FORMER NAVY JAG FACES SUSPENSION FOR GITMO RELEASE

Matthew Diaz, a former Navy Judge Advocate, is looking at a possible three year suspension from practicing law.  However, the suspension would be retroactive to 2008, allowing Diaz to apply immediately for reinstatement.  The Kansas Supreme Court heard arguments on the recommended suspension (which Diaz's attorney supports) a few weeks ago. 

 

Diaz, while on duty as a Navy Judge Advocate, mailed a classified list of the names of the person being detained at Guantanamo to the Center for Constitutional Rights.  Diaz claimed he was torn between following his orders and his desire to ensure that detainees received legal representation.  Diaz apparently tried disguising the list by enclosing it in a Valentine's Day card. 

 

Diaz was court-martialed, put in the brig, and discharged from the Navy after the discovery of his actions. 

 

From a purely personal side, as a Judge Advocate myself, I find Mr. Diaz's actions reprehensible.  The detainees at GITMO, are not American citizens, and therefore do not enjoy the same rights as American citizens.  They are however treated better than some prisoners here in the US.  They are given access to attorneys, and all their religious needs are attended to.  Mr. Diaz was not being issued an illegal order and he had the moral responsibility to follow orders and do his duty to the best of his ability as a Navy Judge Advocate. 

WESTLAW USE LEADS TO REPRIMAND

Everett Walton, an attorney licensed in Oregon and Hawaii, but practicing in Hawaii, was publicly reprimanded by both the Oregon and Hawaiian Supreme Courts for his use of Westlaw after he left his job as a prosecutor. 

 

While a prosecutor for the Republic of Palau, Walton was given a three-year, flat rate contract to use Westlaw.  After he left this position, he tried without success to cancel the Westlaw contract, and then used it for 14 months after while working for the Legal Aid Society of Hawaii.

 

Oregon's opinion noted how Walton had "an unblemished record in 35 years" of practicing law and this infraction did not seriously reflect on his fitness to practice law.  Since his misconduct did not personally benefit him (the Court stated that the true beneficiaries of his misconduct were the Legal Aid Society of Hawaii and its clients) and did not harm anyone, a public reprimand was sufficient.  The Oregon Disciplinary authorities had asked originally for a six month suspension of Walton's license. 

ACCOUNTING ERRORS - ALWAYS LOOK IN THE SOCK DRAWER

An Iowa attorney, was suspended one-month for not depositing a number of client retainers (in cash) into her trust account.  Instead, she deposited them into her law firm operating account or in books on her bookshelf for her own personal use. 

 

Her former paralegal blew the whistle on Ms. Kersenbrock's unethical behavior and also testified for the prosecution in the disciplinary case.  Ms. Kersenbrock stated that "she wasn't required to deposit most of the retainers into her trust account, because they had already been earned when she put them into her operating account."  She admitted to putting a $3,000 cash retainer into her drawer once for several weeks.

 

Due to there being several violations, Kersenbrock was given a one month suspension, instead of the public reprimand that the disciplinary committee recommended.   

FORMER PROSECUTOR'S "DEVIANT BEHAVIOR" MAY GET HIM SUSPENDED

A former Connecticut prosecutor, David Holzback, who was fired recently due to his secretly filming women's legs in and around the courthouse, may be suspended for his voyeuristic behavior as well. Suzanne Sutton, the Chief Disciplinary Counsel for the State of Connecticut, is asking for Holzback's license to be suspended immediately on an interim basis. In support of her request, she states, "[Holzback} cannot be trusted to avoid voyeurism of prospective clients, witnesses or other counsel" and "[he] poses a substantial threat of irreparable harm to his clients or prospective clients" because he "cannot control his deviant behavior as is evident by the long history of behavior and prior reprimands associated with this behavior."

It is alleged that Holzback used a "spy pen" to film females at the courthouse without their permission. He was previously reprimanded by the prosecutor's office twice before - in 1992 for filming courthouse staff in the hallways, offices, and parking lot as well as in 2006 for taking photos of a female intern in the prosecutor's office.

SEX WITH JAILED CLIENT LEADS TO ARREST

Curtis Cannon, a Nevada attorney, has been charged with a felony count of voluntary sexual conduct between a prisoner and another person, according to the Las Vegas Sun, after being caught on tape performing sexual acts.  The alleged incident happened in the Clark County Detention Center.  Detectives with the Metro Police initiated an investigation into Cannon's behavior with female clients after receiving numerous complaints about his alleged misconduct with female inmates.  The Metro Police installed a camera in a detention visiting room which only recorded video so that it did not violate attorney-client confidentiality.  The video showed his client, Crystal Wallis, groping Cannon's groin and apparently performing oral sex on him.  Afterwards, both Wallis and Cannon admitted to the act when questioned.  

TAKING CLIENT'S KIDS FOR A RIDE LEADS TO SUSPENSION

Indiana Attorney, Cecelia Hemphill, was suspended 6 months for taking a client's children for a ride without alerting the children's mother.  Hemphill, believed that the mother's boyfriend had molested one of the children and that the children were in grave danger.  The daughter, claimed that the mother's boyfriend had touched her inappropriately. 

Since Hemphill wanted to talk to the children alone, she had the father write a note to the principal of the children's school stating she had permission to pick the children up from school.  Hemphill, was questioned by the secretary of the school but was eventually was allowed to pick the children up early from school.  Hemphill then called the children's sitter and told her that she (Hemphill) had the children and that they were going to meet with the father for dinner. During this time, Hemphill questioned the children about the possible molestation but it was never mentioned.  After dinner with their father, Hemphill continued to drive them around for a few hours before returning them (after 6 hours) to their mother, who had working with the Sheriff's department to find them. 

Indiana's Supreme Court Disciplinary Committee charged Hemphill with violating Indiana Professional Conduct Rules 4.1.(a) [Knowingly making a false statement of material fact to a third person in the course of representing a client], 4.4(a) [Using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person], 8.4(a) [Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation], and 8.4(d) [Engaging in conduct prejudicial to the administration of justice].

The Supreme Court of Indiana held that the Commission failed to met the burden of proving by clear and convincing evidence regarding Rules 4.1(a) and 8.4(a).  Regarding violating Rule 4.4(a), the Supreme Court sated that "[B]y intimidating the school secretary into releasing the children to [her] and by causing Mother great anxiety over their safety, [Hemphill] used means that had no substantial purpose other than to burden third persons in violation Professional Conduct Rule 4.4(a)."  The Court stated that Hemphill's purposes could have been accomplished by more appropriate means.  Finally, with regards to Rule 8.4(d), the Court felt that by failing to abide by the orders and procedures of the divorce court and the child protective services and by only using her own judgement instead that of the courts and child protective services, Hemphill engaged in conduct that was prejudicial to the administration of justice.  Hemphill took matters in her own hands while ignoring the laws and agencies that are designed to deal with allegations of child abuse. 

The Supreme Court suspended Hemphill from practicing for 6 months without automatic reinstatement. 

SUSPENDED ATTORNEY SUSPENDED AGAIN, THIS TIME FOR GHOSTWRITING

Minnesota attorney Vincent Grigsby found an interesting way to help a client during an appeal despite being suspended for 60 days - ghostwrite. 

After being suspended for 60 days for unrelated conduct, Grigsby was unable to find another attorney to write an appellate brief for a client.  So, Grigsby wrote the brief himself, didn't charge the client, and signed the client's name to the "pro se" brief.  He then filed it and forwarded a copy of it with an explanatory note to the client. 

Grigsby argued that he had done nothing wrong, and that the rules required him to do what was necessary to protect his ex-client's interests in this emergency situation.  The Minnesota Supreme Court disagreed with this, and stated he had violated the rules by drafting the brief while suspended, signing his ex-client's name and falsely stating that the the ex-client was "pro se."  The Court stated that Grigsby had other options available in this situation, such as seeking an extension of time from the appeals court or getting an advisory ethics opinion about what to do.  However, the Court only imposed an additional 60 day suspension on Grigsby, not the nine months recommended, due to the fact that Grigsby had not applied for reinstatement during this lengthy ethics investigation. 

The ghostwritten document was discovered by an assistance county attorney assigned to defend the conviction.  Grigsby actions appear to be have been worth it for his ex-client though, as the ex-client won a reversal of his conviction.