Pennsylvania Lawyer Suspended for Failing to Inform Court of Adverse Judgment, Other Misconduct

By Order dated November 18, 2021, the Supreme Court of Pennsylvania suspended a Cumberland County lawyer based on five cases of misconduct, including one based on his failure to inform the court of an adverse judgment in a parallel civil action in another county.

The Supreme Court suspended Andrew Wilson Barbin, of Mechanicsburg, for eighteen months. The Court based its decision on the report of the Disciplinary Board setting forth 262 findings of fact spread over 33 pages. The Board found that Barbin engaged in a pattern of repeated neglect and incompetence in four client matters, with many of the problems arising from missed court hearings, out of time filings, and poor communication. The record also established that he filed frivolous pleadings and acted with deception to the court in some of the cases.

The lead case cited by the Disciplinary Board arose from the complaint of a senior judge of the Dauphin County Court of Common Pleas. Barbin represented a former state dog law official who brought a defamation action against animal rights activists based on their criticism of her work while in office. Barbin provided a copy of the complaint to a news reporter for the Philadelphia Inquirer, who used it as the basis of an article published in the newspaper.

Based on the newspaper article, one of the activists sued Barbin for defamation and false light claims in the Court of Common Pleas of Philadelphia County. The Philadelphia case went to trial before the Dauphin County case did, and resulted in a jury verdict that Barbin defamed the plaintiff, cast her in a false light, and did so with actual malice. The jury awarded the plaintiff $50,000 in actual damages and $50,000 in punitive damages, which Barbin paid with funds from his insurance carrier.

Barbin continued, however, to litigate the Dauphin County case. He obtained a default judgment against one of the defendants (although he had not served a Notice to Defend with the complaint). The court scheduled a hearing on damages, and Barbin filed Proposed Findings of Fact and Conclusions of Law in which he failed to mention the Philadelphia verdict. Opposing counsel filed an answer raising the defense of collateral estoppel based on the Philadelphia verdict. The court then entered an order striking the default judgment, finding that the Plaintiff’s claims were collaterally estopped by the Philadelphia decision, and dismissing the claims with prejudice. Barbin appealed the decision to the Superior Court, which upheld the judge’s ruling.

The Disciplinary Board found that in the defamation litigation, Barbin violated R.P.C. 1.1 [competence]; R.P.C. 1.16(a)(1) [failure to withdraw]; R.P.C. 3.1 [asserting a claim without basis in law or fact]; R.P.C. 3.3(a)(1) [making or failing to correct false statement to a tribunal]; and R.P.C. 8.4(c) [conduct involving dishonesty, fraud, deceit, or misrepresentation].

The Disciplinary Board noted as aggravating factors that Barbin had prior discipline in the form of an informal admonition and a stayed suspension, and that he did not take responsibility for his actions or express remorse.

The Hearing Committee recommended that Barbin receive a suspension for one year and one day, stayed in its entirety with two years of probation with a practice monitor. The Disciplinary Board rejected this resolution, and recommended a suspension for eighteen months. The Supreme Court accepted the Board’s recommendation and suspended Barbin for eighteen months, effective December 18, 2021.
 

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Florida Lawyer Suspended for Texting Advice to Client During Deposition, Lack of Candor to Court and Opposing Counsel

A Florida lawyer has been suspended for 91 days for texting advice to a witness during a telephone deposition, and then misrepresenting the nature of his actions under questioning by the opposing counsel and an administrative law judge.

Derek Vashon James represented the employer in a worker’s compensation case. The claimant’s counsel scheduled a telephone deposition with the employer’s adjustor, which James attended as counsel for the employer. During the deposition, opposing counsel heard typing sounds and asked James and the witness whether they were texting during the deposition. James denied texting the witness and stated he was only receiving a text from his daughter. Claimant’s counsel asked James to stop texting and put his phone away, and James agreed. The parties took a break, and when the deposition resumed, James continued to attempt to text advice to the witness. However, he blundered and sent the coaching texts to claimant’s counsel instead. Claimant’s counsel then stopped the deposition and filed a motion for production and in-camera inspection of all the texts sent during the deposition. The Judge of Compensation Claims ordered production of the text messages, and James produced two pages of texts but none from his daughter. The judge rejected claims by James that he sent the texts during a break in the deposition and that attorney-client privilege prohibited their disclosure.

In his disciplinary proceeding, James tried to blame the incident on the conduct of opposing counsel during the deposition. A disciplinary referee found that he had texted his client for the purposes of coaching during the deposition, and that he had misled both counsel and the court by claiming he was texting with his daughter and did not send the incriminating texts during the deposition. The referee found this violated Bar Rule 4-8.4(d) (conduct prejudicial to the administration of justice), and recommended a 30-day suspension. The Florida Supreme Court, however, disagreed with this disposition and suspended James for 91 days, an interval for which reinstatement is not automatic.
 

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Georgia Judge Bans Elf on the Shelf: Escapes Naughty List

A judge has taken the heat for countless weary parents by banning the popular Elf on the Shelf from shelves in Cobb County, Georgia.

By a mock order published on Twitter, Chief Judge Robert D. Leonard, II made a judicial finding that the toy “leaves our children of tender years in states of extreme emotional distress.” The findings of fact that supported this conclusion were based on an incident in his own home, when three children went to school in tears after an accusation of “elf murder.”

For those who somehow escaped familiarity with the Elf on the Shelf tradition, the elves are reportedly sent to homes to watch children by day. They do not move during the day, but at night, they return to the North Pole to report to Santa whether children were naughty or nice. If a child touches the Elf, however, it loses its ability to communicate with Santa, with potentially catastrophic consequences for children (or at least those warranting placement on the “Nice” list). Apparently, an unauthorized touching in the Leonard household triggered the incident that led to the ban.

The story has local connections, as the Elf on the Shelf legend is based on a book written by Cobb County natives Carol Aebersold and Chanda Bell, and illustrated by Coë Steinwart.

The Lumistella Company, producers of the Elf on the Shelf toy, issued a statement quoting Santa Claus that Judge Leonard had no jurisdiction over Christmas cheer. Presumably this was based on advice of polar counsel, as Santa Claus is generally not regarded as an authoritative voice on legal jurisdiction. The company did add, “Santa has checked his list twice, and Judge Leonard is still on the ‘nice’ list.” So no hard feelings.

Unaddressed in the order is the status of adults who have developed a subtext to the Elf on the Shelf tradition by arranging the figures in poses which, shall we say, put them in serious jeopardy of “Naughty” list placement.
 

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ABA Lists Hot Gifts for Lawyers

Got a lawyer on your gift list? Or need some filler for a Christmas list to be distributed to loved ones? The ABA Journal is here to help with its 2021 Gifts for Lawyers guide. From a $450 personalized video greeting from Ice-T to some nifty legal-themed socks and tree ornaments, they have what you need for that last-minute stocking stuffer. Lists from the past five years are available, as well.