Earlier this month we posted about the inflammatory speech of a South Carolina Supreme Court Justice at a conference for prosecutors. Justice Donald Beatty railed against his audience for unethical conduct, telling the group, “For too long we [the Court] have looked the other way but that’s over. We are not just going to overturn convictions; we are going to take your licenses.”
And that’s precisely what the Court did a month later in the case of Michael O’Brien Nelson, a 9th Circuit solicitor who has been suspended from the practice of law for 6 months and ordered to pay fees to the Office of Disciplinary Counsel for the costs of the proceedings against him.
Notably, it was the 9th Circuit Solicitor’s Office that Beatty lashed out at during his comments at the conference, referencing two recent findings of prosecutorial misconduct and a third pending which originated there. Presumably, Nelson’s case was the one pending (the Court heard arguments in the case in July).
Nelson was an assistant solicitor at the 9th Circuit Solicitor’s Office when his cousin was called for jury duty and selected to be seated in a 2007 murder trial. When he was selected, the cousin failed to disclose his relationship to Nelson. Defense attorneys procured call records from the period involving the cousin’s jury service and found that Nelson and his cousin had communicated via phone and text numerous times. According to the Supreme Court’s opinion in the matter:
Respondent admits he gave different answers at different times to the same questions. Respondent stated he believed Cousin had disclosed the relationship during jury selection and, thus, the trial judge and the attorneys of record all knew of the relationship.
While going through the telephone and text records during the ODC interview, respondent stated he could not remember the specifics of any of the calls. Several of the calls were just seconds long and others were several minutes, but he could not recall the details of any particular conversation. When asked about the discrepancy between the number of actual contacts and the number of contacts revealed to the trial judge, respondent replied he was nervous and had no excuse. He also stated he had no memory of the calls because they were short.
The Court found that Nelson had violated Rule 3.4 (c) (lawyer shall not knowingly disobey an obligation under the rules of a tribunal); Rule 3.5 (lawyer shall not communicate ex parte with a juror during the proceeding unless authorized to do so by law or court order); and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct prejudicial to the administration of justice).
Nelson admitted guilt and entered into an agreement whereby his law license would be suspended for 6 months, he would pay the costs incurred in the investigation and prosecution of the matter by the Office of Disciplinary Counsel, and he would complete a Legal Ethics and Practice Program.