Don’t be an ass.

Quite a few years ago now, I did a seminar titled something like “The Golden Rule of Litigation” or “Litigation and the Golden Rule.”  One of the fun aspects of putting it together was finding confirmation that some version of The Golden Rule – the “do unto others as you would have them do unto you concept” – is espoused in some form or fashion by every world religion I could dig up.  The goal of the seminar was trying to drive home the point that if you applied some variation of that concept to litigation to construct such a rule, it would be along the lines of “Litigate against others as you would have them litigate against you.”  And, my overriding point was that if we all managed to adhere to that tenet, lawyers wouldn’t have to spend much of their time worrying if their conduct violated the rules of ethics, at least in the litigation context.

The title of today’s post is a more negative (and certainly crasser) variation on that message, but one that readily applies to all aspects of the practice of law, whether litigation, transactions, negotiations, etc.

Don’t.  Be.  An.  Ass.

Two gentlemen in the news this week have pretty egregiously violated this rule.  The result is that one of them is losing his law license permanently and the other one looks like he is never going to be issued one in the first place.

A Florida lawyer who was showcased in my 2013 Ethics Roadshow when he received a two-year suspension for what the Florida Supreme Court called “appalling and unprofessional behavior” is now back in the news.  He is getting disbarred after not complying with Florida’s rules regarding the giving of notice to clients and others once you have been suspended and for continuing to practice law after being suspended   An ABA Journal story back at the time of his suspension highlighted many of the troubling ways this lawyer would disparage his opposing counsel (and even the court), but the part that was most offensive about the whole thing was that the primary target of his wrath (or at least the primary target in proceedings that actually got adjudicated in the disciplinary process)was a 71-year old lawyer who had a long, unblemished career and who, at the time he was on the other end of the Florida lawyers vituperative rhetoric was suffering from both Parkinson’s and kidney cancer.  The now-disbarred lawyer tried to take his two-year suspension to the U.S. Supreme Court to get it reversed, but the Court denied his cert petition in October 2014.  Yesterday, the Florida Supreme Court entered an order permanently disbarring him that also makes mention of the fact that this lawyer continued, even in those proceedings, to undertake the kind of conduct for which he was disciplined before, including referring to bar counsel as evil and despicable and engaging in a smirk and stare down session with each of the justices of the Florida Supreme Court.

Another character has made it onto the radar screen for having his application to be admitted to practice law after passing the bar exam in Massachusetts denied on character and fitness grounds three days ago.  I saw the first news story about this and was prepared to be on the side of the applicant given the headline’s reference to past litigation conduct and my own experience with seeing that bar admission authorities can often manage to hold applicants to what seems like a higher standard than the standards to which already licensed attorneys are held.  But, on closer read of both the article (particularly the email that the guy thought it made sense to send the ABA Journal about his situation), and the Massachusetts opinion itself, this looks very much like an example of Massachusetts managing to avoid giving a license to someone in the first place who probably would have ended up practicing law like the Florida lawyer mentioned above.

So, as you wrap up your office day today and head into your weekend, don’t be an ass.  I promise I’ll do my best to take my own advice.

Death and disbarment

Returning to the office from the holiday weekend, I noticed these two sad and weird stories of lawyers doing inexcusable things that seem to have common threads of death and disbarment running through them.  Many years ago I wrote a humor column for young lawyers. and you can find some of those columns still floating around the interwebs, like here (starting at p. 12) and here (starting at p. 18).  This blog will not stray from its purpose and attempt to be a humor column.  I promise.  Bleak stories do require some willingness sometimes to attempt to find humor in making serious points.  This is one of those times.

The first story involves a variation on a circumstance that many of us have experienced (or at least strongly suspected we might have experienced but were too kind to ever try to investigate lest we be wrong and come out looking like a horrible human being):  the opposing counsel who claims an illness or death in the family in order to get out from under some missed deadline or hearing we suspect they just aren’t ready to handle.  This now-former attorney has resigned or been disbarred by consent from two states on the basis of having lied in two cases.  One case involved the lawyer lying about having been in the ER diagnosed with “double pneumonia” to get a hearing on a summary judgment motion rescheduled.  In the other case, the lawyer lied about his mother having died as an explanation offered to avoid sanctions based on missed discovery deadlines.  His own billing records showed in the one case that he billed his client for time spent preparing for the hearing on the day of his claimed ER trip.  As to the second matter, while I generally agree with Judge John Hodgman that specificity is the soul of narrative, this lawyer likely didn’t help himself with the specificity he used when lying about his mother, who was quite demonstrably still alive, saying she died “in a violent car accident in the state of Colorado” and that the cause of death was “the fire and smoke inhalation from the resulting conflagration.”

The second story involves a now-former DC lawyer who unsuccessfully argued that the death of his aggrieved client during the disciplinary proceedings should prevent the lawyer from being disbarred.  The key misconduct in the case was that the lawyer had, while on disability inactive status, taken $1,500 from a police officer for legal services never provided and then refused to return the money to the client.  During the many, many years of the proceedings, the lawyer tried to have the charges against him dismissed on five separate occasions.  Many of the arguments put more stress on the “criminal” part of the “quasi-criminal” nature of disciplinary proceedings rather than recognizing the importance of “quasi.”  The DC lawyer unsuccessfully argued that he had a constitutional right to a speedy trial which was violated by the lengthy proceedings; and that his being suspended during the proceedings mooted the case for disbarment.  Most brazen, however, was his argument that the death of the aggrieved client in January 2012 meant that the case against him should be dismissed.  For support of that argument, the lawyer relied on cases in which a criminal defendant died during the prosecution of the case against him.  These arguments were not wieners (a play on words that only makes sense if you’ve visited the link and learned the lawyer’s name) and the lawyer has been disbarred.