Wednesday, August 24, 2022

Temporary Suspension

The Pennsylvania Supreme Court imposed a temporary suspension of an attorney facing charges of promoting prostitution.

The New York Post reported on the charges

A defense attorney targeted vulnerable clients and pressured them into having sex in exchange for legal work, the Pennsylvania attorney general’s office said Monday.

Corey J. Kolcharno is charged with four counts of promoting prostitution after an investigation found he sexually exploited clients, tethering “his performance as their counsel to a demand for sexual services from them or in exchange for payment,” police wrote in an affidavit.

Kolcharno — a former Lackawanna County prosecutor — was arraigned Monday and released on $20,000 unsecured bail. A statement issued by his attorney said Kolcharno “has made a conscious decision to accept responsibility.” Kolcharno told reporters he intended to give up his law license.

According to state police, Kolcharno targeted women who struggled with addiction, had been sexually abused or had financial problems. At first he requested nude photos or worn underwear, then escalated his predatory behavior into a demand for sex in exchange for legal services, authorities said. He paid his clients as much as $500, police said.

Victims said they were ashamed but felt they had no choice but to give in, authorities said.

Kolcharno “picked these victims because they had limited choices, because he thought they would be easy to silence, and less likely to be believed if they ever came forward,” Attorney General Josh Shapiro said in a written statement.

Investigators said they found hundreds of sexually explicit images of Kolcharno’s clients on his cellphone.

Police said the crimes took place between 2018 and 2022, when Kolcharno was a partner in the Fanucci & Kolcharno law firm outside Scranton.

Before reentering private practice, Kolcharno was an assistant district attorney in Lackawanna County from 2005-2011.

(Mike Frisch)

August 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Louisiana Life

The Louisiana Attorney Discipline Board has held (or recommended) that the Office of Disciplinary Counsel failed to prove any ethical violation in a Super Lawyers advertisement.

Another ad was not properly charged

The Board agrees with Respondent that the issues to be considered in connection with the charged rule violation in this matter are limited to the profile which appeared in Louisiana Super Lawyers magazine. ODC’s arguments related to Louisiana Life magazine were not raised until the hearing in this matter and should not be considered. The only advertisement referred to ODC by Mr. Lemmler was the profile which appeared in Louisiana Super Lawyers magazine. Louisiana Life magazine was not mentioned by ODC in its offer of admonition, in the formal charges, or in ODC’s pre-hearing memorandum filed three weeks before the hearing. When disciplinary counsel began questioning Respondent about Louisiana Life at the hearing, Respondent’s counsel immediately objected to the line of questioning as an expansion of the formal charges in violation of due process. Furthermore, ODC did not introduce a copy of any advertisement relating to Respondent’s firm which may have run in Louisiana Life magazine. While the evidence does include an order for a profile in Louisiana Life signed by another person in Respondent’s firm, there is no evidence that such a profile actually appeared in any print edition, or other medium, of Louisiana Life magazine. Further, there is no evidence that any profile which may have appeared in Louisiana Life magazine was identical to the profile published in Louisiana Super Lawyers magazine that is in evidence. Additionally, Respondent was not familiar with Louisiana Life
magazine and had no personal knowledge as to whether or not his firm’s profile appeared in the magazine. Considering all of these circumstances, the Board finds that Respondent was not given fair notice of a violation based on an allegation related to a profile of Respondent’s firm in Louisiana Life magazine and that it would be unduly prejudicial to Respondent to allow ODC to pursue such a violation in this proceeding.

As to Super Lawyers

While the advertisement/profile was not exempt under the “safe harbor” provisions of Rule 7.2(b)(1) or as an entry in a law list under Rule 7.8(c), the advertisement was exempt from prefiling under Rule 7.8(d). Respondent testified at the hearing that it was his understanding that the Super Lawyers magazine was circulated only to lawyers. T.197. The evidence relating to the placement of the advertisement/profile at issue confirmed that the Louisiana Super Lawyers magazine was mailed only to lawyers. The materials in Respondent’s file relating to the placement of the advertisement in the January 2020 Louisiana Super Lawyers magazine indicated that the print distribution of the magazine was “to more than 15,000 attorneys.” Ex. ODC-3, Bates p. 0013.15

The Board recognizes that ODC presented sales information obtained from the internet related to a Super Lawyers app which stated that the Super Lawyers magazine “is distributed to attorneys in the state or region and the ABA-approved law school libraries.” Ex. ODC-8, p. 0029.16 However, the clear and convincing evidence shows that the January 2020 Louisiana Super Lawyers magazine in which this advertisement was placed was mailed to lawyers. The materials in Respondent’s file relating to the advertisement in question only mention distribution to lawyers. The general internet advertisement which indicates that Super Lawyers is mailed to law school libraries does not constitute clear and convincing evidence that the particular advertisement at issue here was included in a magazine that was mailed to law school libraries. Further, precluding the exemption because the magazine was distributed to law school libraries would be too fine a distinction as law schools certainly include attorneys and can reasonably be considered part of the legal profession and not consumers.

(Mike Frisch)

August 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

With Some Hesitation

Excessive judicial tardiness drew a reprimand and 90-day suspension without pay  from the Georgia Supreme Court

Judge Gundy’s tardiness was described by several witnesses and confirmed by access-card records. These records showed that from September 1 through December 31, 2015, Judge Gundy arrived well after 9:00 a.m. for her 8:00 a.m. calendars on approximately 69 days, arriving after 10 a.m., when her second calendar was scheduled to begin, on approximately 62 of those days. Records showed that from January 1 through June 1, 2016, Judge Gundy arrived at the courthouse after 9:00 a.m. for her 8:00 a.m. calendars on approximately 80 days and, on approximately 57 of those days, did not arrive at the courthouse until after her second calendar was scheduled to begin. From July 10 to December 31, 2017, Judge Gundy arrived late on approximately 62 days, 33 days after 9:00 a.m. and four days after her 10:00 a.m. calendar was scheduled to begin. And from January 1 through February 22, 2018, Judge Gundy arrived late on approximately 18 days, five of those after 9:00 a.m. 

More than just late

Much of the misconduct at issue here has gone unexplained by Judge Gundy. Although the agreement indicates that health issues explain Judge Gundy’s absences from the beginning of November 2016 through the end of April 2017, that does not necessarily explain all 40 of her absences in 2016 and leaves unexplained 33 absences in 2017 and 19 absences in less than the first seven months of 2018. Although the agreement suggests that Judge Gundy sometimes was late for her 8:00 a.m. calendars because lawyers asked to engage in negotiations before she took the bench, that does not explain why Judge Gundy on many occasions arrived at the courthouse after 9:00 a.m. or even 10:00 a.m., even when she had court. And the agreement is silent on Judge Gundy’s response to the counts based on the March 2017 incident that kept six defendants in jail days beyond when they should have been released, except to suggest that
she does not concede that events transpired as alleged by the JQC (although she agrees that the allegations could be proved). This last incident is particularly concerning to us.

While the court accepted the proposed sanction

Nevertheless, the Court now accepts the agreement with Judge Gundy approved by the Hearing Panel and filed with this Court on July 25, 2022. We do so with some hesitation; the allegations, all of which Judge Gundy either admits altogether or agrees that the JQC could prove, are serious, especially the refusal to follow the law — over objection by both the State and defendants — that led to six defendants each spending an unnecessary week in jail. But this case  has been pending for over three years, both Judge Gundy and the people she serves deserve a resolution (which would be delayed even further if we reject this agreement), and a 90-day suspension is among the most serious sanctions we have ever imposed short of removal from office.

(Mike Frisch)

August 24, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Medical Suspension Ordered

A disability suspension sought by the Attorney Grievance Committee was granted by the New York Appellate Division for the First Judicial Department.

The matter under investigation

In or about December 2020, the AGC received a complaint from a trustee of an Irrevocable Trust (Trust). The complaint alleged that in 2016, respondent was named as a trustee of the Trust and under the terms of a trust resolution, respondent agreed not to make any withdrawals, transfers or disbursements from the Trust's bank accounts.

On December 17, 2019, respondent transferred $30,000 from the Trust's bank account to her own personal bank account and the next day, she transferred approximately $30,000 from her bank account to a third-party in another country. On December 19, 2019 respondent transferred $50,000 from the Trust's bank account to her personal bank account but the next day, she personally appeared at a bank branch and transferred the $50,000 back to the Trust. Although respondent also tried to reverse the $30,000 transfer to the third-party, she was unsuccessful and has yet to return the funds despite the Trust's written demands that she do so.

Medical situation

Respondent, who is 79 years old, has been in an out-of-state assisted living facility since approximately May 2021 and, her daughter, who has full power of attorney and control over respondent's finances, which was decimated because of excessive credit card debt, told counsel that her mother continues to be a victim of minor scams of funds from her bank account. According to conversations counsel had with respondent in early 2020, when her "cognitive impairment was already apparent to me," respondent had no recollection of having authorized the transfer from the Trust, believing she was a victim of identity theft when, in fact, bank officials advised that she had authorized the transfer. Based on information counsel gathered, he has concluded that a third party convinced respondent to transfer the funds by falsely claiming to be an agent of the Trust. He states that her meager resources are insufficient to reimburse the Trust for its loss. Respondent's counsel concludes by requesting that "the AGC make an order pursuant to 22 NYCRR [1240.14] temporarily suspending Ms. Roussin from the practice of law on the ground that she is suffering from a disability by reason of infirmities which make it impossible to adequately defend herself against the charges." Furthermore, respondent's counsel states that respondent's "inability to understand exactly what happened, let alone to explain it to me, is clear evidence of her infirmity."

Counsel also enclosed a May 26, 2020 letter from respondent's physician, an Assistant Professor of Neurology at the Neurological Institute of New York at Columbia University Medical Center, who tends to respondent's "neurologic care [at] the Columbia Neurology Aging & Dementia Clinic." He attests that respondent "has cognitive deficits including significant memory loss. Because of progression of these symptoms she is no longer able to safely live by herself and needs to move out as soon as possible so that she can be taken care of by her family, who are out of state."

(Mike Frisch)

August 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Filming On Federal Property

The United States Court of Appeals for the District of Columbia applied a "reasonableness" standard to uphold fee and licensing requirements for filming on federal property.

Plaintiff-Appellee Gordon Price is a part-time independent filmmaker. In 2018 he released Crawford Road, a film about a stretch of road in York County, Virginia that was the location of unsolved murders and long rumored to be haunted. Price filmed scenes on the Yorktown Battlefield in the Colonial National Historical Park, land administered by the NPS, without first obtaining a permit from the NPS and paying the fee. For those scenes, Price used a camera, a tripod, and a microphone. A crew of no more than four people were present.

Crawford Road premiered in October 2018 to an audience of around 250 people in Newport News, Virginia. A couple of months later, NPS officers issued Price a “violation notice” for failing to obtain a commercial filming permit. In the wake of the criminal charge, Price canceled further screenings of Crawford Road and removed from it all footage shot on NPS land. Discussions about a distribution deal for the film came to an abrupt halt. Price had also been doing preliminary work on another film that would involve filming on land administered by the NPS, but he refrained from shooting this footage out of fear of prosecution.

Price sued after the criminal charges were dismissed.

We hold that regulation of filmmaking on government controlled property is subject only to a “reasonableness” standard, even when the filmmaking is conducted in a public forum. Because the permit-and-fee requirements are reasonable, we reverse the order of the district court.

Senior Circuit Judge Tatel dissented 

Under today’s sweeping holding, regulation of filming on government property is no longer subject to heightened scrutiny, even when the filming occurs in traditional public forums where “the rights of the [government] to limit expressive activity are sharply circumscribed” or designated public forums that the government “has opened for use by the public as a place for expressive activity.” Perry, 460 U.S. at 45; see Majority Op. at 2. Before standing outside Yosemite National Park’s visitor center using a cell phone to record commentary on our national parks that will air on an advertisement-supported YouTube channel, an individual must obtain a permit and pay a fee. Before filming a protest on the National Mall, tourists must obtain a permit and pay a fee if they have any inkling that they might later make money from his footage on social media. And when the filming is spontaneous, these individuals will be criminally liable and face up to six months in prison even though they could not possibly have obtained a permit ahead of time. See 18 U.S.C. § 1865; 36 C.F.R. §§ 1.3, 5.5(a). By stripping public forum protection from filming, my colleagues—for the very first time—disaggregate speech creation and dissemination, thus degrading First Amendment protection for filming, photography, and other activities essential to free expression in today’s world. See Wasden, 878 F.3d at 1203 (disaggregating video creation from dissemination “defies common sense”); Fields, 862 F.3d at 358 (similar); Alvarez, 679 F.3d at 595–96 (similar). I respectfully dissent.

(Mike Frisch)

August 24, 2022 in Current Affairs | Permalink | Comments (0)

Among Friends

The Delaware Court of Chancery has entered an order in Twitter v. Musk

In conclusion, Twitter’s request that the court hold that Defendants waived their objections to multiple discovery requests by engaging in obfuscatory discovery tactics is denied. Twitter’s request to compel Defendants to identify persons with knowledge of or involvement in key issues and events is granted. Twitter’s request to compel Defendants to respond to discovery requests related to Musk’s co-investors is granted. Twitter’s request to compel Defendants to produce their communications, if any, regarding the merger, the merger agreement, the proxy statement, or Twitter, with government authorities is denied as premature. Twitter’s request that the court order Defendants to produce documents promptly and on a rolling basis is denied.

The court observed

Even assuming that Musk has many friends and family members, Defendants’ breadth, burden, and proportionality arguments ring hollow. It is difficult to conclude, for example, that requiring Defendants to respond to an ordinary-course interrogatory listing persons with knowledge, even if those persons have duplicative knowledge, is disproportionate to the needs of any case, particularly a case that concerns a $44 billion merger.

(Mike Frisch)

August 24, 2022 in Current Affairs | Permalink | Comments (0)

Whither White Out?

The Indiana Supreme Court overruled precedent regarding disclosure of police reports

Over thirty years ago, this Court decided State ex rel. Keaton v. Cir. Ct. of Rush Cnty., 475 N.E.2d 1146 (Ind. 1985). Citing an undue burden on prosecuting attorneys and the potential for abuse by defense counsel, the Court concluded criminal trial courts do not have inherent authority to require the State to produce complete copies of police reports over the prosecuting attorney’s timely work product objection. Id. at 1148. Decided in a time when lawyers redacted documents using Marks-a-Lot markers, the Keaton court was unlikely to fathom electronic filing or software programs readily accessible to legal professionals today.

But as technology developed after our Keaton decision, the rules governing criminal procedure, and custom, likewise changed over time. And today, the majority of prosecutors across the State of Indiana regularly produce police reports to defendants and their counsel, while prosecutor’s offices in the minority of counties automatically assert the work product privilege over these documents as a matter of policy.

In the midst of this change, Minges challenges the trial court’s denial of his motion to compel the State to produce a copy of the police report related to his misdemeanor charges. In doing so, Minges asks us to reconsider our decision in Keaton. Today, we accept his request, overrule Keaton, and remand to the trial court to determine whether the police
report is privileged work product in a manner consistent with this opinion.

The court noted that all but two counties provide open file discovery

We stress, though, that this Court’s decision does not suggest that police reports may never qualify as work product. Even the parties concede the doctrine may otherwise protect police reports under certain circumstances.

(Mike Frisch)

August 24, 2022 | Permalink | Comments (0)

Seven And The Eight Ball

Ohio Disciplinary Counsel has charged an already suspended attorney who had entered treatment after a series of alcohol-related driving offenses but allegedly lapsed into criminal conduct.

According to the charges, he began treatment in September 2017 and maintained sobriety "until the summer of 2019, during which [he] relapsed and resumed drinking heavily."

He allegedly began buying cocaine after he relapsed from a woman named Alicia. 

Alicia introduced him to a man who called himself Seven "because he had a tattoo of the number 7 between his eyes near the bridge of his nose."

He bought cocaine from Seven that was delivered by a 15-year old A.L. and he paid in cash or by Venmo.

After he consumed an "entire eight ball of cocaine by himself," he accepted Seven's offer of additional cocaine and oral sex for $500.

He paid by Venmo.

A.L. performed the oral sex, after which she showered with Respondent, who touched her genital area.

She was in a traffic accident after leaving Respondent and disclosed the above conduct; he was charged with a host of offenses.

He pled guilty to state charges and testified against Seven in a federal case. His expected release date is February 2025. (Mike Frisch)

August 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, August 21, 2022

Leining In

An attorney's failure to honor prior counsel's lien in a worker's compensation matter for two years after receiving settlement proceeds drew a proposed six-month suspension from the California State Bar Court.

The lien had been specifically referenced in the settlement documents but had been overlooked by the attorney, who had been sanctioned in 1999 for trust account issues 

Sariol was put on notice in his first discipline of the importance of handling a CTA with care and was required to attend Trust Accounting School, but then failed to follow CTA rules. In his first disciplinary case, Sariol committed multiple counts of willful misappropriation, failed to maintain and promptly distribute entrusted funds, failed to promptly respond to client inquiries, and failed to competently perform legal services. His current and past misconduct involve Sariol’s inability to properly handle entrusted funds and manage his CTA responsibilities. While Sariol’s current trust accounting violations were not the result of dishonesty or corruption, his negligence and inattention to properly handling and accounting for entrusted funds is serious.

We reject his contention that his misconduct should be viewed less egregiously because it was a “simple mistake.” The proper handling, accounting, and disbursement of trust funds are fundamental duties of a fiduciary. While we acknowledge Sariol’s remorse and the remedial efforts he took to render payment to Gulaya, Sariol continued to commit misconduct in the present case that is similar to his past wrongdoing, which is of critical concern. Therefore, we find no reason to depart from the presumptive discipline and conclude that a six-month actual suspension is warranted. This recommendation is appropriately progressive to protect the public, the courts, and the legal profession.

He had negotiated and paid off the lien after prior counsel filed a bar complaint. (Mike Frisch)

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

Friday, August 19, 2022

Biblical Passage Quotes Not Threats; Judge Beats Handicapped Parking Rap

The Michigan Judicial Tenure Commission recently received a Master's report in a matter involving multiple allegations including abuse of the contempt power.

Oral argument before the Commission is scheduled for September 12.

The Master sustained some but rejected many of the allegations.

After an eviction notice was posted prior to court action

the respondent court made the statements that “somebody’s going to pay” and expressed her general displeasure with the practice of prematurely posting notices on tenant’s doors that a writ had been issued. The respondent inquired as to who was the owner or other person in charge of the plaintiff’s company and was given the name of Joanne Eck.

Eck was ordered to pay $3,000 in punitive damages without explanation.

The Master

The Respondent levied an extra judicial sanction in this case because punitive damages are not authorized by court rule or statute. Additionally, any levy of monetary compensatory damages requires factual and legal justification and there was none. This was legal error on the part of a very new judge.

And

The more concerning behavior is threatening the plaintiffs with incarceration as an apparent means of controlling the courtroom when Ms. Sanders asked questions and requested an adjournment. This behavior rose to the level of violation of MCR 9.202(B)(2) and MCJC 3(A)(12), for a severe attitude toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, all of which tended to prevent the proper presentation of the cause and the ascertainment of truth.

Respondent was removed from administrative responsibilities by the Chief Judge

Respondent sent several emails to [District Court] CJ Blount, Judge Paruck and Ms. Moore (36th District Court Administrator) beginning November 2, 2017, containing Biblical passages. The emails evidenced the time of transmission and origin of the transmission and were, therefore evidence of when the respondent reported to the building. Judges Blount and Paruck found them to be threatening and baffling. CJ Blount responded in writing that each communication was “unacceptable.”

The Master rejected these charges

The respondent, Judge Paruck and CJ Blount had high conflict relationships. The Petitioner argues that the series of emails containing Biblical passages, and emails including, “find someone else to harass “, prove judicial misconduct as charged. Sharp and conflicted communication is seldom effective, but these writings did not include direct threats nor from this record where they published so as to subject the judiciary to censure or reproach. They were internal communications regarding differences of opinion between court systems professional. Additionally, the petitioner has not demonstrated how the requirement that respondent uses her court email to report illness could have been met with the technology in play in 2018-2019. The petitioner’s proofs fail as to these issues.

There are also allegations and findings with respect to recording court proceedings

Finally, Respondent allegedly misused handicapped parking

The respondent committed an ordinance violation. She was slow to pay her ticket. However, these facts alone do not support a finding that she violated Canon 3B. If Canon 3B is applied to this case every parking ticket would be a per se violation of the Canon.

Findings

The respondent has continuously averted that her vehicle was legally parked at the LA Fitness in a loading and loading handicap zone. Clearly the zone was for active loading and unloading. At formal hearing she and her counsel took the position that so long as she had a device to load and unload and a handicap sticker she was legally parked. This is a statement of an opinion, albeit one contrary to law. It is not a statement of fact. She has not misrepresented that she was not actively loading. She has admitted her vehicle was parked.

The petitioner fails to prove that she made an intentional misrepresentation of fact as to her vehicle parking in the unloading zone.

Respondent had sued the Chief Judge in federal court

Plaintiff alleged that Defendant continued to interfere with her by, for example, removing her email access, not allowing her to use sick days, not allowing her to use the staff restroom, and not allowing certain bathroom fixtures in Plaintiff's chambers' restroom.

After reassignment from landlord/tenant to small claims court

After reassignment, Plaintiff asked Defendant for a courtroom closer to her chambers because she needed to be closer to her restroom. Id. Defendant denied the request, and later removed "Plaintiff from hearing all cases." Id.

Disposition

In sum, the Court will grant in part and deny in part Defendant's motion to dismiss. The Court will grant the motion as it relates to the federal claims and deny the motion as it relates to the state law claim. The Court will, however, decline to exercise supplemental jurisdiction over the state law claims. The 36th District Court's motion to dismiss is denied as moot. And finally, the Court will deny Defendant's requests for attorneys' fees.

Yes, it sounds like a "high conflict relationship." (Mike Frisch)

August 19, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Former AUSA Charged With Sexually Harassing Intern

Ohio Disciplinary Counsel has filed a complaint alleging misconduct by an Assistant United States Attorney toward a second year law student interning with the office.

The intern thought Respondent was attempting to look up her skirt or "looking at [her] butt."

He allegedly talked about her sex life, offered to send her nude photographs on Snapchat and offered to purchase her clothing at several places including Victoria's Secret.

An alleged incident in the Akron office library occurred when

Respondent told J.S. she needed a copy of the 2015 Sentencing Guidelines. He then reached across her body, touching her breasts with the back of his hand.

She believes the touching was intentional.

Eventually she blocked him on social media.

She moved from the Akron to the Youngstown office and sought a letter of recommendation from him.

When he asked what he would get in return, she dropped the matter and got other recommendations.

He then Facebook messaged

Why do you haunt my dreams?

Finally, she informed a colleague and the Office of Inspector General investigated. 

He resigned and reported the matter to Disciplinary Counsel.

Complaint linked here. (Mike Frisch)

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

Red Flags

An attorney's involvement in real estate transactions with "red flags" led to misconduct findings from the a hearing panel of the British Columbia Law Society.

The attorney was admitted in 1963.

We find the main objectively suspicious circumstances of the Transactions, or the key “red flags”, to be as follows:

(a)        information regarding MK’s criminal conviction for conspiracy to traffic cocaine in the United States, coupled with the Respondent’s exposure to the nature and implications of a drug conspiracy conviction in Dillon;

(b)        allegations of criminal activity made about EA in the course of the OR Estate Litigation, along with the source of the funds for the Drake Street Property purchase, and discoverable online information linking EA to a transnational drug trafficking organization tied to money laundering;

(c)        obviously close relationships and business connections between many of the Respondent’s repeat clients and other parties to the Transactions, despite their portrayal to banks and mortgage companies as arm’s-length interests;

(d)        changing employment information and addresses for the Respondent’s clients, and in particular, EA;

(e)        payments owing to MK and EA for the Transactions where they were not

parties;

(f)         deposits being paid directly to the vendor without verifiable record of the deposits actually being made;

(g)        limited or no direct contact between the Respondent and his clients;

(h)        quick closing dates after initial file instructions from MK;

(i)         rapid increase in the Howe Street Property’s selling price between its February 2012 purchase and its April 2012 sale; and (j)    high ratio mortgages with very low commissions.

By his own admission, the Respondent did not make any inquiries prior to acting, or continuing to act, in these objectively suspicious circumstances.  There is not enough evidence to determine if he ignored them as suspicious, or if he simply did not perceive them as suspicious.  In any case, it follows that he also did not make any records of inquiries, nor did he decline to act or continue to act in the Transactions, until there was a reasonable basis for believing that they were legitimate.

We find that the Law Society has established, on a balance of probabilities, the facts underlying the Allegation of Failure to Make Reasonable Inquiries.  In summary, we find that the Respondent failed as a lawyer to ensure that he was not becoming the tool of possibly unscrupulous persons.

The panel also found a misappropriation. (Mike Frisch)

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

Permanent Disbarment For Failure To Pay Support

The Kentucky Supreme Court has permanently disbarred an attorney for repeated failure to pay child support

In this Court’s 2015 opinion regarding Respondent’s failure to pay child support, the Court warned of potential consequences if Respondent continued his pattern of habitual nonpayment. “[S]hould he maintain his pattern of
habitual nonpayment, the discipline will be much more severe in the event that another complaint on these grounds comes before this Court.” Morgan, 465 S.W.3d at 451. Despite Respondent’s assertions that he was financially unable
to afford his child support obligations and numerous attempts to reduce those obligations, Respondent was put on notice that continued nonpayment would result in serious consequences.

Issue preclusion

We also consider Respondent’s conviction for flagrant nonsupport. In disciplinary proceedings, the fact of a criminal conviction “forecloses further inquiry into the issue of respondent's guilt or innocence of the [criminal] offense.” KBA v. Lester, 437 S.W.2d 958, 959 (Ky.1968). The Court is troubled by Respondent’s repeated misconduct and nonsupport. In light of the evidence of record, we agree with the Trial Commissioner’s recommendation of permanent disbarment.

(Mike Frisch)

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

Thursday, August 18, 2022

COVID And The Bar Exam

Two decisions of the Delaware Supreme Court express sympathy - but grant no relief - to COVID remote test takers.

One applicant is named and secured a remand

At the height of the COVID-19 pandemic in 2020, the Delaware Supreme Court cancelled the Delaware Bar Exam. In 2021, with the pandemic still causing unprecedented illness and death, the Board of Bar Examiners administered the Bar Exam but required all applicants to take it remotely using the ExamSoft software program.

The 2021 Bar Exam was the first time the Delaware Board, and many boards across the country, administered a bar exam remotely. There were teething pains. Some applicants experienced screen freezes. Others had crashes requiring restarts. After reviewing the technical problems and consulting a grading expert, the Board increased the scores for applicants who had to restart their computers.

Marla Murphy sat for the 2021 Bar Exam and received an increase in her score for technical difficulties but did not pass. She petitioned the Board for a hearing and argued that the Board’s grade adjustments in response to software difficulties were arbitrary and capricious, and the Board did not adequately execute her approved testing accommodations. Murphy asked the Board to bypass the Board’s and this Court’s admission requirements and grant her admission to the Delaware Bar.

The Board denied Murphy’s petition for a hearing. The Board reasoned that, under its rules, it must treat all scores as final once released and all applicants must attain a certain score to qualify for admission to the Delaware Bar. Because Murphy was challenging her test scores and requested admission to the Bar as her only remedy, the Board found that it could not grant the relief she sought.

On appeal, Murphy claims that the Board employed an arbitrary score adjustment procedure to address technical issues during the Exam. She also contends that her specific technical difficulties with the Exam software, the lack of
a paper copy of the Exam, and alleged distracting behavior by her in-person proctor resulted in an effective denial of the testing accommodations approved by the Board.

As she did before the Board, Murphy requests admission to the Delaware Bar, even though she did not achieve a passing score on the 2021 Bar Exam. The Board has done its best to navigate the Delaware Bar Exam through the COVID-19 pandemic. We sympathize with the difficulties Murphy and all applicants experienced with the 2021 Bar Exam. But we conclude that the score increases for certain applicants, including Murphy, were not arbitrary or manifestly unfair and met constitutional requirements. We also find that neither the Board nor the Court can waive its admission requirements and admit Murphy to the Delaware Bar.

Finally, for Murphy’s Americans with Disabilities Act claim, the Board did not conduct a hearing to determine whether Murphy was denied the accommodations approved by the Board during administration of the Exam. Even though waiver of admission requirements is not a remedy available to Murphy for ADA violations, if Murphy intends to pursue some other remedy for those claims following appeal, the Board should conduct a hearing and determine whether Murphy’s approved accommodations were not provided during administration of the Exam. The determination of the appropriateness of any remedy should occur only following the development of the factual record in the event the Board determines that the ADA accommodations were not provided and executed as approved.

The other is identified by number

We have the utmost sympathy for the Applicant, and all applicants who had to contend with technical difficulties during the 2021 remote Bar Exam. But the remedy the Applicant seeks—waiver of the Board’s and the Court’s Bar admission requirements and a hearing to demonstrate his fitness for Bar admission—is not a remedy this Court will award. The Court will not revisit an applicant’s grade or waive admission requirements. And the Applicant’s remedy for defects in exam administration is to retake the Bar Exam free from any legal deficiencies. In any event, we find that the Board’s grading procedures for the 2021 Bar Exam withstand constitutional scrutiny, and the Applicant did not timely appeal his scratch paper accommodation request. Thus, the Board’s decision is affirmed.

No cohort of law graduates ever had to endure the bar exam under more stressful conditions than these test takers. (Mike Frisch)

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

A Matter Of Opinion

The Delaware Supreme Court affirmed the dismissal of a defamation action

This appeal presents difficult questions concerning the actionability of speech that is defamatory—that is, injurious to a person’s reputation—but that is defended on the ground that it is an expression of opinion and not of fact. We are asked to decide whether the First Amendment bars claims for defamation and tortious interference with contract against a defendant who, in an email to a law firm, described as “shockingly racist” a lawsuit filed by one of the firm’s partners in his personal capacity. The suit aimed to preserve a nearby high school’s “Indian” mascot.

The partner, who claims to have lost his position with the law firm because of the email, sued his detractor, contending that the characterization of his lawsuit is demonstrably false and pleading four causes of action, including defamation and tortious interference with contract. The partner’s detractor, in response, contends that her statements about the partner are opinions protected by the First Amendment’s Free Speech Clause. The Superior Court agreed with the detractor and dismissed the partner’s tort action.

For the reasons that follow, we affirm the judgment of the Superior Court. The statements at issue do not on their face contain demonstrably false statements of fact, nor do they imply defamatory and provably false facts. As statements concerning an issue of public concern, moreover, they are entitled to heightened First Amendment protection and cannot form the predicate of the plaintiff’s tort claims.

(Mike Frisch)

August 18, 2022 | Permalink | Comments (0)

Wednesday, August 17, 2022

Subway Crimes Draw Suspension

A three-year suspension was imposed by the New York Appellate Division for the Second Judicial Department

On June 28, 2018, the respondent was arrested and charged with committing assault in the third degree against two passengers on a New York City subway car by spraying them with a chemical liquid, causing irritation and burning to their eyes and faces, in violation of Penal Law § 120.00, a class A misdemeanor.

On December 11, 2018, the respondent was arrested and charged with assault in the second degree, in violation of Penal Law § 120.05(1), a class D felony. The incident underlying this charge, which occurred on a crowded New York City subway car, was captured on video. Initially, the respondent repeatedly cursed at the victim. The respondent then methodically took off her sunglasses, placed them in her pocketbook, tied her hair back, and took her keys and umbrella from her pocketbook. The respondent used her legs and umbrella to strike the victim. Although a bystander tried to block the respondent, the respondent continued striking the victim.

After charged were filed

On November 20, 2019, in the Supreme Court, Kings County, the respondent was convicted, upon a plea of guilty, of menacing in the second degree, in violation of Penal Law § 120.14(1), a class A misdemeanor, in full satisfaction of the indictment.

In the bar proceeding

In determining an appropriate measure of discipline to impose, we have considered that at the prehearing conference, the respondent was indifferent, lacked decorum, and showed no remorse or acceptance of responsibility. The Court has also considered, inter alia, the nature of the criminal conduct in this matter and the respondent’s failure to attend the hearing and failure to submit any mitigating evidence. Notwithstanding the respondent’s lack of a disciplinary history, we conclude that the respondent’s conduct warrants her suspension from the practice of law for a period of three years.

Coverage from Above the Law.(Mike Frisch)

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

Back To The Future

A plaintiff in an action that in part involves allegations of legal malpractice may claim loss of future profits according to a decision of the New Jersey Supreme Court

Reiterating the general rule under New Jersey law that lost profits may be recoverable if they can be established with a reasonable degree of certainty, but anticipated profits that are remote, uncertain or speculative are not recoverable, the
Court concurs with the majority of courts that reject a per se rule barring any new business’s claim for lost profits damages. To the extent that Weiss can be read to adopt such a per se bar, the Court departs from the test prescribed in that case. The Court does not view a new business to be in the same position as an established business with respect to damages claims, however. Consistent with the Restatement and the New York and Illinois decisions discussed in the opinion, the Court recognizes that it is substantially more difficult for a new business than for an experienced business to prove lost profits with reasonable certainty. A trial court should carefully scrutinize a new business’s claim that, but for the conduct of the defendant, it would have gained substantial profit in a venture in which it had no experience. If a new business seeks lost profits that are remote, uncertain, or speculative, the trial court should bar the evidence supporting that claim and enter summary judgment. The trial court here applied a per se ban on lost profits claims by a new business pursuant to Weiss. The Court remands so that these matters can be decided under the correct standard and provides relevant guidance.

The court reversed the Appellate Division's affirmance of dismissal.

August 17, 2022 | Permalink | Comments (0)

Monday, August 15, 2022

Reasonably Plain

The Louisiana Attorney Disciplinary Board agreed with a hearing committee that a Super Lawyers ad did not violate ethics rules

On July 26, 2021, ODC filed its brief to the Board. ODC contended that the item which was publicized in Super Lawyers was an advertisement and that Respondent violated Rule 7.7(c) by failing to file the advertisement with the LSBA. ODC acknowledged that the content of the advertisement was compliant with the Rules, but argued that the fact that an advertisement may be compliant does not relieve the lawyer from the requirement of filing it with the LSBA. ODC disagreed with the Committee’s conclusion that the background of the photo could reasonably be considered to be plain. ODC additionally argued that the advertisement goes beyond the “safe harbor” provisions for reasons unrelated to the photograph and that the Committee should not have limited its review to the photograph. ODC further submitted that Respondent should be publicly reprimanded.

Nope

Having reviewed and considered all of the evidence presented in this matter and for the reasons outlined above, the Board finds that ODC has failed to carry its burden of proof by clear and convincing evidence that Respondent violated the Rules of Professional Conduct as charged. Therefore, the Board orders that the charges filed against Respondent be dismissed.

August 15, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Radio Days

A transcript of the prehearing conference in the Giuliani bar discipline matter has been posted on the web page of District of Columbia Bar.

The proceeding was conducted on August 4. 

Jay Brozost is identified as the attorney member of the Hearing Committee.

Respondent asked for hearing schedule accommodations in light of his 3 pm radio program, identified by counsel as his sole source of income. 

Disciplinary Counsel advised the committee that it has secured two expert reports of 40 and almost 70 pages respectively as well aa a file with 1,527 pages of discovery "graciously" provided by Disciplinary Counsel. Further, subpoenas have been issued to Respondent and "the other lawyers in the Pennsylvania case" for the evidence that supported their claims.

The expert that the prosecutors intend to call is identified as Professor Ortiz. (Mike Frisch)

August 15, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, August 14, 2022

Death Leads To Consent Disbarment

An attorney admitted to practice in 1979 has filed a motion for consent disbarment with the Illinois Supreme Court.

The statement of charges describes an incident that took place on June 2, 2020.

The attorney ad left a tavern for a restaurant. He collided with a jeep that crossed the center line and killed a motorcyclist who was heading in the opposite direction.

His tested blood alcohol concentration was .297, "more than triple " the legal limit in Illinois.

He pleaded guilty to felony charges and was sentenced to five years imprisonment. (Mike Frisch)

August 14, 2022 in Bar Discipline & Process | Permalink | Comments (0)