Articles Posted in Legal Ethics

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Brett Williamson was charged with and convicted of various child pornography offenses. Prior to trial, it came to light that his defense counsel and the prosecutor trying the case had a history together: they were divorced and shared custody of their child. For that and numerous other reasons, Williamson asked for new counsel, but the district court denied his request. Williamson proceeded without an attorney and was convicted and sentenced to life in prison. On appeal of his conviction, Williamson argued the district court should have inquired into his defense counsel’s potential personal conflict of interest to determine if the relationship might have affected his right to a fair trial, and that failure to do so requires automatic reversal. The Tenth Circuit concluded Williamson failed to make a showing that his counsel was laboring under an actual conflict of interest, so it rejected his conflict of interest argument based on his defense counsel’s personal relationship with the prosecutor. The Court also rejected Williamson’s alternative arguments for new counsel: that his filing of a criminal complaint against his counsel constituted an actual conflict of interest, and that Williamson demonstrated a complete breakdown of communications between his attorney and himself. View "United States v. Williamson" on Justia Law

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After a bench trial, defendant-appellant Eldon Boisseau was convicted of tax evasion The district court determined that Boisseau, a practicing attorney, willfully evaded paying his taxes by: (1) placing his law practice in the hands of a nominee owner to prevent the Internal Revenue Service (IRS) from seizing his assets; (2) causing his law firm to pay his personal expenses directly given an impending IRS levy, rather than receiving wages; and (3) telling a government revenue officer that he was receiving no compensation from his firm when in fact the firm was paying his personal expenses. On appeal, he challenged the sufficiency of the evidence and argued that the district court wrongly convicted him: (1) without evidence of an affirmative act designed to conceal or mislead; and (2) by concluding that proof satisfying the affirmative act element of tax evasion was sufficient to prove willfulness. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Boisseau" on Justia Law

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New Mexico Rule of Professional Conduct 16-308(E) prohibited a prosecutor from subpoenaing a lawyer to present evidence about a past or present client in a grand-jury or other criminal proceeding unless such evidence was “essential” and “there is no other feasible alternative to obtain the information.” In a lawsuit brought against the New Mexico Supreme Court and the state’s Disciplinary Board and Office of Disciplinary Counsel, the United States claimed that the enforcement of this rule against federal prosecutors licensed in New Mexico violated the Supremacy Clause of the U.S. Constitution. On cross-motions for summary judgment, the district court concluded that Rule 16-308(E) was preempted with respect to federal prosecutors practicing before grand juries, but was not preempted outside of the grand-jury context. With this conclusion, the Tenth Circuit Court of Appeals agreed and affirmed the district court's decision. View "United States v. NM Supreme Court" on Justia Law

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Several Albuquerque residents sued Mayor Richard Berry in his official capacity as Mayor of Albuquerque in state court over the City’s redistricting plan enacted after the 2010 census. This case arose out of an award of attorneys’ fees imposed as a sanction on attorneys who brought a voting-rights lawsuit on the residents' behalf against the Mayor. After dismissing the case, the district court found the attorneys unreasonably multiplied proceedings in what it called a meritless case and sanctioned them under 28 U.S.C. 1927. They argued the award was an abuse of discretion. The Mayor cross-appealed, arguing the court abused its discretion by declining to award fees under several other provisions the Mayor raised as grounds for sanctions. The Tenth Circuit reviewed the case and concluded that most of the attorneys’ arguments lacked merit. However, the Court vacated the award of fees and remanded for the trial court to consider whether a different trigger for the imposition of sanctions was appropriate. View "Baca v. Berry" on Justia Law

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Mark Lazzo served as legal counsel for Schupbach Investments, L.L.C. in its Chapter 11 bankruptcy case. After confirming a liquidation plan for the debtor, the bankruptcy court entered a final fee order approving certain disputed fee applications Lazzo filed. Creditor Rose Hill Bank and Carl B. Davis, the trustee of the Schupbach Investments Liquidation Trust, appealed the final fee order to the Bankruptcy Appellate Panel (BAP). The BAP reversed those portions of the bankruptcy court’s order that: (1) confirmed post facto approval of Lazzo’s employment, and allowed fees incurred prior to approval of his employment; and (2) allowed postconfirmation fees. The Debtor, Lazzo, and his law firm, Mark J. Lazzo, P.A. appealed the BAP’s decision. Finding no reversible error, the Tenth Circuit affirmed. View "Davis v. Schupbach Investments" on Justia Law

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Plaintiffs in this case alleged their former bankruptcy trustee breached professional duties due them because of conflicting obligations the trustee owed the bankruptcy estate. Plaintiffs sought recovery under state law. However, plaintiffs filed suit in federal court against the trustee alleging diversity jurisdiction and the right to have the case resolved in an Article III court. The trustee maintained the case should have been heard in an Article I bankruptcy court because the alleged-breached professional duties arose from the bankruptcy proceedings. The district court concluded the case should have been heard in the Article I court, and certified its decision for immediate appeal. The Tenth Circuit concluded that an Article III court had jurisdiction, and reversed the district court's order. View "Loveridge v. Hall" on Justia Law

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Pro se plaintiff George Farmer, a resident of Colorado and a licensed attorney, sued defendant Banco Popular under federal and state law to challenge Banco’s demand that he pay off the full amount owed under a $150,000 Home Equity Line of Credit (HELOC) his deceased father obtained in 2001. In 2012, the parties informed the district court they had reached a settlement: Banco was to pay Farmer $30,000 and forgive some principal, unpaid interest, and attorney’s fees. Farmer would pay $137,380.94 in satisfaction of the HELOC, due later that year. Farmer “began to negotiate a number of the . . . terms of the draft agreement.” Banco “sent Farmer the completed settlement agreement, but Farmer sought changes to the exhibits.” These exhibits included a deed in lieu of foreclosure and a satisfaction of mortgage. After Farmer received the revised exhibits he still would not sign the settlement agreement, but “again sought more changes, including the amount, timing, and structure of the payment.” Banco ultimately filed a motion to enforce the settlement agreement. Notwithstanding his prior representations to the court, Farmer sought to reduce his net payment of $107,380.34 under the terms of the agreement to $100,000, but pay it by October 1 rather than by October 15. The court held another hearing on September 10 at which Farmer again told the court the settlement was fine: “‘[W]e are all in agreement to enforce the settlement,’ and ‘the only thing that remains is the date that my payment is due.’” The parties then agreed that Banco would not pay Farmer $30,000 as previously agreed, but instead, Farmer would pay Banco $107,380.34 by November 15, 2012. “Banco Popular sent Farmer an agreement reflecting the new amount and due date, but instead of signing, Farmer asked for changes and additions. Banco Popular refused most of those changes and asked Farmer to sign the revised agreement, which he never did.” A prior Tenth Circuit decision recited, in detail, Farmer’s ongoing conduct that led the district judge to “warn that he would impose the most severe sanctions and penalties if the parties did not comply with his order” enforcing the settlement. "Now here we are again:" Farmer appealed the district court order imposing fees and costs on him as a punitive sanction. The Tenth Circuit affirmed the district court's order, as modified: sanctions imposed on Farmer in the form of fees and costs due and payable to Banco totaled $50,824.53; Farmer was admonished that further prolongation of this appeal absent good cause would result in the Court imposing its own monetary sanctions on him pursuant to Fed. R. App. P. 38. The Clerk of Court was directed to initiate a formal attorney disciplinary proceeding for the Court to consider further whether additional discipline is appropriate. View "Farmer v. Banco Popular" on Justia Law

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In 2012, the Tenth Circuit Court of Appeals held that the district court abused its discretion when it awarded Appellant Michael Zinna only $8000 in attorney's fees. The case was remanded to the district court to calculate a reasonable fee. In a separate order, the Tenth Circuit ruled Zinna was entitled to a reasonable attorney’s fee for the appellate proceedings and remanded the matter to the district court to calculate that fee also. On remand, the district court entered two orders: the first awarded Zinna $16,240 in trial fees and the second awarded him $18,687.50 in appellate fees. Zinna filed a notice of appeal within thirty days of the judgment. Upon re-review, the Tenth Circuit concluded Zinna's notice of appeal was timely as to both aspects of the fee award. Furthermore, the Court concluded the district court ignored our mandate, thereby abusing its discretion when it calculated attorney's fees for the trial court proceedings. Zinna's arguments relating to the award of appellate fees were waived due to inadequate briefing. The case was remanded one again for further proceedings.View "Zinna v. Congrove" on Justia Law

Posted in: Legal Ethics

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Thomas Hale filed for bankruptcy in 2005. During the course of that bankruptcy, he allegedly lied under oath and attempted to conceal from the bankruptcy trustee an agreement to sell property. After his relationship with the trustee became antagonistic, Hale sent her a package with unidentified material and a note that said, "Possible Haz-mat? Termites or Hanta virus [sic] from mice?" In 2013, Hale was convicted of making a materially false statement under oath in a bankruptcy case, concealing a contract from the bankruptcy trustee and creditors, and perpetrating a hoax regarding the transmission of a biological agent. Upon review of Hale's appeal, the Tenth Circuit affirmed in part and reversed in part: "instead of charging Hale with 'making a false declaration, certificate, verification, or statement under penalty of perjury' with regard to his representations in [his bankruptcy petition,] Hale was charged with falsely answering a temporally ambiguous question that inquired about numerous filings and was asked nearly a year after the documents were submitted. We do not think it proper to condone the prosecution’s creation of this ambiguity. We thus conclude that the error 'seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" The Court reversed the conviction with regard to the false statement, but affirmed in all other respects. View "United States v. Hale" on Justia Law

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Defendant-Appellant George David Gordon was a former securities attorney convicted of multiple criminal charges relating to his alleged participation in a "pump-and-dump" scheme where he (along with others) violated the federal securities laws by artificially inflating the value of various stocks, then turning around and selling them for a substantial profit. The government restrained some of his property before the indictment was handed down and ultimately obtained criminal forfeiture of that property. On appeal, Defendant raised multiple issues relating to the validity of his conviction and sentence, and the propriety of the government’s conduct (both before and after trial) related to the forfeiture of his assets. In the end, the Tenth Circuit found no reversible error and affirmed Defendant's conviction and sentence, as well as the district court’s forfeiture orders. View "United States v. Gordon" on Justia Law