Pennsylvania Lawyer Suspended after Rage Shooting Conviction
A Cumberland County attorney agreed to a retroactive five-year suspension based on his conviction of the offenses relating to his actions in firing a weapon in his townhome.
The disciplinary charges against Lee Eric Oesterling
arose out of a 2014 incident arising from a domestic dispute between Oesterling and his wife. After his wife left their townhome, Oesterling went to a property where he thought she might be and committed damage to the property. He returned to his townhome, and when police arrived to talk to him, he picked up a rifle and brandished it at the police. After he was arrested, police found that five shots had been fired in the living room. His adjacent neighbors were home at the time.
Oesterling pleaded guilty to one count each of simple assault and reckless endangerment of another person. He was sentenced to twenty-three months imprisonment and ordered to pay a fine and costs. He completed his sentence and probation/parole without incident.
Oesterling was serving a suspension dating to 2014 in an unrelated matter at the time of the incident. He agreed to imposition of a five-year suspension retroactive to May 19, 2015, the date of his guilty plea. Mitigating factors included his remorse, acceptance of responsibility, and cooperation with the disciplinary inquiry. He acknowledged that his prior discipline was an aggravating factor. He also had failed to timely file a verified statement of compliance with the terms of his prior suspension.
The Supreme Court approved the Joint Petition in Support of Discipline on Consent. The five-year retroactive suspension was served as of May 2020, but Oesterling remains under the suspension imposed in 2014, so he will have to petition for reinstatement to the bar and demonstrate his current fitness to practice.
Massachusetts High Court Addresses Disclosure Responsibilities of Criminal Defense Counsel
The Supreme Judicial Court of Massachusetts discussed
the ethical duties of criminal defense counsel who become aware of the location of incriminating evidence in an opinion
handed down August 22, 2022.
The case involved Will Tate, who was convicted of second-degree murder in 2014. Tate’s defense counsel became concerned when Tate’s mother informed him that she found in her basement a jacket and a gun connected to the shooting with which Tate was charged. Counsel met with Tate and informed him that he had an ethical obligation to report the location of the evidence to the prosecution. Believing he had no option, Tate consented to the disclosure. Law enforcement obtained a search warrant and found the jacket and gun which proved to be important evidence leading to Tate’s conviction.
Successor counsel sought a new trial based on ineffective assistance of counsel. The Supreme Judicial Court determined that Tate’s counsel did not have an ethical duty to report the location of evidence he neither possessed nor concealed or destroyed the evidence. The Court concluded that remaining silent was an available option which counsel should have disclosed to and considered with his client and thus that Tate did not freely and voluntarily consent to the disclosure. The Court held that due to his mistaken belief he was required to disclose the information, defense counsel had a conflict of interest, and that the act of disclosing it was a breach of confidentiality.
The Court stated that the duties of loyalty and confidentiality owed to the clients outweighed the imperative to disclose information and that if counsel felt his ability to defend the interests of the client were compromised, he should have withdrawn. “We emphasize that attorneys confronting similar circumstances to those counsel did here, where they know of the location of possibly incriminating information but take no action to obtain possession of or to conceal or destroy any potentially inculpatory objects, violate no ethical rule by remaining silent,” the Court stated.
DC Court Addresses Intent to Convert
The District of Columbia Court of Appeals was called upon to examine the question of whether a lawyer’s conversion of funds was negligent, reckless, or intentional. The case of In Re Ponds
arose out of a flat fee the lawyer kept for his own benefit.
Ponds undertook representation of a client in a criminal matter, and charged a nonrefundable flat fee of $20,000, which he commingled with his own funds. He met with the client a few times and performed no other services. When the client was charged, Ponds demanded an additional $30,000 to represent him in the proceeding. The client, unable to pay the additional funds, demanded his $20,000 back. Ponds refused and never refunded the money, even after an arbitration panel ruled in the client’s favor.
In the disciplinary case, a hearing panel found that Ponds had intentionally or recklessly converted the client’s funds, and recommended disbarment. The Board on Professional Responsibility concluded that the conversion was negligent, based on Ponds’ misunderstanding of case law, and recommended a suspension for nine months. The issue the Court of Appeals considered was whether his action was reckless, warranting disbarment, or negligent, for which suspension would be appropriate.
The Court of Appeals agreed with the hearing panel and concluded that Ponds’ conversion of funds was reckless. While the Court conceded that some aspects of the case decision that governed the matter were imprecise, it found that the decision clearly stated that flat fees paid in advance are client property and must be treated accordingly unless the client gives informed consent to a different arrangement and that informed consent required the disclosure of specific items of information in writing which were not incorporated into Ponds’ fee agreement. The Court concluded that no reasonable reading of the requirements of the decision could support the fee agreement Ponds wrote, and that the drafting of the agreement and his subsequent conduct belied his claim to a good-faith mistake of law. The Court therefore concluded that Ponds “at a minimum demonstrated conscious indifference” to the requirements of the decision, and that his conduct was reckless. Accordingly, it imposed disbarment.
Ohio Board: Lawyers May Hold Cryptocurrency in Escrow for Clients
The Ohio Board of Professional Conduct has issued an ethics opinion
on whether lawyers can hold cryptocurrency in escrow for clients. The Board concluded
that they may do so subject to certain safeguards.
The Board noted that financial institutions do not accept or hold cryptocurrency, so it is not possible to handle such assets through lawyer trust accounts in the ways required for handling of client funds.
The Board noted that the Internal Revenue Service views cryptocurrency as property rather than money. The Board concluded that lawyers may hold such assets as property, but that they should follow the general requirements for protection of client property as set forth in the Rules of Professional Conduct. They must segregate cryptocurrency that is client or third-party property from their own property, properly identify the property, and maintain a record of when the property was received, on whose behalf it is held, and the date of any receipts or distributions. The Board also recommends that a lawyer maintain separate records that document all exchanges or other dispositions of cryptocurrency and the value of the cryptocurrency at the time of each transfer or disposition.
The Board also noted other considerations that apply to the holding of cryptocurrency. Because crypto relies on complicated and fast-changing technology, the lawyer must exert special effort to maintain the requisite knowledge and skill to keep abreast of the risks associated with the technology used to transfer and hold cryptocurrency. The Board noted that “there are several recommended methods to safeguard cryptocurrency held in escrow (e.g., cold storage wallets, encryption and back up of private keys, multi-signature accounts)” and that the lawyer should thoroughly research these and employ techniques best designed to protect the client’s interests. Also, the lawyer has an obligation to inform clients of the risks of holding and transferring cryptocurrency and explain the steps the lawyer will undertake to safeguard the client’s property.
Because cryptocurrency is unregulated and frequently used in connection with criminal enterprises, the Board cautioned lawyers to require a detailed written escrow agreement that identifies the parties to the transaction (possibly using know-your-customer identity verification methods) as well as the underlying transaction for which the escrow account will be used.
Second Mistrial in Murder Case Declared After Prosecutor’s Group Text
We all get frustrated sometimes, and the temptation to complain to our peer group is strong. Yielding to that temptation went very wrong
for one Florida prosecutor, though.
Assistant State Attorney Katya Palmiotto lost a ruling when Broward County Judge Peter Holden refused to allow a 911 call as evidence against Corey Gorden in his murder trial. Palmiotto vented her unhappiness about the ruling in a text to a group of current and former homicide prosecutors. She was evidently unaware that Judge Holden, a former prosecutor who was elevated to the bench in 2018, was still a member of the group she texted, and he saw the text.
Upon learning of the incident, defense counsel filed for a mistrial on the basis that the text was an ex parte
communication with the Court. The motion noted that Judge Holden grilled the prosecutor and “was visibly upset and appeared angry.” Judge Holden granted the motion for mistrial. A motion to dismiss the case remains under consideration.
The mistrial was the second in the case. In May, another judge declared a mistrial when prosecutors asked a witness a prohibited question about Gorden’s refusal to give a statement.
Don’t Monkey with a Monkee
Back in the mid-'60s, many of us watched the antics of the made-for-TV rock band The Monkees on their eponymous sitcom. But we weren’t the only ones watching; so, apparently, was the FBI
Although they may claim That Was Then, This is Now, it appears the FBI maintained at least two documents on the Monkees, one grounded in anti-Vietnam War protests, and the other redacted in full. The sole surviving Monkee, Mickey Dolenz, is apparently enough of a Daydream Believer that he thought he should see the Words the FBI kept on him. So he filed a Freedom of Information Act lawsuit
against the Department of Justice, hoping it would be a Steppin’ Stone to gaining access to the FBI’s file. Although the FBI might argue that It’s a Little Bit Me, a Little Bit You, it probably won’t be a Pleasant Valley Sunday for the FBI counsel charged with responding to the suit.
As Joe Partice of Above the Law
said, “I wasn’t sure the FBI had files on the Monkees, but then I saw this complaint, now I’m a believer.”