Monthly Archives: July 2013

The Florida Bar’s Standing Committee on Advertising opines that lawyers may join business networking organizations and that solo lawyers may refer to themselves as ‘we’ in advertising

Hello and welcome to this Ethics Alert which will discuss the recent article in The Florida Bar News which provides information about the recent decisions of the Florida Bar’s Standing Committee on Advertising (SCA) which overturned Bar Advertising staff opinions and opined that lawyers may join an organization that promotes networking between professionals as long as the lawyer does not personally solicit cases or make referrals to another professional as a quid pro quo for getting referrals and that lawyers may refer to themselves as “we” in advertisements.

The SCA met on June 27, 2013 in conjunction with The Florida Bar Convention in Boca Raton, Florida.  One of the issues on the SCA’s agenda was whether lawyer participation in the networking organization, Business Network International (BNI).  Staff Counsel drafted an informal opinion finding that participation in the networking organization would violate the Bar Rules, although a majority of the Bar staff believed that membership in BNI would not violate the Bar rules.

The Bar Ethics and Advertising Counsel stated that the staff’s concerns were that there is a potential for solicitation and a potential for conflicts of interest if a lawyer is referring to another person whom they met through BNI which might not in the client’s best interest, but would in the lawyer’s personal interest because the lawyer may receive more referrals.   Another Bar concern was whether BNI operated as a de facto referral service, which would require it to comply with Bar lawyer referral service rules before lawyers could join a BNI chapter.

The author of this Ethics Alert appeared at the SCA meeting representing the lawyer who appealed the staff opinion and argued that BNI was not a referral service but akin to a civic group such as the Rotary Club, where lawyers might receive referrals by becoming members and that it is not unethical to belong to those groups.  In addition, the BNI rules specifically permit its members to follow the requirements of the ethics rules which govern their professions, including lawyers.  The Chair of the SCA voiced his concerns about the local chapter in his area; however, after discussion, the SCA voted unanimously to reverse staff and issue an opinion that joining a BNI chapter does not violate Florida Bar rules as long as the lawyer does not solicit cases or make referrals to another professional as a quid pro quo for obtaining referrals from that individual.

With regard to the issue of whether a sole practitioner may use the word “we” in advertisements, Bar Advertising Counsel reminded the SCA that the Bar’s Board of Governors had previously set a policy that sole practitioners cannot refer to themselves as “we” in an advertisement since it implies more than one lawyer works at the firm; however, notwithstanding the BOG policy, the SCA voted unanimously to overturn Bar staff’s opinion that the attorney’s advertisement violated the Bar Rules and issue an opinion stating that this does not violate the Bar Rules; however, the decision will now be reported to The Florida Bar’s Board of Governors which could take steps to reverse it.

Bottom line:  If you belong to BNI or another professional networking organization, the good news is that you can stay a member, as long as you comply with the Bar Rules.  If you are not a member, you can certainly now join.  Also, according the SCA’s decision, a lawyer who is a sole practitioner may use the word “we’ in advertisements.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Illinois Hearing Board recommends 90 day suspension for former Assistant Public Defender for multiple rule violations, including conduct that disrupted the court

Hello and welcome to this Ethics Alert blog which will discuss the recent Report and Recommendation of the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission recommending a 90 day suspension for an Illinois Assistant Public Defender for various Bar Rule violations, including failing to communicate plea offers to clients, revealing confidential information which prejudiced her clients’ interest, offering to post bond for a client, making false statements in a court proceeding, and engaging in conduct that disrupted court proceedings.  The case is: In the Matter of: Therese Cesar Garza, No. 6180720 Commission No. 2012PR00035 (July 24, 2013).  The Report can be accessed online here: http://www.iardc.org/HB_RB_Disp_Html.asp?id=11014.

According to the Report, during the time that the conduct occurred, the lawyer was employed by the Cook County Public Defender’s Office as an Assistant Public Defender.  The 8 count disciplinary Complaint alleged that she failed to communicate plea offers to several  clients, revealed confidential information which was prejudicial to her clients’ interest, offered to post bond for a client, made false statements in a court proceeding, and engaged in conduct that disrupted court proceedings.  The lawyer initially failed to participate in the disciplinary proceedings for the stated reason that she was ill and the facts and rule violations alleged in the Complaint were deemed admitted; however, she later appeared at a hearing and presented some evidence in mitigation.  Some examples of the lawyer’s conduct as found in the Report are as follows:      

On May 18, 2011, the lawyer was appointed to represent defendant Gabriel Franco.  Before the May 18 hearing, the lawyer and the defendant had a conversation regarding the alleged offense and the surrounding circumstances.  At the May 18 hearing, the judge addressed the issue of probable cause to detain Mr. Franco in order to set the bond.  The prosecutor informed the judge of the defendant’s criminal history and that he had an outstanding warrant and the lawyer then stated the following:

MS. CESAR:    Your Honor, he lives with his parents. And it is my understanding that there’s a warrant and it is for retail theft.  (The defendant) did tell me that he is not working right now and he was stealing formula for his eight-month-old child.  I know that that is not a defense, but it certainly is a mitigator. (italics added).

On May 18, 2011, the lawyer was appointed to represent defendant Monica Boyd, who was charged with misdemeanor theft.  The lawyer and defendant appeared before the judge and the case was set for trial later that same day; however, when the case was called for trial, the defendant was not present.  The lawyer stated that the defendant had left the courthouse to pick up her child.  Since the defendant was not present for the trial, the judge issued a warrant for her arrest and the following exchange occurred between the lawyer and the judge.

MS. CESAR:      Oh s–t.

THE COURT:     What did you say, Ms. Cesar?

MS. CESAR:      Oh shoot, I said. Oh shoot. I’m sorry I didn’t talk  to her, Judge. I’m just – – it’s my fault. I’m running around, talking to people.

THE COURT:     I don’t think that’s what you said.

MS. CESAR:     Whatever. I know the word you think I said. My  mother never let me say that, and I’ll tell you why. But I said shoot, darn it.

On June 7, 2011, the lawyer appeared before the judge on behalf of defendant Tony Rivera.  She requested a reduction of Mr. Rivera’s bond arguing that a witness would appear later and present testimony in favor of a bond reduction.  After hearing the lawyer’s argument, the judge denied the lawyer’s request to present the witness’ testimony and to reduce the bond.  The lawyer then stated:

MS. CESAR:    If I could correct the record, I told the Court at about 11:00 o’clock I had trouble getting people.

And when I finally got through, I talked to [the witness]. He said he was going to try to come.

THE COURT:   Excuse me. I did not lose my hearing.

MS. CESAR:    I did not say he was on the way. He indicated that he would come.

             THE COURT:   Let me just indicate again, you are yelling on the record. This happens all the time when you don’t get your way (italics added).

In June 2011, the lawyer was removed from her courtroom assignment with the Cook County Public Defender’s Office and placed on office duty.  On July 29, 2011, the lawyer was terminated from the Public Defender’s office.

The Report states that the lawyer completed her undergraduate studies and law school while raising six young children. She was admitted to practice in both Illinois and Indiana and began working for the Lake County Indiana Prosecutor’s Office in 1981.  She began working for the United States Department of Justice 3 years later doing civil rights work and subsequently worked for the U.S. Attorney’s Office in Chicago.  She went into private practice 1995 and began working for the Cook County Public  Defender’s Office in 2004.  During the time of the conduct alleged in the disciplinary complaint, the lawyer stated that was also grieving the loss of her mother and was newly assigned to the courtroom and was feeling overwhelmed and she did nothing for her own personal gain.

Bottom line:   This appears to be an example of an overworked assistant public defender who made some serious errors and engaged in conduct that was disrespectful and disruptive to the court and harmful to her clients.  If the recommendation is upheld, the 90 day suspension seems to be a relatively minimal discipline as a sanction for this lawyer’s conduct.                  

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Attorney/client privilege and confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer Professionalism, Lawyer sanctions

Wisconsin Supreme Court dismisses disciplinary charges against criminal prosecutor who failed to provide defense with unsworn note containing admission of another person

Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Wisconsin Supreme Court affirming the dismissal of disciplinary charges against a lawyer who was prosecuting the driver of a motor vehicle for possession of marijuana and did not provide an unsworn note written by a passenger in the vehicle admitting that he possessed the marijuana.  The case is In the Matter ofSharon A.Riek, Case No. 2011AP1049-D, 2013 WI 81 (Supreme Court of Wisconsin,July 23, 2013).  The opinion is online here: http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=9975

According to the opinion, the criminal case involved a traffic stop and the arrest of the driver for possession of marijuana. The driver was on supervision for a prior cocaine possession and was criminally prosecuted for possessing the marijuana.  A passenger in the vehicle (Isaiah Simpson) subsequently told law enforcement and prosecutors that the marijuana was his.  The defense attorney was aware of Simpson’s confession and also had Simpson on his trial witness list; however, the prosecutor did not provide a copy of an unsworn note with his admission to the defense until four days before trial.  After conducting an investigation, the prosecutor moved to dismiss the criminal charge and the charge was subsequently dismissed.

The opinion affirmed the dismissal of the disciplinary charges brought against the prosecutor for failing to disclose the note/admission and rejected the Wisconsin Office of Lawyer Regulation (OLR)’s contention that a “prosecutor’s ethical duty of disclosure (under the Wisconsin professional conduct rules) is broader than the constitutional requirements identified in Brady” and stated that “(t)he record is devoid of evidence that (the prosecutor)’s alleged delay in producing the Simpson Note and disclosing the fact of Simpson’s discussion with (another prosecutor) was intentional or done for any strategic purpose.  Mindful of the voluminous caseloads managed by most prosecutors, we are unwilling to rule that (the prosecutor)’s disclosure of essentially duplicative information four days in advance of an apparently routine marijuana possession case ran afoul of her ethical and procedural obligations as a prosecutor.”

“We note, moreover, that even where a prosecutor does fail to disclose exculpatory evidence in violation of Brady, a single inadvertent failure does not necessarily constitute an ethical violation.  Negligence and ethical misconduct are not necessarily synonymous.  Most courts and official ABA policy agree that a single instance of “ordinary negligence” may trigger other adverse consequences and possible sanctions but does not usually constitute a disciplinary violation warranting public discipline.”  The opinion then upheld the dismissal of the disciplinary charges.

Bottom line:  This is most recent of multiple state disciplinary opinions this year which address potential violations of state Bar Rules by a prosecutor.  This opinion dismissed the charges against a criminal prosecutor in Wisconsin stating that a “single instance of ‘ordinary negligence’ does not usually constitute a disciplinary violation warranting public discipline.”  This result appears to be fair under the circumstances since the failure to produce the unsworn note appears to have been unintentional and the defense attorney already knew about the admission/exculpatory statement.  As a former criminal prosecutor and Florida Bar prosecutor and now defense attorney, I am somewhat surprised that the Wisconsin disciplinary agency would choose to appeal the dismissal, and I do not necessarily agree with it.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Maine Supreme Judicial Court imposes stayed 30 day suspension on criminal prosecutor for multiple acts of misconduct both before and during trial

Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the Maine Supreme Judicial Court imposing a stayed 30 day suspension on a criminal prosecutor who engaged in multiple acts of misconduct in a criminal prosecution both before and during trial, including failing to provide exculpatory evidence in discovery and improper comments during rebuttal closing argument.  The case isMaine Board of Overseers of the Bar v. Kellett, Docket No. BAR-13-10  (Maine. Supreme Judicial Court,July 16, 2013)The opinion is online here: http://www.courts.state.me.us/opinions_orders/supreme/bar_decisions/2013/bar-13-10_kellett_judgment.pdf

According to the opinion, “(t)his case is the first disciplinary proceeding ever filed with the Court by the Overseers of the Bar against a member of Maine’s prosecutorial bar that is based upon the prosecutor’s representation of the State.  In reviewing the actions of (the lawyer), the Court has considered the special duty that a prosecutor owes to the bench, to opposing counsel, to criminal defendants, and to the people of Maine.  A prosecutor must always act in an effort to do justice rather than simply to convict.  That is because prosecutors do not represent individual victims, nor should they work towards any particular outcome other than one that involves the creation of a fair trial process and outcome.

“Over seventy-five years ago, the United States Supreme Court described a prosecutor as: the representative…of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.  He may prosecute with earnestness and vigor–indeed, he should do so.  But, while he may strike hard blows, he is not at liberty to strike foul ones.  It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.  Berger v. United States, 295 U.S. 78, 88 (1935).

“The Law Court has endorsed this vision of a prosecutor’s role, see, e.g., State v. Young, 2000 ME 144, ¶ 6, 755 A.2d  547, 548 (“As we have noted previously, prosecutors are held to a higher standard regarding their conduct during trial because they represent the State…and because they have an obligation to ensure that justice is done, as opposed to merely ensuring that a conviction is secured.”), and it is because (the lawyer) failed to meet this standard that she must be sanctioned.”

“However, the Court is also mindful  that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to, or otherwise have failed to, properly discharge their professional duties.  See M. Bar. R. 2(a).  In this proceeding, (the lawyer) has admitted that she did, in fact, violate  the Bar Rules in effect at the time of her actions, she has apologized, and she has expressed her remorse for her actions.  She has no history of other misconduct, and the Court is satisfied that through these proceedings and through the actions and study she has undertaken since the Filler case, (the lawyer) has a much more robust understanding of the grave obligations and responsibilities attached to the prosecutorial role, and that she is not likely to commit misconduct in the future.”

Bottom line:  This is another opinion this year which imposes discipline on a criminal prosecutor for violations of state Bar Rules because of misconduct during a criminal prosecution.  This opinion states that this is the first disciplinary proceeding against a criminal prosecutor in Maine.  Considering the evidence of multiple acts of misconduct cited in the opinion, the 30 day stayed suspension misconduct appears to be relatively minimal.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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NY lawyer suspended for 1 year for creating a false posting and impersonating a woman on an internet dating website

Hello and welcome to this Ethics Alert blog which will discuss the recent New York Appellate Court opinion suspending a lawyer for one your for creating a false posting and impersonating a woman on an internet dating website.  The case is In the Matter of James E. O’Hare, 2013 NY Slip Opinion 05320 (NY 2nd App. July 17, 2013).  The opinion is here: http://www.nycourts.gov/reporter/3dseries/2013/2013_05320.htm.

According to the opinion, “the underlying facts, which are undisputed, are as follows: “(the lawyer), using the internet, went to a dating site for lesbians and created a sham posting by impersonating a woman whom he knew years ago; he used both his home and work computers for this activity.  The respondent was aware that the sham posting would likely cause embarrassment to the woman, who was a mother of three.  Based on the uncontroverted evidence and the respondent’s admissions, the Special Referee properly sustained the charge. Accordingly, the Grievance Committee’s motion to confirm the Special Referee’s report is granted.”

The opinion further states that: “(i)n mitigation, (the lawyer), who previously served in the United States Army Reserves and in active military service for a total of 28 years, introduced seven awards he received for meritorious service, including a Bronze Star for his services as a Staff Judge Advocate in Iraq. The (lawyer) testified that he was deeply ashamed of his behavior, which he acknowledged was ‘inexcusable.’ The respondent pointed out that the woman was not a client and suffered no bodily or financial harm. The respondent called a psychotherapist, who testified that the respondent suffered from an adjustment disorder, maladaptive at times. The psychotherapist opined that there was little likelihood of recurrence as the respondent had sought therapy and had since gained insight into his behavior. Finally, the respondent submitted several letters attesting to his good character and service in the military.  The respondent has no prior disciplinary history.”

Bottom line: This opinion is just a bit bizarre and I would imagine that there is much more to it than the facts which are briefly summarized in the opinion.  The lawyer called a psychotherapist, who testified that the respondent suffered from an “adjustment disorder, maladaptive at times” but opined that there was “little likelihood of recurrence as the respondent had sought therapy and had since gained insight into his behavior.”

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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The Florida Bar’s Board of Governors to consider proposed revisions to lawyer referral Rule 4-7.22 at its July 26, 2013 meeting

Hello and welcome to this Ethics Alert which will discuss the Florida Bar’s Board of Governors scheduled consideration of, inter alia, proposed revisions to Rule 4-7.22, The Florida Bar’s lawyer referral rule, at its July 26, 2013 meeting at Amelia Island.

The BOG’s Review Committee on Professional Ethics has been looking at the recommendations of a Special Committee on Lawyer Referral Services since 2012. The BOG Review Committee voted to support several recommendations from the Special Committee to revise Bar Rule 4-7.22, including a potentially controversial revision which would prohibit lawyers from belonging to referral services which, in addition to lawyers, also refer callers for other professional services from the same incident as the one which resulted in the referral to the lawyer.  This proposed revision would primarily affect large referral services such as Ask Gary and 411-PAIN, which services refer callers for both medical treatment and legal assistance.

Additional proposed rule revisions would include a requirement that lawyers notify The Florida Bar of the referral services with which they participate, a requirement that a law firm designate a lawyer from that law firm to be primarily responsible for complying with the lawyer referral rules, language specifically prohibiting a lawyer or law firm from making the initial contact with a referred client, and a requirement that the lawyer or law firm disclose to potential clients that the lawyer or law firm pays to participate in the referral service.

Finally, under the proposed revisions, the lawyer or law firm would be prohibited from referring a client to another person, organization, or service in exchange for receiving a referral.  The portions of the lawyer referral rule which prohibit attorneys from participating in referral services that engage in direct or any other solicitation prohibited by Bar rules or that do not follow Bar advertising rules and other rule provisions would not be changed.

Bottom line:  If approved by the BOG and implemented by the Florida Supreme Court, these proposed rule revisions would add to the changes already made to the lawyer referral rule in the Court’s recent advertising opinion, which became effective on May 1, 2013.  If you have an opinion on these proposed lawyer referral rule revisions and would like to make your opinion known, you contact the Florida Bar Board of Governors member(s) in your area.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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Oklahoma Supreme Court imposes 180 day suspension on criminal prosecutor who obstructed access to evidence and failed to timely disclose evidence over 20 years

Hello and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the Oklahoma Supreme Court imposing a 180 day suspension on a criminal prosecutor who engaged in “reprehensible” conduct over a 20 year period in 2 related death penalty prosecutions.  The case isState ex rel. Oklahoma Bar Association v. Miller, 2013 OK 49Case Number: SCBD-5732  (Okla. SCJune 25, 2013)The opinion is here: http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=470358

According to the majority opinion, the lawyer was assigned to prosecute 2 death penalty cases and, over a period of 20 years, inter alia, engaged in multiple acts of obstructing access to evidence and failure to disclose exculpatory information.  After being convicted, both defendants appealed to the Oklahoma Court of Criminal Appeals and their direct appeals were denied.  “Relief was also sought in the federal courts and it culminated in the 10th Circuit Court of Civil Appeals’ opinion in Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009), which resulted in the reversal of both convictions. The basis of this reversal was the respondent’s ‘egregious conduct’ as prosecutor. The Oklahoma County District Attorney’s office has declined to retry Douglas and Powell.

“The complainant, Oklahoma Bar Association, charged the respondent, Robert Bradley Miller, with five counts of professional misconduct associated with the attorney’s alleged conduct concerning events before, during, and after two murder trials which he prosecuted as an Assistant District Attorney for the Oklahoma County District Attorney’s office.  The prosecutions stemmed from a drive-by shooting on June 24, 1993, in which a fourteen year old girl was murdered and a gang member was injured by alleged rival gang members near the Ambassador Court Apartments in Oklahoma City.

With regard to the discipline imposed, the majority opinion states: “This Court is the sole arbiter of bar discipline. We are free to attribute as much weight to the trial panel’s recommendations as we see fit.  Under the facts presented, appropriate discipline falls somewhere between a private reprimand and a year suspension.  Most recently, private reprimands have involved: failure to respond to grievances, failure to account for client funds and communicate with clients, selling marital property and concealing it, pleading nolo contendere with pointing a firearm, entering a plea to child abuse by injury.  Cases of prior public censure have fallen into categories such as sexual contact or inappropriate sexual advances, dismissals of client’s cases, or failing to do anything  on a client’s behalf or other types of client’s case mismanagement.”

“We must recognize that the respondent was acting under the direction, supervision, and policies of the then elected District Attorney. Responsibility for the respondent’s conduct and trial tactics falls partially to the District Attorney as the chief administrator of the office.  Although he exercised his rights to object and disagree to the charges, the respondent has also been fully cooperative with the Bar Association in this lengthy and tedious process.  Hindsight is 20-20.  Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.”

“Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct.  Reprehensible though Miller’s conduct may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, Miller’s actions took place decades ago and it would be unfair to hold him to a harsher  standard than he would have been subjected to when his actions took place.  Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.”

“While the respondent’s conduct in Count IV may not have been wilful or active concealment, his actions did result in violations of obstructing access to evidence, timely disclosure of evidence, and conduct which was prejudicial to the administration of justice. The respondent stands exonerated of the allegations made against him in Count V.  Considering comparative disciplinary matters, the time span of the conduct in relation to the disciplinary proceeding, the respondent’s cooperation and lack of prior discipline, we suspend the respondent for 180 days and require him to pay $12,834.00 towards the costs of these proceedings.”

According to the strong dissent:   “Whether it was ‘decades ago’ or today, no attorney should ever commit the  ‘reprehensible’ conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report.  The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice (emphasis supplied).  I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.”

Bottom line:  This 180 day suspension in this case is somewhat shocking considering the fact that the lawyer was a criminal prosecutor who engaged in misconduct in a death penalty case and the majority opinion characterized the conduct as “reprehensible” and involving “multiple acts of deceit” over a 20 year period.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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