Judges, 128 of the them, file ethics complaint against counsel for Homeland Security

The general counsel for the U.S. Department of Homeland Security is now facing an ethics complaint over his social media posts about the “worst of the worst” judges, reported the ABA Journal.

In a complaint filed with the Florida Bar on Tuesday, 128 retired federal and state judges, the Democracy Defenders Fund and the Lawyers Defending American Democracy allege that general counsel James Percival’s posts “not only constitute serious professional misconduct, but they threaten the rule of law and increase the risk of violence against judges.”

Specifically, they allege that Percival violated Florida Rule of Professional Conduct 4-8.2(a), which bars lawyers from impugning the qualifications and integrity of judges or other officers.

“The posts were attacks on the characters of four sitting judges, based on mischaracterizations of the underlying cases and without concern for the repercussions of those statements,” according to the complaint. “Nothing exempts federal officials who are licensed by the state of Florida from the Rules of Professional Conduct. Nor do the rules provide for an excuse from investigating federal officials like Mr. Percival.”

On July 23, Percival published a list called the “Worst of the Worst, District Judge Edition” on his official X social media page, formerly known as Twitter. According to the complaint, this is the same label that the DHS uses for a series highlighting immigrants it has deported.

Judge Matthew Kennelly of the Northern District of Illinois, Judge Allison Burroughs of the District of Massachusetts, Judge Paula Xinis of the District of Maryland and Judge Hernán Vera of the Central District of California were included in the list. Percival “continued to attack other judges” in separate posts later, the complaint also said.

A spokesperson for the DHS on Wednesday told Bloomberg Law, which has additional coverage, that Percival’s posts were “nothing more than a factual review of judicial decisions and their real-world consequences.”

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GateHouse: The Kane Mutiny: Can things get worse for Pennsylvania's AG?

Matthew T. Mangino
GateHouse Media
October 23, 2015

In Pennsylvania politics the sublime has become the surreal. A Hollywood producer might have cause to pause if the state’s ongoing political scandal were handed to her as a movie script. To start, the attorney general, Pennsylvania’s top law enforcement officer, has had her law license suspended. But she has made it clear that the inability to practice law will have little effect on her ability to function as attorney general.

Kathleen Kane, Pennsylvania’s attorney general, is under indictment for leaking secret grand jury testimony. The leak was meant to embarrass former AG staffers who had challenged her decision to review the sexual assault investigation of former Penn State assistant football coach Jerry Sandusky.

During the course of her office’s review of the Sandusky investigation, a trove of pornographic emails exchanged between prominent member of the AG’s office and high ranking government officials were discovered. Those emails resulted in the resignation of a state Supreme Court justice, a member of the former governor’s cabinet and a member of the state board of probation and parole.

In late 2014, a court filing, attempting to quash the grand jury investigation of Kane’s alleged leak, detailed an alleged conspiracy to discredit Kane. According to Kane’s attorneys, the criminal investigation of Kane was orchestrated by longtime state prosecutors Frank Fina and E. Marc Costanzo, who had left the Attorney General’s Office prior to Kane taking office.

“These two men – peddlers of pornography and obscenity depositing state paychecks . . . is an injustice of the highest order that cannot be allowed to stand,” Kane argued in the court filing.

The porn scandal continues. A second Supreme Court justice is being investigated by the Judicial Conduct Board for his role in sending and receiving pornographic emails on state time.

Kane license was placed on emergency temporary suspension by the Pennsylvania Supreme Court last month, as a result of perjury, official oppression and now a second set of similar charges all brought by the Montgomery County district attorney. The Disciplinary Board contended that the attorney general had taken part in “egregious conduct” that violated rules of professional conduct and “caused substantial public and private harm.”

The suspension officially took effect at the end of business on Oct. 21.

Kane told her staff this week that the suspension of her law license will have little effect on her work as attorney general. “She said that virtually everything she does is either administrative or ministerial, and she intends to continue doing those things,” spokesman Chuck Ardo told the Pittsburgh Post-Gazette. “And the two percent of what the attorney general does that may require a valid law license; she has asked senior staff to take care of.”

Robert Power, associate dean at Widener University Law School, told the Post-Gazette that Kane is probably right that much of an attorney general’s work is management. But making recommendations about prosecutions or litigation strategy “would seem to me to constitute practicing law,” he said.

“If she is to make final decisions even on just strategies of how to proceed in a particular matter, whether to proceed in a particular matter, those are all legal decisions,” Power said. “Just because someone else signs the papers and appears in court does not change that fact.”

However, it is not clear if Kane can survive yet another challenge, this one by her own staff. Ardo made it clear there is not unanimous agreement within the office with Kane’s position, reported the Harrisburg Patriot-News.

He said it was not immediately clear whether any of Kane’s top deputies would formally contest her position.

A porn scandal, conspiracy, indictment, suspension and now the talk of mutiny--Captain Queeg had it easy compared to Kathleen Kane.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Unable to practice law, how long will Kane stay as AG?

Robert S. Tintner of Fox Rothschild, who represents attorneys and law firms, said Kane is potentially exposing herself to future prosecution by the Office of Disciplinary Counsel, reported The Legal Intelligencer.
"She has requirements now as a formerly admitted attorney, and if she does not adhere to the requirements ... my sense is the ODC will go after her for that," Tintner said. "It's fine for her to say she's going to do these ministerial tasks, but they are all law-related, and she wasn't elected by the citizens of Pennsylvania to perform ministerial tasks."
Ardo said he is unfamiliar with that particular section of the code, "but certainly the attorney general and her legal advisers believe she is on solid legal ground in both staying in office and limiting her activity to matters that don't require an active law license."
When asked who was the attorney supervising Kane, Ardo said he did not know the answer, and repeated that he was unfamiliar with the rule.
Rule 217(j) lists acceptable activities for formerly admitted attorneys, and how they must be conducted. Formerly admitted attorneys have to do their law-related work under the supervision of an attorney in good standing, it says, and are limited to completing specified clerical and preparatory tasks.
"She's not acting under the supervision of anybody," Fox said.
Fox said if Kane is leading the office, she could be violating Rule 5.1 of the American Bar Association Model Rules of Professional Conduct.
"She's got the ultimate authority for supervising the work of these lawyers," Fox said. "I can delegate, but that doesn't remove the responsibility."
Reich said he is curious as to how Kane did her analysis of the job duties she would be able to continue.
"We just don't see how she can practically continue as the attorney general," Reich said. "You're putting a square into a circle. It's just not going to get through."
Reich said the parameters of Rule 217 were put into place to keep disbarred or suspended attorneys from staying in their office as a paralegal or other nonlawyer staff member and continuing to address cases or client concerns.
"The rule was enacted to be prophylactic, to avoid formerly admitted attorneys being put in a position with clients or prospective clients who would not understand they were not really a lawyer," Reich said.
Tintner said the rule prohibits former attorneys from holding themselves out as lawyers.
Kane "seems to be ignoring that," Tintner said. "I think that is inconsistent with the purpose and the spirit behind Rule 217."
Haimowitz said the question of whether Kane stays in office will "eventually reach the Supreme Court, the legislature or the voters. They'll make the decision."
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Did Zimmerman's attorneys violate ethics rules?

The press conference by Craig Sonner and Hal Uhrig attorneys for George Zimmerman may have violated the Florida Rules of Professional Responsibility.  Zimmerman shot and killed Trayvon Martin.

Florida: Rule 4-1.6 [2] [4]

The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client…

A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

The lawyers divulged the following information:

1) Zimmerman telephoned the special prosecutor who's trying to put together a criminal case against him, and he called Shaun Hannity of Fox News.

2) The attorneys also expressed concern about Zimmerman's "emotional and physical safety" and said he may be suffering from post-traumatic stress disorder.

3) "We have a pretty good idea where he (Zimmerman) is," Uhrig said, but added that Zimmerman is not answering the phone. The attorneys said they thought Zimmerman was still in the United States, but not likely in Florida.

The disclosure that Zimmerman sought out the special prosecutor or media outlets may be fair game for news reporters, and the content of his conversations not protected by any privilege, but not fair game for his lawyers. It gives the impression of instability or a willingness to make some statement of admission or denial. Such statements may prejudice the jury pool.

Talking about Zimmerman’s mental or emotional state certainly appears to be a disclosure of critical observations and assessments of Zimmerman’s defense. Disclosing that Zimmerman has left the state creates a legitimate impression that Zimmerman is a flight risk and flight may indicate consciousness of guilt.

To read more: http://usnews.msnbc.msn.com/_news/2012/04/10/11124992-george-zimmermans-attorneys-withdraw-from-trayvon-martin-case?lite&google_editors_picks=true