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Posts Tagged ‘sanctions’

Had I waited another day, I could’ve added one more head shake to my last post. Last night, the Arizona Republic reported Jodi Arias prosecutor Juan Martinez would not be disciplined over the publication of his book about the Jodi Arias murder trial.

Several bar complaints were separately filed against Martinez last year in connection to the internationally notorious murder case. In its story, the Republic makes particular mention of the bar complaint filed by the local defense lawyer bar that in part accused Martinez of violating ethical rules regarding “the existence and content of certain exhibits previously sealed by court order.”

There’s little doubt the complaining defense lawyers aren’t pleased with the decision of the Arizona Supreme Court’s Attorney Probable Cause Discipline Committee. The Committee reviews Arizona State Bar recommendations for attorney discipline.

It is also a group which parenthetically happens to have a petition pending before the Arizona Supreme Court that would permit the imprudent entrenchment of its current membership by removing the two consecutive three-year limitation on members’ terms of office.

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According to the news report, the Committee dismissed a charge filed against Deputy Maricopa County Attorney Juan Martinez for writing the book, Conviction: The Untold Story of Putting Jodi Arias Behind Bars.

The story quotes from the Committee’s decision, “This matter is being dismissed as respondent obtained permission from his employer to disseminate information relative to his representation in the state v. Arias case. Similarly, while his book made general reference to the existence of sealed testimony and exhibits, the references did not contain specific content and was, in some circumstances, publicly available despite the court order(s) sealing the testimony and exhibits.”

Interestingly, demonstrating that book writing about a trial is not the sole province of the prosecution, Arias’ former defense lawyer Kirk Nurmi was disciplined over an ethical violation involving publication of a ‘tell all’ book without client consent, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial.  However, in Nurmi’s case, the sanction was disbarment. See “Jodi Arias’ defense lawyer agrees to be disbarred over tell-all book rather than face disciplinary hearings”

There’s an ethical rule, ER 1.9, that prohibits a lawyer who has formerly represented a client in a matter from thereafter using information relating to the representation to the disadvantage of the former client except as permitted by the ethical rules “or when the information has become generally known.” The trick, of course, comes in defining what is “generally known.”

The rule is not without its critics, one of the most notable being Michael Cicchini. Also see Cicchini’s “On the Absurdity of Model Rule 1.9,” 40 Vermont L. Rev. 69 (2015) and his “Petition to Modify SCR 20:1.9(c).” filed last year with the Wisconsin Supreme Court

File:"As we see 'em," a volume of cartoons and caricatures of Los Angeles citizens (1900) (14773300391).jpgVagaries of Proportionality.

There are rules governing the imposition of lawyer discipline. But when it comes to when and how those rules are applied, weighted, and especially how sanctions are proportioned remains anybody’s guess. One wonders, for instance, if another lawyer similarly situated but less well-known than Martinez would have received the same pass on discipline?

No less than the Arizona Supreme Court has recognized that when it comes to reviewing similar cases to assess the proportionality of the recommended sanction, proportionality review is “an imperfect process.” In re Owens, 182 Ariz. 121, 127, 893 P.3d 1284, 1290 (1995). This is because no two cases “are ever alike.” Id

Frankly, there are times when the sanction meted out appears to bear little resemblance to so-called similar cases. See, for example, the disciplinary case of Edward Moriarity where pursuant to a settlement the accused attorney was disbarred in Arizona — a sanction no other reciprocal jurisdiction opted to follow. Indeed, the sanction was subsequently criticized by a federal judge as noted in Board of Prof’l Responsibility v. Moriarity 345 P.3d 51 (2015). Also see “Wyoming Supreme Court Censures Montana Attorney.”

After reviewing the attorney’s notification of the Arizona disbarment, Judge Dana L. Christensen, Chief United States District Judge for the District of Montana, issued an order declining “to impose any discipline at this time. However, if the Montana Supreme Court decides to levy discipline, this Court will revisit the matter at that time.” Moreover, Judge Christensen discussed “substantial reasons not to order identical discipline” not the least being that it “was grossly disproportionate to Moriarity’s alleged misconduct.”

To further make his point, the judge cited an earlier case where the Arizona Supreme Court had suspended an attorney for six months after the attorney was found to have filed multiple frivolous actions over the course of several years whereas by contrast, Moriarity was disbarred on the accusation of having filed “only one frivolous lawsuit.”

To protect not to punish.

File:Stuart Chapin and Company (3093686330).jpgHas there ever been a disciplined lawyer — let alone a zealous bar counsel prosecutor — that hasn’t deemed the sanction imposed a punishment? The state supreme court, however, steadfastly demurs reflexively noting it “has long held that ‘the objective of disciplinary proceedings is to protect the public, the profession and the administration of justice and not to punish the offender.’” Alcorn, 202 Ariz. at 74, 41 P.3d at 612 (2002) (quoting In re Kastensmith, 101 Ariz. 291, 294, 419 P.2d 75, 78 (1966).

All the same, one can’t help but be reminded of the oft-quoted spare-the-rod-spoil-the-child sop: This hurts me more than it hurts you.” Like sanctions ‘to protect not to punish,’ the words are counterintuitive cold comfort for those on the receiving end.

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Photo Credits: Dog gif “Really,” at Giphy.com; “As we see ’em,” at Wikimedia Commons;“As we see ’em,” at Wikimedia Commons; Building gif, at Giphy.com; Stuart_Chapin_and_Company_(3093686330).jpg at Wikimedia Commons, public domain.

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Last October, I reblogged a post by Indiana lawyer Paul Ogden who was then facing a one-year suspension for a private email criticizing a judge.

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Wikimedia Commons/Public Domain

Ogden’s troubles, however, were bigger than just the possibility that as a politically active lawyer with an unblemished 27-year legal career, he might suffer potentially career-destroying sanctions. No, Ogden’s case was really about another attempt by attorney disciplinary authorities to further muzzle attorney free speech.

It was about how much more an ethical rule can be broadened to spank lawyers for their opinions about judges under Ethical Rule 8.2, which says, in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/8/88/Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg/319px-Two_monks_working_in_the_blacksmith_shop_at_Mission_Santa_Barbara%2C_ca.1900_%28CHS-4070%29.jpg

Wikimedia Commons/Public Domain

And it was also about a lawyer disciplinary commission with the unbridled temerity to hammer and tong a lawyer with the nerve to persistently criticize it.

The Court decides.

LAW AND JUSTICE uidThis past Monday the Indiana Supreme Court handed down its decision In the Matter of Paul K. Ogden. And while the vocal Hoosier gadfly ended up getting disciplined, it was still a good outcome for Ogden.

The case against him was originally brought in March 2013 because of comments he made in private correspondence about Judge David H. Coleman, a special judge appointed in an unsupervised estate case where Ogden was representing one of the interested parties.

As to the First Count of the Charge, in the words of the Court, Ogden’s “repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a)in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case.”

As to the remaining Second Count concerning alleged ex-parte communications to Marion County judges to follow recently outlined forfeiture law, the Court ruled the disciplinary commission had not met its burden that Ogden’s letters to the judges were “prejudicial to the administration of justice.”

Caucasian businessman pointing finger beside window uidThe Court instead found professional misconduct only with respect to Ogden’s statements about Judge Coleman. And so it ordered a 30-day suspension starting August 5, 2014 and assuming he keeps his nose clean, at its conclusion, the Court approved automatic reinstatement.

Speaking objectively — despite the sanction, I think it’s a win for Ogden. The Court unanimously found misconduct only concerning the First Count. It imposed only a 30-day suspension with automatic reinstatement — instead of the one-year suspension without automatic readmission that the Commission wanted.

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Wikimedia Commons/Luis Ricardo/GNU Free Documentation License.

Vulnerable attorneys.

A few days after, at Disbarring the Critics, Ogden also understandably cast the outcome in a positive light. The perils he’d faced had been daunting.

But all the same, Ogden was disappointed “the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.”

On a more hopeful note in his post, The Indiana Supreme Court Hands Down Decision,” he added: “Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges. I think it’s inevitable that’s going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.”

Obstreperous meets obdurate.

Ogden also remains convinced the Indiana Disciplinary Commission overcharged and overprosecuted him for no other reason than his unrelenting criticism of its doings. Optimistically, then, he hopes his case will be “a catalyst” for investigating the Commission’s conduct “and for much-needed reform to the attorney disciplinary process.”

While I wish him well, I don’t know whether such optimism is realistic. The forces arrayed against him are formidable. The Commission is an agency and arm of the Indiana Supreme Court.

Case in point, despite his well-founded longstanding complaints about the Commission’s conduct, the Court adopted its agency’s view that Ogden had been “obstreperous.” Obstreperous is a $10 word meaning stubbornly resistant to control as in “unmanageable.”

Laughing Jackass 10952161246Using my own $9.99 word, if Ogden’s unruly then I think the Commission has been obdurate meaning stubbornly resistant to change. But operating apparently without meaningful oversight or transparency, why should it conduct itself any differently?

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