in New Jersey for the telephone records of Victim #2 between February 22, 2019 and April 12, 2021; caused multiple grand jury and trial subpoenas to be issued for the telephone records of Victim #3 between March 12, 2019 and April 21, 2020; caused multiple grand jury and trial subpoenas to be issued for the telephone records of Victim #4 between March 22, 2019 and February 8, 2021; and caused multiple grand jury and trial subpoenas to be issued for the telephone records of Victim #5 between January 21, 2019 and February 18, 2020. 

In addition, on March 26, 2019, an investigator at BSAO provided Chaudry information that Chaudry had previously requested including Victim #1’s home address, MVA information, and her driver’s license photograph.  Chaudry then used the information, including Victim #1’s driver’s license photograph to contact a hotel to request information about Victims #1 and #4’s stays at the hotel using his BSAO email address.  The hotel number appeared in Victim #1’s phone records obtained by Chaudry. 

On March 4, 2020, Chaudry sent a lengthy email to Victim #1 expressing a desire to get back together.  Victim #1 responded the same day, stating, in part, “It has been over a year now and I need you to move on.  I was hoping by ignoring the texts, calls, and flowers, you would understand how I feel but now I will make it very clear…Please do not send me any more flowers or anything else, and please do not send anything to my job.  It makes me uncomfortable as I am no longer your girlfriend… There is no future for us…Please do not stop by my house or try to “run” into me anywhere else.  I will not answer the door as there is nothing more to discuss…If you persist any further I will look into other options.”  Chaudry responded the same day with another email that ended, “every response you have ever given me has been out of anger and frustration when I asked you about [Victim #4].  Just level with me and tell me whether you are dating him.  Yes or No.”  After this email exchange, Chaudry issued a total of 23 Circuit Court subpoenas for the telephone records of Victim #1, #2, #3, and #4. 

Between January 3, 2019 and April 12, 2021, Chaudry caused 33 grand jury and trial subpoenas to be issued for the telephone records of Victim #1.  Using the phone records Chaudry received, he created a spreadsheet of the 67 phone number found in the phone records of Victim #1, including the name associated with each number and “relationship” to Victim #1.  The spreadsheet also contained physical addresses and email addresses of some of the individuals associated with those phone numbers, as well as other “associated persons” to the phone number.  The spreadsheet also tracked the method of payment for hotel room stays in Victim #1’s name.

After Victim #2 and Chaudry ended their relationship, between December 8 and December 21, 2020, Chaudry caused to be issued subpoenas for jail calls between Victim #2 and a close relative of Victim #2 who was incarcerated in another Maryland County in a case not involving the BSAO.  Chaudry also caused a subpoena to be issued for Victim #2’s relative’s visitor logs.  Notes on the jail calls found in Chaudry’s desk revealed sensitive information about Victim #2’s family and banking information.

On December 13, 202 [sic] , a phone belonging to Chaudry captured 96 images of Victim #2’s social media account including lists of her contacts and photographs of Victim #2 and her friends and family.   On February 24, 2021, Chaudry further sent a letter on BSAO letterhead for 911 calls made by Victim #2 that appeared in phone record logs he had obtained.  He represented that the records were “pertinent to a legitimate law enforcement inquiry.”

In all, Chaudry caused a total of 65 fraudulent grand jury and trial subpoenas to be issued for the telephone records of the five victims.

Chaudry faces a maximum sentence of 15 years in federal prison for each of the two counts of fraud in obtaining records.   U.S. District Judge Richard D. Bennett has scheduled sentencing for March 9, 2023 at 2:30 p.m.

The Washington Post also reported on the charges. (Mike Frisch)

January 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

License Revoked Of Attorney Facing Criminal Charges

The Florida Supreme Court accepted a petition for license revocation without leave to seek readmission of an attorney facing charges of attempted first degree murder and battery. 

Laws in Florida reported on the criminal charges

The Complaint Affidavit (Probable Cause Affidavit/Arrest Report) attached as Exhibit “A” reflects that on December 19, 2021 an altercation occurred between the victim (respondent’s live-in girlfriend of 2 ½ years) and the respondent in which he grabbed her by her hair and pushed her into a cement surface several times, striking her head.

The respondent continued to strike her with such force that she was thrown toward a toilet causing it to break.

As a result, the victim lost consciousness. Thereafter, she drove to the hospital to seek medical attention.

On the following day, the victim returned to the residence in which she cohabitated with the respondent to retrieve her cancer related medication believing that the respondent would not be home.

When she saw his car in the driveway, she knocked on the door and asked for her medication.

The respondent then stated,

“I hope you die; I can’t wait for you to die.”

The victim telephoned 911 for assistance as the respondent held a shotgun and yelled,

“Die Bitch, Die Bitch”, “You’re going to fucking die.”

The respondent fired the gun and continued shooting as the victim ran away.

The victim was struck in her back and head.

The victim had multiple contusions and lacerations on her body from the assault from the day before.

She had two pellets from the shotgun round embedded in her skin, swelling and bruising to her left upper cheek near her eye and markings on the back of her head, neck and back consistent with being struck by pellets from the shotgun.

Soon after the incident, the respondent was arrested after having fled the scene.

The respondent has been incarcerated since the date of his arrest and is being held on a “no bond” status.

An interim suspension had previously been ordered. (Mike Frisch)

January 3, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 30, 2022

Unbundled Services And The No-Contact Rule

The Vermont Supreme Court found a Rule 4.2 violation and imposed a 30-day suspension notwithstanding the fact that opposing counsel had not entered an appearance in divorce litigation

We agree with the hearing panel’s conclusion that although respondent did not have actual knowledge that husband was represented at the outset of the call, respondent gained such knowledge during the call. See V.R.Pr.C. 4.2 cmt. [3]. Respondent’s blame-shifting assertion that the root of the problem is the concept of “unbundled” representation is unpersuasive. Regardless of the legitimate ethical and procedural concerns associated with partial representation, the facts of this case do not support a claim of factual or ethical ambiguity. The notice of appearance, in which husband stated that he would be representing himself, did reasonably suggest that husband was no longer represented by counsel in the divorce matter writ large. However, husband clarified the issue of representation, and respondent was no longer entitled to rely upon the pro se notice of appearance as soon as husband told him, “let me get a hold of my lawyer.” Respondent was required to immediately end the call upon this statement, but he instead told husband that his lawyer need not be present for the meeting. This was a violation of Rule 4.2.

Respondent first asserts that he did not violate Rule 4.2 because “nothing of substance related to the divorce was discussed.” However, the rule prohibits “communications with any person who is represented by counsel concerning the matter to which the communication relates.” V.R.Pr.C. 4.2 cmt. [2]. We agree with the hearing panel that Rule 4.2 does not on its face distinguish between substantive and non-substantive content in its prohibition of communicating with a represented party. The conduct at issue here is the communication about the divorce after respondent was told that husband wanted to talk with his lawyer, not respondent’s initial placing of the call. Respondent’s argument therefore fails.

Next, respondent argues that ending the call after husband’s statement “would have been both a rude and an unnatural way to conclude the conversation.” We are unpersuaded by this argument. Respondent would have been well within the confines of Rule 4.2 to express surprise at husband’s representation status, inform husband that the conversation must end due to respondent’s ethical obligations, and indicate that respondent would thereafter communicate through husband’s lawyer. Suddenly hanging up the phone without reason might be considered rude and unnatural, but respondent had both a valid reason and the inherent convenience of laying the blame for any perceived slight upon the professional conduct rules. Respondent’s stated desire to avoid rudeness simply does not outweigh his ethical obligations.

Also unpersuasive is respondent’s final claim that he did not violate Rule 4.2 because nothing he said during the call “could be construed as an attempt to coerce [h]usband to forego representation as the divorce issues moved on.” Attempted coercion is not an element of a Rule 4.2 violation. The express purpose of Rule 4.2 is to “contribute[] to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter.” V.R.Pr.C. 4.2 cmt. [1]. Respondent told husband, “technically [your lawyer] doesn’t have to be here” for a meeting after being told that husband wanted to contact his lawyer. Respondent then proceeded to arrange the meeting without said lawyer. Therefore, even if respondent did not act coercively (an issue not addressed by the hearing panel), respondent overreached and violated Rule 4.2 by continuing to communicate with husband about the divorce once he learned husband wished to speak with his lawyer.

Sanction

More significant is respondent’s refusal to acknowledge the wrongful nature of his conduct. In his response to husband’s lawyer’s email objecting to the phone call, respondent sent a curt email denying wrongdoing, insisting that husband was representing himself, and refusing to agree not to contact husband directly again. He continues to argue on appeal that he did nothing that violated the professional conduct rules in communicating with husband after gaining actual knowledge of husband’s representation status, misconstruing the Vermont Rules of Professional Conduct to allow “natural, non-threatening, non-coercive” communications when in fact all communications with represented parties must immediately end upon learning that the party is represented by counsel. Respondent further lays blame on the concept of “unbundled” legal services rather than his own actions.

To respondent’s credit, there was no evidence presented to the panel that respondent had a dishonest or selfish motive. This absence of motive weighs in respondent’s favor. We also acknowledge that respondent did not contact husband again after the phone call. The misconduct in question is strictly limited to a portion of one conversation. Respondent’s strongly worded email reply to husband’s lawyer reflected his belief that the ethical rules would have permitted his continued contact with husband, but his actions demonstrated his compliance with husband’s lawyer’s directive.

Respondent was also fully cooperative in the discipline process. (Mike Frisch)

December 30, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Scooping Hog Sh*t: "It Stinks"

An Indiana Circuit Court Judge has been charged by the state Commission on Judicial Qualifications

At all times pertinent to these Charges, Respondent presided over a general jurisdiction docket that included criminal and civil cases. Respondent's docket includes Children In Need of Services ("CHINS") cases, guardianship cases, paternity cases, and dissolution cases.

In a paternity matter

During Father's cross-examination on November 7, 2019, Respondent exhibited impatient, undignified, and discourteous behavior with Father.

During Father's cross-examination, Respondent interrupted the cross-examination at various times, making statements that included but are not limited to:

a. Telling Father to "be quiet," "zip it," to "shut [his] mouth," and to "shut up," even after Father apologized and indicated that he understood.
b. "And then what you don't have is, see, you don't have the child being passed off like a football. Oh, I'll pick - let me run for ten yards with it because I don't want that child to go over ten extra - over ten extra yards, and then the handoff."
c. "This is just bullshit. I'm sorry, I'm a farm boy. I was raised - I'm older than you. I was scooping hog shit long before you, man. I'm going to tell you what, this is crap. It stinks. This kind of behavior stinks. Okay?"

During the November 7, 2019 hearing, Respondent also made statements about his own divorce and custody proceedings, comparing the situation with that of Mother and Father in Paternity of HL.

At a later hearing

a. Referring to Father as "Bud," "Buddy," "Bro," and "Man."
b. "Now, I'm not playing with this. Okay? This is the 10th freaking day of this hearing. Okay? And again, I'm not prejudging nothing. I'm going to hear this case out and we'll let the attorneys do their findings. Okay? But I'm going to tell you what, you best be calling daddy up to get some money coming, I'm telling you that right now, because you have intentionally interfered with this woman's parenting time. Okay? And it's going to cost you a bundle. Okay?"
c. "This is one of the most egregious, okay, egregious interference of parenting time that I've ever seen. Okay? You do not follow my order again you bring your toothbrush, you're going to be over there for days and weeks and months. Is this crystal for you, man?"

In a CHINS matter, he is alleged to have held chambers conferences off-the-record and failing to provide notice and the opportunity to be heard to all parties. (Mike Frisch)

December 30, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Issue Preclusion Does Not Bar Action Against Law Firm

A divorce litigant's suit against opposing counsel for allegedly issuing a subpoena for therapy records without copying her counsel was revived by the Maine Supreme Judicial Court, which rejected the contention that the suit was defeated by issue preclusion

Because the trial court acted on a motion to dismiss the complaint, “[t]he following substantive facts are taken from the allegations in the complaint and are viewed as if they were admitted.” 20 Thames St. LLC v. Ocean State Job Lot of Me. 2017 LLC, 2021 ME 33, ¶ 2, 252 A.3d 516. The procedural history is derived from the record. Id.

In 2015, Pacheco filed a complaint for divorce against her now ex-husband. Her ex-husband was represented by Gene Libby, Esq. and Libby O’Brien Kingsley & Champion, LLC, (collectively, the Firm) throughout the divorce proceedings. In those proceedings, at a hearing before a referee, Pacheco moved for a mistrial on the ground of surprise because the Firm had failed to copy her attorney on a subpoena requesting her counseling records from her therapist. The referee denied Pacheco’s motion and found, inter alia, that the Firm’s failure to copy Pacheco’s attorney on the subpoena was inadvertent. The Firm was unsuccessful in its attempt to use or admit the subpoenaed records during the hearing.

The lawsuit was filed after the divorce was concluded

Here, the referee’s findings were made in response to Pacheco’s motion for a mistrial during a hearing on the narrow issue of whether a post-marital agreement should be enforced, and among the reasons why the referee denied the motion was the observation that the subpoenaed counseling records were not relied upon in the determination of the merits in that hearing. The referee’s findings regarding the subpoenaed records were at best tangential to the referee’s recommendation in that discrete matter and were not essential to the divorce judgment. 

Thus

Because the referee’s findings were not essential to the underlying divorce judgment, Pacheco’s tort action is not barred by issue preclusion.

(Mike Frisch)

December 30, 2022 | Permalink | Comments (0)

Thursday, December 29, 2022

I Have Been To The Mountaintop Bank

A convicted attorney has been disbarred by the Pennsylvania Supreme Court.

A press release of the United States Attorney for the Middle District of Pennsylvania

The United States Attorney’s Office for the Middle District of Pennsylvania announced that on March 22, 2022, Dory L. Sater, age 47, formerly of Drexel Hill, Pennsylvania, was sentenced to 36 months of imprisonment by United States District Court Judge Robert D. Mariani.  Sater previously was convicted following a jury trial, of bank fraud and aggravated identity theft offenses.

According to United States Attorney John C. Gurganus, the evidence presented at trial showed that in August 2017, Sater forged a mortgage satisfaction piece and filed the instrument with the Luzerne County Recorder of Deeds Office.  The forged document erased a mortgage held by Fidelity Deposit & Discount Bank on the Mountaintop, Pennsylvania residence of Sater’s parents.  The mortgage had served as collateral for a $50,000 line of credit that Sater had withdrawn in its entirety.  Evidence at trial established that Sater’s parents were considering selling their residence while the forged satisfaction piece was recorded.  In the process of forging the mortgage satisfaction piece, Sater also forged the signatures of a Fidelity bank officer and of a public notary, whose notary stamp he stole to use on the forged document.  Sater was a personal injury attorney in Delaware County, who ran The Sater Law Firm LLC.

In pronouncing the sentence, Judge Mariani highlighted that Sater was arrested and charged by state authorities in Delaware County for running an unrelated fraud scheme while he was on pretrial release for his federal case.  He ultimately pleaded guilty and served approximately seven months of imprisonment in his state case.

(Mike Frisch)

December 29, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 28, 2022

Hold The Humor But OK To Preside At Retrial

A prosecutor's motion to disqualify the judge from presiding in the retrial of a capital murder case has been denied by Ohio Supreme Court Chief Justice O'Connor

“Tension between a judge and a county prosecutor is bound to occur in our adversary system. Both sides seek to attain justice, but they do not always agree on what that means. However, principles of professionalism require judges and prosecutors to give proper respect to each other and to treat each other with the dignity and courtesy that each office deserves.”

Alleged bias

In October 2022, Judge Howard presided over a 12-day jury trial. After two days of deliberations, Judge Howard found that the jury was deadlocked and declared a mistrial. In his affidavit of disqualification, Mr. Gmoser avers that for three reasons, Judge Howard is biased against the state of Ohio and should not preside over the retrial. First, Mr. Gmoser alleges that Judge Howard “steer[ed] the jury into a deadlock” by, among other things, giving a Howard charge despite no indication of a deadlock, denying the jury’s request to review the transcript of a witness’s testimony, and failing to remove two jurors for misconduct. Second, Mr. Gmoser alleges that throughout the first trial, Judge Howard repeatedly held off-the-record conferences in his chambers about material issues. Third, Mr. Gmoser avers that Judge Howard displayed an offensive sign in his office, made crude and sexual jokes to counsel, and failed to conduct the first trial with the decorum required for a capital case.

Judge Howard submitted a response to the affidavit and denies any bias against Mr. Gmoser or the prosecution. The judge disputes that he “steer[ed]” the jury into a deadlock and explains why he declared a mistrial. Judge Howard further notes that the state never objected to holding unrecorded conferences in his chambers and never complained about the alleged lack of decorum in the courtroom. With respect to the other allegations, Judge Howard says that he removed the sign from his office and that he never intended to offend anyone with his comments or stories—although the judge denies making any “sexual jokes.” The judge says that in the future, he will refrain from any similar attempts at humor.

No joking matter

Although some types of humor may have a place in the courtroom, a judge’s use of undignified language degrades the decorum of the court and diminishes public confidence in the judiciary. Judge Howard has recognized that his attempts at humor, including his comments about other judges, were unnecessary or ill-advised. The issue in this disqualification matter, however, is not whether Judge Howard should be disciplined for making offensive comments or displaying inappropriate signage in the judge’s chambers. The issue is whether Judge Howard should be disqualified from the underlying case due to bias against Mr. Gmoser or his office.

Law

Here, Judge Howard has apologized for his “comments or stories in chambers with counsel” and affirms that he will refrain from such comments in the future. Mr. Gmoser has not established that those comments—or any of the other behavior alleged in the affidavit—require the judge’s disqualification from presiding over the retrial.

WLWT 5 reported on the controversy (Mike Frisch)

December 28, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Party Affiliation Does Not Warrant Disqualification

An elected judge's political affiliation did not warrant disqualification from a case involving a litigant with whom he is affiliated, per a decision of Ohio Supreme Court Chief Justice O'Connor

Mr. Morris has sued the Ohio Democratic Party (“ODP”) and some of its individual officers. He claims that Judge Miller has a conflict of interest because he is a member of the Franklin County Democratic Party—which Mr. Morris describes as an affiliate of the ODP—and because the judge’s campaign committee has contributed to the county party. In addition, Mr. Morris alleges that Judge Miller has demonstrated bias by ignoring some of Mr. Morris’s motions and by ruling in favor of the defendants on other matters.

Judge Miller submitted a response to the affidavit and denies any bias against Mr. Morris or in favor of the defendants. The judge acknowledges that he is a member of the ODP and the Franklin County Democratic Party and that his campaign committee has made yearly contributions to the county party.

Ruling

Judge Miller affirms that his political relationship with the ODP will not influence his decision-making. The judge’s current term expires in February 2027, and it does not appear that he is actively campaigning for reelection. Although Judge Miller personally donates a small amount each month to the ODP, there is no evidence that he holds any office in the ODP or that he is currently receiving any tangible benefit from the organization. Further, Mr. Morris claims that he seeks only injunctive relief against the ODP—that is, he seeks to get his temporary job back; he does not seek damages. We elect judges in Ohio, and just as we must ordinarily assume that an attorney’s support of a judge will not cause the judge to favor that attorney when he or she appears before the judge, see In re Disqualification of Osowik, 117 Ohio St.3d 1237, 2006-Ohio-7224, 884 N.E.2d 1089, ¶ 6, we must assume that a judge’s endorsement by or support of a certain political party will not affect the judge’s decision-making if that political party later appears before the judge. Based on this record, there is no evidence to call that general assumption into doubt.

(Mike Frisch)

December 28, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)