Tales from the US of A... July 2020

By ., Published in International

Wisconsin Supreme Court strikes down stay-at-home order

The Wisconsin Supreme Court struck down the state's stay-at-home order, ruling that the health official who issued the order should have followed rule-making procedures that involve the legislature in decision-making. In a majority ruling of 4-3, the court said that the stay-at-home order by the health services secretary was unenforceable because she did not follow rule-making procedures. Under that process, a state legislative committee has the authority to block the regulations. Rule-making exists to ensure that a controlling, subjective judgment asserted by one unelected official is not imposed on the state. The health services secretary exceeded her authority under a statute governing her department and its powers to fight communicable diseases. The court also remarked that the governor's emergency powers are not limitless. In the case of a pandemic, which lasts month after month, the governor cannot rely on emergency powers indefinitely.

Debra Cassens Weiss May 14


Lawyer steals estate money for wife's breast implants, child support and luxuries

An Ohio attorney has been placed on interim suspension after he was accused of stealing millions of dollars from a number of estates and trusts, including an estate intended to benefit a children's research hospital. The lawyer is suspended pending disciplinary proceedings and criminal proceedings. He is accused of spending stolen money on his wife's breast implants, child support, a house, a boat, a Mercedes, jewellery, ATM withdrawals at casinos, and two women who accompanied him to Las Vegas, one of whom is an adult dancer. The attorney, a severe addict of gambling, alcohol, cocaine and other drugs, is facing six ethics investigations including two connected to criminal charges. There are 55 counts including identity fraud, theft, aggravated theft, grand theft, money laundering, tampering with records and cocaine possession.

Debra Cassens Weiss May 12


Attorney General suspended for inappropriate touching at party

The Indiana Attorney General has been suspended from the practise of law for 30 days, for touching four women inappropriately during a 2018 party at a bar. The suspension, with automatic reinstatement, found that the man committed acts of misdemeanour battery at a party. He engaged in acts against four women – a state representative and three legislative assistants – that involved various forms of non-consensual and inappropriate touching. When a report detailing the allegations became public, the court said he went a step too far in decrying the allegations against him in a press release as not only false but vicious. During an ethics hearing, the man contended that a certain amount of touching is to be expected at social gatherings. The court found, however, that his manner of touching the women was criminal battery.

Debra Cassens Weiss May 11


Kentucky court allows church services pending appeal

A court of appeal in Cincinnati allowed a church to host in-person church services while an appeal of its case is pending. The governor's order banned mass gatherings and required closure of all businesses that were not "life-sustaining". Churches were not deemed to be life-sustaining under the governor's order, except when they provide food, shelter and social services. The appeals court said the restriction likely prohibited free exercise of religion in violation of the First and 14th Amendments and allowed the services pending the appeal as long as the church followed social distancing and hygiene requirements used by life-sustaining businesses.

Debra Cassens Weiss May 11


Lawyer suspended for giving client's business a bad review disclosing criminal past

A New Jersey lawyer has been suspended from practice for a year – partly because he disclosed a former client's criminal past in a negative review of her massage business. He violated an ethics rule barring the use of information relating to the representation of a former client to the client's disadvantage. He posted the negative review after the client gave him poor online reviews of his legal services. The lawyer said that he posted the negative review because "what is good for the goose is good for the gander". In his review of the massage business, he mentioned that the former client was a felon, convicted for fleeing the state with children, and for shoplifting, saying "hide your wallets well during a massage". He also mentioned a drunk driving conviction. In three other matters, the attorney's conduct violated ethics rules governing neglect, diligence, keeping clients informed, delivering client funds or property and returning client property after representation.

Debra Cassens Weiss May 13


Judge on ethics charges for allowing reality TV show into courtroom

A Florida judge is facing ethics charges for allowing the producers of a reality TV show to film actual domestic violence cases in her courtroom. The show featured a man who claimed his girlfriend had attacked him, a woman allegedly attacked by her mother, a man who allegedly stalked his girlfriend, and a man accused of threatening to kill his brother and niece. The judge gave minimal notice to the litigants that they would be asked to sign waivers in which they agreed not to sue for defamation, invasion of privacy, infliction of emotional distress and other torts. Some litigants who did not sign were filmed nonetheless. In the signed document, the litigants agreed to pay attorney fees and costs for the show's producers if any claims were brought. The judge is said to have lent the prestige of her judicial office to advance her private interests.

Debra Cassens Weiss May 12


Two lawyers arrested for alleged plot to kill another attorney

Two lawyers in Waco, Texas, have been arrested on charges of conspiracy to commit capital murder in an alleged plot to kill another attorney. A criminal defence lawyer and his female employee are charged with seeking the murder of the woman's ex-husband, another lawyer, who was arrested in February on a charge of indecency with a child (he denies the allegation). The two lawyers allegedly tried to hire a hitman to carry out the killing but the person turned out to be an undercover police officer who infiltrated the motor cycle club led by the criminal defence lawyer. The lawyer offered the officer $300 to buy a gun and instructed him how to get into the ex-husband's home in order to kill him.

Debra Cassens Weiss May 27


Big Law firms charge more than $1k per hour for top associates

At least three large law firms are charging more than $1 000 per hour for bankruptcy work by senior associates, some earning as high as $1 125 per hour. One of the firms was previously reported to have withdrawn a claim for $665 000 attorneys' fees against the Department of Justice rather than reveal its billing rates.

Debra Cassens Weiss May 27


Court rules against law requiring payment of fees before ex-felons can vote

A federal judge has ruled that it is unconstitutional for Florida to require ex-felons to pay all legal financial obligations stemming from the felony conviction before being allowed to vote. The condition was imposed in 2018 when former felons were allowed to vote on completion of all terms of sentence including parole or probation. The court said that fees and fines that are imposed to help fund the criminal justice system amount to a tax. The former felons who fail to pay them can't be banned from voting. Nor can they be banned from voting for failing to pay criminal fines which they can't afford.

Debra Cassens Weiss May 26


Judge removed from bench for rape remark

The New Jersey Supreme Court removed from the bench a judge who asked a woman whether she had tried to close her legs to stop a sexual assault. The woman was in court to seek a final restraining order against her alleged assailant. The judge took over questioning after cross examination by defence counsel, and he asked the woman whether she had tried to block her body parts, close her legs, call the police or leave. The Supreme Court said the questions were unwarranted, inappropriate and discourteous and that no witness, alleged victim, or litigant should be treated in that way in a court of law. The judge claimed that the woman was a demoralised witness and he was trying to get her re-engaged in the hearing; but the record did not support that excuse. The judge had also ruled in a previous hearing despite knowing the defendant and his wife since high school, threatened a mother in a paternity suit with penalties if she did not reveal her address despite her being scared of the father molesting the daughter, and interceding to reschedule a guardianship hearing in a matter involving himself, his ex-wife and his son. According to the court, his acts were not errors of judgment but flagrant and serious acts of misconduct.

Debra Cassens Weiss May 28


Lawyer suspended for pulling gun on store clerk re social distancing

A Vermont lawyer had her licence suspended on an interim basis after she was accused of pulling a gun on a store clerk. She allegedly complained about a sign promoting social distancing and tried to knock it down. When the clerk asked her to stop, she allegedly pulled out her gun and pointed it at the clerk. She left the store and was arrested later. She failed to respond to the disciplinary investigation notices.

Debra Cassens Weiss May 26


Contract lawyer described as 'superb advocate' suspended for overbilling

An Iowa lawyer, described as a superb advocate, has been suspended for one year for over-billing the state public defender for her legal services and car mileage. She provided services as a contract attorney and billed the agency for more than 24 hours in a day on 30 different days according to an audit spanning four years. Her reimbursement requests for car mileage duplicated trips 147 times. The lawyer told the state public defender that she dictated her billings to her secretary and that errors could happen when her secretary sent the bills. She entered a plea bargain on criminal charges and was given a deferred sentence and ordered to pay nearly $103,000 in restitution.

Debra Cassens Weiss May 19


"I forgot" no excuse for missing oral arguments

A New York lawyer who failed to show up for oral arguments will have to pay his opponent's attorney fees for the time wasted at the courthouse. He said that he did not show up because of a mistaken belief, based on a mistaken memory, about the sequence of events. The attorney had asked for the oral arguments himself, he had asked for an adjournment of the date set, which was turned down, and he then forgot how the process had been arranged. While the court accepted that his failure to appear was not intentional or malicious, attorneys are required to keep track of their professional obligations and "I forgot" is not an acceptable excuse.

Debra Cassens Weiss May 20


All these stories are summaries by Patrick Bracher of Norton Rose Fulbright (South Africa) of articles in the ABA Journal eReport.