Friday, May 20, 2022

Corporate Director Of Customer Service May Be Terminated For Racially-Insensitive Facebook Comments

The New Jersey Appellate Division affirmed the power of a private company to discharge an at-will employee for "racially insensitive comments" on a private Facebook page where her employment was "prominently stated" 

The issue raised in this appeal is whether the First Amendment or Article I, Paragraph 6 of the New Jersey Constitution prevents a private employer from terminating one of its at-will employees for posting racially insensitive comments about the Black Lives Matter movement on her personal Facebook account. Defendants AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated (AtlantiCare) employed plaintiff Heather J. McVey as a Corporate Director of Customer Service. During the height of the nationwide protests concerning the murder of George Floyd by police in Minnesota, McVey posted that she found the phrase "Black Lives Matter" to be "racist," believed the Black Lives Matter movement "causes segregation," and asserted that Black citizens were "killing themselves." McVey's Facebook profile prominently stated she was an AtlantiCare Corporate Director. After it discovered the comments, AtlantiCare fired McVey and she filed a complaint alleging wrongful discharge. The trial court concluded that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee and dismissed McVey's complaint...we affirm.

She had been employed there since 2005.

The posts implicated the company's written social media policies

An AtlantiCare administrator discovered McVey's Facebook posts. On June 17, 2020, an AtlantiCare Vice President called McVey to discuss her remarks. McVey acknowledged the posts and discussed some of their content.

She was suspending pending an investigation

On June 23, 2020, AtlantiCare's Senior Vice President of Administrative Services and the Chief Administrative Officer met with McVey. After McVey revealed she was recording the conversation, "the meeting ended and plaintiff was terminated." AtlantiCare told McVey the firing was due to her "repeated instances of poor management judgment – a failure to uphold AtlantiCare values."

Dismissal of her suit affirmed

AtlantiCare had previously given McVey a copy of its social media policy, which warned her to avoid posting about "any topics that may be considered objectionable or inflammatory—such as politics and religion." The policy also stated that an employee's use of social media had "the potential to affect AtlantiCare employee job performance, the performance of others, AtlantiCare's brand and/or reputation, and AtlantiCare's business interests."

McVey posted her remarks at the height of the Floyd protest demonstrations and AtlantiCare appropriately considered that the comments, and her public identification as an AtlantiCare "Corporate Director," opened its business up to the possibility of unwanted and adverse publicity and criticism. As the AtlantiCare Vice President told McVey at the June 17, 2020 meeting, "[it] was bad."

We have balanced McVey's slight interest in publicly making her position on the Black Lives Matter movement known against AtlantiCare's strong interest in protecting and fostering the "diverse set of customs, values[,] and points of view of its physicians, staff, volunteers, vendors, customers[,] and partners[.]" Under the circumstances presented in this case, AtlantiCare did not violate a clear mandate of public policy when it terminated McVey's employment.

(Mike Frisch)

May 20, 2022 in Current Affairs | Permalink | Comments (0)

Resigned with Restitution

An attorney's resignation was accepted by the New York Appellate Division for the First Judicial Department

Respondent acknowledges that he is currently the subject of an investigation by the Attorney Grievance Committee (Committee) involving allegations that he committed certain acts of professional misconduct, namely misappropriating escrow funds in two separate client matters involving real estate transactions. Specifically, in one matter, he is alleged to have misappropriated $370,000 from the law firm of Rosenberg & Estis, P.C., and in the other matter he is alleged to have misappropriated $159,000 from his former client. Respondent asserts that he has made partial restitution for both matters: $75,000 to Rosenberg & Estis, P.C. and $80,000 to his former client.

Respondent attests that he cannot successfully defend against the allegations based upon the facts and circumstances of his professional conduct as described herein. Respondent attests that his resignation is freely and voluntarily rendered, without coercion or duress by anyone, and with full awareness of the consequences, including that the Court's acceptance and approval shall result in the entry of an order of disbarment striking his name from the roll of attorneys and counselors-at-law.

Respondent consents to the entry of an order by the Court, pursuant to Judiciary Law § 90(6-a), directing him to make restitution to the law firm of Rosenberg & Estis, P.C. in the amount of $295,000 and to his former client in the amount of $79,000.

(Mike Frisch)

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

Reciprocal Sanction Imposed

The Nebraska Supreme Court has imposed reciprocal discipline on a "limited record" based on misconduct found in Texas

On July 14, 2021, the State Bar of Texas issued an “Agreed Judgment of Active Suspension.” The discipline arose out of the respondent’s “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation” while serving as voluntary treasurer for a youth sports club.

Texas had imposed a two-year suspension with conditions; Respondent sought a lesser sanction here

The respondent labeled her response to the show cause order as confidential. She requested discipline less severe than the Texas discipline. The respondent suggested probation in lieu of suspension, reprimand by the court, reprimand by the Disciplinary Review Board, or suspension for a period less than 1 year. Her unsworn response indicates that she had personal issues at the time of her misconduct, which we do not detail here.

Her agreement to discipline in Texas led to the court's rejection of a lesser sanction

The relator’s brief points out that the respondent’s misconduct was unrelated to her law practice, did not implicate any breach in her duty to her clients, and did not involve a failure to respond to disciplinary inquiries. It appears she had no prior discipline. We take into consideration the respondent’s explanation of the situation she was in at the time of her misconduct. But we also observe that the respondent had an opportunity to contest the charge and offer mitigating circumstances during the investigatory hearing in the Texas proceeding, that she does not challenge the discipline ordered by the State Bar of Texas, and that she did not request a hearing in Nebraska.

The discipline was imposed retroactively in STATE EX REL. COUNSEL FOR DIS. v. PANICK.

Reciprocal discipline was also ordered in Oklahoma. (Mike Frisch)

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

Thursday, May 19, 2022

24 Hours A Day

The Florida Supreme Court imposed a 60-day suspension of a judge, finding misconduct in five of seven charged violations

The charges against Judge Hobbs stemmed in part from events relating to her adult son. In 2018, Judge Hobbs’s son was charged with misdemeanor DUI in Leon County, which is located within the Second Judicial Circuit. Judge Hobbs retained an attorney to represent her son. Shortly thereafter, Judge Hobbs assumed another judge’s docket, and on that docket were two cases where her son’s attorney was the attorney of record. When the cases and her son’s attorney appeared before her, Judge Hobbs did not recuse herself nor did she disclose her connection with the attorney. In one case, she granted an agreed motion for continuance. In the other, the parties announced they had agreed to enter a deferred prosecution agreement, and she set a new court date to ensure the agreement had been signed.

On the evening of July 29, 2019, Judge Hobbs’s son was arrested after allegedly shooting a person in his home. After learning of the arrest, Judge Hobbs went to the police station where her son was being held. Upon arrival, she asked to see her son but was told that only her son’s lawyer could meet with him. Judge Hobbs responded to this by saying that she was her son’s lawyer and was then permitted to enter the interrogation room where her son was being held. Judge Hobbs and her son had a nineteen-minute conversation which was unrecorded due to its privileged nature. Judge Hobbs also stayed with her son while he was interviewed by police, and at several points interjected to ask clarifying questions or to advise her son. At the end of the interview, Judge Hobbs asked the officers to release her son into her custody and expressed concerns about his safety because she had sentenced inmates in the same jail where he otherwise would be detained. The officers stated that it would be impossible to release her son into her custody due to the nature of the charges against him, but that they were aware of the potential safety issues.

After leaving the police station, Judge Hobbs contacted the attorney who represented her son in his DUI matter, and he agreed to represent him again. Although Judge Hobbs’s representation of her son ended at that point, Judge Hobbs’s legal assistant attended, and sat at counsel table during, his first appearance.

The judge when confronted took a leave of absence and did not counsel her judicial assistant

After the Chief Judge of the Second Judicial Circuit learned that Judge Hobbs’s son had been arrested, he contacted Judge Hobbs to arrange a meeting. During this meeting, Judge Hobbs explained that she had acted as her son’s attorney on the night of his arrest, and the Chief Judge advised her to report herself to the JQC, which she did on the same day. The Chief Judge also explained to Judge Hobbs that he had viewed the video recording of her son’s first appearance and directed her to counsel her judicial assistant regarding the appearance of impropriety created by her presence at counsel table. He also suggested that Judge Hobbs take some time off, and she agreed to do so.

The Chief Judge tried further counseling on her return

During the counseling session between the Chief Judge and the judicial assistant, the judicial assistant made a series of remarks, including that the Chief Judge was only “pretend[ing] to be sensitive to Judge Hobbs,” but then later “kick[ing] [her] in the butt.” The Chief Judge told Judge Hobbs that he believed her judicial assistant’s conduct during the meeting was grounds for termination. Judge Hobbs declined to terminate her judicial assistant but did counsel her on her conduct during the meeting.

Notwithstanding the admonition

On October 3, Judge Hobbs’s son, who was out on bail, came to Judge Hobbs’s office looking for his grandfather’s health insurance papers. Judge Hobbs’s son stated that he believed the papers were in Judge Hobbs’s office, which was in a secure part of the building. The judicial assistant then gave her all-access security badge to Judge Hobbs’s son, who used the private elevator to access the restricted area, where he encountered an “unnerved” clerk who reported the incident.

The court

Context is crucial for these charges. The evidence was both clear and convincing that Judge Hobbs’s judicial assistant used her position of trust to preferentially promote the individual interests of the judge’s family and did not appear to understand that her duty and our ethical rules required that she neither attempt to influence the outcome of the criminal charges pending against the judge’s son nor grant a privilege or courtesy to him that would not be equally extended to any other criminal defendant. Judge Hobbs knew of the serious ethical breach by her judicial assistant and took no steps to counsel her, even after being directed by her chief judge to do so.

The court sustained a number of charges but

In urging us to impose a harsher sanction than the Hearing Panel’s recommended discipline, the JQC suggests that Judge Hobbs’s misconduct demonstrates unfitness to hold judicial office that warrants removal. We disagree.

Also but

However, we do agree with the JQC that the recommended discipline is insufficient. Although we are not unsympathetic to Judge Hobbs’s family situation, her violations of the Code of Judicial Conduct demonstrate a failure of judgment and a lack of appropriate boundaries between her judicial office and her personal life that cannot be tolerated in members of our judiciary. See In re Frank, 753 So. 2d 1228, 1241 (Fla. 2000) (“[A] ‘judge is a judge 7 days a week, 24 hours a day.’ ” (quoting JQC’s findings)).

The court imposed a $30,000 fine in addition to the proposed suspension. (Mike Frisch)

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

The Return Of Dominic Gentile

The Nevada Supreme Court denied relief to an attorney

Petitioner Joseph S. Gilbert argues that respondent the State Bar of Nevada released a proposed letter of reprimand issued by a screening panel in the underlying disciplinary proceedings to the press in violation of confidentiality rules. But the documentation before this court contains no evidence tending to show that the State Bar released the proposed letter or violated confidentiality rules, such that Gilbert has failed to meet his burden of showing that writ relief is warranted...

The State Bar also has not violated Gilbert's due process rights such that writ relief would be warranted because the proposed reprimand did not become final due to Gilbert's timely objection to the same and the State Bar has not otherwise recommended any discipline for Gilbert at this time.

Reno Gazette Journal reported on the controversy

 On billboards throughout northern Nevada, Republican gubernatorial candidate Joey Gilbert can be seen with clenched fists and a promise: “Joey Gilbert Law, Fighting for Nevada.”

Now, Gilbert is fighting efforts to reprimand him by the State Bar of Nevada. Gilbert has yet to be disciplined, but a screening panel that reviewed his work sent him a draft letter of reprimand in August alleging he harmed a client and violated the bar’s rules of professional conduct.

“Your misconduct actually injured your client, albeit not substantially because he had no formal deadline for filing the petition. Your misconduct actually injured the integrity of the profession as well,” Richard Williamson, the chair of a disciplinary panel convened by the bar, wrote in the Aug. 27 letter to Gilbert.

Gilbert is an attorney and former professional boxer who in the last year has become one of Nevada’s most prominent voices calling into question the 2020 election result and decrying coronavirus vaccines. He was present in Washington, D.C., during the Jan. 6 insurrection but has said he did not enter the Capitol. Gilbert is running in a crowded primary field of Republicans hoping to unseat Democratic Gov. Steve Sisolak in 2022.

The letter obtained by The Associated Press was confirmed as authentic by the State Bar of Nevada.

The Nevada Bar appoints three-member panels to evaluate grievances lodged by clients claiming harm against its attorneys. After deliberation, panels can impose sanctions, reprimand an attorney or dismiss the allegations. If the panel chooses sanctions or a reprimand, it must provide the attorney an opportunity to review the allegations and file an objection within 14 days.

Gilbert filed a motion to dismiss the letter, which the disciplinary panel denied on Dec. 1, according to filings provided by his attorney, Dominic Gentile.

Gentile said Gilbert denied all the allegations in the letter and planned to continue to fight the bar over its process and conclusions. He said the draft letter was not a public record and the State Bar should not have commented on it at this stage.

“There is no final determination as to the validity of any grievance against Mr. Gilbert. A lawyer is entitled to a live hearing at which witnesses must be called to testify and be subject to cross-examination,” he said.

Bar counsel Daniel Hooge said the letter was unofficial and Gilbert would not be formally disciplined until the panel holds another hearing.

“While the Supreme Court of Nevada retains ultimate authority to regulate the legal profession, the Office of the Bar Counsel serves as the Court’s arm to investigate and prosecute claims that a lawyer has violated the Rules of Professional Conduct. Our primary goal is to protect the public,” Hooge said.

The panel’s consideration comes as Gilbert campaigns throughout Nevada ahead of the Republican gubernatorial primary next June and files headline-grabbing lawsuits challenging vaccine and mask mandates.

To voters, Gilbert cites his legal work as evidence that he’s the best choice to be Nevada’s next governor and committed to fighting for the state.

In stump speeches he’s made across the state and shared on his Facebook page, he says the legal work he’s done throughout the pandemic prove his willingness to be “in the trenches, fighting,” referencing cases such as Calvary Chapel Lone Mountain’s ongoing challenges to Nevada’s coronavirus-related capacity cap on religious gatherings.

Gilbert is part of the legal team representing that church in Las Vegas, which along with another in rural Nevada, won an appeal challenging a statewide capacity cap on religious gatherings. The 9th U.S. Circuit of Appeals ruled in favor of the church after the governor had rolled back the restrictions in question.

The State Bar letter claims Gilbert’s firm allowed employees who weren’t licensed attorneys to handle a case without supervision — a violation of professional standards and bar requirements. It alleges that a law student, who was supposed to be under Gilbert’s supervision per bar rules, falsely implied to a client that a petition had been filed in court when it had not.

Though Gilbert’s client had paid a $3,500 retainer four months prior, the firm later dropped him as a client. The draft letter also reprimands Gilbert for violating a “diligence” rule by not promptly alerting the client that he did not want to represent him.

Gentile said Gilbert denied the allegations.

After speaking to employees mentioned in the letter, Gentile said he believes the disciplinary panel hadn’t sufficiently investigated the incident. He said he was confident the reprimand would be dismissed.

“What Joey Gilbert is doing here is he’s standing up for his integrity,” Gentile said.

(Mike Frisch)

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

Former In House Counsel Enjoined

The Arkansas Court of Appeals Division II upheld injunctive relief against two departed employees who had joined a competing business after signing non-competition agreements.

One was former in house counsel

In April 2015, [plaintiff] Elite hired appellant Combs to serve as in-house legal counsel after he had graduated from law school. After failing the bar exam, Elite trained Combs in the title department and helped him obtain his title-agent license. A year later, Combs passed the bar exam and became Elite’s in-house counsel in addition to being a title agent. As part of his employment, Combs entered into a confidentiality and noncompetition agreement with Elite. Combs had no prior experience working in the title business. Elite provided Combs all his training, including how to work for a title company, performing closings, and drafting deeds. [co-Appellant] Long was Combs’s immediate supervisor.

The court noted

Long testified that he began discussions with Apex about going to work for the company in the late summer of 2020. After appellants resigned from Elite, significant Elite business was being transferred to Apex Title. Elite also discovered that on October 1, 2020, Combs had created a separate 1031 exchange company called 1031 Intermediary Services, LLC––while he was still employed by Elite as its general counsel. Also while still employed as general counsel, Combs used the new company for at least three transactions instead of using Like-Kind. Elite alleges that through these 1031 transactions, Combs stole approximately $2,500 in fees that were the property of Elite while still employed as its general counsel. Combs also used Elite’s proprietary forms in processing these transactions through the new company while still employed as Elite’s general counsel.

The court rejected the claims that the injunction was overly broad or was unreasonable in geographic scope. (Mike Frisch)

May 19, 2022 | Permalink | Comments (0)

Stayed Suspension For Voyeurism Conviction

The District of Columbia Court of Appeals has accepted a negotiated sanction for a criminal offense, agreeing that the offense did not involve moral turpitude requirement disbarment

Having reviewed the Committee’s recommendation, in accordance with our procedures in uncontested disciplinary cases, see D.C. Bar R. XI, § 12.1(d), we agree this case is appropriate for negotiated discipline and that the proposed sanction is not unduly lenient. See D.C. Bar R. XI, § 9(h)(2). Accordingly, it is

ORDERED that respondent Pablo Zylberglait is hereby suspended from the practice of law in the District of Columbia for six months, with the suspension stayed in favor of six months of unsupervised probation, during which respondent must continue complying with the recommendations of his therapist and ensure that his therapist provides monthly reports to Disciplinary Counsel regarding respondent’s compliance.

The crime is described in the Hearing Committee report

On June 5, 2019, Respondent stood behind a woman on the escalator at the L’Enfant Plaza Metro station. Respondent placed his cell phone on top of his duffel bag and attempted to record images under the woman’s skirt. Respondent did not have the woman’s consent to take images under her skirt. Respondent’s actions were recorded on Metro security cameras.

A witness who knew the victim confronted Respondent on the escalator and alerted the victim of Respondent’s actions. After exiting the escalator, the victim confronted Respondent, asked to view the photos on his phone, and saw blurry photos or video that appeared to have been taken that day.

After his arrest, Respondent cooperated with the government. On September 24, 2019, Respondent pled guilty to attempted voyeurism. He was sentenced to 60 days incarceration, with execution of sentence suspended, and placed on three months unsupervised probation. Respondent has successfully completed the terms of his probation.

(Mike Frisch)

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

Dishonesty in D.C. (Say It Ain't So!)

An interesting oral argument before the District of Columbia Board on Professional Responsibility this afternoon at 2 pm EST (access here) involves review of an Ad Hoc Hearing Committee report recommending a six-month suspension without fitness for, in the main, causing the alteration of a notarized document and filing it with the Recorder of Deeds.

Misconduct

The Hearing Committee has found that Respondent engaged in dishonesty in violation of Rule 8.4(c). Respondent consciously and consistently disregarded the risks created by his action in directing the altering of signed and notarized documents. He decided to revise a material term of a deed—the consideration—that he knew had significant implications on tax liability for the parties to the deed and the revenue collected by the District of Columbia. In less than 24 hours, and after speaking with Mr. Duggan—a self-interested non-attorney—and having a superficial “CYA” conversation with Ms. Williams, Respondent directed his staff to change the amount of consideration on the notarized deed and tax forms. He never consulted with Ms. Washington or Mr. Bianco to discuss this significant change. Further, even after making this decision, he did not subsequently inform Ms. Washington that he had made these changes and interfered with her representation of Homer Littlejohn, who he knew was still represented by Ms. Washington. The Hearing Committee finds that Respondent’s $450,000 figure was inaccurate—a fact which he could have realized if he had more carefully reviewed the documents in his possession. While we have found that he lacked an intent to defraud and that he did not intentionally testify falsely, his dishonesty in violation of Rule 8.4(c) and his knowing false statements to Disciplinary Counsel in violation of 8.1(a) warrant a lengthy suspension.

Considerations

Here, we are concerned about Respondent’s prior discipline and its similarity to the misconduct in the instant matter. And unlike the respondents in Reback, Respondent has not admitted to any wrongdoing in regard to any of the charged rule violations. The minimal mitigating factors, as described above, are not as compelling as those in Reback.

Nonetheless, we also recognize that Respondent’s misconduct in directing his staff to change the consideration amount instead of re-executing the deed and tax form was a single event. Accordingly, we recommend a six-month suspension for the violations of Rules 8.1(a), 8.4(c), and 8.4(d).

Prior discipline

In 2004, Respondent was publicly censured in the District of Columbia as reciprocal discipline for Respondent’s unauthorized practice of law in Maryland. In re Soto, 840 A.2d 1291 (D.C. 2004) (per curiam). Respondent’s public censure resulted from his signing instruments affecting title to real property in Maryland without being admitted to practice before the Court of Appeals of Maryland.

The Reback en banc decision (subsumed to some degree by the later en banc decision in In re Hutchinson) are leading precedents on dishonesty sanctions in D.C. (Mike Frisch)

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

Wednesday, May 18, 2022

A Headstone In Granite

The Oklahoma Supreme Court has held that a city has no duty to care for the headstones of those interred in the city burial ground

Town operates the Granite Town Cemetery as a benefit to the community. Town sells cemetery plots to individuals who are responsible for the burial of their decedents. Those individuals also purchase and are responsible for the placement of the monuments and headstones on the cemetery plots.

Mother and Son attended a funeral at the Granite Town Cemetery. During their visit, Son played near the graves of Amanda Bryan and James Bryan. Ms. Bryan was interred in 1918, and Mr. Bryan was interred in 1927. Son came in contact with the Bryans' headstone, and the headstone fell over, injuring Son.

The court here reversed the decision of the Court of Civil Appeals, which had reversed the grant of summary judgment to the defendant

We hold Town owed no duty to Son with regard to the headstone placed on the Bryans' cemetery plot. Town did not own the headstone belonging to the Bryans and therefore had no duty to maintain or inspect it. To hold otherwise would impose a duty on Town (and other publicly owned cemeteries) to maintain every headstone installed in a cemetery into perpetuity. We affirm the district court's judgment.

Location, location, location

The alleged defect--the headstone--was not placed by Town near a walkway belonging to Town. Rather, the headstone was placed on the easement belonging to the purchaser of the cemetery plot. This matter is also not as in Moran wherein we noted that the defendant could be held responsible for an injury that occurred for not acquiring knowledge of the condition of its uncovered sewer manhole; the headstone at issue did not belong to Town. 2003 OK 57, ¶ 10, 77 P.3d at 592. Even more, unlike in McCathern and Moran, the record before us fails to establish that any defect in the headstone was known by Town or would have been discovered by Town upon inspection.

Whether Town was exempt from liability under [governmental immunity] is not determinative of whether Town had a duty to inspect the headstone. Instead, Town had no duty to inspect the headstone because it was not owned, placed, or controlled by Town.

(Mike Frisch)

May 18, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, May 17, 2022

Unwanted Communications

The Manitoba Law Society Discipline Committee Panel has ordered a reprimand with conditions

 Mr. Fawcett's Conduct Unbecoming a Lawyer charge occurred outside of his professional obligations. From approximately August 2016 through July 2020, Mr. Fawcett made unwanted communications of a sexual nature to five women.

 Fawcett knew each of these women through his work as a lawyer, the unwanted communications were outside of the course of Mr. Fawcett's professional activities. None were directly connected with any client matter or other professional activity. All of these communications took place while Mr. Fawcett was under the influence of alcohol.

He sought treatment after bar complaints were filed

Having regard to Mr. Fawcett's successful management of harmful substance abuse in the past and his willingness to give certain undertakings to the Society, this complaint was initially resolved by Mr. Fawcett's formal Undertaking dated July 8, 2020.

This Undertaking included provisions as to treatment and reporting upon the progress of that treatment to the Society. It also contained undertakings including to:

    abstain from the consumption of alcohol. If I experience a relapse of consumption of alcohol, I will notify the Society in writing forthwith; and

have no contact with any female member of the Society by FaceTime, text, email or other direct messaging or video communications application, for any reason other than for strictly work related matters. If I intend on communicating with a female Lawyer of the Society for a non-work-related reason, in the manners described, I will first obtain the written authorization of the Society.

Fawcett complied with the treatment undertakings but breached [the above] undertakings almost immediately.

Sanction

  It is determined it is appropriate in the circumstances in accordance with Section 72(1) of The Legal Profession Act that the member be granted a  reprimand. This is reserved for the exceptional circumstances found in this case.

The conditions include monitored abstinence and continuing treatment. (Mike Frisch)

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

DENIED: The Names The Same

The North Dakota Supreme Court summarily affirmed the denial of a name change on the grounds that it was already a fait accompli

Shane Lance Yates and Amy Jo Yates (“Petitioners”) appeal district court orders denying their petitions for name changes and requests for evidentiary hearings. The Petitioners sought to change their names from “SHANE LANCE YATES” (in all uppercase letters) to “Shane Lance Yates” and “AMY JO YATES” (in all uppercase letters) to “Amy Jo Yates.”

Reasoning

We summarily affirm under N.D.R.App.P. 35.1(a)(7); Matter of Yates, 2022 ND 11, ¶ 5, 969 N.W.2d 195 (holding there was no proper and reasonable cause for the district court to change two individuals’ names from all capital letters to initial capital letters followed by lowercase letters because such a request was not a change from one name to another)...

UNFAIR!! (Mike Frisch)

May 17, 2022 | Permalink | Comments (0)

Fraud Conviction Results In Suspension

An attorney's involvement in two loans that were a fraud of over $4 million drew a one-year suspension from the New Jersey Supreme Court.

The crimes were described by the Disciplinary Review Board

That same day, at his plea hearing before the Honorable Jose L. Linares, Chief Judge, U.S.D.N.J., he provided a sworn allocution admitting to his role in the nominee loan scheme, including conspiring to create the false entries designed to deceive MB and the FDIC. Specifically, respondent admitted that, between January 2008 and November 2013, he participated in a scheme to obtain the two nominee loans from MB and to falsify MB’s financial records for the benefit of Daibes. Notably, respondent admitted that he received a portion of the proceeds of the second, $2.625 million loan.

Sentencing mitigation/aggravation

In crafting the sentence, Judge Vazquez accorded great weight to the fact that the loans were repaid and, thus, MB suffered no financial loss; considered that respondent was over eighty years of age and suffered from numerous, severe health issues, including deteriorating urological; cardiac; diabetic; and lower back issues; and that his wife and daughter also suffered from severe health issues. Judge Vazquez acknowledged that respondent had accepted responsibility for his actions, but determined that, although respondent was not acting in his capacity as a lawyer at the time the criminal conduct occurred, he should have been “acutely aware of the impropriety of lying to get a loan.” Judge Vazquez further emphasized that respondent involved his children in the scheme to obtain the second loan. The Judge recognized respondent’s service in the Army Reserve, including six months of active duty, and his numerous charitable acts.

Proposed sanction

On balance, we determine that a one-year suspension is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar. Because respondent has resigned from the New Jersey bar, without prejudice, the suspension will be deferred until respondent seeks  reinstatement to the practice of law in New Jersey.

Vice-Chair Gallipoli and Members Petrou, Rivera, and Zmirich voted to recommend to the Court that respondent be disbarred.

(Mike Frisch)

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

The Barbershop

The New Jersey Supreme Court imposed reciprocal discipline of a judge suspended for a year and a day in Pennsylvania.

From the report of the Disciplinary Review Board

The facts giving rise to the judicial and disciplinary actions against respondent are as follows. Respondent’s son, Ian Rexach, owned a barbershop in Philadelphia. On or about March 27, 2012, the Philadelphia City Solicitor’s Office filed a complaint in Philadelphia Municipal Court against Rexach for his failure to file a required 2008 business privilege tax return. Rexach failed to appear for the hearing on the complaint and, on May 15, 2012, the municipal court entered a default judgment against him.

On June 12, 2012, former Judge Dawn A. Segal, of the Philadelphia Municipal Court, denied Rexach’s pro se petition to open judgment. Thereafter, on June 26, 2012, respondent initiated a telephone call to former Philadelphia Municipal Court Judge Joseph C. Waters, Jr. Unbeknownst to respondent, Waters’ telephone conversations were being lawfully intercepted by the Federal Bureau of Investigation (the FBI).

The conversations are detailed in the report

Respondent admittedly engaged in inappropriate communication with Waters concerning her son’s case; improperly contacted Waters on June 29, 2012 to request that he contact Segal to ensure that Segal heard her son’s petition; failed to report the communications she had with Waters to the Judicial Conduct Board or any other authority; and made false statements of material fact in her written reply to the inquiry from the Judicial Conduct Board.

Sanction

On balance, a one-year suspension is required to protect the public and preserve confidence in the New Jersey bar. The suspension will be deferred and imposed if and when respondent is reinstated to the practice of law in New Jersey. There is no basis to grant respondent’s request that the suspension be imposed retroactively. We further determine to prohibit respondent from seeking pro hac vice admission before any New Jersey court or tribunal until further Order of the Court.

Chair Gallipoli voted to recommend to the Court respondent’s disbarment.

(Mike Frisch)

May 17, 2022 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, May 16, 2022

Former CIA Officer Disbarred

A disbarment ordered last week by the New York Appellate Division for the First Judicial Department

On January 26, 2015, respondent was convicted after a jury trial, in the United States District Court for the Eastern District of Virginia, of multiple federal felonies: unauthorized conveyance of government property in violation of 18 USC § 641; unauthorized disclosure of national defense information in violation of 18 USC § 793(d) and (e); unlawful retention of national defense information in violation of 18 USC § 793(e); and obstruction of justice in violation of 18 USC § 1512(c)(1). He was sentenced to 42 months imprisonment, supervised release for two years and ordered to pay a special assessment of $900.

Respondent's conviction stemmed from his employment at the CIA where he was assigned to a classified project designed to undermine Iran's nuclear program. Among other things, respondent shared classified information about the Iranian nuclear program with a reporter, which was published in a book.

Because the disbarment for a federal felony not "substantially different" from a state felony, disbarment was automatic when he was convicted.

Thus, the AGC loses in seeking prospective treatment

The Committee further contends that respondent did not report his January 26, 2015 conviction until December 13, 2021 and therefore moves to make respondent's disbarment effective as of the date of the Committee's motion. Respondent urges that the disbarment be made nunc pro tunc to the date of his conviction.

First, we note that respondent committed professional misconduct by failing to timely report his conviction to either the Court or the Committee as required by Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a). Although this failure to timely report his conviction may be germane to any future application for reinstatement (see 22 NYCRR 1240.16[a]), it does not affect respondent's disbarment date. Indeed, the statutory language of Judiciary Law § 90(4)(a) clearly states that disbarment occurs upon conviction, and the convicted person ceases to be an attorney at that time (see Matter of Barash, 20 NY2d 154, 157 [1967] [finding that the "law is settled that upon a conviction for felony a lawyer is ipso facto disbarred"]).

Accordingly, the Committee's motion should be granted, and respondent is disbarred and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective nunc pro tunc to January 26, 2015, the date of his conviction.

The Intercept reported 

The government’s case consisted mostly of records of emails and phone calls between Sterling and[New York Times reporter] Risen that began in 2001 and continued into 2005. The emails were very short, just a line or so, and did not reference any CIA programs. The phone calls were mostly short too, some just a few seconds, and the government did not introduce recordings or transcripts of any of them.

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

Sunday, May 15, 2022

Judge Created Mess Draws Admonishment

An admonishment has been imposed by the Texas Commission on Judicial Discipline for a judge's misconduct in a divorce trial 

Throughout the trial, in open court, Judge Wells expressed irritation at both sides’ lawyers, including slamming a book on the bench, erupting in anger, using a harsh and sarcastic tone of voice, abruptly announcing recesses, and walking off the bench in frustration and anger.

On April 17, 2019, at or near the end of proceedings, Judge Wells ordered Attorney Teresa Waldrop (“Waldrop”) to his chambers for “a discussion” while the parties and other counsel remained in the courtroom.

On entering his chambers, Judge Wells cursed and then continued to use profanity to express his anger to Waldrop about the presentation of the case.

As the in-chambers discussion with Waldrop progressed, Judge Wells confessed that he had lost his temper and created an irreparable mess of the trial, conceding he was known to “have a bad temper” and stating, “the reality has – has come to me that I may not be suitable for this.”

Waldrop was frightened and intimidated by Judge Wells’ conduct in chambers and repeatedly asked to leave or have witnesses present. The in-chambers meeting nevertheless continued for more than an hour.

During the in-chambers meeting, Judge Wells expressed being “horrified by this”; wondered if he should “fling himself out the window”; and said he would “crawl under [his] desk.” During that time, Judge Wells also called another lawyer by telephone regarding the situation he had created.

At one point Judge Wells expressed that it would have been easier if Waldrop had come into his chambers and “fussed at him,” continuing, “Then we could have rolled around on the floor and strangled each other…”

Judge Wells later invited the parties and other counsel into his chambers, expressed his apologies for the situation and suggested some procedures to complete the trial.

Judge Wells recused from the case the day following the in-chambers events.

The commission ordered two hours of education as well. (Mike Frisch)

May 15, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, May 14, 2022

Quarterly Report

The highly informative April 2022 quarterly report of the North Carolina Office of Counsel summarizes a number of matters at various stages of the disciplinary process, including

Nikita V. Mackey – 19 DHC 9 and 19 DHC 23
Mackey, of Charlotte, collected legal fees and engaged in the unauthorized practice of law while his law license was administratively suspended, neglected and did not communicate with two clients, did not refund unearned fees, made a false representation in his petition for reinstatement, did not participate in good faith in the mandatory fee dispute resolution process, and did not respond to the Grievance Committee. In a separate case, Mackey neglected and did not communicate with a client, vandalized cars owned by his former spouse and her father by discharging a firearm into them, negotiated a check upon which he forged his former spouse’s endorsement, and slept during a substantial portion of a client’s federal criminal trial. Mackey did not appear at the hearing and was disbarred by the DHC

Brian Love of Durham submitted an affidavit of surrender of his law license. Love used the personal information of victims to falsely register online accounts in their names, impersonated victims in sexually explicit communications with others, obtained and transmitted sexually explicit images of victims to others without their consent, and used fraudulent online accounts to repeatedly text victims, with the intent to harass them and cause them substantial emotional distress. Love pled guilty to the federal felony offenses of Aggravated Identity Theft and Stalking. He was disbarred by the Wake County Superior Court.

Robert Lewis – 18 DHC 36
Lewis, of Raleigh, was sanctioned by the bankruptcy court because he did not file required pleadings, filed pleadings containing false and misleading representations, charged an impermissible fee, did not maintain a client ledger of entrusted funds, affixed his clients’ electronic signatures to pleadings and other documents without their consent, did not adequately communicate with his clients, disobeyed the rules of a tribunal, and did not report his misconduct to the State Bar as the bankruptcy court ordered him to do. It is also alleged that Lewis violated multiple trust accounting rules, had an improper sexual relationship with a client, and perjured himself while being deposed by the State Bar. Hearing was continued and has not been rescheduled.

Frank Chut, Jr. – 21 DHC 6
It is alleged that Chut, of Greensboro and an Assistant United States Attorney, misled a witness testifying before a grand jury by informing the witness that she was not the target or subject of the investigation when Chut knew that the witness had some level of involvement in the criminal activity and later presented evidence against the witness to a grand jury resulting in a criminal indictment of the witness. In December 2021, the DHC entered an order staying the proceedings so the State Bar can investigate additional allegations.

Lloyd T. Kelso – 21 DHC 21
It is alleged that Kelso, of Gastonia, attempted to have sexual relations with a client, provided financial assistance to a client, and revealed confidential information. Hearing has not been scheduled.

Mark A. Key – 21 DHC 23
It is alleged that Mark Key, of Lillington, engaged in courtroom misconduct that resulted in a mistrial, had a sexual relationship with a client, withheld taxes from employee paychecks and did not remit those funds to taxing authorities, mishandled entrusted funds, engaged in mortgage fraud, and was delinquent in paying substantial federal and state taxes in his personal and professional capacities. Hearing has not been scheduled.

Michael DeMayo – 22 DHC 1
It is alleged that DeMayo, of Charlotte, engaged in an 80-minute telephone call in an effort to coerce, mislead, and frighten a client not to transfer her case to a departing associate; engaged in dishonesty, fraud, deceit, or misrepresentation in his statements to the departing associate about the content of that call; and engaged in conduct prejudicial to the administration of justice by threatening State Bar disciplinary action as part of an offer to settle a dispute over attorney fees. Hearing is scheduled for August 3-5.

Michelle Congleton Smith – 22 DHC 13
It is alleged that Smith, of Raleigh, did not verify wiring instructions before wiring payoff funds in a refinance transaction. As a result, she wired the payoff to a fraudster. It is also alleged that she made multiple false statements to the State Bar during its investigation of the incident. Hearing has not been scheduled.

(Mike Frisch)

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

Friday, May 13, 2022

A Cornfield In Iowa

False statements and an OWI drew a six-month suspension of an attorney by the Iowa Supreme Court

Honesty is the hallmark of the legal profession. It should go without saying that misrepresenting facts to a court and to law enforcement violates the rules of professional conduct Iowa attorneys take an oath to uphold. Attorney Andrew Aeilts appears before us after: receiving an OWI, falsely reporting a crime, and misrepresenting his professional experience during allocution to the court sentencing him on the resulting malicious prosecution charge in an effort to excuse his conduct. The Iowa Supreme Court Grievance Commission recommends we suspend Aeilts’s license for six months for his violations of Iowa Rules of Professional Conduct 32:8.4(b), 32:8.4(c), and 32:8.4(d). Upon our de novo review of the record, we suspend Aeilts’s license for six months.

The false report concerned the father of a client

During the phone call, Cornelison told Aeilts he was going to file an ethics complaint against him. Later that day, Aeilts told Pella Police Officer Tim Donelson that Cornelison threatened to physically assault him during the telephone call. Aeilts requested that harassment charges be brought against Cornelison and sought a no-contact order. Donelson asked Aeilts if he had a recording of the conversation. Aeilts replied he did not but that he was not afraid to testify and informed Donelson that Cornelison had a criminal history.

Donelson contacted Cornelison during his investigation. Cornelison denied making any threats against Aeilts and provided a recording of the conversation as proof. At no point during the three-minute-and-thirty-two second audio recording did Cornelison make any threats that he was going to physically assault or harm Aeilts.

The OWI

The second incident giving rise to the Board’s complaint against Aeilts occurred less than a month later on September 16, when Aeilts drove while intoxicated. Around 3:40 a.m., Aeilts drove his vehicle off of the roadway, through a cornfield causing damage to the field and to his vehicle, and then drove approximately six miles with a damaged windshield before being stopped by law enforcement. Aeilts was arrested by the Marion County Sheriff’s Office...

He took an Alford plea to malicious prosecution and misrepresented his criminal law experience in allocution

In reality, Aeilts had represented clients in at least twenty-two criminal matters on charges that included OWI, trespass, assault, disorderly conduct, two different harassment charges, burglary, neglect of a dependent person, child endangerment, and drug possession. Ten were misdemeanor OWIs; two were felonies. The court sentenced Aeilts to three days in the Wayne County Jail and a $315 fine on the Malicious Prosecution charge.

Mitigation

Aeilts completed eight years of service in the Armed Forces, which we consider a mitigating factor.

(Mike Frisch)

May 13, 2022 in Bar Discipline & Process | Permalink | Comments (0)

A Murder In Scarsdale

We recently reported on an Illinois recommendation of disbarment for first degree murder.

The New York Appellate Division imposed that sanction as an automatic consequence of first degree manslaughter conviction

On May 22, 2018, respondent pleaded guilty in Supreme Court, Westchester County, to manslaughter in the first degree in violation of Penal Law § 125.20, which is a class B felony. Respondent admitted that, on January 20, 2016, he stabbed his wife multiple times, with the intent to cause serious physical injury, and caused her death. He was sentenced to 20 years imprisonment to be followed by 5 years of post-release supervision. Orders of protection against respondent were also issued on behalf of various members of the victim's family.

lohud. reported on the crime

Julius "Jules" Reich said he thinks about his family, including his wife, every day.

Reich has had plenty of days to think in jail since he stabbed his estranged wife, Dr. Robin Goldman, to death on Jan. 20, 2016, in their Scarsdale home.

The 64-year-old will have a lot more time behind bars after he was sentenced today to 20 years in prison for killing Goldman, 58, who prosecutors said was stabbed 22 times in the shower. The couple had been preparing for a divorce when the slaying occurred.

I shall bear the guilt forever," Reich said in Westchester County Court before Judge Barry Warhit sentenced him.

Reich, wearing a black suit and glasses, choked up as he read from a statement in which he expressed remorse and sorrow for the "unfathomable" damage he has caused.

That damage includes being cut off by his three adult children and his grandchildren, none of whom were in court. Reich signed orders of protection for them before he was sentenced.

"I hope and pray that they stay strong," he said, "to continue their lives and careers with the love and devotion their mother exemplified."

The New York Post had details of the crime

Julius Reich, a former financial services executive, stabbed Dr. Robin Goldman, a prominent pediatrician, 22 times with an 8-inch kitchen knife as she took a shower.

They were getting a divorce but still living together in their Scarsdale home when Reich killed her.

...After Reich stabbed his wife to death on Jan. 20, 2016, he walked downstairs and smoked a cigarette before calling cops to report the slaying.

(Mike Frisch)

May 13, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Nebraska Accepts Domestic Violence Victimization As Mitigating Factor

The Nebraska Supreme Court has accepted domestic violence-induced trauma as a mitigating factor in an attorney discipline matter accepting this testimony

Hecht testified to the “Power and Control Wheel of Violence,” which addresses both physical and sexual violence and is divided into eight criteria and is applicable regardless of the gender of the person exercising power and control. Hecht testified that all of the following indicia were present with the respondent’s relationship with her ex-husband: (1) using intimidation; (2) using emotional abuse; (3) using isolation; (4) minimizing, denying, or blaming; (5) using children; (6) using male privilege; (7) using economic abuse; and (8) using coercion and threats. Hecht related a series of traumas the respondent had experienced over the course of her life starting in her childhood, which traumas included sexual assault and her marriage to her abusive husband at age 16. The respondent gave birth to her older daughter when the respondent was 17 years old. The respondent’s ex-husband became increasingly abusive, and the escalating demands began to overwhelm the respondent “to the point of being actually immobilized at some point and not
able to use what we know are the intellectual and emotional capacity that she actually has.” This was exacerbated when the ex-husband became physically violent toward the couple’s older daughter, and the respondent was alerted that he might be sexually inappropriate toward the older daughter.

Specifically

In 2019, the respondent was teaching the older daughter how to drive an automobile; her ex-husband found out and flew into a rage. The ex-husband attacked and threatened to kill the daughter, the respondent, and himself. The younger daughter, in fear, called the police, but the police took no further action after defusing the matter on scene. A month later, the husband had “another violent temper tantrum,” and the respondent fled from the house with the younger daughter, went to a park, and told her husband she was calling the police. When the respondent and younger daughter returned home, the husband was gone, and he never returned. The respondent had described her husband’s abandonment as “number one crisis and loss in her life.” Hecht testified that as of this event, the respondent was devastated and became nonfunctional for a period of months. She also lost her law license, and this was followed by extreme financial problems and economic privation.

The misconduct

[Respondent] admitted that she used her IOLTA to shield money from the Internal Revenue Service’s levy attempts, placing client money at risk for seizure; that she deposited funds into the Castrejon Law Office IOLTA greater than necessary to pay bank service charges on that account; that she deposited funds that were not connected with the representation of a client; and that she commingled her funds with client funds. With respect to the former client, she admitted that she failed to provide a full accounting of services she had provided. She admitted that she failed to cooperate with the formal investigation and did not provide any of the requested information to the relator.

Impact on sanction

We have not previously addressed the role of domestic violence victimization, including intimate partner violence, coercive control, relationship abuse, and sexual violence in attorney ethical breaches. Specifically, we have not considered the role of being a victim of domestic violence serves as a mitigator in attorney discipline...

The record shows that Castrejon’s medical evidence established that she was affected by numerous mental and emotional traumas related to sexual assault and domestic partner violence. The testimonial evidence connected her mental and emotional state as a contributing cause of her misconduct. The testimony of Hecht and the respondent demonstrated that the treatment has been successful, that Castrejon is committed to continuing to work on her treatment, and that future misconduct is highly unlikely.

The court imposed a 30-month suspension effective March 2020.

The case is STATE EX REL. COUNSEL FOR DIS. v. CASTREJON. (Mike Frisch)

May 13, 2022 in Bar Discipline & Process | Permalink | Comments (1)

Thursday, May 12, 2022

National Law Journal Commentary on Prosecuting Defense Counsel

I highly recommend an article that just appeared in the National Law Journal entitled Prosecuting Defense Counsel by Geremy Kamens, Rebecca LeGrand and my Georgetown colleague Abbe Smith.

The article justifiable decries the federal prosecution of defense attorney Joshua Treem and investigator Sean Gordon (represented by Ms. LeGrand). The article notes that Mr. Treem, who was acquitted of the charges, is a highly-esteemed former federal prosecutor and longtime defense counsel with a sterling reputation for integrity and professionalism.

In the interest of full disclosure. Josh and I have been friends since about 1975. 

I was a freshly-minted assistant federal public defender (the fourth person hired for the just-created Maryland office) and had moved to Columbia MD. For the next few years until I left for private practice in DC, I carpooled with three AUSAs Josh, Gerry Martin, and the late Joe Fairbanks.

Our free parking spots were up against the warehouse that is now part of Camden Yards.

Oh the stories but...

Nothing is more sacred than the carpool privilege.

As a former bar prosecutor, I am fully aware of the power that comes with the privilege of the ability to institute charges.

I agree with the authors that the prosecution of Messrs. Treem and Gordon is an object lesson in abuse of that power. (Mike Frisch)

May 12, 2022 in Current Affairs | Permalink | Comments (0)