Legal Profession Blog

Exacerbated By COVID

A public censure has been imposed by the New York Appellate Division for the Fourth Judicial Department

In support of the joint motion, respondent conditionally admits that, while she was employed as a court attorney referee in the Fifth Judicial District during early 2020, she entered the chambers of a judge of that District, located the login credentials for the judge’s computer, and thereafter used those login credentials on five occasions to make unauthorized changes to the time card of the judge’s law clerk. Respondent additionally admits that, on numerous occasions from February through July 2020, she viewed certain email messages and electronic files on the judge’s computer without authorization from the judge. The Office of the Inspector General for the New York State Unified Court System commenced an investigation, and respondent lost her position as court attorney referee after admitting that she had engaged in the misconduct set forth in the joint motion.

Sanction

In imposing the sanction requested by the parties in the joint motion, we have considered the serious nature of respondent’s admitted misconduct, as well as the relevant mitigating factors, including her expression of remorse for the misconduct, which we find to be sincere, and her statement that the misconduct was aberrational and occurred at a time when she was experiencing mental health issues that were exacerbated by ongoing workplace difficulties and the COVID-19 pandemic. We have also considered in mitigation that respondent has successfully sought mental health treatment and that she has not previously been the subject of an attorney disciplinary proceeding before this Court since she was admitted to practice law in 1988.

(Mike Frisch)

Virginia Sanction Draws Reciprocal South Carolina Suspension

A Virginia sanction drew a reciprocal 18-month suspension from the South Carolina Supreme Court

Respondent was admitted to practice law in Virginia in 1996 and in South Carolina in 1997. Respondent has a disciplinary history in both jurisdictions, and North Carolina, where he is not admitted to practice law. In November 2005, this Court suspended Respondent from the practice of law for thirty days for practice-related misconduct, including failing to return unearned fees, signing a client's name to a bond assignment form without authorization, to pursue several client matters, losing a client file, unsuccessfully attempting to establish personal relationships with female clients, and failing to respond to ODC inquiries. In re Haley, 366 S.C. 363, 622 S.E.2d 538 (2005).  The Virginia State Bar Disciplinary Board imposed reciprocal discipline. In 2009, Respondent was privately reprimanded by the Virginia State Bar after it received notice that Respondent's trust account contained insufficient funds to honor five checks.

In 2017, Respondent submitted a pro hac vice application for admission in North Carolina in which he failed to disclose the 2005 discipline he received in South Carolina and Virginia. During the pendency of North Carolina's disciplinary investigation, Respondent again failed to disclose his disciplinary history on a pro hac vice motion he filed in a federal court in New York. On May 14, 2019, the Grievance Committee of the North Carolina State Bar reprimanded Respondent for his misconduct in failing to disclose his disciplinary history. This Court subsequently imposed identical reciprocal discipline. In re Haley, 434 S.C. 378, 865 S.E.2d 379 (2021). Respondent did not notify the Virginia State Bar of the discipline imposed by North Carolina, despite being required to do so by Rule 8.3(e)(1) of the Virginia Rules of Professional Conduct.

In December 2019, Respondent overdrew his trust account in Virginia. The NSF notice triggered a disciplinary investigation which revealed that Respondent had engaged in a pervasive pattern of financial misconduct, including regularly depositing unearned fees into his operating account (the vast majority of which were never transferred to the trust account), using his trust account to pay for personal and business expenses (credit card payments and employee wages), and overdrawing his trust account at least twice and his law firm operating account fifty-three times between January 1, 2018, and April 20, 2020. Respondent also failed to keep proper trust account records (receipts journal or client ledgers) and failed to conduct required reconciliations of his trust account. During the investigation, Respondent also made and failed to correct misleading statements about whether certain fees were paid by a client who lived in Virginia or South Carolina. Investigators also discovered that Respondent failed to report the 2019 North Carolina reprimand to the Virginia State Bar. Following a hearing, the Virginia State Bar Disciplinary Board found Respondent violated numerous rules of professional conduct and imposed an eighteen-month definite suspension.

The sanction was affirmed by the Virginia Supreme Court.

A dissent would impose a more severe sanction

Under Rule 29(d) of our Rules for Lawyer Disciplinary Enforcement, we are not required to "impose the identical discipline" if "it clearly appears upon the face of the record from which the discipline is predicated, that . . . (4) The misconduct established warrants substantially different discipline in this state." I would decline to impose the identical reciprocal discipline and impose a more appropriate sanction given the severity of Haley's misconduct.

(Mike Frisch)

Magic Words Not Uttered

The Minnesota Supreme Court has denied reinstatement to a petitioner who had been indefinitely suspended in 2018.

Klotz bears the burden of proof to prove by clear and convincing evidence that he meets the requirements for reinstatement. Klotz minimized his misconduct and failed to accept responsibility for the misconduct. Even though Klotz’s witnesses provided positive testimony, the panel found that their testimony was not enough to outweigh his own
testimony. The panel made many findings about whether Klotz changed his conduct and state of mind that led to the underlying misconduct; most critically, the panel found that Klotz’s testimony was not credible. Notably, the panel determined that Klotz has not demonstrated a renewed commitment to the ethical practice of law, and Klotz does not challenge those findings.

Based on our independent review of the record, we conclude that Klotz did not meet his heavy burden of proving, by clear and convincing evidence, that he has undergone the requisite moral change. Accordingly, we deny his petition for reinstatement.

Justice Anderson dissented

The Director contends that Klotz should not be reinstated because he did not show by clear and convincing evidence that he accepted responsibility for his actions. The panel found that Klotz did not accept responsibility because Klotz did not disclose the full details of his misconduct to several of his witnesses until shortly before the reinstatement hearing. This finding is clearly erroneous. Klotz shared the details of the misconduct with all but one of his witnesses well in advance of the reinstatement hearing. Moreover, every witness, including Klotz, testified that Klotz took sole responsibility for his actions and did not blame anyone else. Accordingly, I would conclude that the panel inappropriately relied on this fact in determining that Klotz failed to accept responsibility for his actions.

The Director also argues that Klotz failed to come to terms with the impact of the wrongfulness of his misconduct because he minimized his conduct toward the Director, calling his actions a “mistake,” and failing to use the word “misappropriation” to describe his misconduct. The panel found that Klotz’s testimony showed that he minimized his misconduct, in part based on these findings. This conclusion, too, however, also rested on partially erroneous findings.

First, the panel found that Klotz had excused his conduct by saying it was not as “nefarious” as it seemed. There is no support in the record that Klotz made that statement. Second, the panel focused on Klotz’s characterization of his misconduct as an “accounting mistake.” In doing so, the panel improperly considered Klotz’s previous thoughts in finding that he minimized his misconduct. We have held that the proper inquiry into remorse consists of looking at the petitioner’s “mental state and values” at the time of the reinstatement hearing. In re Dedefo, 781 N.W.2d 1, 9 (Minn. 2010). Klotz did at times call his misconduct an “accounting mistake,” but he only did so when referring to how he viewed his misconduct at the time he committed it. Accordingly, this testimony should not bear on the panel’s findings regarding Klotz’s mental state at the time of the hearing.

The court brushes aside the panel’s findings, explaining that even if Klotz did not use the phrase “accounting mistake,” Klotz still minimized his misconduct by calling it a “mistake.” I disagree. Black’s Law defines “mistake” as “[a]n error, misconception, or misunderstanding; an erroneous belief.” Mistake, Black’s Law Dictionary (11th ed. 2019). Klotz’s misconduct was certainly the result of an error in judgment. But the word “mistake” does not refer only to unintentional actions. I concede that his conduct was not merely a mistake and if Klotz had exclusively referred to his actions as mistakes, I would consider it a greater cause for concern. But that is not what happened here. While testifying, Klotz repeatedly used the word “misconduct” in discussing the reasons for his suspension. But he also called his behavior “wrong,” admitted that he “lied,” and transparently laid out the actions that led to his misconduct and subsequent suspension. The panel’s determination and the court’s conclusion that Klotz minimized his misconduct and was not remorseful does not take into consideration the entire record. I conclude that the “overwhelming evidence” from the hearing shows that Klotz demonstrated, by clear and convincing evidence, that he accepted responsibility and expressed remorse for his misconduct. See Trombley, 947 N.W.2d at 245.

Moral change

We suspended Klotz for misappropriating client funds, dishonesty toward the Director, creating a false and misleading document, and neglecting and lying to clients. Consequently, we must decide whether we are confident Klotz will not replicate that misconduct. In making this determination, we must keep in mind any conditions we impose on Klotz’s practice of law. Klotz must demonstrate moral change when it comes to his misconduct that involved dishonesty or “moral turpitude.” See Tigue, 960 N.W.2d at 715–16 (Thissen, J., dissenting). His dishonesty toward the Director, creation of a false and misleading document, and lies to clients all are dishonest acts. And, as demonstrated above, he has shown moral change when it comes to these instances of misconduct.

Justice Thissen joined the dissent. (Mike Frisch)

Surveilling Chief Justice On COVID Compliance Merits Permanent Physical Ban From Manitoba Practice

Two lawyers who had placed a judicial officer under surveillance to monitor COVID masking compliance have been permanently enjoined from physically practicing in Manitoba by the Manitoba Law Society Discipline Hearing Panel.

Both actively practice in Alberta; one is inactive in British Columbia.

Carpay founded the Justice Centre for Constitutional Freedoms (the "JCCF") in 2010. At all material times:

(a)   Carpay was the President of the JCCF;

(b)   Cameron was its Director of Litigation; and,

(c)   both were employed by it in their capacities as lawyers.

The underlying matter

In 2020, the JCCF undertook to fund the Applicants in the Gateway case in a proceeding which challenged the constitutional validity of public health restrictions imposed by the government of Manitoba and, in particular, by its Provincial Health Officers, in response to the COVID-19 pandemic. The Applicants were three individuals and seven religious organizations; the Respondents included the provincial government and MIO of its senior Provincial Health Officers. Carpay assigned conduct of the matter to Cameron and two other lawyers whose conduct is not under review in these proceedings.

Surveillence

In early June, 2021, Carpay proceeded to hire a local private investigation firm to conduct passive covert surveillance of the then Premier of Manitoba and the Chief Provincial Health Officer with a view to obtaining information concerning their compliance with the public health orders which were then in place.

Carpay later explained (during court proceedings on July 12, 2021, described in more detail below) that the position of the JCCF on this issue was that "the public has a right to know whether or not government officials are complying with public health orders. [... ] We believe that the surveillance and observation of public officials is legitimate and legal."

The objects of scrutiny

In an email to the PI dated June 16, 2021, Carpay wrote: "l suggest you commence surveillance of Premier Pallister to catch him breaking rules, and further watch Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench." No other judges or justice system participants were placed under surveillance.

On June 28, 2021, Carpay received an email from the PI with an attached document reporting on the progress of the surveillance up to that time, The report (which was not in the materials provided to the Panel) indicated that Chief Justice Joyal had been observed riding in a car with an unidentified adult female and that neither was wearing a mask.

At a hearing in the case

On July 12, 2021, the Chief Justice Joyal convened a court hearing involving almost all of the counsel who had appeared on the Gateway matter (two being unavailable); all counsel, including Carpay and Cameron, attended by video. Several journalists and members of the public also attended in the same manner. What transpired during that hearing is set out in more detail below under the heading "Court Proceedings on July 12, 2021

A request by Cameron to go in camera was, after some discussion, granted by the Chief Justice. While in camera, Carpay revealed to the Court, for the first time, that he had retained the PI on behalf of JCCF in order to determine whether government officials were complying with public health orders; he stated that the surveillance had "nothing to do with the [still pending Gateway] litigation". Carpay stated further that the surveillance was not "targeted" at the Chief Justice.

During both the in camera session and the public session which followed, Cameron failed to comment or provide correction when Carpay asserted to the Court that the use of the information uncovered by the surveillance had "nothing to do with the litigation" and other comments to that effect.

While in camera, Cameron was asked directly whether he knew about the surveillance of the Chief Justice. He initially answered that he "had some inkling" but was "not privy to the.. instructions that were provided. I was not privy to the retainer."

Deletions after the hearing

While the wholesale purging (and subsequent recovery) of their JCCF Outlook accounts by both Carpay and Cameron may have been justified to shield their content from outside hackers, the directives from Cameron to the PI to "delete everything" that he had regarding the surveillance of the Chief Justice, including all correspondence between the agency and Carpay, and to refrain from telling the police who had hired him, cannot reasonably be seen as anything other than a deliberate attempt to conceal the misconduct from the police, the courts, and the regulators. If the intention of the surveillance had been simply to secure evidence that "public figures", such as the Premier and the Chief Medical Officer, were violating health orders, one would think that there would be no need to instruct the PI to "delete everything". If that were really the case, there would be no concern about disclosing to the police that the JCCF was involved as part of its mandate of keeping watch on the public behaviour of "public figures".

Sanction considerations

Judges must have no fear of being subjected to harassment or physical harm when they are sitting on controversial cases. These cases must be adjudicated in the environment of a fair and impartial judicial process, and society simply cannot tolerate having judges shying away from making unpopular (yet still necessary and legally sound) decisions because of concerns for their personal safety or the safety of those close to them. The harassment of one judge is a psychological threat to all judges, and cannot be tolerated in a free and democratic society.

It is not too strong a statement to say that judicial independence came under attack on June 8, 2021 when Carpay and Cameron first conspired to gather potentially embarrassing evidence on the private activities of one of the most high-profile members of the Manitoba judiciary, and then again on July 12, 2021 when they actively misled the court during a hearing when their misconduct first came under scrutiny.

But while the principle can be a fragile one, it is also resilient. In the end result, the justice system worked as intended, and the Gateway case was concluded in a manner which respected judicial independence and upheld the rule of law.

Sanction

The Panel orders that:

(a)   Carpay be permanently banned from engaging in the practice of law physically in Manitoba except with respect to the law of a home jurisdiction, or physically in any other jurisdiction with respect to the law of Manitoba, or providing legal services respecting federal jurisdiction in Manitoba;

(b)   Cameron be permanently banned from engaging in the practice of law physically in Manitoba except with respect to the law of a home jurisdiction, or physically in any other jurisdiction with respect to the law of Manitoba, or providing legal services respecting federal jurisdiction in Manitoba; and,

(c)   They each pay $5,000 as a contribution to the costs of the LSM investigation and prosecution of the charges.

(Mike Frisch)

Motion To Disqualify Triggered By Heart Eyes Emoji

Ohio Disciplinary Counsel has filed charges involving an attorney's representation of a client who he had met on the smartphone dating website Hinge and began a sexual relationship.

The relationship ended in November 2021 but they remained friends.

She retained Respondent on a contingent fee basis to sue an ex-boyfriend.

Their romance allegedly "rekindled" in April- May 2022.

He represented her in other matters including an order of protection case and civil suit against her ex-husband.

Respondent produced a thumb drive to opposing counsel that included texts between the client and him

The thumb drive contained an image of a text message that respondent sent to [client] Semaj on or around October 21 or October 22, 2021, which had a face with heart eyes emoji.

There followed a motion to disqualify and misconduct is alleged in his response

In his response, respondent did not acknowledge that he had an ongoing romantic relationship with Semaj. Rather, respondent falsely told the court that his relationship with Semaj had concluded:

• “I sent this [emoji] to Ms. Semaj on October 20, 2021, when we were dating. So what?” [emphasis added.]
• “Regarding Rule 1.7(a)(2), I am an adult and a professional. My duty is to represent Ms. Semaj’s interests zealously and to the best of my ability. I am not influenced by our past relationship. I am influenced by my oath and the code of conduct governing our profession.” [emphasis added.]
• “How can one possibly argue that my past relationship with Ms. Semaj is interfering with my ability to represent her in this case?” [emphasis added.]

Respondent did not tell Judge Jones that his relationship with Semaj was ongoing.

The motion to disqualfy was denied.

A motion to disqualify in the order of protection matter

Rather, respondent falsely told the court that his relationship with Semaj had concluded:

My client and I met through the dating app Hinge in September of 2021. We dated I think for two months. She broke it off with me after her ex-husband sexually assaulted her. * * * I will say, you can swear me in, there is no relationship other than an attorney/client relationship now. There was a romantic relationship for about two months that she ended because of a trauma caused by her ex-husband who did not appear today. * * * But again, I had a relationship with my client that began long before the attorney/client relationship began, and it no longer exists.

Respondent’s statement that he and Semaj dated for two months was false because in or around April – May 2022, respondent and Semaj rekindled their romantic relationship and continued dating romantically through the summer until September 19, 2022.

On September 15, 2022, Stafford took respondent’s deposition in the divorce case.

During the deposition, respondent acknowledged that he had a relationship with Semaj and that his statements to the court were not true.

Then

When Judge Jones learned about respondent’s deposition testimony, she filed a grievance with relator’s office on October 6, 2022.

There are also allegations of trust account violations regarding fees paid by the client. (Mike Frisch)

Where There's No Will

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

Michael Lee Schlegel (Michael) and Charlene Ann Schlegel (Charlene) were in the process of divorcing when Michael died of a heart attack without a known will. Under the intestacy statute, Charlene inherited portions of Michael’s estate that she would not have, had the divorce been finalized prior to Michael’s death. Taran Michael Schlegel (Taran), Michael’s only living child, filed a legal malpractice suit against his father’s attorney, Shelby Noel Hughes, and her law firm, Barney & Graham, LLC, for failing to timely resolve Michael’s divorce. The district court granted Ms. Hughes and Barney & Graham, LLC’s motion for summary judgment. It found no evidence was presented that Taran was an intended beneficiary of his father’s attorney’s services, and thus no duty was owed to Taran. We affirm.

Parties

Michael and Charlene married three times and divorced two times between 1999 and 2017. They separated for the third time in June 2018, after having remarried a year earlier. Michael had two sons, Taran and Kalen, from a different relationship. Kalen predeceased Michael, but had two children, still minors at the time of Michael’s death. There was no love lost between Taran and his stepmother, Charlene. Taran encouraged Michael on multiple occasions to divorce Charlene.

The defendant was an associate attorney with the law firm. She had filed the divorce, a hearing was held, and a final hearing was scheduled to resolve a remaining issue when

On February 23, 2020, Michael died of a heart attack, with no known will. Despite physical ailments due to Michael’s stroke, his death was unexpected.

The issue here is whether the child was an "intended beneficiary" of the attorney's services

The question today is whether Taran was an intended beneficiary of Michael’s divorce proceedings. We find he was not. To do so would require facts showing the divorce proceedings were intended to serve as an estate-planning device. There is no evidence in the record to support this.

Plaintiff thus lacked standing to pursue a legal malpractice claim. (Mike Frisch)

Urine Trouble

The Oklahoma Supreme Court has accepted an attorney's resignation in the face of a number of allegations including

v. Count V: Respondent's Positive Drug Tests. Respondent participated in a deposition regarding the grievances filed against him on September 23, 2021. Due to Respondent's alleged drug use, he was asked in the deposition if he would be amenable to taking a drug test. He agreed, testifying that he was not using any illegal substances. On September 29, 2021, the OBA received notification that Respondent's urine test was presumptive positive for methamphetamine. The OBA requested a follow up hair follicle test, which was performed on October 14, 2021. Respondent's hair follicle sample was positive for methamphetamine, amphetamine, opiates, morphine, codeine, and heroin.

vi. Count VI: Respondent's Prior Deferred Prosecution. During its investigation into Respondent, the OBA discovered that Respondent was charged on June 22, 2016, in Wagoner County District Court case number CM-2016-496, with Possession of a Controlled Substance, Possession of Paraphernalia, Failure to Pay State Taxes, Failure to Carry Insurance/Security Verification Form, and Transporting a Loaded Firearm in a Motor Vehicle. Respondent was also charged in CM-2016-1038 with a related charge of Violation of a License Restriction. Pursuant to negotiations with the State, Respondent received a deferred prosecution, and the charges were dismissed against him on August 10, 2017.

(Mike Frisch)

Meant As A Compliment

The Ontario Law Society Tribunal Hearing Division has found misconduct by an attorney who has practiced for 41 years

Hooker comments

The Licensee made references to “hookers” in front of three of his female employees, who worked as clerks and assistants. Two of these employees interpreted the Licensee’s comments to mean that he was speaking about sexual encounters with sex trade workers, which made them feel uncomfortable.

The Licensee explained that he represented many clients who were sex trade workers during his career. He used the word “hooker”, or its plural, in reference to client matters. He now understands, however, that the term “hooker” was unprofessional, disrespectful and may have made his employees uncomfortable.

Physical appearence comments

The Licensee made comments to and in front of his female receptionist about her physical appearance. The Licensee made comments to clients about his receptionist’s clothes and asked clients, “Doesn’t my receptionist look good?”

The Licensee also commented on the receptionist’s age and told her he could not believe how young she looked. The receptionist interpreted these comments to have a sexual connotation, which made her feel uncomfortable. She quit her employment after three months because of the Licensee’s behaviour.

The Licensee denies that he intended there to be a sexual connotation to any of his comments. While he intended his comments to be complimentary and to raise his employee’s morale, he now understands that his comments are not acceptable.

Email about post office workers

Two of the Licensee’s female employees, a family law clerk and an executive assistant, had unsuccessfully tried to retrieve an important package from the post office. Both employees attended the post office on several occasions with no success. They enlisted the assistance of the Licensee. One of the employees used the expression “fucking bitches” to describe the post office employees.

After a telephone encounter with a post office employee about their policy relating to the release of packages to staff, the Licensee sent the following e‑mail to the two employees who had unsuccessfully attempted to retrieve the package:

I shouted at both these bitches but it didn’t do any good, when you get back just scribble unauthorized on this idiot letter and put the company stamp on it and then you have to go back, unfortunately. Sadly, we will have to do this next time too. A little bit of power going to the head of people on minimum wage. She tried to return she was the Post Office official but I eventually got it out of her that she is employed by the pharmacy.

While neither employee told the Licensee that they had a problem with him using the word “bitches,” the License acknowledges that as the employer, he should not use expletives, gendered or otherwise, to describe women (or anyone else) to employees who are subordinate to him.

Misconduct was also found in email communications with a client

  In deciding whether the e-mails amount to professional misconduct, we have considered whether they amount to a potent display of disrespect beyond mere rudeness or discourtesy considering the context and the factual circumstances of this case.

We rely on the fact that the communications were e-mail communications sent to a very vulnerable client and members of her family. The immigration sponsorship application occurred while the client was pregnant and suffering from serious pregnancy complications necessitating her hospitalization. The Licensee’s e-mails to the client and members of her family occurred after the client had given birth and nearly lost her life in the process. After delivering the baby, she had ongoing health issues necessitating an extended hospital stay followed by home care. Her father, who assumed responsibility over the fee dispute, was also experiencing significant stressors with respect to not only the client, but also his other adult child.

 

 The problematic communications were written e-mails the Licensee addressed to his client, not oral arguments made on the fly during a judicial proceeding while trying to respond to an opposing argument. The Licensee had time to craft a professional communication.

 

Given these factual circumstances and context, we find that the Licensee’s three e-mails at issue, when viewed as a whole, rise to the level of a potent display of disrespect beyond mere rudeness or discourtesy. We rely on the following statements made in his communications in support of our conclusion:

•           The Licensee’s exaggerated descriptions of the client’s communications to his firm as “a lot of unjustified rude emails” (January 29, 2018), a “torrent of abuse… time after time” and “emails that made me shudder” (March 19, 2018). While the client and her husband complained on a very limited number of occasions about the quality of service and the time things were taking, such e-mails can reasonably be expected from an unsophisticated client dealing with life crises who is exasperated by the length of time a legal process is taking. They do not amount to a lot of rude e-mails that make one shudder, or to a torrent of abuse.

•           The Licensee’s accusation that the client was at fault: “[The employee] worked very efficiently to sort out the mess you created by making plans without going thro[ugh] the procedures then expecting government to change the drill for you” (January 29, 2018). Even if the client had made mistakes, referring to a “mess” and her expectation that the government “change the drill” for her was unprofessional.

•           The Licensee’s accusation, without any evidence in support, that the client’s income was paid in cash: “[The employee] was advised of a large income from housecleaning, which I presume was paid in cash” (March 19, 2018).

•           The Licensee’s statement to the client’s father that the client and her husband should not “feel that they can continue to rub our faces in the dirt by getting away without paying” (March 19, 2018).

•           The Licensee’s personal attacks on the client’s father in his e-mail of April 26, 2018, which went beyond responding to the father’s allegation that the Licensee had forged a signature, and instead, attacked the father personally: “you bragged of your senior level business experience”… “I was therefore somewhat surprised to glean that you had not come to settle the matter in a sensible fashion, but wish to indulge yourself some sort of project”… “I am not sure if you are ill or not”… “your rude and bizarre behavior.”

In our view, when considered as a whole, the above communications amount to a potent display of disrespect beyond mere rudeness or discourtesy and are thus inconsistent with the proper tone of a professional communication from a lawyer contrary to Rule 7.2-4.

 

Given our finding that the communications meet the Doré test of a potent display of disrespect beyond mere rudeness or discourtesy, it is not necessary for us to consider the Law Society’s submission that the test under Rule 7.2-4, which focuses on communications, is less stringent (something less than a potent display of disrespect) than the test under Rule 7.2-1, which deals with incivility more generally, to which the Doré test applies.

The matter will be set for a sanction hearing. (Mike Frisch)

Fee Not Simple

The United States District Court for the District of Columbia substantially reduced a request for prevailing party attorneys' fees in an unpaid wage action

Here, plaintiff’s counsel has turned a simple, straightforward unpaid wages claim thatwas resolved in weeks into a major fee generator, with the amount requested just for fees-on-fees equal to almost twenty times that of the wages initially in dispute. Indeed, absent plaintiff’s counsel’s excessive requests for attorneys’ fees in this otherwise simple case, with a completely uncontested underlying claim, this suit would have been settled in December 2021, nearly two years ago. Plaintiff’s counsel insists that defendants are to blame for this delay, due to their purported unwillingness to negotiate fees, but this placement of blame is wholly unwarranted when plaintiff’s counsel’s own unreasonable opening demand for attorneys’ fees is the obstacle that necessitated litigation of this issue. Plaintiff’s counsel first demanded $25,000 in fees, at a point when the only meaningful work they had completed to advance their client’s interests was filing the complaint, calculating plaintiff’s unpaid wages, and communicating the settlement demand with defense counsel, who had already made clear that defendants planned to settle plaintiff’s claim as quickly as possible by paying the full amount to which plaintiff claimed entitlement. Defs.’ Response at 4–5.

Awarding fees to plaintiff’s counsel anywhere close to their demand would put this Court in the position of approving their conduct in drawing this litigation out more than an additional year in pursuit of only their own pecuniary gain. Indeed, Judge Henderson on the D.C. Circuit has noted that she would impose sanctions on counsel who request excessive fees, particularly when counsel “spent more time working on fee matters than on tasks essential to [the client’s] claim.” Baylor I, 857 F.3d at 959 (Henderson, J., concurring). In that case, the “district court said of the fee request that ‘the tail [is] wagging the dog,” and counsel had “lost sight of the real party in interest.” Id. at 959–60 (alteration in original). Plaintiff’s counsel in this case has certainly lost sight of the real party in interest, namely, plaintiff. The parties agreed in December 2021 that defendants would pay plaintiff $4,379, and yet he has waited two years since then for resolution of this case, due in large part to the demands of his own counsel. Indeed, plaintiff’s counsel rejected defendants’ second settlement offer—offering plaintiff the full amount of overtime wages and liquidated damages he claimed—before even communicating that offer to their client, solely because they were dissatisfied with defendants’ offer on fees. See Burton Aff. ¶¶ 4–5. The $23,781.20 in fees and $124.17 in costs accumulated solely in the pursuit of advancing what was already an unreasonable request for attorneys’ fees will thus not be included in the fee award, under this Court’s broad discretion.

Once the attorneys’ fees claimed for work on the instant fee motion are subtracted from plaintiff’s fee request, $26,352.30 in requested fees remain. This amount is also unreasonable to award for several reasons, described below, so a multiplier should apply. For the following reasons, plaintiff will be awarded $9,000 in attorneys’ fees, corresponding to approximately one third of the fees requested in this case, and $500 in costs.

(Mike Frisch)

From The Easter Bunny To Consent Disbarment

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

The New Jersey Office of the United States Attorney noted his recent guilty plea to one count of wire fraud, one count of aggravated identity theft, one count of obstructing the IRS, one count of failing to file an individual income tax return, and one count of wire fraud while on pretrial release.

NJ.com reported in January 2023

A Jersey City attorney has been charged with defrauding his clients of more than $2 million and identity theft, U.S. Attorney Philip R. Sellinger announced Thursday.

James R. Lisa, 67, was indicted on three counts of wire fraud and four counts of aggravated identity theft.

Lisa was arraigned Thursday via videoconference before U.S. Magistrate Judge José R. Almonte. He pleaded not guilty and was release on $100,000 unsecured bond.

According to the indictment, in 2014, Lisa was retained by a family to help with the repatriation of millions of dollars that had been transferred to offshore bank accounts decades earlier by family members. He was also retained to assist with the resolution of tax issues related to the funds’ repatriation. In 2016, the family’s funds were repatriated by Lisa, but he misinformed the family that the funds remained offshore, the indictment alleges.

In 2017, Lisa provided the family with $4 million of the repatriated funds, but continued to falsely represent that the remaining $2 million was beyond his control, the indictment says.

Dating back to 1995, Lisa has faced sanctions from the New Jersey Office of Attorney Ethics related to practicing law in New York while his license was suspended in New Jersey, setting up an inappropriate fee-sharing arrangement with a Hudson County jail officer, record keeping deficiencies, and cocaine use, Hudson County View reported Thursday.

Lisa, whose law office is located on Newark Avenue, has represented some notable clients over the years in Hudson County.

He represented the Newport Centre Mall Easter bunny who was videotaped in 2016 brawling with a parent a week before Easter. Lisa then represented the Pennsylvania man who was pulled over near the Holland Tunnel with a truck full of guns in 2017.

Also in 2017, he represented a former dominatrix fighting to keep her job as a Hudson County sheriff’s officer.

Each count of wire fraud carries a maximum penalty of 20 years in prison and a fine not to exceed $250,000.

Each count of aggravated identity theft carries a mandatory penalty of two years in prison, which must run consecutively to any other term of imprisonment, and a fine not to exceed $250,000.

(Mike Frisch)

A Month In Florida

Highlights from this month's Florida Bar disciplinary summaries 

Bryon R. Aven, 2725 Judge Fran Jamieson Way, Bldg. D., Viera, suspended for two years, effective 30 days following a September 14 court order. (Admitted to practice: 2008) While employed as an assistant state attorney, Aven engaged in prosecutorial misconduct by eliciting and bolstering false testimony from several witnesses during the criminal trial, which resulted in the dismissal of the criminal charges. (Case No.SC23-0456)

Christopher Whittington Dudley, 598 Trelago Way, Apt. 303, Maitland, suspended pursuant to 3-7.2(f), the felony suspension rule, effective immediately following a September 18 court order. (Admitted to practice: 2021) Dudley entered a plea of nolo contendere to the charges of Attempted Burglary of an Occupied Dwelling, a third-degree felony, and Criminal Mischief (above $200 but below $1,000), a first-degree misdemeanor. The court withheld adjudication of guilt as to all counts and sentenced Dudley to two years of conditional probation as to the felony count and to credit for time served as to the misdemeanor count. (Case No. SC23-1306)

Mark Edwin Heimendinger, 1034 Long Branch Ln., Oviedo, suspended due to a felony conviction, effective 30 days following an August 31 court order. (Admitted to practice: 2016) On August 25, 2023, Heimendinger entered a plea of nolo contendere to Aggravated Assault (a third-degree felony), Carrying Concealed Firearm (a third-degree felony), Improper Exhibition of a Dangerous Weapon (a first degree misdemeanor) and Battery (a first-degree misdemeanor). The criminal court withheld adjudication on the two felony charges and adjudicated Heimendinger guilty on the two misdemeanor charges. The Supreme Court has ordered that a referee be appointed to recommend the appropriate sanction. (Case No. SC23-1224)

Patrick Michael Megaro, 2431 Aloma Ave., Suite 124, Winter Park, disciplinary revocation with leave to apply for readmission after five years, effective 30 days following a September 21 court order. (Admitted to practice: 2004) The Florida Bar commenced an investigation of Megaro due to two disciplinary sanctions imposed in other jurisdictions. Megaro received a five-year suspension as recommended by the Disciplinary Hearing Commission for the North Carolina State Bar for entering into an improper representation agreement with clients of a diminished capacity and engaging in conduct that was prejudicial to the administration of justice. In addition, Megaro was suspended by the United States Court of Appeals in the Fifth Circuit on July 7, 2021. (Case No. SC23-1119)

(Mike Frisch)

No Substantial Purpose

From the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and suspended Thomas Blumenthal (attorney registration number 15549) for one year and one day. The suspension takes effect November 2, 2023. To be reinstated to the practice of law in Colorado after his suspension, Blumenthal must prove by clear and convincing evidence that he has been rehabilitated, has complied with all disciplinary orders and rules, and is fit to practice law.

Blumenthal represented a client in a criminal matter that was set for trial on December 1, 2021, the same day that Blumenthal’s suspension from another disciplinary case was scheduled to take effect. As the trial date approached, Blumenthal did not inform the presiding court or the deputy district attorney (“DDA”) in the case that he would be unable to appear for the trial. At the pretrial readiness conference on November 22, 2023, when the judge asked about the priority level of the case, Blumenthal deferred to the DDA, who announced ready for trial. Though Blumenthal had known the effective date of his suspension for seventy-five days, he did not directly notify the court or the DDA of his suspension until 4:32 p.m. on the eve of trial, when he moved to withdraw from the case and filed a notice of withdrawal due to his suspension. On December 1, 2023, no lawyer appeared on behalf of Blumenthal’s client, who told the court that he did not have any discovery and that he wanted to find another lawyer. The court continued the case.

In a different matter, Blumenthal represented a client in two criminal cases. In October 2021, at a pretrial readiness conference for both cases, Blumenthal aggressively leaned over the prosecution’s table, accused the DDA in the cases of lying to him or to the court about service on the victim, and stated that the DDA did not know what she was doing. The DDA feared that Blumenthal was going to physically harm her. The presiding judge, who felt that Blumenthal was completely out of control and “scary,” also feared that Blumenthal might strike the DDA and perceived that his was using his physical statute to intimidate the DDA. As Blumenthal left the table, he muttered under his breath “bitch” and said, “I thought you were a lawyer.” Later that day, when another case was on the record, Blumenthal returned to the courtroom and interrupted the same DDA to ask for her name. The cases were then transferred to another division under a different DDA.

Through this conduct, Blumenthal violated Colo. RPC 4.4(a) (in representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person); Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice); Colo. RPC 8.4(g) (in representing a client, a lawyer must not engage in conduct that exhibits bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process); and Colo. RPC 8.4(h) (it is professional misconduct for a lawyer to engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on the lawyer’s fitness to practice law). The case file is public per C.R.C.P. 242.41(a).

Jackpot

A big hit on a Deepwater Horizon claim led to an attorney's departure from his law firm, post-departure litigation and a remand of a decision favoring the law firm by the Mississippi Supreme Court

The Circuit Court of Washington County granted law firm Campbell DeLong, LLP, a declaratory judgment against a former partner of the firm, Britt Virden, who had alleged breach of contract, among other claims. Virden appealed, and the Court of Appeals affirmed. Virden v. Campbell DeLong, LLP, No. 2021-CA-00478-COA, 2022 WL 4478393, at *11(Miss. Ct. App. Sept. 27, 2022). On certiorari review, we find that Virden’s pre-withdrawal claims are not precluded by a signed agreement, which only comes into operation in the event of death, termination, withdrawal, or retirement of a partner.

                                            FACTS AND PROCEDURAL HISTORY

Britt Virden practiced law in Greenville, Mississippi, with Campbell DeLong, LLP, since 2001. Although Campbell DeLong, LLP, has operated as a law firm for nearly twenty-five years, it has never had a written partnership agreement that controlled the compensation paid to its partners. The only document signed among the partners was a Restated and Amended Memorandum Agreement, which governed the “withdrawal, termination, or retirement of any of the partners from the firm.”

According to Virden, Campbell DeLong never compensated its partners as a traditional partnership in which the partners share equally in all expenses as well as profits. Rather, Campbell DeLong practiced a partner compensation strategy of “eat what you kill,” meaning after an individual partner contributes from his revenue an equal share of the operating expenses of the law firm for calendar year, he or she keeps the remainder as his own personal income.

In 2018, Virden worked on a case for the Deepwater Horizon oil spill that settled for $12.3 million. Attorneys’ fees were $3.1 million. Virden emailed his partners about the settlement’s result, making his recommendation for distribution. The partners did not immediately respond to Virden’s request. When Virden asked the firm’s bookkeeper for a distribution of a special draw of his claimed portion to the fee, however, he was denied.

The partners then called for a meeting at which the allocation was discussed. The firm asserts that there is an implied contract between the partners that the firm’s compensation committee would decide how to split any profits. The firm allocated Virden $1.9 million and each of the five other partners $277,000. Virden immediately sent a written objection to the distribution and demanded the amounts be reconsidered and recalculated to allocate the fee pursuant to the normal and customary method.

A month later, Virden gave notice he was withdrawing from the firm. Virden then sued the firm for breach of contract, unjust enrichment, conversion, breach of fiduciary duties, violation of the Mississippi Partnership Act, and other claims. Virden alleged that the firm breached an implied contract among the partners by allocating to themselves a share of a significant fee that Virden generated.

The firm and its partners filed their answer and affirmative defenses, which included a motion for declaratory relief, a request to stay discovery, and a counterclaim. In the firm’s motion for declaratory judgment, it sought a ruling that all of Virden’s claims were encompassed by the Agreement Virden had signed in 2001.

After a hearing, the circuit court granted the motion for declaratory judgment, stating “that paragraphs 7, 12, 13 and 14 of the Agreement” controlled the outcome of the case.

The firm prepared an order, but the parties could not agree on the language. As a result, both Virden and the firm submitted proposed orders.

The order Virden drafted was brief, holding that the circuit court had jurisdiction over the parties, that the motion for declaratory judgment was granted, and that all discovery was stayed.

The firm’s order was lengthier and explained that the Agreement sets forth “[t]he payment obligations in paragraphs 7, 12, and 13 and are the only payment obligations that the [law firm] owed to Virden upon Virden’s voluntary withdrawal from the Firm on March 7, 2019.”

The firm’s order declared the Agreement was enforceable and said, “Virden is estopped from claiming entitlement to any monetary amount from the [law firm] for acts and/or events which occurred when Virden was a Partner in the Firm except to Virden’s entitlement to the amount of Virden’s Working Capital Account at the time of his withdrawal.”

Lastly, “Virden has a legal and binding contractual obligation to convey his entire interest in the Firm and in Campbell DeLong Properties, LLC, and in their respective assets to the Firm and Campbell DeLong Properties, LLC . . . .” 

The circuit court signed both orders, and both were then stamped filed by the circuit court clerk. Virden moved for reconsideration. The circuit court denied the motion, and Virden appealed. The Court of Appeals affirmed, and we granted certiorari review. Virden, 2022 WL 447893, at *11.

Majority holding

We reverse the judgments of the Court of Appeals and of the Washington County Circuit Court, and we remand the case to the circuit court to allow Virden an opportunity to maintain an action against his former firm for breach of an implied contract regarding partner compensation.

Difference of opinion

RANDOLPH, C.J., KITCHENS, P.J., CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION. KING, P.J., NOT PARTICIPATING.

Concurring in result only

I have read the pleadings, motions and responses, the transcript of the argument of counsel, the circuit court judgments, and the record. As a result, I tend to agree that Campbell DeLong, LLP, and the individual defendants may be entitled to a declaratory judgment that the agreement governs the compensation or amount owed to Britt Virden as a withdrawing partner. The circuit court, the Court of Appeals, and now this Court’s majority reach a similar conclusion.

There is a fundamental error with this type of cursory review. There is a fundamental error with the decisions of the circuit court, the Court of Appeals, and now this Court’s majority. This Court should not affirm a circuit court’s judgment on the merits based only on unsworn pleadings, documents attached to unsworn pleadings, and argument of counsel. This review is not based on procedure authorized by the Mississippi Rules of Civil Procedure. Therefore, I am of the opinion the circuit court judgment and the decision of the Court of Appeals should be reversed. I would remand this case for further proceedings consistent with the Mississippi Rules of Civil Procedure.

Dissent

I disagree that this case should be reversed and remanded. Instead, for the reasons set forth by the Court of Appeals in its opinion affirming the trial court’s judgment, I would affirm.

(Mike Frisch)

The Southern Reporter Shall Rise Again

The Florida Supreme Court has adopted a number of rule revisions proposed by the Bar Board of Governors but rejected this one

we decline to delete from rule 3-5.1(d) the requirement that public reprimands be published in the Southern Reporter. Publication in the reporter remains integral to ensuring that a public reprimand is indeed public. The Bar proposed deleting the requirement because in recent years this Court’s public reprimands of lawyers have not, as a matter of course, been published in the Southern Reporter. We thank the Bar for bringing this oversight to our attention, and we will take steps to ensure that publication of public reprimands in the Southern Reporter occurs.

Also

In rule 3-5.3, the Bar proposed the addition of new subdivision (h) (Diversion Before Formal Complaint is Filed). The subdivision the Bar proposed is essentially a mirror image of rule 3-7.9(a) (Consent Judgment; Before Formal Complaint is Filed) and would permit a lawyer and the Bar to enter into a consent judgment providing for diversion before a formal complaint is filed. However, we see no need to amend rule 3-5.3 to include a mirror image of a rule that already exists elsewhere. We, therefore, revise the Bar’s proposal to read:

(h) Diversion Before Formal Complaint is Filed. The procedures for approval of consent judgments provided elsewhere in these rules apply to diversion before the filing of a formal complaint.

Rule 3-6.1(a) is reorganized, and the rule’s scope is expanded to include persons who are suspended or have been disbarred in another jurisdiction. Also, under the amended rule, a person is now considered employed by an entity providing legal services if he or she “is engaged to provide services to the client arising from or related to the client’s legal representation at the recommendation of the entity or any of its members or employees.”

Rule 3-7.10(f) is amended to prohibit a referee from referring a petition for reinstatement to civil or grievance mediation. The Bar proposed amending subdivision (f)(4)(B) to establish when and for how long Florida Bar Examination and Multistate Professional Responsibility Examination scores are valid for reinstatement purposes. For added clarity, however, we revise the Bar’s proposal to read: “The results for both exams must be valid under the Rules of the Supreme Court Relating to Admission to the Bar when the petition is filed and will remain valid for at least 3 years after the filing of the petition.”

Lastly, we decline to amend rule 3-7.16(d) as proposed by the Bar.

(Mike Frisch)

Faithless Servant

A law firm is entitled to the referral fee paid to an employee, per a decision of the New York Appellate Division for the First Judicial Department

Plaintiff was entitled to summary judgment as a matter of law. The duty of loyalty, grounded in the faithless servant doctrine, is breached where the employee, "acting as the agent of the employer, unfairly competes with his employer, [and] diverts business opportunities to himself or others to the financial detriment of the employer" (Sullivan & Cromwell LLP v Charney, 15 Misc 3d 1128[A], 2007 NY Slip Op 50889[U], *7 [Sup Ct, NY County 2007]; see also Western Elec. Co. v Brenner, 41 NY2d 291, 295 [1977]). Defendant does not dispute that he referred a matter to another law firm without plaintiff's knowledge or consent and collected more than $140,000 in referral fees. A for-profit referral, without plaintiff's knowledge or consent, violates defendant's duty of loyalty and, at a minimum, entitles plaintiff to the referral fee (see Chun Ho Chung v Williams Schwitzer & Assoc., P.C., 200 AD3d 514, 515 [1st Dept 2021]).

The court's denial of the motion to reargue is not appealable.

(Mike Frisch)

Giuliani Brief Filed In D.C. Case

Rudolph Giuliani's brief of his exceptions to the findings and recommendation for disbarment was filed yesterday with the District of Columbia Board on Professional Responsibility.

He argues that the findings of misconduct are not supported by clear and convincing evidence. 

If the Board disagrees, he argues that a lesser sanction should be imposed in light of his "unblemished disciplinary history and his contributions to public service..." 

Link (click on Cases of Public Interest) here. (Mike Frisch)

N-Word By Former Judge Not Basis For Discipline

The Louisiana Attorney Disciplinary Board has dismissed ethics charges against a former judge for conduct in a private matter

Having reviewed and considered all of the evidence presented in this matter and for the reasons outlined above, the Board concurs in the Committee’s recommendation of dismissal. 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 and has failed to meet its burden of proving that Respondent engaged in misconduct that occurred when she was a judge which would have been grounds for lawyer discipline. Therefore, the Board orders that the charges filed against Respondent be dismissed.

Further

The Board finds that the Committee was correct in its analysis of Rule XIX, §6B and its conclusions that while Respondent’s conduct may have constituted violations of Canons 1 and 2A of the Code of Judicial Conduct, ODC did not meet its burden of proving violations of Rules 8.4(a) and 8.4(d) of the Rules of Professional Conduct which prescribe the misconduct for which discipline may be imposed upon lawyers in Louisiana. The Committee has aptly addressed the issues presented by ODC relating to the alleged rule violations and the Committee’s discussion distinguishing the legal decisions cited by ODC is correct.

The charges

The ODC investigation reflects that on July 22, 2020, Respondent submitted a Notice of Candidacy for City Judge, City Court, Division A, City of Lafayette. As a candidate for judge, Respondent was provided with an information packet that included a copy of the Louisiana Code of Judicial Conduct. Respondent signed for receipt of the packet on July 22, 2020.

On November 3, 2020, Respondent was elected City Judge of Division “A” in Lafayette, Louisiana. On November 6, 2020, as a newly elected judge, the Louisiana Supreme Court Judicial Administrator mailed to Respondent a packet of information; a copy of the Louisiana Code of Judicial Conduct was included.

During the early morning hours of December 11, 2021, Respondent arrived home with others in her vehicle. Upon arrival, Respondent observed a stranger who, apparently, had entered family vehicles. Respondent’s sons and their friend left Respondent’s vehicle, and the alleged perpetrator was tackled and detained until law enforcement arrived. Upon the arrival of law enforcement, Respondent identified herself as a judge, and an investigation ensued. The alleged perpetrator was taken into custody by the Lafayette Parish Sheriff’s Department.

Later that morning, while at home, Respondent and others viewed a home security video of the incident. This viewing also was videoed, with Respondent and others narrating the events that had occurred earlier that morning. In the video, a male voice states: “And mom’s yelling n****r, n****r.” Respondent then states:

“We have a n****r; it’s a n****r, like a roach.”

The video of Respondent’s use of racial slurs was posted on the internet and widely circulated. The incident drew local and national attention and media coverage.

(Mike Frisch)

Lawyer Ethics In Wartime Explored

Eric L. Muller, the Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at the University of North Carolina School of Law, has a new book Lawyer, Jailer, Ally, Foe

It is 1942, and World War II is raging. In the months since Pearl Harbor, the US has plunged into the war overseas—and on the home front, it has locked up tens of thousands of innocent Japanese Americans in concentration camps, tearing them from their homes on the West Coast with the ostensible goal of neutralizing a supposed internal threat.

At each of these camps the government places a white lawyer with contradictory instructions: provide legal counsel to the prisoners, and keep the place running. Within that job description are a vast array of tasks, and an enormous amount of discretion they can use for good or for ill. They fight to protect the property the prisoners were forced to leave behind; they help the prisoners with their wills and taxes; and they interrogate them about their loyalties, sometimes driving them to tears. Most of these lawyers think of themselves as trying to do good in a bad system, and yet each ends up harming the prisoners more than helping them, complicit in a system that strips people of their freedoms and sometimes endangers their lives.

In Lawyer, Jailer, Ally, Foe, Eric L. Muller brings to vivid life the stories of three of these men, illuminating a shameful episode of American history through imaginative narrative deeply grounded in archival evidence. As we look through the lawyers’ sometimes-clear and sometimes-clouded eyes, what emerges is a powerful look at the day-by-day, brick-by-brick perpetration of racial injustice—not just by the system itself, but by the men struggling to do good within it.

(Mike Frisch)

A Thing Of Value

The Washington State Supreme Court reversed the Court of Appeals on the definition of a "thing of value"

A jury convicted Vanessa Valdiglesias LaValle of two counts of criminal solicitation after she told her minor son, S.G., that he could be with her “forever” if he poisoned his father. The Court of Appeals reversed the conviction on the ground that Valdiglesias LaValle’s offer to live with S.G. “forever” if S.G. killed his father did not constitute a “thing of value” within the meaning of RCW 9A.28.030(1). State v. Valdiglesias LaValle, No. 101442-2.

We reverse the Court of Appeals. The plain meaning of “money or other thing of value” in RCW 9A.28.030(1) unambiguously includes both money and things that are not money but that, like money, possess utility, desirability, significance, and/or economic value. Nothing in the plain language or context of the statute indicates that “other thing of value” must be limited to things with a traditional economic or market value.

The plot

In June 2020, while at Valdiglesias LaValle’s house for visitation, 10-year-old S.G. heard her and J.G. talking in another room. VRP (Apr. 6, 2021) at 284. He decided to enter the room and secretly record the conversation because he heard Valdiglesias LaValle talking about “bad stuff” and “rat poison.” Id. at 284-85. In the recording, Valdiglesias LaValle told the children that she loved them and that they could decide when they were older whether they wanted to live with her. S.G. asked what Valdiglesias LaValle would do if she “gave food to dad.” State v. Valdiglesias LaValle, 23 Wn. App. 2d 934, 937-40, 518 P.3d 658 (2022). Valdiglesias LaValle responded that she would not put anything in Grady’s food, but that she would teach S.G. what to do. She told S.G. he could put rat poison in Grady’s wine, wait for Grady to drink it and collapse, “wait a long, long time,” then call the police. Id. at 939. Valdiglesias LaValle said that if S.G. did this, “we are forever (inaudible) live together (inaudible).” Id

S.G. sent the recording to his friend, and his friend’s mother contacted Child Protection Services and the police. VRP (Apr. 6, 2021) at 288, 313; VRP (Apr. 7, 2021) at 363-64, 372.

(Mike Frisch)

Withdrawal To Care For Ailing Mother Denied

The United States Court of Appeals for the Fourth Circuit affirmed a denied motion to withdraw as counsel

Elizabeth Peiffer, one of two lead attorneys representing David Runyon in this habeas proceeding, filed a motion to withdraw as counsel for Runyon on the ground that her mother was diagnosed with cancer and caring for her would distract from an appropriate representation of Runyon. The district court denied Peiffer’s motion, finding that it was “in the interests of justice for Ms. Peiffer to remain as counsel for” Runyon. Peiffer then filed this appeal. Because we cannot, in the circumstances presented, conclude that the district court abused its discretion, we affirm.

The trial court

Shortly after the hearing, the court issued a written order dated June 20, 2023, confirming its denial of Peiffer’s motion to withdraw. In its order, the court stated that even though Peiffer’s personal circumstances provided some difficulties, her withdrawal from the representation of Runyon “would not be in the ‘interests of justice.’” (Quoting Martel v. Clair, 565 U.S. 648, 652 (2012)). In particular, the court explained again that it was concerned with the prejudice to Runyon associated with the loss of institutional knowledge should Peiffer be permitted to withdraw. Peiffer was the only member of the defense team who had been present throughout the entire discovery process on the remanded claim. The court also noted prejudice to the United States, as the request came at the “eleventh hour” in the proceedings. In conclusion, at the hearing and as confirmed in its order, the court noted that Peiffer could “certainly take a lesser role” — she did not “have to do all the substantive work” and could proceed on “a limited basis.” But the interests of justice, nonetheless, required that she remain in the case for “continuity” purposes.

At the hearing and in its order, the court also expressed its intent not to grant pro hac vice admission to the six Covington & Burling lawyers, but it did not expressly rule on  this issue, as such motions for admission had not been filed. It explained that to admit six attorneys from Covington & Burling would “put the hearing out of control.” Nonetheless, it noted that the Covington & Burling attorneys were welcome to provide their time pro bono to assist Peiffer and Ali. 

Here

In view of the district court’s careful consideration of all of the factors, we cannot conclude that it abused its discretion in the circumstances. See Martel, 565 U.S. at 66364 (“Because a trial court’s decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion”).

On appeal, Peiffer presses the argument that her continued representation of Runyon violates the Virginia Rules of Professional Conduct because her personal obligations present a conflict of interest that prevents her from fully discharging her duties to Runyon and that the conflict requires reversal. In so arguing, however, she presents withdrawal as an “all-or-nothing” proposition — either she must be able to act as Runyon’s sole and fulltime counsel of record in the matter or she must recuse herself. But those are not the only alternatives in the circumstances of this case, and the district court specifically addressed Peiffer’s concern by noting that she was free to divide up responsibilities with Ali in the way she sees fit.

And

We note importantly that this is not a case where there is a threat that Runyon will be inadequately represented as a result of the district court’s order. Runyon has two counsel of record and six additional counsel assisting pro bono. While it is true that the district court indicated that it was unlikely to grant the six pro bono attorneys pro hac vice admission to the case if that were requested, the court nonetheless welcomed their assistance.

That last comment cuts two ways. (Mike Frisch)