Legally Speaking

[RealReality]

48 minutes ago, Macbeth said:

The world just isn't like this.  It would be nice if it was, but attorneys are judging other attorneys - it's hard to throw one under the bus when they can relate to them.  It's a big old boys club.  Even if it can be proved you embezzled money you might only get suspended not disbarred. 

Attorney chosen for bar panels are chosen for their adherence to the law.  There may be some consideration for extenuating circumstances and disbarrment is a high bar.  But this case would suffice.  It involves a breach of trust, an act of deceit and an attempt to further cover it up.  

Playing with client money and acts of deceit are like two of the top reasons attorneys get disbarred.  Playing with money is probably the biggest.

I don't think the bar association operates like a "big ol boys club" which is why even the biggest boys pay lip service to ethical rules.

5 hours ago, smartymarty said:

Assault is the threat or use of force on another that causes the other person to have a reasonable apprehension of imminent or harmful contact. So yes, fear is a component of assault. If Chuck didn't think Jimmy would actually hit him, no assault.

Not only that, but Jimmy worked so hard that, according to Howard, they called him Charlie Hustle. (It was Charlie, right? Because now I'm thinking that's funny considering Chuck's given name is probably Charlie.)

Fear is absolutely is not a requirement of assault and that's just black letter law.  I'm not sure what else to tell you, it simply isn't a requirement and you couldn't find any attorney to tell you that because it simply isn't the law.

What a reasonable person thinks also isn't determined by Chuck, it's determined by what a reasonable person in the same circumstance would think.  But no, fear is not required to pursue assault.  Like I said, it's very simple black letter law.  

Edited May 11, 2017 by RealReality

[RealReality]

12 hours ago, axlmadonna said:

I was thinking it was a separation, since Chuck was debating whether he should have his wedding ring on or off during the dinner with her. Surely it would have long been off if they were divorced?

I'm unclear on what the "assault" was that Jimmy supposedly committed. Threatened him, yes, damaged / destroyed property, yes... but he never actually touched Chuck at any point, so how was there an assault?

An assault is basically an unfinished battery. A battery is a harmful or offensive touching as determined by a reasonable person.  And it's not always getting hit.  An offensive touching could be someone squeezing your butt, or trying to feel up your legs.

If someone's actions are such that a reasonable person would think the harmful or offensive touching is going to take place, but it doesnt....its an assault.

It can't just be words, but words can accompany an act.  Fear is not a requirement.  Let's say there is a 6'4 250 pound guy, and a woman who is 5'1 and 98 pounds gets in his face and tries to punch him but missed.  He may not be scared because the punch wouldn't hurt him.  But he would have thought that the punch would happen.  Which is enough for an assault charge.

[RealReality]

10 hours ago, Tikichick said:

Even with a lower standard of proof and normal courtroom rules and rules of evidence not being normally at issue in disciplinary proceedings, if the board is going to sanction based on what's heard on the tape the way it was admitted into evidence is likely problematic.  The way it transpired is the tape was played and then Chuck testified as to the circumstances of its creation.   Origins of the tape will no doubt be a large part of the committee's discussions.  The fact it is not the only copy made becomes a material fact as well by virtue of Jimmy's written confession and the statement of damages -- and raises more questions about the condition of and the motivations of its maker and what effects they have on the tape played in the hearing.

Then you have to factor in the possibility Howard may intervene via back channels to the committee in an attempt to mitigate damages to HHM, urging them to leave the details of the tape out of their findings.

If there is a lower standard of evidence it's possible that they allowed the tape in based on deposition testimony and allowed chuck to explain it afterwards on the stand and for the record.  Bar association decisions can be appealed, but the rules of evidence they adhere to aren't necessarily parallel to state or federal rules afaik. I believe the procedural rules just have to ensure fair due process. A court reviewing the decision on appeal would have to determine if there was something wrong with the procedure and determine if the error was material.  Since foundation was later laid for the tape, even if it's an error it's likely  harmless error.

And not even Jimmy is positing that what's on the tape isn't what he said.  The only thing at issue is what it means.

Chucks motivations aren't really an issue either, he sincerely believes he was wronged and that Jimmy changed the numbers and he was gonna catch him.

The question is really what Jimmy was thinking when he made his admission.  Which has something to do with his perception of chicks state of mind and motivation.  So, it's almost another reasonable person standard.  If you were in Jimmys shoes and your brother , who yiu loved had tin foil up everywhere and was absolutely certain you had wronged him and he was going to quit his job would you just tell him whatever he wanted to hear?  Its like people who are like "listen im sure youve been abducted by aliens....youre not crazy at all, will you eat something now?"

[smartymarty]

Quote

Fear is absolutely is not a requirement of assault and that's just black letter law.  I'm not sure what else to tell you, it simply isn't a requirement and you couldn't find any attorney to tell you that because it simply isn't the law.

I was quoting Black's Law Dictionary. In saying "fear" is an element, I'm equating that to "reasonable apprehension of imminent or harmful contact."

 

Quote

Everything we have seen and know about Chuck and Jimmy has shown that Chuck is better at law. Jimmy being his equal or better in law this episode would make no sense.

But he was better. It's the difference other posters have pointed out -- Chuck is good at black letter law while Jimmy is good with people. Jimmy played on Chuck's emotions rather than argue any technicality of the law.

[Tikichick]

11 hours ago, RealReality said:

Attorney chosen for bar panels are chosen for their adherence to the law.  There may be some consideration for extenuating circumstances and disbarrment is a high bar.  But this case would suffice.  It involves a breach of trust, an act of deceit and an attempt to further cover it up.  

Playing with client money and acts of deceit are like two of the top reasons attorneys get disbarred.  Playing with money is probably the biggest.

I don't think the bar association operates like a "big ol boys club" which is why even the biggest boys pay lip service to ethical rules.

Fear is absolutely is not a requirement of assault and that's just black letter law.  I'm not sure what else to tell you, it simply isn't a requirement and you couldn't find any attorney to tell you that because it simply isn't the law.

What a reasonable person thinks also isn't determined by Chuck, it's determined by what a reasonable person in the same circumstance would think.  But no, fear is not required to pursue assault.  Like I said, it's very simple black letter law.  

You might want to take a look at the elements of the crime of assault.  Reasonable fear of imminent harm is absolutely an element of assault -- black letter law.  The assessment of what a reasonable person in that situation would fear/feel is done by the finder of fact (judge or jury) based on evidence presented.

[RealReality]

1 hour ago, smartymarty said:

I was quoting Black's Law Dictionary. In saying "fear" is an element, I'm equating that to "reasonable apprehension of imminent or harmful contact."

 

But he was better. It's the difference other posters have pointed out -- Chuck is good at black letter law while Jimmy is good with people. Jimmy played on Chuck's emotions rather than argue any technicality of the law.

That doesn't really make sense.  All contact isn't harmful, so the fear of imminent contact really isn't an assault.  An assault is basically an incomplete battery.  A battery being a harmful or offensive touching.  A reasonable apprehension doesn't necessarily mean fear, it's just that a normal, reasonable person would think that the touching was just about to happen.  

Like if you see a drunk guy stumbling towards you with his hands outstretched like he is going to try to feel you up....the touching is offensive, but it's not an assault if he is 300 feet away because there isn't an imminent danger of the offensive touching...versus if he is 1 foot away, in which case there is.  The law doesn't want to let people get away with attempting a harmful or offensive touching when they clearly had the intent to do so but just couldnt complete it.  At the same time, you don't want to punish people when you couldn't really figure out what their intent was (not did they intend to harm someone, But whether they intended a touching that was offensive or harmful)

[Tikichick]

11 hours ago, RealReality said:

If there is a lower standard of evidence it's possible that they allowed the tape in based on deposition testimony and allowed chuck to explain it afterwards on the stand and for the record.  Bar association decisions can be appealed, but the rules of evidence they adhere to aren't necessarily parallel to state or federal rules afaik. I believe the procedural rules just have to ensure fair due process. A court reviewing the decision on appeal would have to determine if there was something wrong with the procedure and determine if the error was material.  Since foundation was later laid for the tape, even if it's an error it's likely  harmless error.

And not even Jimmy is positing that what's on the tape isn't what he said.  The only thing at issue is what it means.

Chucks motivations aren't really an issue either, he sincerely believes he was wronged and that Jimmy changed the numbers and he was gonna catch him.

The question is really what Jimmy was thinking when he made his admission.  Which has something to do with his perception of chicks state of mind and motivation.  So, it's almost another reasonable person standard.  If you were in Jimmys shoes and your brother , who yiu loved had tin foil up everywhere and was absolutely certain you had wronged him and he was going to quit his job would you just tell him whatever he wanted to hear?  Its like people who are like "listen im sure youve been abducted by aliens....youre not crazy at all, will you eat something now?"

I'm quite sure there are variations in the procedural rules of the bar associations across the states.  No doubt the rules of evidence and other court rules are relaxed from what happens in a court of law, which is what I stated from the start.  However, it is beyond unlikely that the rules would be relaxed to the extent that a piece of evidence that is proffered with an assertion by the proponent that it contains violations that lead to disbarment would be admitted without thorough foundation as to its origins.   The bell cannot be unrung, the toothpaste cannot be inserted back into the tube once the fact finders hear the evidence.  It was being admitted to prove the truth of the matter asserted, therefore its foundation should have been established before it was allowed to undercut the position of the opposing party. 

I'd also bet that there is quite an obstacle course to get from a proceeding in front of the bar association to move the matter for any type of appellate relief in an actual court of law.  I've no doubt it works somewhat in the vein of matters in arbitration, wherein the appellate process has multiple steps within the arbitration setting before the necessary triggers can be expended to allow someone to move it into the venue of a court of law.  In some arbitration cases the agreements are set up where they can never move forward into a traditional legal venue, hence the term binding arbitration. (Which can mean different things depending on the original agreement to enter into arbitration.)

Edited May 11, 2017 by Tikichick

[RealReality]

22 minutes ago, Tikichick said:

You might want to take a look at the elements of the crime of assault.  Reasonable fear of imminent harm is absolutely an element of assault -- black letter law.  The assessment of what a reasonable person in that situation would fear/feel is done by the finder of fact (judge or jury) based on evidence presented.

Nope.  Fear is not a required element.  It's spelled out so clearly, a person is not required to be in fear.  As in the hypothetical I mentioned above.  Fear had never been an element of assault.  Reasonable apprehension is not even defined as fear.  Because a reasonable person in the same situation may not be scared at all, so fear is not a requirement.

[RealReality]

3 minutes ago, Tikichick said:

I'm quite sure there are variations in the procedural rules of the bar associations across the states.  No doubt the rules of evidence and other court rules are relaxed from what happens in a court of law, which is what I stated from the start.  However, it is beyond unlikely that the rules would be relaxed to the extent that a piece of evidence that is proffered with an assertion by the proponent that it contains violations that lead to disbarment would be admitted without thorough foundation as to its origins.   The bell cannot be unrung, the toothpaste cannot be inserted back into the tube once the fact finders hear the evidence.  It was being admitted to prove the truth of the matter asserted, therefore its foundation should have been established before it was allowed to undercut the position of the opposing party. 

I'd also bet that there is quite an obstacle course to get from a proceeding in front of the bar association to move the matter for any type of appellate relief in an actual court of law.  I've no doubt it works somewhat in the vein of matters in arbitration, wherein the appellate process has multiple steps within the arbitration setting before the necessary triggers can be expended to allow someone to move it into the venue of a court of law.  In some arbitration cases the agreements are set up where they can never move forward into a traditional legal venue.

For one, the foundation could have been laid through the deposition.  Given lowered requirements that doesn't seem unlikely. 

Second, as I stated the only thing that would be at issue is whether the rules of procedure have run so far amok that they violate due process.  Unlikely here, there was clearly a proceeding on admission of the tape, and a chance to appeal it's admissibility.  And especially unlikely if foundation was laid in an alternate manner.

There really isn't any bar, at least in my state to appealing a bar decision to the court.  An arbitration decision seems different because there are federal rules in place to make the appeal of an arbitration decision more difficult.  The same rules don't apply to bar decision.

[Tikichick]

1 minute ago, RealReality said:

Nope.  Fear is not a required element.  It's spelled out so clearly, a person is not required to be in fear.  As in the hypothetical I mentioned above.  Fear had never been an element of assault.  Reasonable apprehension is not even defined as fear.  Because a reasonable person in the same situation may not be scared at all, so fear is not a requirement.

As I said, you need to go and review the elements of assault laid out under the statutes.  The determination of what a reasonable person would feel under the circumstances is determined by the finder of fact, whether it be a jury or a judge.

It might help your understanding to consider the fact that the statutes allow for the charging and convicting under the code for a crime of attempted murder.  An element of that crime is that a person who is the object of certain actions might be reasonably assumed to be in imminent danger of grievous injuries, maiming and/or death.  

Spoiler alert, when you get to the parts of the code relating to sexual assault you might prepare to hang on to your hat, because your hair might just blow back. 

1 minute ago, RealReality said:

For one, the foundation could have been laid through the deposition.  Given lowered requirements that doesn't seem unlikely. 

Second, as I stated the only thing that would be at issue is whether the rules of procedure have run so far amok that they violate due process.  Unlikely here, there was clearly a proceeding on admission of the tape, and a chance to appeal it's admissibility.  And especially unlikely if foundation was laid in an alternate manner.

There really isn't any bar, at least in my state to appealing a bar decision to the court.  An arbitration decision seems different because there are federal rules in place to make the appeal of an arbitration decision more difficult.  The same rules don't apply to bar decision.

We watched the proceeding.  No foundation was laid to establish the origins of the tape.  That's key because it is being admitted to prove the truth of the matter asserted.  Were it being used for another purpose it's possible the admission could be fast tracked.  When you're using it to prove factors leading to disbarment you've got to cross all the T's and dot all the I's.

[RealReality]

3 minutes ago, Tikichick said:

As I said, you need to go and review the elements of assault laid out under the statutes.  The determination of what a reasonable person would feel under the circumstances is determined by the finder of fact, whether it be a jury or a judge.

It might help your understanding to consider the fact that the statutes allow for the charging and convicting under the code for a crime of attempted murder.  An element of that crime is that a person who is the object of certain actions might be reasonably assumed to be in imminent danger of grievous injuries, maiming and/or death.  

Spoiler alert, when you get to the parts of the code relating to sexual assault you might prepare to hang on to your hat, because your hair might just blow back. 

LOL, I passed the California bar, I'm pretty sure I have a good handle on the legal elements of assault.  But I can point you in the direction of some actual legal textbooks if you'd like some clarity on the subject.  The Barbri CMR lays it out pretty clear.

[Tikichick]

1 minute ago, RealReality said:

LOL, I passed the California bar, I'm pretty sure I have a good handle on the legal elements of assault.  But I can point you in the direction of some actual legal textbooks if you'd like some clarity on the subject.  The Barbri CMR lays it out pretty clear.

I work in the legal field myself, so I'm quite acquainted with the fact that much of the law isn't mysterious in the least bit.  A simple application of reading comprehension acquits us all with the ability to understand what is laid out in the code.  I stand by my reading and understanding of the elements of criminal assault.

[RealReality]

9 minutes ago, Tikichick said:

As I said, you need to go and review the elements of assault laid out under the statutes.  The determination of what a reasonable person would feel under the circumstances is determined by the finder of fact, whether it be a jury or a judge.

It might help your understanding to consider the fact that the statutes allow for the charging and convicting under the code for a crime of attempted murder.  An element of that crime is that a person who is the object of certain actions might be reasonably assumed to be in imminent danger of grievous injuries, maiming and/or death.  

Spoiler alert, when you get to the parts of the code relating to sexual assault you might prepare to hang on to your hat, because your hair might just blow back. 

We watched the proceeding.  No foundation was laid to establish the origins of the tape.  That's key because it is being admitted to prove the truth of the matter asserted.  Were it being used for another purpose it's possible the admission could be fast tracked.  When you're using it to prove factors leading to disbarment you've got to cross all the T's and dot all the I's.

Which is why I said that given the relaxed evidentiary rules the board may have accepted the deposition as foundation for the tape.  Especially as there was likely a previous hearing to consider the tapes admissibility.  Because Kim renewed her objection to its admission.

Crossing t and dotting i' s is important.  For proceedings in state/federal court.  Not so for a bar hearing which would have a far lower standard.

I understand what hearsay is, you can just refer to it as hearsay.

2 minutes ago, Tikichick said:

I work in the legal field myself, so I'm quite acquainted with the fact that much of the law isn't mysterious in the least bit.  A simple application of reading comprehension acquits us all with the ability to understand what is laid out in the code.  I stand by my reading and understanding of the elements of criminal assault.

Ahhh, i see.  I'm sorry, but you're wrong, and this is why attorneys spend years in law school and have to pass a difficult exam.  If every one could simply read a statute and that was the end of it law schools would be a lonely place indeed.

But I think a lot of people feel like the law is a "simple application of reading comprehension" until they have to study or practice.  So I certainly don't begrudge anyone their point of view, even if it's uninformed.

[Tikichick]

4 minutes ago, RealReality said:

Which is why I said that given the relaxed evidentiary rules the board may have accepted the deposition as foundation for the tape.  Especially as there was likely a previous hearing to consider the tapes admissibility.  Because Kim renewed her objection to its admission.

Crossing t and dotting i' s is important.  For proceedings in state/federal court.  Not so for a bar hearing which would have a far lower standard.

I understand what hearsay is, you can just refer to it as hearsay.

You're suggesting that the standards would be so relaxed that even hearsay evidence could be used to made a determination leading to the ultimate penalty of disbarment? 

Somehow I'm gonna guess that's an issue.

Personally were I arguing against admission of the tape, hearsay wouldn't be my first objection raised.  My bottom line, you need Chuck on the stand to testify to the manufacture of the tape before you can proffer the evidence of out of court statement by Jimmy.

Edited May 11, 2017 by Tikichick

[RealReality]

Just now, Tikichick said:

You're suggesting that the standards would be so relaxed that even hearsay evidence could be used to made a determination leading to the ultimate penalty of disbarment? 

Somehow I'm gonna guess that's an issue.

Yes.  There are plenty of hearsay exemptions and exceptions.  One of the more notable being statement against interest.  Statement by opposition is another one i believe.

But be that as it may, yes, there is no reason to think that hearsay evidence would face the same high scrutiny as it would in a court proceeding.  The big question is whether the evidentiary rules deny due process.

If a deposition was used to lay foundation for the tape and there is no objection on what is said on the tape then it's unlikely to deny due process.  And even if it did, with no objection as to the veracity of what's on the tape (Jimmy isn't saying he didn't say that) it would likely be harmless error.

[Tikichick]

3 minutes ago, RealReality said:

Yes.  There are plenty of hearsay exemptions and exceptions.  One of the more notable being statement against interest.  Statement by opposition is another one i believe.

But be that as it may, yes, there is no reason to think that hearsay evidence would face the same high scrutiny as it would in a court proceeding.  The big question is whether the evidentiary rules deny due process.

If a deposition was used to lay foundation for the tape and there is no objection on what is said on the tape then it's unlikely to deny due process.  And even if it did, with no objection as to the veracity of what's on the tape (Jimmy isn't saying he didn't say that) it would likely be harmless error.

When the evidence is being used to determine what amounts to the highest penalty the group can assess, yes, I do think there is more than ample reason to assume any evidence they accepted to bolster the complaint would be thoroughly vetted before admission.  If the complaint weren't for the ultimate penalty I could see it facing less scrutiny before admission.  For the ultimate penalty they can administer, no way.

[RealReality]

1 hour ago, Tikichick said:

When the evidence is being used to determine what amounts to the highest penalty the group can assess, yes, I do think there is more than ample reason to assume any evidence they accepted to bolster the complaint would be thoroughly vetted before admission.  If the complaint weren't for the ultimate penalty I could see it facing less scrutiny before admission.  For the ultimate penalty they can administer, no way.

 

But, not really.  And what constitutes through vetting would be a question for the board to determine through its evidentiary rules.  The evidentiary rules would apply to any hearing, the rules of evidence for the criminal or civil court are the same no matter what penalty is assessed.  Same with bar proceedings.

And frankly exceptions/exemptions to the hearsay rule apply in civil/criminal cases, so there is no reason to think that they would not apply in a bar hearing.  

So, then the question is the foundation, which could reasonably be laid with Chucks deposition in a proceeding with a lower evidentiary standard. 

[Eulipian 5k]

14 hours ago, RealReality said:

Attorney chosen for bar panels are chosen for their adherence to the law.  There may be some consideration for extenuating circumstances and disbarrment is a high bar.  But this case would suffice.  It involves a breach of trust, an act of deceit and an attempt to further cover it up.  

Is the first rule of adherence to the law that you can't be punished for something you weren't convicted of? Even a confession can be thrown out during a trial, cheeze even videotape of a savage police beating can be ignored at trial. So the Bar can't hold anything or infer anything that you aren't convicted of.

[Tikichick]

21 minutes ago, RealReality said:

But, not really.  And what constitutes through vetting would be a question for the board to determine through its evidentiary rules.  The evidentiary rules would apply to any hearing, the rules of evidence for the criminal or civil court are the same no matter what penalty is assessed.  Same with bar proceedings.

And frankly exceptions/exemptions to the hearsay rule apply in civil/criminal cases, so there is no reason to think that they would not apply in a bar hearing.  

So, then the question is the foundation, which could reasonably be laid with Chucks deposition in a proceeding with a lower evidentiary standard. 

I disagree.  Rules of evidence and case law leave room for differences when it comes to things like family, juvenile and probate court that are not precisely the same as those of criminal or other civil matters.   Exceptions to the hearsay rule do indeed apply and factor into these things.

You keep referring to the foundation having been laid in Chuck's deposition.  We have zero indication any deposition took place.  In order for his deposition testimony to have been accepted under any circumstances it would have required Kim and Jimmy to be present to cross examine him at deposition.  There's simply no hint of that having transpired, none at all.  Using a deposition transcript for anything other than refuting the witness' inconsistent statements when the witness is both available and actually going to testify anyway would be improper as the witness' availability renders the deposition transcript itself as hearsay.  If you are in fact referring to an affidavit from Chuck being used to lay the foundation for the manufacture of the tape, obviously that would be improper as it is a definite breach of due process.

[RealReality]

35 minutes ago, Eulipian 5k said:

Is the first rule of adherence to the law that you can't be punished for something you weren't convicted of? Even a confession can be thrown out during a trial, cheeze even videotape of a savage police beating can be ignored at trial. So the Bar can't hold anything or infer anything that you aren't convicted of.

 

No.  People are punished all the time in civil court and are found liable by a preponderance of the evidence, with no conviction.  The Bar can use its own standards and rules to determine if you've done something or haven't done something and their bar is far lower than the one in criminal court.  They would consider the evidence on their own.  Ultimately, they are using the evidence to determine if you've breached one of their own ethical rules, so while they can consider a conviction, it doesnt mean that without a conviction they can't punish you.

[Tikichick]

14 minutes ago, Hanahope said:

I don't think the tape was "officially" being admitted to prove Jimmy did what he did.  Its being admitted to prove why Jimmy was upset and why Jimmy broke the door and the tape, and assaulted Chuck, i.e. Jimmy was upset because Chuck recorded something about him admitting to the document change.  Even if Jimmy didn't do that, and Jimmy did just 'make up' the confession, Jimmy would have been upset over Chuck's taping it because it still could have been played to Mesa Verde and hurt Kim's work with them (even if it wasn't true, Mesa Verde might not want to take the chance that Kim was working with someone who would commit illegal acts)

But obviously Chuck intended for the panel to believe what was on the tape, and use that belief to not just suspend Jimmy's license for the acts in the PPD, the breaking the door, the tape destruction, the assault on Chuck, but to actually disbar him because of the felony breaking and entering.  Without the tape, if the panel just heard of the PPD crimes, they might have thought it was just a he said/he said argument and simply suspend Jimmy's license for a short time (3 months or so), but hearing the underlying reason was to convince them to make a stronger penalty.

You've hit on precisely why it's problematic with how the tape was admitted and played to the committee.  They already had Jimmy's confession about breaking down the door and confronting Chuck.  If that's what they were meant to be considering for disciplinary action, they had it without the tape.  But no, the intention of the tape being heard by the committee was different, to prove that Jimmy altered the Mesa Verde documents.  Once the tape is being used to prove the truth of the matter asserted about the Mesa Verde documents the foundation of the origins of the tape becomes a factor and in order to lay the foundation it can only be proffered with Chuck on the stand to attest to its production.   

[RealReality]

47 minutes ago, Tikichick said:

I disagree.  Rules of evidence and case law leave room for differences when it comes to things like family, juvenile and probate court that are not precisely the same as those of criminal or other civil matters.   Exceptions to the hearsay rule do indeed apply and factor into these things.

You keep referring to the foundation having been laid in Chuck's deposition.  We have zero indication any deposition took place.  In order for his deposition testimony to have been accepted under any circumstances it would have required Kim and Jimmy to be present to cross examine him at deposition.  There's simply no hint of that having transpired, none at all.  Using a deposition transcript for anything other than refuting the witness' inconsistent statements when the witness is both available and actually going to testify anyway would be improper as the witness' availability renders the deposition transcript itself as hearsay.  If you are in fact referring to an affidavit from Chuck being used to lay the foundation for the manufacture of the tape, obviously that would be improper as it is a definite breach of due process.

 

 

What you were positing is that the punishment should determine the rules used.  That is incorrect.  When a person goes to criminal court, they don't use seperate rules of evidence for a robbery versus a murder, they are the same rules, even if the punishment is different.  When a person goes to civil court, the rules of evidence are the same, whether the respondent will be on the hook for $10, or $2 million dollars.

We have no indication that a deposition didn't take place either.  And its very likely that between the criminal case against Jimmy and the hearing regarding the admissibility of the tape that a deposition was taken.  We know that there was a hearing on the admissibility of the tape because Kim and the member of the panel refer to it.

LOL, again you're referring to rules of evidence in federal or state court, this is neither of those things.  

Also, Chuck was there to testify as to the foundation of the tape which had already been admitted as evidence.

Furthermore, since the tape had been admitted prior to the hearing, it stands to reason that foundation had been laid before the tape had been admitted.

12 minutes ago, Tikichick said:

You've hit on precisely why it's problematic with how the tape was admitted and played to the committee.  They already had Jimmy's confession about breaking down the door and confronting Chuck.  If that's what they were meant to be considering for disciplinary action, they had it without the tape.  But no, the intention of the tape being heard by the committee was different, to prove that Jimmy altered the Mesa Verde documents.  Once the tape is being used to prove the truth of the matter asserted about the Mesa Verde documents the foundation of the origins of the tape becomes a factor and in order to lay the foundation it can only be proffered with Chuck on the stand to attest to its production.   

 

 

....if this was a criminal court or civil court proceeding

....which it isn't.

Edited May 11, 2017 by RealReality

[ItCouldBeWorse]

3 hours ago, RealReality said:

Yes.  There are plenty of hearsay exemptions and exceptions.  One of the more notable being statement against interest.

Chuck mentioned that Jimmy had made an admission against interest on the tape.  That theory was probably used to admit the tape during the hearing that we did not see on the show.

35 minutes ago, RealReality said:

No.  People are punished all the time in civil court and are found liable by a preponderance of the evidence, with no conviction.  The Bar can use its own standards and rules to determine if you've done something or haven't done something and their bar is far lower than the one in criminal court.  They would consider the evidence on their own.  Ultimately, they are using the evidence to determine if you've breached one of their own ethical rules, so while they can consider a conviction, it doesnt mean that without a conviction they can't punish you.

OJ Simpson's civil trial (wrongful death) verdict comes to mind; https://www.bustle.com/articles/152048-what-does-oj-simpsons-civil-trial-verdict-mean-liable-does-not-mean-guilty

[Tikichick]

20 minutes ago, RealReality said:

What you were positing is that the punishment should determine the rules used.  That is incorrect.  When a person goes to criminal court, they don't use seperate rules of evidence for a robbery versus a murder, they are the same rules, even if the punishment is different.  When a person goes to civil court, the rules of evidence are the same, whether the respondent will be on the hook for $10, or $2 million dollars.

We have no indication that a deposition didn't take place either.  And its very likely that between the criminal case against Jimmy and the hearing regarding the admissibility of the tape that a deposition was taken.  We know that there was a hearing on the admissibility of the tape because Kim and the member of the panel refer to it.

LOL, again you're referring to rules of evidence in federal or state court, this is neither of those things.  

Also, Chuck was there to testify as to the foundation of the tape which had already been admitted as evidence.

Furthermore, since the tape had been admitted prior to the hearing, it stands to reason that foundation had been laid before the tape had been admitted.

....if this was a criminal court or civil court proceeding

....which it isn't.

What I was positing is that this committee would take great pains in following rules of evidence if they were going to consider their ultimate penalty.  I said from the start they don't have the same rules as a court of law.  But I think things get a little tighter when the consideration is the absolute, permanent termination of someone's career as opposed to simply a fine or a term of suspension.

The fact that Chuck was there to testify and lay the foundation for  the tape and yet it was admitted without was my point from the start.  I think the committee was lax about allowing the tape in, probably because of Chuck's reputation.  Chuck knew going in that disbarment without the MV component was questionable.  It was possible because Jimmy's confession could be considered a conviction for their purposes, but the fact it was a familial dispute left room for doubt.  Questionable and room for doubt wasn't enough for Chuck.  He needed to make sure the door was closed by the tape being played.  The committee using the MV situation as the basis for their decision makes the rules under which they heard that evidence important, makes the foundation of the tape itself paramount. 

[Tikichick]

12 minutes ago, ItCouldBeWorse said:

Chuck mentioned that Jimmy had made an admission against interest on the tape.  That theory was probably used to admit the tape during the hearing that we did not see on the show.

OJ Simpson's civil trial (wrongful death) verdict comes to mind; https://www.bustle.com/articles/152048-what-does-oj-simpsons-civil-trial-verdict-mean-liable-does-not-mean-guilty

Yep, the burden of proof is different in civil versus criminal -- preponderance of the evidence versus beyond a reasonable doubt. 

[RealReality]

19 minutes ago, Tikichick said:

What I was positing is that this committee would take great pains in following rules of evidence if they were going to consider their ultimate penalty.  I said from the start they don't have the same rules as a court of law.  But I think things get a little tighter when the consideration is the absolute, permanent termination of someone's career as opposed to simply a fine or a term of suspension.

The fact that Chuck was there to testify and lay the foundation for  the tape and yet it was admitted without was my point from the start.  I think the committee was lax about allowing the tape in, probably because of Chuck's reputation.  Chuck knew going in that disbarment without the MV component was questionable.  It was possible because Jimmy's confession could be considered a conviction for their purposes, but the fact it was a familial dispute left room for doubt.  Questionable and room for doubt wasn't enough for Chuck.  He needed to make sure the door was closed by the tape being played.  The committee using the MV situation as the basis for their decision makes the rules under which they heard that evidence important, makes the foundation of the tape itself paramount. 

 

 

 

But not really.....http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=ELC&ruleid=gaelc1010.14

The above link is for the rules of evidence for the Washington state bar.  Here are some highlights.

(a) Proceedings Not Civil or Criminal. Hearing officers should be guided in their evidentiary and procedural rulings by the principle that disciplinary proceedings are neither civil nor criminal but are sui generis hearings to determine if a lawyer's conduct should have an impact on his or her license to practice law.

(d) Rules of Evidence. Consistent with section (a) of this rule, the following rules of evidence apply during disciplinary hearings: (1) evidence, including hearsay evidence, is admissible if in the hearing officer's judgment it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The hearing officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious;

So, no, there isn't any particular adherence to federal or state procedural rules, and while a hearing officer or board may be guided by the state/federal evidentiary rules, they aren't strictly subject to them.

Edited May 11, 2017 by RealReality

[RealReality]

8 minutes ago, Tikichick said:

What I was positing is that this committee would take great pains in following rules of evidence if they were going to consider their ultimate penalty.  I said from the start they don't have the same rules as a court of law.  But I think things get a little tighter when the consideration is the absolute, permanent termination of someone's career as opposed to simply a fine or a term of suspension.

The fact that Chuck was there to testify and lay the foundation for  the tape and yet it was admitted without was my point from the start.  I think the committee was lax about allowing the tape in, probably because of Chuck's reputation.  Chuck knew going in that disbarment without the MV component was questionable.  It was possible because Jimmy's confession could be considered a conviction for their purposes, but the fact it was a familial dispute left room for doubt.  Questionable and room for doubt wasn't enough for Chuck.  He needed to make sure the door was closed by the tape being played.  The committee using the MV situation as the basis for their decision makes the rules under which they heard that evidence important, makes the foundation of the tape itself paramount. 

 

Not particularly, while disbarment is the ultimate penalty from a risk/reward standpoint, its not worth the risk to keep an attorney that may be engaging in fraud and deceit, just because the evidence that illustrates the point doesn't adhere to state or federal evidentiary rules.  You don't particularly want those attorneys in court, representing clients that have to put total trust and faith in them.

Again, according to the lax rules of procedure for a bar hearing, the formal rules of laying foundation wouldn't necessarily need to be followed.  We know there was a hearing on the tape, it was just as likely that Chuck gave a deposition and it was used there to lay the foundation before it was admitted.  

However, even if you were to determine that the tape was both material and that foundation wasn't properly laid, since Jimmy is not denying that he said all the stuff that is on the tape....it would be harmless error.

And that is a pretty huge "even if's"

[Tikichick]

3 minutes ago, RealReality said:

But not really.....http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=ELC&ruleid=gaelc1010.14

The above link is for the rules of evidence for the Washington state bar.  Here are some highlights.

(a) Proceedings Not Civil or Criminal. Hearing officers should be guided in their evidentiary and procedural rulings by the principle that disciplinary proceedings are neither civil nor criminal but are sui generis hearings to determine if a lawyer's conduct should have an impact on his or her license to practice law.

**This basically lays out that there are no formal evidentiary rules that must be followed in bar hearings

And then there is this...

(d) Rules of Evidence. Consistent with section (a) of this rule, the following rules of evidence apply during disciplinary hearings: (1) evidence, including hearsay evidence, is admissible if in the hearing officer's judgment it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The hearing officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious;

So, no, there isn't any particular adherence to federal or state procedural rules, and while a hearing officer or board may be guided by the rules, they aren't strictly subject to them.

In which case I suspect it will come down to the committee viewing the evidence within the context of the totality of the circumstances in making their assessment of how a reasonably prudent person would conduct themselves.  In the case of what's on the tape it can be argued that Jimmy's reasons for making the admission against interest factors in -- but you feel better now, don't you?  As well as Chuck's admitted duplicity in eliciting the admission, which he doubled down on when he testified during the hearing and revealed his grievances went back to 9 year old Jimmy.

Bingo indeed, Ms. Wexler. 

[RealReality]

5 minutes ago, Tikichick said:

In which case I suspect it will come down to the committee viewing the evidence within the context of the totality of the circumstances in making their assessment of how a reasonably prudent person would conduct themselves.  In the case of what's on the tape it can be argued that Jimmy's reasons for making the admission against interest factors in -- but you feel better now, don't you?  As well as Chuck's admitted duplicity in eliciting the admission, which he doubled down on when he testified during the hearing and revealed his grievances went back to 9 year old Jimmy.

Bingo indeed, Ms. Wexler. 

 

 

Exactly, but that doesn't mean that the tape was improperly admitted.

However, the rule is that the evidence may be admitted if it is the sort that a reasonable person would rely on.  The rule has nothing to do with how the board makes its decision, but rather the admissibility of evidence in a hearing.

The admission against interest would also get hearsay evidence in, and yes, once its in, in any court an attorney would argue that what is said on the tape is open to multiple interpretations.

Edited May 11, 2017 by RealReality

[Tikichick]

20 minutes ago, RealReality said:

Exactly, but that doesn't mean that the tape was improperly admitted.

Disagree.  I don't think the committee would have heard the tape had they known the circumstances of its production.  Based on what I myself have seen and heard over the past ten plus years, I strongly suspect committees like this see similar types of evidence volunteered as offshoots of toxic divorce and child custody cases as an example.  To my knowledge the welcome mat is elusive to say the least.  This tape made it through based on cronyism and deference to Chuck.

As it stands I suspect the snow has fallen on both sides of the fence, much to Chuck's surprise, and both brothers McGill will be sanctioned.  Ironically it's likely to be the revelation of Chuck's animus that compels the committee to allow Jimmy more leeway than they might have initially done based on the rest of the evidence.

[RealReality]

7 minutes ago, Tikichick said:

Disagree.  I don't think the committee would have heard the tape had they known the circumstances of its production.  Based on what I myself have seen and heard over the past ten plus years, I strongly suspect committees like this see similar types of evidence volunteered as offshoots of toxic divorce and child custody cases as an example.  To my knowledge the welcome mat is elusive to say the least.  This tape made it through based on cronyism and deference to Chuck.

As it stands I suspect the snow has fallen on both sides of the fence, much to Chuck's surprise, and both brothers McGill will be sanctioned.  Ironically it's likely to be the revelation of Chuck's animus that compels the committee to allow Jimmy more leeway than they might have initially done based on the rest of the evidence.

 

The rules I modeled are pretty clear in that the tape was properly admitted.  The hearing board has the right to consider any evidence, even hearsay, as long as its evidence that a reasonable person would rely upon.  Most reasonable people would rely on a taped conversation between two people as evidence of what was said.  And there is nothing to suggest that they didn't know the circumstances of the tape's production as they had an evidentiary hearing on the matter of the tape.  Which Kim and the hearing officer alluded to, the tape was admitted before the hearing.

That you do not agree with the decision does not mean it was improperly admitted, it just means that had you been in the same position you may not have admitted it.

Say what?  A bar hearing committee wouldn't deal with divorces or child custody cases.  I'm confused about where you're coming up with that contention.

This type of evidence very clearly meets the standard of allowable evidence in a bar hearing, therefore it was properly admitted.

I'm also confused as to why you think a bar hearing regarding Jimmy's fitness to practice would in any way turn into a decision to not allow Chuck to practice.  At multiple points the hearing officer said that this was specifically not a hearing to determine Chucks fitness to practice.  

[Milburn Stone]

I have a feeling there are some lawyers on this board.

[PeterPirate]

4 minutes ago, Milburn Stone said:

I have a feeling there are some lawyers on this board.

Am not!  You take that back!  :)

[RealReality]

2 minutes ago, Milburn Stone said:

I have a feeling there are some lawyers on this board.

well...I'm an attorney.  ;)

and I can confidently say that I am the only attorney speaking on the issue of the admissibility of the tape :)

[Eulipian 5k]

I am not a lawyer, but I blog one on PC. "Lawyer poses everybody"

[Tikichick]

1 minute ago, RealReality said:

The rules I modeled are pretty clear in that the tape was properly admitted.  The hearing board has the right to consider any evidence, even hearsay, as long as its evidence that a reasonable person would rely upon.  Most reasonable people would rely on a taped conversation between two people as evidence of what was said.  And there is nothing to suggest that they didn't know the circumstances of the tape's production as they had an evidentiary hearing on the matter of the tape.  Which Kim and the hearing officer alluded to, the tape was admitted before the hearing.

That you do not agree with the decision does not mean it was improperly admitted, it just means that had you been in the same position you may not have admitted it.

Say what?  A bar hearing committee wouldn't deal with divorces or child custody cases.  I'm confused about where you're coming up with that contention.

This type of evidence very clearly meets the standard of allowable evidence in a bar hearing, therefore it was properly admitted.

I'm also confused as to why you think a bar hearing regarding Jimmy's fitness to practice would in any way turn into a decision to not allow Chuck to practice.  At multiple points the hearing officer said that this was specifically not a hearing to determine Chucks fitness to practice.  

What I am saying is that I know that people make video and audio recordings, as well as make complaints to the bar association spilling out of events transpiring in toxic divorce and child custody cases.  Of course they don't hear the divorce or child custody cases, nor did I suggest that they did or would.  That's absurd and a rather sloppy attempt to discredit what I said.  I was merely making an analogy to the familial/domestic dispute leading to a complaint before the bar.  It does happen.  You can choose to believe it or not.

I don't think the statement was that the hearing wasn't pertaining to Chuck's fitness to practice.  I believe the statements were that it was not a hearing regarding Chuck's mental state, which it was not.  However, if the committee in the course of hearing evidence regarding James McGill became aware of evidence impugning Charles McGill's conduct or fitness to represent his clients adequately, are they not obligated to review it?  My guess would be yes. 

11 minutes ago, Milburn Stone said:

I have a feeling there are some lawyers on this board.

There may be.  I am not one of them.

[RealReality]

7 minutes ago, Tikichick said:

What I am saying is that I know that people make video and audio recordings, as well as make complaints to the bar association spilling out of events transpiring in toxic divorce and child custody cases.  Of course they don't hear the divorce or child custody cases, nor did I suggest that they did or would.  That's absurd and a rather sloppy attempt to discredit what I said.  I was merely making an analogy to the familial/domestic dispute leading to a complaint before the bar.  It does happen.  You can choose to believe it or not.

I don't think the statement was that the hearing wasn't pertaining to Chuck's fitness to practice.  I believe the statements were that it was not a hearing regarding Chuck's mental state, which it was not.  However, if the committee in the course of hearing evidence regarding James McGill became aware of evidence impugning Charles McGill's conduct or fitness to represent his clients adequately, are they not obligated to review it?  My guess would be yes. 

 

 

 

I wasn't trying to discredit what you were saying, you were unclear about what you were saying so I asked you for clarification.  That is all.

 

As for the state bar using a recording as part of a divorce or child custody case, the rules are very clear that evidence and hearings are sui generis or rather on a case by case basis with no hard and fast rule.  A hearing officer can admit hearsay, but is under no obligation to do so.  Also, if the evidence is immaterial, or irrelevant in that it has no real bearing on the ability to practice law than the hearing officer doesn't have to admit it.  

Also, in the above-modeled rules, the state evidentiary rules can be used as a guideline for evidentiary decisions, and one of the oldest rules of evidence is that if the risk of undue prejudice outweighs the probative value than the evidence need not be admitted.  In this case, the tape was highly probative, and there was no undue prejudice since it reflected what Jimmy said.  In the case of evidence that comes to the hearing board from a toxic divorce, it is likely not very probative, with a high risk of undue prejudice since what someone does in a divorce case is unlikely to have much bearing on their ability to practice law.

 

I'm also not sure you were making an analogy.

It is not a hearing about Chuck's mental state because its not a hearing about Chucks fitness to practice law.

And no, they are not obligated to sua sponte consider the matter of Chucks fitness based on that hearing, or as part of that hearing.  I'm not sure where you're getting that from?

Edited May 11, 2017 by RealReality

[Tikichick]

Just now, RealReality said:

I wasn't trying to discredit what you were saying, you were unclear about what you were saying so I asked you for clarification.  That is all.

 

As for the state bar using a recording as part of a divorce or child custody case, the rules are very clear that evidence and hearings are  sui generis or rather on a case by case basis with no hard and fast rule.  A hearing officer can admit hearsay, but is under no obligation to do so.  Also, if the evidence is immaterial, or irrelevant in that it has no real bearing on the ability to practice law than the hearing officer doesn't have to admit it.

 

I'm also not sure you were making an analogy.

It is not a hearing about Chuck's mental state because its not a hearing about Chucks fitness to practice law.

And no, they are not obligated to sua sponte consider the matter of Chucks fitness based on that hearing, or as part of that hearing.  I'm not sure where you're getting that from?

A, I'm betting you'd be surprised I know what you're referring to referencing a sua sponte opinion without the assistance of the Google.  B, I'm not so sure that it's within the ethical bounds for a committee such as this one to be made aware of evidence about an attorney in the course of their business and not take action on it.  Do I know that to be a fact?  Nope.  Doesn't pass the smell test. 

[RealReality]

17 minutes ago, Tikichick said:

A, I'm betting you'd be surprised I know what you're referring to referencing a sua sponte opinion without the assistance of the Google.  B, I'm not so sure that it's within the ethical bounds for a committee such as this one to be made aware of evidence about an attorney in the course of their business and not take action on it.  Do I know that to be a fact?  Nope.  Doesn't pass the smell test. 

 

 

Not at all, anyone who "works in the legal field" should be familiar with the term.  However, sua sponte doesn't generally refer to an opinion but to an issue.  OK, so what you're contending is based more on what you think is right than any rule.  First off, any decision the hearing board made on Chuck would be ripe for appeal and abuse of discretion.  Just because someone has a mental disorder doesn't mean that they cannot ethically practice law.  Just because they taped a conversation and elicited an admission doesn't mean that they cannot ethically practice law.  Protecting clients paperwork, maybe, but I couldn't really see that being the basis for trying to admonish Chuck because whether he kept the files secure is open to interpretation.....his house was locked (secured) and Jimmy only got to them because he had access to the house, its not like Chuck left the files scattered on the street.  The bar rules are clear that you have to keep client files secure, but not really how you have to accomplish that.

Edited May 11, 2017 by RealReality

[Eulipian 5k]

I'm still con(te) fused(te). Chuck did not bring this before the Bar because of what was admitted to on the tape; or else he wouldn't have needed the B & E scenario; he could have just brought the tape to the Board. I also thought Howard spoke to him about that when he said he didn't see the usefulness of the tape and then Chuck cooked up the whole, hire a PE, and wait for the break in chicanery.

[Tikichick]

6 minutes ago, RealReality said:

Not at all, anyone who "works in the legal field" should be familiar with the term.  However, sua sponte  doesn't refer to an opinion but to an issue.  OK, so what you're contending is based more on what you think is right than any rule.  First off, any decision the hearing board made on Chuck would be ripe for appeal and abuse of discretion.  Just because someone has a mental disorder doesn't mean that they cannot ethically practice law.  Just because they taped a conversation and elicited an admission doesn't mean that they cannot ethically practice law.  Protecting clients paperwork, maybe, but I couldn't really see that being the basis for trying to admonish Chuck because whether he kept the files secure is open to interpretation.....his house was locked (secured) and Jimmy only got to them because he had access to the house, its not like Chuck left the files scattered on the street.  The bar rules are clear that you have to keep client files secure, but not really how you have to accomplish that.

Actually sua sponte frequently refers to situations where a court makes a ruling in the course of a proceeding, absent petition to do so, that is why I referenced opinion.

Of course a mental disorder doesn't preclude the ability to practice law, nor did I suggest it.  I do think it likely they take a look at Chuck's actions in the MV case, simply because there is some cause to believe he was rather more focused on his feud with his brother than he was with making sure the client was his priority and the focus of his efforts.

[RealReality]

4 minutes ago, Tikichick said:

Actually sua sponte frequently refers to situations where a court makes a ruling in the course of a proceeding, absent petition to do so, that is why I referenced opinion.

Of course a mental disorder doesn't preclude the ability to practice law, nor did I suggest it.  I do think it likely they take a look at Chuck's actions in the MV case, simply because there is some cause to believe he was rather more focused on his feud with his brother than he was with making sure the client was his priority and the focus of his efforts.

 

Sua sponte generally refers to an issue raised by the court by its own accord, generally, opinions aren't really referenced as  sua sponte  because most opinions are issued in cases where there are opposing parties, but the court may raise an issue on its own as part of the larger case.  In those cases, the judge will issue a bench memoranda or ruling, and no official opinion is written.

The fact that an attorney was more focused on a personal feud also doesn't preclude him from the ethical practice of law.  There is nothing to suggest that Chuck's feud precluded him from giving MV competent counsel, he did get the numbers right, and even if he had mistakenly transposed the numbers there is nothing that would suggest he did so because of some feud with Jimmy, nor would it be less than ethical legal practice.

[Tikichick]

1 minute ago, RealReality said:

Sua sponte generally refers to an issue raised by the court by its own accord, generally, opinions aren't really referenced as  sua sponte  because most opinions are issued in cases where there are opposing parties, but the court may raise an issue on its own as part of the larger case.  In those cases, the judge will issue a bench memoranda or ruling, and no official opinion is written.

The fact that an attorney was more focused on a personal feud also doesn't preclude him from the ethical practice of law.  There is nothing to suggest that Chuck's feud precluded him from giving MV competent counsel, he did get the numbers right, and even if he had mistakenly transposed the numbers there is nothing that would suggest he did so because of some feud with Jimmy, nor would it be less than ethical legal practice.

But he went to great lengths to conceal his condition from his clients, a condition he is not being treated for, not seeking treatment for, and which was likely to impair him during his representation of the clients at a key hearing.

Yes, sua sponte refers to a spontaneous issue raised by the court without petition by a party.  Absolutely can and does result in a written order of the court at times, which is after all the means by which a court speaks.

[RealReality]

14 minutes ago, ShadowFacts said:

Not to put too fine a point on it, but how secure are client confidential files in a house, even a locked one, where there is no electricity and probably no occupancy permit, if proper inspections happened.  Kerosene lamp was seen in one of Mike's pictures, right?  No smoke detectors, because they have batteries.  No phone to call 911.   I'm not saying he should be disciplined but there might be some basis for the panel to see that he is possibly impaired and could put clients' interests in jeopardy. 

 

I think it would be enough for the hearing panel to write an aside about how Chuck should do a better job of keeping the files safe but other than that, I couldn't see where they would sanction him for it. 

[RealReality]

4 minutes ago, Tikichick said:

But he went to great lengths to conceal his condition from his clients, a condition he is not being treated for, not seeking treatment for, and which was likely to impair him during his representation of the clients at a key hearing.

Yes, sua sponte refers to a spontaneous issue raised by the court without petition by a party.  Absolutely can and does result in a written order of the court at times, which is after all the means by which a court speaks.

 

He had every right not to share his condition with his clients since it had no bearing on his ability to practice law.  How did it every impair him, even at the MV hearing?  He was just being supercilious and asshole Chuck...that is regular Chuck, even when the lights are off and no one has a cell phone.   Most of the work Chuck did was at his house, so it had no bearing on his ability to practice law and therefore he was under no obligation to share his condition with clients.  

Not particularly an opinion though, which is a thorough explanation of the reasoning for all parties.  Its just a very, very odd and rare use of the word sua sponte.  Its fine though, I understood what you meant.

[Tikichick]

Just now, Bryce Lynch said:

At what point do you believe Chuck might have been more focused on Jimmy than making the client the priority, and what specifically did he do to harm the client, as a result of this focus on the feud?

Setting up the B&E instead of taking the tape to the bar without passing go.  Never enlightening MV as to how the numbers wound up transposed on their documents in the first place, information they might have found material going forward and in making decisions about how to proceed.  If I'm Mesa Verde I think I'm entitled to all of the facts considering that what happened wasn't a missed typographical error, but a deliberate sabotage of my business deal.  Arguably a sabotage made worse because my attorney was in a compromised physical/mental state for which he is receiving no treatment. 

[RealReality]

3 minutes ago, Tikichick said:

Jimmy did what he did of his own accord, absolutely.

As an officer of the court Chuck knowingly set a chain of events in motion with the express purpose of eliciting a felonious act from someone else for his own purposes.  He already had the tape to provide to the bar committee with a complaint about the unethical behavior of Jimmy already -- surely they would have accepted the tape as valid evidence?    

 

And?  I leave a pie out on my window because I want to catch a pie thief in the act, now I'm irresponsible because the pie thief stole the pie?  Setting the bait isn't really actionable, and frankly entrapment only applies to government actors.

The B&E sets everything in motion, and it bolsters Chuck's case.  If he had wanted to stop at the tape, I guess he could have, even though it leaves some wiggle room for debate, but the B&E is really the frosting on the cupcake.  Because you don't break into someone's house and pry open their drawer with a fireplace poker in front of two other witnesses because you just wanted to get your old Samantha Fox tape back, you do it because you really need it.

[Eulipian 5k]

Really, this action is not about Mesa Verde. The tape only had to show why Jimmy destroyed property. The tape could have been about anything very damaging to Jimmy's standing in the community say if he had confessed to bestiality with a goldfish, just to make it credible that he wanted to destroy Chuck's property. It's not brought to show his unlawerly practice with MV the action is about the B & E. Jimmy and Kim are arguing that the B & E is the issue and should be ignored by the Bar as a feud between brothers.

[RealReality]

3 minutes ago, Tikichick said:

Setting up the B&E instead of taking the tape to the bar without passing go.  Never enlightening MV as to how the numbers wound up transposed on their documents in the first place, information they might have found material going forward and in making decisions about how to proceed.  If I'm Mesa Verde I think I'm entitled to all of the facts considering that what happened wasn't a missed typographical error, but a deliberate sabotage of my business deal.  Arguably a sabotage made worse because my attorney was in a compromised physical/mental state for which he is receiving no treatment. 

 

Why would MV even care?  Like seriously "my brother stole the documents, took them to kinkos and changed the numbers, I didn't make a mistake!" sounds just as nuts as whatever he was saying in the MV hearing.  And would make no difference, the client already had their hearing pushed back, and by the time Chuck got proof Kim already had MV so their files were secure.  Nothing Chuck did made the sabotage any worse.

The tape is open to interpretation, especially since Chuck knows how good slippin' Jimmy is at explaining things.  But you add the fact that he broke into the house, enraged, and pried open the desk drawer with a fire poker and destroyed the tape -- it makes the case even more clear that Jimmy had something to hide.  And it doesn't allow for as much wiggle room, and even if Chuck can't get Jimmy on the tape, he can at least get him on the B&E.

[Tikichick]

5 minutes ago, RealReality said:

He had every right not to share his condition with his clients since it had no bearing on his ability to practice law.  How did it every impair him, even at the MV hearing?  He was just being supercilious and asshole Chuck...that is regular Chuck, even when the lights are off and no one has a cell phone.   Most of the work Chuck did was at his house, so it had no bearing on his ability to practice law and therefore he was under no obligation to share his condition with clients.  

Not particularly an opinion though, which is a thorough explanation of the reasoning for all parties.  Its just a very, very odd and rare use of the word sua sponte.  Its fine though, I understood what you meant.

Perhaps if he were receiving treatment for the disorder he's aware of it would have uncovered the existence of some type of borderline personality disorder or another diagnosis that causes him to have certainty and belief in his infallibility and correctness in all things wherein he deems himself an expert.  For all we know the superciliousness and assholery are simply a manifestation of his disorder that have gone unrecognized for years due to the fact the guy's got a vast intellect and skillset that seemingly backup his attitude a good deal of the time. 

It's a very gray and tricky area of the law, but I see no way HHM can allow Chuck to continue to represent clients until he has medical clearances going forward now that things have spilled out so messily the way they did.