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ethics

Former Juvenile Judge Jailed

In 2014, former Hamilton County Juvenile Judge Tracie Hunter was convicted of a felony for giving her brother, a juvenile court employee, confidential information.  Then Judge Norbert Nadel sentenced Ms. Hunter to 6 months in jail.  Since then, Ms. Hunter has appealed the conviction in both state and federal court.  In May 2019, federal court Judge Timothy Black found that Ms. Hunter had received a fair trial.  He refused to comment on the sentence, which he said was for the state court to decide.

On July 22, 2019, now Judge Dinkelacker ordered Ms. Hunter to begin her 6-month jail sentence.  Chaos erupted in the courthouse as Judge Dinkelacker ordered the deputies to take Ms. Hunter into custody.  Hunter went limp in a deputy’s arms, resulting in her being dragged from the courtroom.  Now retired Judge Nadel stated that Ms. Hunter was convicted by a jury, was unrepentant for her misconduct, and the sentence was a correct one. Hunter supporters claim the conviction was politically motivated due to Ms. Hunter, a Democrat, taking a seat formerly held by a Republican.

On October 21, 2014, Ms. Hunter’s Ohio law license was suspended due to her felony conviction.  A felony suspension is an interim suspension.  Now that all appeals or proceedings have been concluded, Ms. Hunter will undergo disciplinary proceedings to determine the length of her suspension from the practice of law.

ethics

Watch What You Charge; And Watch What You Say

In his third time through the disciplinary system in 9 years, attorney Timothy Shimko of Westlake was indefinitely suspended from the practice of law on July 18, 2019, for charging a clearly excessive fee and for revealing confidential attorney-client information.

Richard Berris hired Shimko to represent him on a limited basis regarding a commercial claim he filed with Nationwide Insurance after a fire destroyed Berris’s house. Berris did not reside in the house but told Shimko that he conducted business out of the basement. Shimko advised that under those facts Nationwide would not pay on the claim. Berris also filed a claim with Allstate, his homeowner’s insurance company.

Nationwide requested that Berris submit to an examination under oath (“EUO”).  Berris testified at the EUO that he did not conduct business out of the house.

Shimko quoted Berris an hourly rate of $385 for the limited representation and estimated that it would require approximately 6 hours and that he would expect the fee to be about $2,300.00.  After the EUO, Shimko sent Berris a bill for $4,350.  Berris indicating he was satisfied with the representation but objected to the amount of the bill. He offered to pay Shimko $3,300 in $500 monthly installments with no interest.  Shimko charged 1-1/2% interest on amounts not paid within 30 days. Shimko rejected Berris’s offer.

Shimko filed suit to collect the $1,050 balance of his fees plus interest on the unpaid portion.  Shimko told Berris’s counsel that he would be filing a Motion for Summary Judgment, which would reveal the client’s misstatement at the EUO.  If the client wanted to avoid this, he should settle the matter prior to that filing.  The court found that, although the amount of time Shimko spent on the representation was reasonable, his $154 charge for an initial telephone consult and his $539 charge for an email regarding the fee agreement were unreasonable.  The court did not award interest on the fee bill.

The Supreme Court found that Shimko’s $154 and $539 charges were clearly excessive in violation of Prof.Cond.R. 1.5.  The former because Shimko told Berris that he would not charge for the consultation and the latter because it was merely a fee agreement with no legal analysis.  Also violating that rule was Shimko’s interest charge since there was nothing in the fee agreement that alerted Berris that Shimko would charge interest on unpaid balances.

The Court also found that Shimko’s threat to reveal confidential information and then actually disclosing it in the Motion for Summary judgment in the civil case violated Prof.Cond.R. 1.9(c)(1) (using confidential information to the disadvantage of a former client); Prof.cond.R. 1.9(c)(2) (prohibiting use of information related to the former representation of a client except as required or permitted by law); and Prof.Cond.R. 8.4(h) (conduct adversely reflecting on the attorney’s fitness to practice law). The Court rejected Shimko’s argument that revealing the information came within the Prof.Cond.R. 1.6(b)(5) exception to establish a claim in a controversy between lawyer and client.

This case raises a whole host of interesting questions.  Shimko was sanctioned for violating conflict of interest rules stemming from a violation of the attorney-client privilege.  However, no Prof.Cond.R. 1.6 violation was charged, although the Supreme Court did find that it occurred.

Shimko claimed that Berris lied in the EUO, a fact that both the Panel and the Board flat out rejected.  Berris testified at the hearing that he and Shimko spent a considerable amount of time in preparing for the EUO to discussing “how Mr. Berris might successfully navigate his way through the [EUO], without destroying coverage and without perjuring himself.” Disciplinary Counsel v. Shimko, 2019-Ohio-2881, par. 39.

Shimko’s statement that Berris lied about a factual issue at the EUO would invoke Shimko’s duty under Prof.Cond.R. 4.1 to rectify the misstatement.  Comment [3] makes clear that an attorney may not assist a client in conduct the lawyer knows is illegal or fraudulent.  An attorney is required “to disclose a material fact, including one protected by the attorney-client privilege, when the disclosure is necessary to avoid the lawyer’s assistance in the client’s illegal or fraudulent act.”  The only way that Shimko could have been justified in revealing his client’s confidential information is by following Prof.Cond.R. 4.1, which he clearly did not do.

The results here seem puzzling.  The confidential information that Shimko revealed was “that Berris’s testimony at the EUO was inconsistent with his confidential statements to Shimko — all the while knowing that the disclosure could damage Berris’s pending claim with Allstate.”  Id. par. 21.  This finding accepts Shimko’s statement as true that Berris’s testimony at the EUO was, indeed, inconsistent with his confidential statements to Shimko.  Yet, the Panel and the Board rejected Shimko’s position that Berris lied under oath at the EUO.  Id. par. 40.  If Berris’s testimony at the EUO was truthful, how could Shimko’s statements that Berris told him inconsistent confidential information, likewise,  be true?   Shimko’s statement would be a misrepresentation in violation of Prof.Cond.R. 8.4(c).  No such violation was pled or found.  Either Berris lied at the EUO and his testimony falls outside of the attorney-client privilege per Prof.Cond.R. 1.6(d), or Shimko lied in saying Berris’s testimony was inconsistent with privileged communication.  If Berris lied, there is no conflict of interest for Shimko revealing information that is not privileged.  If Shimko lied, there is no conflict of interest because the information he revealed is a lie and not a privileged communication.

The cautionary tale behind this case is that a client may well use an attorney’s services to perpetrate a fraud, as appears to have been done here.  Where the purpose of revealing the confidential information is to prevent the client from using the attorney’s legal services to do so, revealing the information is permitted.  Id. par. 40.  Where, however, the sole purpose for revealing the confidential information is to compel the client to pay the attorney’s fee bill, revealing attorney-client information is not permitted without taking steps to limit access to the confidential information only to persons needing to know it.  Id. pars. 40, 43.

ethics

U.S. Supreme Court Justice John Paul Stevens Dies At Age 99

After living a good long life, U.S. Supreme Court Justice John Paul Stevens passed away on July 16, 2019, at age 99.  Formerly a Republican antitrust lawyer, Stevens’s 35 years on the U.S. Supreme Court transformed him into an outspoken leader of the court’s liberal wing. Stevens joins U.S. Supreme Court Justices Oliver Wendell Holmes, Jr. and William O. Douglas as one of the longest sitting U.S. Supreme Court Justices on the U.S. Supreme Court bench. Justice Stevens was appointed to the bench in 1980 by President Gerald R. Ford to replace Justice William O. Douglas.

Among his more well-known opinions was Rasul v. Bush, 542 U.S. 466 (2004). Writing for the majority, Stevens brought within the jurisdiction of the federal courts the fate of hundreds of prisoners captured during the war in Afghanistan and Pakistan and held at Guantanamo Bay.

Justice Stevens wrote the majority opinion in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) disallowing the Bush administration to put some of those detainees on trial by military commission.

In 2010, Justice Stevens retired after the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). There the U.S. Supreme Court held that the federal government could not limit corporations from spending money to influence the outcome of elections.  The majority held that the First Amendment prohibits Congress from passing any law that would fine or jail citizens or associations for engaging in political speech.  This includes, according to the opinion, a speaker speaking on behalf of an association existing in a corporate form. The opinion expanded the rights of corporations to spend money and speak on politics.  This ruling led to the creation of super PACs.

Dissenting, Justice Stevens wrote that the opinion rejected the common-sense notion of the American public that recognized a need to prevent corporations from undermining self government.  Justice Stevens wrote that, in the context of elections to public office, the distinction between an individual and corporate speaker is significant.  While corporations make enormous contributions to American society, they are not actually members of it.  Where the corporation is managed or controlled by nonresidents, its interests may conflict in fundamental ways with the interests of eligible voters.  The opinion was decided on January 21, 2010.  Justice Stevens announced his retirement from the bench on April 9, 2010.

After retiring, Justice Stevens had an active career as an author and public speaker.

 

ethics

Judicial Felon Suspended

On July 1, 2019, the Supreme Court of Ohio suspended the law license of former Mahoning County Common Pleas Court judge Diane Vettori-Caraballo, after a federal judge sentenced her to 30 months in prison.  The prison sentence followed Ms. Vettori-Caraballo’s conviction for stealing from the estate of a deceased client. Ms. Vettori-Caraballo was convicted of mail fraud, structuring bank deposits and making false statements to law enforcement.  The Supreme Court of Ohio suspended her license for an interim period due to her felony conviction pending disciplinary proceedings.

Ms. Vettori-Caraballo was ordered to pay $328,000 in restitution, an amount both her counsel and the prosecutors agreed upon.  The theft occurred from the estate of Ms. Vettori-Caraballo’s former client, Dolores Falgiani.  Ms. Vettori-Caraballo absconded with the money when she found it in cash hidden in Ms. Falgiani’s home after her death in 2016.  Since Ms. Vettori-Caraballo has been a Mahoning County Common Pleas Court judge since her election in 2002, her conduct occurred while she was a sitting judge.

The matter was referred to the Office of Disciplinary Counsel for further investigation says The Vindicator, the Youngstown paper.

 

 

ethics

Pay Co-Counsel All They Are Due

On June 27, 2019, Cuyahoga County lawyer Scott A. Rumizen was suspended from the practice of law for two years with 18 months stayed for failing to pay his co-counsel the entirety of the fees co-counsel was entitled to receive.

The misconduct occurred through a series of cases in which Rumizen and his co-counsel represented clients.  Rumizen had been an independent contractor for a law firm.  When he left the firm to open his own practice, the firm and he agreed that he would take about 100 cases, mostly personal injury cases.  Rumizen later misreported the amounts many of the cases settled for resulting in underpayment to his co-counsel.  The resulting shortage in fees paid to co-counsel amounted to nearly $50,000.

In one case, Rumizen settled a personal injury matter for $170,000 for which he received a $62,000 fee award.  He was to pay co-counsel $15,000.  Rumizen, however, reported the settlement as being $60,000, that he received $15,000 in attorney fees and paid co-counsel $3,750.

Co-counsel discovered the misconduct when he received an anonymous letter informing him of Rumizen’s conduct.  While Rumizen initially denied the conduct, he later admitted underpaying the lawyer.  This happened in a number of cases.

The Board found, and the Supreme Court of Ohio agreed, that Rumizen violated Prof.Cond.R. 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).  It further found that the conduct was so egregious that it adversely reflected on Rumizen’s fitness to practice law in violation of Prof.Cond.R. 8.4(h).

The Supreme Court of Ohio has repeatedly stated that a violation of Prof.Cond.R. 8.4(c) will result in an attorney’s actual suspension from the practice of law for a period of time. Although he requested a stayed suspension, Rumizen was actually suspended for 6 months with the balance of 18 months stayed providing he engages in no further misconduct.

Disciplinary Counsel v. RumizenSlip Opinion No. 2019-Ohio-2518.

ethics

Lost Settlement Check = Suspension

On June 5, 2019, the Supreme Court of Ohio suspended Lorain County Attorney Jeffrey H. Weir, II for losing a client’s settlement check.  Weir received a one-year suspension with 6 months stayed.

The lost check, however, was not the only reason for the suspension.  Both the Office of Disciplinary Counsel and the Lorain County Bar Association filed complaints against Weir based on separate grievances filed with those offices.  The Supreme Court of Ohio suspended Weir on an interim basis when he failed to respond to a third disciplinary complaint not involving either of those matters.

Weir accepted representation of his client to terminate a land sale contract.  The sellers sent Weir a check as a settlement offer.  Because both he and the client believed she was entitled to more funds than the value of the check, they agreed not to cash it.  Later, the client agreed to accept the check as settlement.  Because it was stale, Weir requested a replacement check from the sellers, which he received August 2016.  He then lost the check and did not respond to his client’s inquiries about it in September and October 2016.  In November 2016, he informed his client he had misplaced the check and would request a third check but then stopped all communication with his client.

Weir did not respond to the grievance the client filed against him with the Lorain County Bar Association but did appear at a grievance committee meeting.  He found the lost check in December 2017 and gave it to his client.  When she tried to cash it, the bank dishonored it.  The seller’s attorney said the sellers would not write a third check for the settlement.  The Supreme Court of Ohio agreed with the Board that Weir’s misconduct included losing his client’s settlement check, failing to communicate with her over an extended period of time and then failing to make her whole.  Lorain Cty. Bar Assn. v. Weir, 2019-Ohio-2151, ¶ 16).

The Disciplinary Counsel action involved Weir substituting as counsel for his clients in a lawsuit.  When the court entered judgment against his clients, Weir sued their former counsel for malpractice.  The court dismissed the action as time-barred.  Weir appealed.  The appellee filed a motion to dismiss because the appeal was time-barred.  Weir failed to respond to the motion and the appellate court dismissed the appeal.  The Supreme Court determined that he failed to give competent and diligent representation to his clients. Id. ¶ 19.

As a result of this misconduct, Weir was actually suspended from the practice of law.

 

 

 

ethics

Prosecutor’s Duty is Substantial Justice

On May 9, 2019, the ABA released Formal Opinion 486 clarifying a prosecutor’s duties under Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) when entering into plea bargains with persons accused of misdemeanors.  According to the Opinion, prosecutors are duty bound to each charge incident to a plea has an adequate foundation.  They must make sure the accused is informed of his/her right to counsel and the procedure for obtaining counsel.  Prosecutors are not permitted in plea negotiations to jeopardize the accused’s ability to obtain counsel.  Nor can they offer pleas on terms that knowingly misrepresent the consequences of acceptance of a plea. And they are not permitted to pressure or improperly induce an accused to accept a plea.

The Opinion notes that a prosecutor’s integrity is essential to the administration of criminal justice.  A prosecutor has the responsibility of a minister of justice and not just as an advocate.  The primary duty is to see that justice is done and not merely to convict.  This is because the prosecutor represents the sovereign. Therefore, he/she should use restraint in the discretionary exercise of governmental power.  During trial, a prosecutor makes decisions normally made by an individual client.  Accordingly, those affecting the public interest should be fair to all.  Moreover, in the system of criminal justice, the accused is to be given the benefit of all reasonable doubts.

Misdemeanors make up about 80% of all criminal prosecutions. Estimates are that prosecutions have doubled since 1972.  “A misdemeanor conviction can lead to denial of employment, expulsion from school, deportation, denial of a professional license, and loss of eligibility for a wide range of public services including food assistance, public housing, health care, and federal student loans.” Plea bargaining has become an essential component of the administration of justice.  It is, therefore, imperative that there “be fairness in the securing of an agreement between the accused and the prosecutor.” Because of the vast increase in misdemeanor prosecutions, there is a tendency toward speedy dispositions at the expense of fairness of the result.

Conduct that would violate the Rules includes:

  1. Entering into plea negotiation before explaining the right to counsel;
  2. Using delay or threatening a harsher sentence to dissuade the accused from invoking the right to counsel;
  3. A requirement that accused persons, gathering en masse into the courtroom, must tell the clerk how they intend to plead;
  4. Using forms to obtain waivers of the right to counsel and other rights as a condition of negotiating a plea or entering into plea negotiations without ensuring that the accused understands his/her rights being waived;
  5. Permitting investigators to act as prosecutors and negotiate pleas;
  6. Advising the accused of the right to counsel but failing to provide a process for the accused to exercise the right to retain counsel or waive counsel prior to plea negotiation;
  7. Failing to inform indigent clients of their right to request a waiver of court fees associated with court-appointed counsel.

Rule 3.8(a) prohibits a prosecutor from filing a charge that is not supported by probable cause. A prosecutor’s workload that is too heavy to permit independent assessment of each charge and supervise other state actors responsible for the case may not be providing competent representation as Rule 1.1 requires or diligent representation as Rule 1.3 requires. A supervising prosecutor is duty bound to establishing policies, procedures and practices and methods of monitoring prosecutors and other state actors such that there is reasonable assurance of compliance with the prosecutor’s ethical obligations.