A companion piece.

As I inch ever closer to my 400th blogpost here, today’s offering is something of a companion piece to a post I wrote almost exactly 13 months ago that demonstrates what should be an obvious point, what is a very important point in the world of disciplinary defense but much less obvious, and at least one highly curious one.

This post involves, Sherri Jefferson, a Georgia lawyer who has now been disbarred over what was largely the same sort of conduct that got the Pennsylvania lawyer in trouble who was the subject of that earlier post.

I’ll let the headline from The ABA Journal online article – which is what first caught my eye – explain: “Lawyer disbarred after she’s accused of having romantic involvement with client and hiring detective to spy on him.”

It’s a pretty good headline but it omits, as headlines sometimes must for space reasons, the important thing that happened between romance and spying – the client stopped being a client and started dating another woman. This paragraph of the disbarment order gives the expanded details but still in a pretty succinct fashion:

Jefferson represented an individual from 2008 to 2010 in a custody modification action; during the representation, Jefferson and that individual were romantically involved. This relationship led to the filing of a disciplinary matter against Jefferson, but the matter was subsequently dismissed by this Court in 2014. During the pendency of that disciplinary matter, Jefferson’s former client began dating another woman and, following the dismissal of that matter, Jefferson hired a private investigator to conduct an investigation including surreptitious surveillance of the former client, his son, and the other woman. Additionally, Jefferson falsely disparaged the other woman to the woman’s employer, including making false and misleading statements about the custody proceeding.

The important, and obvious, point here being that bad ethical conduct from lawyers driven by jealousy is not exclusively the province of male lawyers. Jefferson also did not make matters any better for herself thereafter by making a number of provably false statements during criminal proceedings that arose after criminal warrants for stalking and defamation were filed against her.

Jefferson also made a strategic decision in the defense of her disciplinary case that tees up discussion of the other important, but less obvious, point, she pled the Fifth.

Now, sometimes that truly is the best (if not the only) option when the conduct is also potentially criminal conduct, but it almost always has damning consequences on the disciplinary side. The order of disbarment discusses in a couple of footnotes how taking the Fifth justified an adverse inference that the disciplinary allegations were essentially true. (These were relegated to footnotes because, by being uncooperative in certain aspects of the proceedings, Jefferson also was the subject of a sanctions order that essentially acted as a default judgment against her.)

Although much ink has been spilled in the past about what it means for disciplinary cases to be “quasi-criminal” in nature when it comes to Fifth Amendment rights, as a practical matter the “quasi” always does more work in that description than “criminal” does and lawyers who sit in judgment of other lawyers tend not to hesitate to draw negative conclusions about a lawyer who invokes the Fifth Amendment in proceedings about lawyer discipline.

And the final point, injected into the mix purely for the curiosity factor is that she apparently has also attempted to draw parallels to how she has been treated to events occurring on the national stage in a way that, I’m just guessing, probably will not carry the kind of weight she thinks.

That same ABA Journal article concludes with a quote from her – that apparently is made in a filing Jefferson has made to seek to stay and vacate the order of disbarment — “Akin to the Russian probe, this case is marred by abuse of prosecutorial misconduct, abuse of discretion and acts of complete denial of due process.”

Akin to the Russian probe … sigh.

But why though?

This past week the Tennessee Supreme Court proposed revisions to the rules of disciplinary enforcement that would transform disbarment into an irrevocable form of discipline in Tennessee and that would extend the potential length of a suspension from 5 years maximum to 10 years maximum.

Which leads me to the highly-technical title of this post: But why though?

Under Tennessee’s current approach, the maximum length of suspension is 5 years, and the only harsher punishment is disbarment. At present, in Tennessee, if you are disbarred it is not a “death penalty” as to your license because you can apply for reinstatement after 5 years has passed.

What is going on that would make anyone think this was a needed change in Tennessee?

I assume that if this change were enacted what it would mean is that some percentage of lawyers who are presently finding themselves disbarred might now instead just end up receiving suspensions in the 6-10 year range and some other percentage of lawyers who are already going to end up disbarred will still be disbarred but will have it be a new “disbarment is forever” standard.

But … why? I admittedly do not have access to all information about what is going on in the world of discipline in Tennessee, but I have some decent insight, and I’m simply not attuned to what the problem is that this seeks to fix.

Lawyers who get disbarred do not just get automatically reinstated after spending 5 years disbarred. They have to apply for reinstatement. They have the burden of proving that being permitted to return to the practice of law will not be detrimental to the public and the profession. Disciplinary counsel has the opportunity to zealously advocate against the requested reinstatement and marshal whatever evidence they can get their hands on to demonstrate why the person involved has not changed sufficiently to be given the privilege to practice law once again.

By the way, that is also how it works if you get a 5-year suspension (or a 3-year suspension or a 1-year suspension). You have to apply to be reinstated; you have to prove the required elements to demonstrate why you should be reinstated. If you can’t, you stay suspended for 6 or 7 or 8 or even 10 years until you can prove you should be able to practice law again. Based on other revisions to the rules not too long ago, that is also how it works even if you only get suspended for 30 days. You still have to get yourself reinstated by way of a petition.

Why doesn’t that work? Why does Tennessee need to add itself to the list of a handful or so other states to have permanent, irrevocable disbarment? Why does Tennessee need to double the length of available periods of suspension up to 10 years?

It has now been more than 10 years since our Court issued its decision in Hughes v. BPR but it certainly knows that it already has the precedent to deny a lawyer reinstatement if it thinks it should not happen even in the face of significant evidence of rehabilitation.

The statistics that are easily accessible also do not seem to indicate anything is horribly awry with the current approach. If you look at the most recent annual report from the TBPR, there were 21 lawyers disbarred, 18 lawyers receiving disciplinary suspensions (which would be anywhere between the 30-day minimum and the 5-year maximum), and 7 lawyers reinstated. If you look at the report for the year before that, there were 23 lawyers disbarred, 28 lawyers receiving suspensions, and 14 lawyers reinstated. The year before that, 23 disbarments, 18 suspensions, and only 5 lawyers managed to get reinstated.

And, also, while I think that what I’ve discussed above is the big and truly weighty question at play here, even if one decided there should be a change, why in the world would it ever make sense to pick a future date when disbarments would become permanent and not indicate that it is for disbarments arising from disciplinary proceedings commenced on or after that date?

The proposed revision would change Section 30.2 of Tenn. Sup. Ct. R. 9 to read as follows:

30.2. Individuals disbarred on or after July 1, 2020, are not eligible for reinstatement. Individuals disbarred under Rule 9 prior to July 1, 2020, may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.

Why inject a questionable level of due process deficiency into this situation by proposing to revise the rule so that people who already have cases in the system would have a different meaning for the outcome of disbarment depending on whether it was complete by June 30, 2020? Lawyers on their way to disbarment are admittedly not sympathetic characters, but if they have begun being investigated and prosecuted under one set of rules, there seems no really good reason to change those rules on them in the middle of the process.

Shimkonicity (shim-ko-nis-a-tee)

When I first read some reporting about this decision from Ohio involving the indefinite suspension of a lawyer, I expected it to come across very much as an obvious case of a lawyer’s third strike leading to a steep punishment. But, the coming together of so many things with respect to this lawyer’s situation actually offers quite a story from which a lot of lawyers can learn a few things (or at least be reminded of some things they already knew). Thus, showing my age again, I’ve gone with The Police album rip-off title for this post.

So, yes, at the straightforward level, if you read this opinion, you will digest the story of a lawyer getting hit with his third strike. About nine years ago, Mr. Shimko engaged in some financial chicanery with some clients leading to a public censure in Ohio that was imposed as reciprocal discipline after Arizona had first done the same. Three years or so after that, he received a one-year suspension (but it was all stayed so he continued to practice) for disparaging a judge. Now, he’s received an indefinite suspension after he appealed a recommended two-year suspension for charging an excessive fee to a client and then unnecessarily disclosing confidential information about the client in connection with suing the client for the excessive fee amount (along with a bit of unsavory threatening to disclose the information in order to try to get the client to settle).

Most of his story is routine stuff that all lawyers know (or should know) they should not do. The last seven-or-so-pages of the opinion also offer a tangible example of why trying to throw every potential appellate argument into a mix — particularly in a disciplinary case — is not a very good strategy. But along the way, there are two real teachable nuggets here of things that a surprising number of lawyers sometimes don’t know, and there is also one big topic that the Court simply fails to mention which also is pretty important (and which it could have used to further skewer the lawyer’s scattershot allegations of error on appeal.)

Much the way my son tackles fast food; first we will tackle the nuggets:

Nugget #1: You just can’t bill your clients for time you spend drafting what amounts to your engagement letter. If it is a good engagement letter, you are substantially creating it for your own benefit and protection. At most, it is documentation that is partially being created for the client’s benefit. Don’t try to charge the client for that time.

Nugget #2: There is a second-level of consideration when a lawyer is proceeding under a self-defense exception to restrictions on the disclosure of confidential information. Not only do you have to be able to demonstrate that one of the specific exceptions under RPC 1.6(b) can be satisfied, which you can do if you are trying to pursue payment from the client as an example. But you also have to remember that the disclosures you make need to be no more than is reasonably necessary AND in a lot of circumstances you still have to make efforts to try to limit the number of people to whom the disclosure is made. The comments to RPC 1.6 lay out guidance about this in most jurisdictions in a very clear and helpful fashion. If you are litigating a fee dispute with a client, even though you can disclose confidential information to the Court in order to prevail on your claim or defeat the claim of your client/former client, you may very well have to also seek the entry of a protective order to try to prevent the information you are disclosing from becoming fully available to the public.

And the thing that was missing? Any discussion by the Court of why this Ohio lawyer’s arguments about how he was entitled to do what he did because the client was committing insurance fraud using his services are very hard to reconcile with one or two other ethics rules in Ohio (and elsewhere) – RPC 3.3 and RPC 4.1.

If the lawyer’s version of events regarding what the client had told him in advance of the examination under oath was to be believed, then under RPC 4.1 what the lawyer was required to do, at minimum, was to withdraw from the representation so as not to assist with the fraud. If representing someone in a pending insurance dispute during an examination under oath is somehow treated as a representation to a tribunal under Ohio law (which I would suspect is not the case), then RPC 3.3 in Ohio — patterned after the Model Rule — would have required the lawyer to speak up during the EUO about what was happening not after the fact.

The Court likely didn’t address those issues because it did not need to since the earlier rulings had found the lawyer’s assertions not to be credible, but even a footnote highlighting this issue for lawyers might have been a worthwhile piece of dicta.

Two Arkansas items involving rare procedural developments

As I attempt this week to get back into the saddle, two items – each relatively unusual and each involving Arkansas – grabbed my attention. One involves a judge and the other a lawyer.

Although Fridays are usually reserved for standard “follow ups,” the first item is in the nature of follow-up because I wrote previously about when this Arkansas judge was hit with disciplinary charges over his involvement in a protest against the death penalty around about the same time he was ruling on issues related to the death penalty in a case. The ABA Journal now has a story about the charges against the judge being dismissed by the Arkansas Supreme Court.

The reason for dismissal? The delay in the pursuit of the charges against him. The article notes that the charges were first filed against the judge back in April 2017. While both judges and lawyers alike subjected to disciplinary cases often feel like the process goes on longer than it should, and often times if you pay attention to the timelines in disciplinary opinions you see how extended the time frames often are between the opening of the case and the ultimate resolution, it is rare to see delay in disciplinary proceedings resulting in the outright dismissal of the charges. Twenty-six months would certainly be a long time if nothing at all was transpiring in the matter.

Of note, the article also mentions that the related ethics cases against six of seven justices on the Arkansas Supreme Court related to their treatment of the Arkansas judge in question (also discussed in my long-ago post) were also dismissed in November 2018 but the reasons for that dismissal are not mentioned.

On the lawyer side, a daily publication from the Tennessee Bar Association has started including disciplinary orders in its coverage of court opinions and, on Friday, it included the kind of order not seen every day on a number of fronts.

It is an order commencing a disciplinary case (or maybe not actually even truly doing that) against a Tennessee lawyer for having been convicted of a DUI offense in Arkansas. It’s unusual in a couple of respects in as much as historically there have not been many instances of any public discipline against Tennessee lawyers for criminal conduct involving drunk driving. While this order is certainly public in nature and can, itself, be something of a public censure for the lawyer involved, the order does not technically actually require the Board of Professional Responsibility in Tennessee to do anything about the situation.

The specific language of the order from the Tennessee Supreme Court reads:

This matter shall be referred to the Board for whatever action the Board may deem warranted.

Whether or not anything does come of it is unclear, the only provision that can be triggered by a DUI offense is RPC 8.4(b) and will turn on whether this particular criminal act is treated as one that “reflects adversely on the lawyer’s … fitness as a lawyer in other respects.” For what it may be worth, the lawyer in question does not have any past disciplinary history in terms of public discipline, but the Board’s website does reflect a pending petition against him that has been open since April 2018 so it would seem likely to be entirely unrelated to this offense which involved a traffic citation/arrest occurring in October 2018.

Nearly four years later… and I’m making that James Bond reference this time.

So, if any of you are still around these parts after I’ve gone some 12 days without writing any content, then you are in for me dredging someone up that I previously wrote about on June 30, 2015. An attorney named Rodger Moore.

Rodger Moore. And he was suspended for the practice of law for conduct that involved stealing adult beverages (wine) and also stealing the oil of olives. You know… olives… the garnish that goes in a martini.

I guess back in the halcyon days of this venture I considered myself above making a James Bond reference? Well, I’m four years older now and don’t consider myself above much of anything I guess. So…here goes.

Rodger Moore is no longer licensed to bill.

Also, Roger Moore was not the best Bond, but this Rodger Moore was not the best lawyer.

The need for just a bit of “dry” humor for today’s post is in order because nothing else about the story is humorous. And, in fact, while not doing so in a fashion that is at all effective for his case, Mr. Moore raises a topic in the press that is not deserving of being milked for humor of any sort — the problem of depression in our profession.

You (like me) may have seen the story in The ABA Journal about the fact that after previously being suspended for failure to disclose certain pieces of his criminal past, Mr. Moore has now been disbarred for trying to charge over $10,000 to a client he had promised to represent for free. If you’d care to read the full Ohio opinion disbarring him from practice, you can get it here.

In short-form version, a woman who qualified for legal aid representation going through a divorce agreed to switch lawyers to Moore, after Moore sent an email saying he would represent her for free. Shortly thereafter, he sent her an invoice for $9,500 but then told her she didn’t have to pay that but that he was going to seek to have the court award his fee against her husband. He never did that but did send her an $11,000 promissory note and seek to have her sign that. Eventually, he had to bow out of her case because of his suspension from practice (but not until first trying to appear in court for her the day after he was suspended). He then got an attorney he shared office space with to take over the representation. That lawyer confirmed to her that he was providing the services for free but, ultimately, filed a lawsuit against her, representing Mr. Moore’s firm, seeking to force her to pay pursuant to the promissory note.

Based on his past history, his failure to appear on his own behalf in the disciplinary case, and the fact that he tried at the eleventh-hour to proffer up his license to retire or resign from practice rather than being disciplined, the Ohio Supreme Court decided to permanently disbar him.

In a real plot twist, Mr. Moore has communicated extensively with The ABA Journal as their article reveals and shared with them a draft letter that he was thinking about sending to the Ohio Supreme Court to complain about how he was treated.

Now, I’m fortunate enough that I do not suffer from depression. As I’ve revealed before anxiety is my issue. There is no question that problems with depression are rampant in our profession and little doubt that mental health issues continue to be stigmatized, hidden, and not treated effectively when it comes to lawyers.

I don’t have the necessary clinical training to know the first thing about whether Mr. Moore’s narrative could be explained by depression but I do know that the opinion reveals that he continued to practice while suspended for a pretty significant period of time, represented himself, and that both of those facts likely played a role in his ultimate disbarment. Both of those facts are the kind of things that are also not inconsistent with side effects of depression.

Mr. Moore may not be a very good messenger for the underlying message of the continued need to preach about the awareness of mental health issues, and his claimed beef that the disciplinary process should take depression into account as a mitigating factor misses the mark because nearly all states do – through application of the ABA Standards for Lawyer Misconduct – take mental health issues into account.

But he is, albeit maybe just inadvertently, a good messenger for making an important, and hard, point. Those kinds of proceedings can only take such things into account if the lawyer is able to disclose them so that they can be considered. Mr. Moore pretty clearly didn’t disclose any issues with depression at the time of the proceedings themselves but, because of the nature of such things and, if he was representing himself, if he really was suffering from untreated depression he might not have been able to bring himself to do so.

Any lawyer interested in reading up on issues of attorney wellness can now find a variety of good resources online. Perhaps the most recent report issued by a state bar comes out of Virginia and you can read that one here if you are so inclined.

Overreaching on attorney fees. Plaintiff’s lawyers do it too.

There are always a variety of ways that examples of overreaching by attorneys on fees manage to push into the legal news. Recently, I wrote about one example involving hourly billing. More often than not, overreaching under that system is what makes the news.

It is not the only way that attorneys overreach on fees though. It is done by plaintiff’s lawyers as well.

Today’s post is about a very recent disciplinary decision issued by the Tennessee Supreme Court that publicly censures a lawyer for overreaching in connection with a contingent fee agreement. It is a case that confirms a point I have raised with a number of lawyers over the years but for which I never had ready authority – other than the rules themselves – to back up my point. Now, I’ve got this decision in Moore v. BPR to help convince folks who need convincing.

At its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a).

The rules clearly allow a lawyer who wishes to withdraw from representing a client over a disagreement about whether to settle a case to pursue withdrawal as long as they can justify it under one or more provisions of RPC 1.16(b). The law in Tennessee also permits such an attorney, if they do withdraw, to assert a lien as authorized by statute and pursuant to either the terms of their contract or, perhaps, depending on how things turn out for payment in the form of quantum meruit.

What the rules simply do not let a lawyer do is what happened in this new Tennessee Supreme Court case — include a term in the contract with the client that says that, if the client rejects a settlement that the lawyer advises should be accepted, then the lawyer becomes entitled – as a matter of contract – to a fee of x% of the settlement offer being rejected.

And, it does not matter what x equals in that last sentence. However, the nature of the overreach is certainly easier to spot when x happens to equal the original contingent fee percentage as was the case here.

As the Court explains, such a provision is not only antithetical to RPC 1.2(a) because of how much it undermines the right of the client as to settlement but it also takes a situation that is already difficult to balance with questions of conflicts and makes it untenable. Such a provision creates a severe conflict of interest for the lawyer at the moment the other side makes a settlement offer.

You can read the full opinion here. As a bonus, this case is also a primer for those who do disciplinary defense on the potential diminishing returns involved in pursuing appeals from public censures given that the rules prohibit a hearing panel who concludes that discipline should be imposed from imposing any discipline less serious than a public censure.

Thus, any attorney who seeks to appeal from a public censure imposed by a hearing panel has to understand that victory on appeal can only be obtained through a reversal in the nature of complete exoneration on the allegations of disciplinary violations. Far too many attorneys who represent themselves or who dabble in disciplinary defense often fail to understand that dynamic.

Lying about everything is an awful way to go about life.

So, I am rapidly approach the 4th anniversary of this blog and this is the very first time I have had a post sharing exactly the same title as an earlier post.

Interestingly (at least to me), that earlier post with that title was written on Groundhog’s Day 2 years ago. The title for this post seemed a fitting title because … well, I think it will be clear when we launch into this – but also referencing back to that older post and it having been a Groundhog’s Day themed post also is pretty appropriate because the pathological nature of the lying of this Chicago lawyer has something of a deja vu sort of feel when compared to the lying of that Michigan lawyer from the prior post.

You’ve probably already read about this story but, if not, this is your window into the story of this Chicago lawyer who has been lying off and on about having cancer for more than a decade, who has lied about having a son, and even lied about the son he never had also having the same kind of cancer that he doesn’t have but has lied about having.

The repeated lying about having leiomyosarcoma, including falsely claiming that his pretend son had the same thing, grabbed the headlines but there were at least two other karma-tempting whoppers over the years, including: Lying to his firm that he had retained an expert but that the expert couldn’t work because his daughter had been hit by a car; and lying about having to attend a funeral in Montreal to get a court extension

There really is not an awful lot I can add to the obvious reasons why this kind of tale of a lawyer going beyond the pale in terms of what they were willing to lie about, and how often they apparently were willing to lie about it, is so disturbing.

One disturbing aspect of the situation is that his lawyer, in an answer filed in the disciplinary proceedings, has said that he came up with the cancer lie because he was actually suffering from depression in 2005 and was afraid to admit to suffering from a mental illness at the time when he was applying to law school. As someone who believes strongly in the fact that our profession needs to do much better about the topic of wellness and who readily recognizes that our profession needs to do all we can to help reduce the stigma surrounding mental health issues in our profession, I’d really like to believe that explanation and be more sympathetic, but when you lie about the really big stuff it is hard not to think that you are lying about your reason for lying.

I particularly have a hard time with achieving a sympathetic point of view after reading this piece of the pleadings in the disciplinary case about this kind of false statement made nearly 11 years after applying to law school:

64. On July 25, 2016 at 9:45 a.m. Respondent sent an email to AUSA Brock, and copied to AUSA Hancock, the following message related to Respondent’s purported reason for requesting an extension to complete discovery in the Harris case: “Yes, all went well. Thanks so much for asking. He has leiomyosarcoma, a form of stomach cancer, and had to have a small portion of his stomach and GI tract removed. It sounds terrible but apparently it is a rare but also highly treatable disease. My fiance and 1 have fostered kids on and off for the last 5 or so years. The only downside is that these incredible kids are often in this situation in the first place because they have one or more serious illnesses/conditions. I normally wouldn’t share such personal information but I really do feel so grateful for yours and Gina’s support last week and think it’s important that you know what it actually meant to me.”

Answer: Admit

65. Respondent’s statements to AUSAs Brock and Hancock, as set forth in paragraph 64, that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years were false.

Answer: Admit

66. Respondent knew his statements to AUSAs Brock and Hancock, that his son’s surgery went well, that Respondent’s son had leiomyosarcoma which required surgery to remove a small portion of his stomach and GI tract, and that Respondent and his fiance [sic] had fostered children for the last five years, as set forth in paragraph 64, were false because Respondent had no child or foster child, therefore no diagnosis of leiomyosarcoma, and no surgery.

Answer: Admit

But the part of this whole thing that really grabbed me by the proverbial lapels and piqued my interest was the original set of circumstances that led to the lawyer coming up with the lie that he had cancer. You see cancer was the story offered to explain to The University of Chicago Law School why this future lawyer only scored a 158 on the LSAT.

Wait for it.

I only scored 160 on the LSAT. It never dawned on me that I was even supposed to be disappointed in that result, much less that I should have tried to lie about having cancer to explain the poor performance.

But, 160 is two points higher than 158; also, I wasn’t applying to the University of Chicago Law School. So, apples and oranges I guess.

If you want to read the entirety of the latest amended disciplinary complaint against Vincenzo Field, you can get it here.

More UPL Madness From Ohio

You may recall some past discussion here of the prolonged saga of the Dinsmore lawyer who moved from one of its offices in Kentucky to its Cincinnati, Ohio office and nearly was denied comity admission in Ohio over accusations of the unauthorized practice of law.

While that story ended happily — she was ultimately determined not to have character and fitness problems after the Ohio Supreme Court decided that it was not the unauthorized practice of law for her to sit in a chair in Ohio and continue to work on Kentucky cases using her Kentucky license while awaiting bar admission in Ohio — it was unnecessarily messy for all concerned.

In the past, one of the points I have raised about bar regulators using UPL accusations as a cudgel is that it seems that many jurisdictions seek to have it both ways – arguing that you are always practicing law “in” their jurisdiction whether they have to put you there through being in a seat in the state or if they have to put you there despite the fact that your seat is in a different state.

The most recent UPL ruling out of Ohio demonstrates that Ohio apparently has this proclivity as well.

Right at the end of 2018, the Ohio Supreme Court issued an order concluding that a lawyer, who was licensed in New York, New Jersey, and California, and his law firm, had engaged in UPL by representing debtors who lived in Ohio. The order wasn’t actually a disciplinary penalty but it essentially enjoined them from further practice in Ohio, and imposed a $2,000 civil fine.

The Panel Report which the Court adopted through its order provided detail regarding the representation:

This matter involves Respondents’ representation of an Ohio resident, Timothy Hoover . . . .  Respondents executed a Power of Attorney document on January 6, 2010, through which Mr. Hoover appointed Respondents as “his true and lawful attorney.”  On May 14, 2010, Respondents on behalf of Mr. Hoover, issued a letter to Ohio attorney Lee Peterson, who represented CitiFinancial, Inc. (“CitiFinancial”), a creditor of Mr. Hoover’s.  Respondents held themselves out in the May 14, 2010 letter as Mr. Hoover’s counsel, identifying themselves as a law firm and referring to Mr. Hoover as their “client.”  A similar letter followed on May 27, 2010.  It appears that Respondents’ outreach coincided with a suit filed by CitiFinancial against Mr. Hoover in the Licking County Municipal Court for money owed on a note, though Respondents did not make, or attempt to make, an appearance in that matter.  Regardless, the facts are undisputed (1) that CitiFinancial sued Mr. Hoover, an Ohio resident, in an Ohio court based on transaction and default that occurred in Ohio, and (2) that Respondents, without any legal counsel licensed to practice law in Ohio, contacted counsel for CitiFinancial and purported to represent Mr. Hoover in debt negotiations on that Ohio matter.

Of course, the correct response to someone laying out those “undisputed” facts in a just world would be: so what?

Neither the order nor the Panel report it adopted provide all that much in the way of detail about any of the arguments made by the lawyer to defend himself against the charges (and, in fact, it mostly reads like he didn’t.)

A review of Ohio RPC 5.5 demonstrates though that there were at least two strong arguments that should have been pursued because Ohio’s version of that rule largely tracks the ABA Model Rules.

First, assuming that the lawyer truly was not only ever going to attempt to negotiate the debt reduction without ever being willing to appear in the lawsuit, the lawyer should have been able to argue that, as long as he had no reason to think he could not ultimately be admitted pro hac in the lawsuit if negotiation was unsuccessful, (c)(2) should provide sufficient cover. That rule provides the ability on a temporary basis to provide services:

reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

Second, assuming that the lawyer couldn’t look to (c)(1) because they were never going to do anything beyond negotiating, the lawyer could have looked to Ohio RPC 5.5(c)(4) for approval to contend that these negotiations for the client were ones that “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” This would be because, as the Panel report and Order also explained, the lawyer and his firm’s “practice includes counseling and assistance to individuals regarding the reduction of consumer debt. Once retained, Respondents contact their client’s creditors and attempt to negotiate a reduction of outstanding debts.”

Supreme problems

A lot of attention is focused on goings-on related to the U.S. Supreme Court – and rightly so given the stakes and given the nature of the saga that continues to unfold.

But, lost in the shuffle is the fact that 2 state Supreme Courts in our nation are, at present, entirely in a state of disarray.  One of them – West Virginia – has descended into chaos as a result of something that appears, to some extent, to simply be a naked political power play.  The West Virginia legislature has impeached all 4 0f the justices remaining on its state supreme court.  That court has only 4 justices because one resigned shortly before the impeachment proceedings were set to begin.  Some media reports focus on the fact that this effort could permit the current Governor of West Virginia to appoint an entirely new state supreme court.  But the effort seems to go beyond party-line politics as elections for the West Virginia Supreme Court became non-partisan in 2015 and two of the justices impeached previously ran as Republicans while two had run as democrats.  And to make matters a bit less clear, one of the four justices also is the subject of a 20+ count federal indictment, and the one who resigned before impeachment proceedings began has also agreed to plead guilty to a criminal charge.  The impeachment charges vary a bit as the only thing that all four justices alike were charged with was failing in their administrative duties, three of them were impeached for paying senior status judges more than the law allows, and two of them were also impeached in connection with monies they spent refurnishing their offices.

The other situation also has the portent of removal from office of a majority of members of a state’s highest court but involves the prosecution of a judicial ethics complaint instead of something that is complicated by issues involving separation of powers and what sort of role politics is playing in the process.

In Arkansas, the Judicial Discipline and Disability Commission filed formal disciplinary charges against six of the seven sitting justices in that state over the Court’s treatment of a trial court judge.  The trial court judge filed a disciplinary complaint against all seven of the justices, and, just this past week, a special disciplinary counsel has filed a formal complaint for discipline against 6 justices for their actions in ordering that all of the trial court’s cases involving the death penalty be reassigned after giving the trial judge next to no notice of what was happening.

Now there is certainly a political undercurrent to the Arkansas situation – given that the underlying issues revolve around the death penalty – but, unlike what appears to be going on in West Virginia, the Arkansas process at least feels less like anything that could be described as a political power grab.

You can read the 10-page disciplinary complaints against each of the six justices here [each complaint is essential identical), but let me offer a very short synopsis of the events.

Arkansas, like my own state, has watched its judicial process struggle with questions about the mechanics involved in carrying out death penalty sentences, specifically questions about whether the use of a particular three-drug compound to accomplish lethal injection is constitutional or amounts to cruel and unusual punishment.

In Arkansas, a lawsuit was filed on April 14, 2017 by one of the manufacturers of one of the drugs proposed to be used in Arkansas’s three-drug protocol seeking an order that the State of Arkansas not be permitted to use its drug for that purpose.

That case was assigned to Judge Wendell Griffen, and Judge Griffen swiftly entered a requested TRO prohibiting such use by 4:25 pm on April 14.  Judge Griffen is outspoken in his personal opposition to the death penalty and even reportedly participated in an anti-death penalty march around the time of the entry of this injunction.  The Arkansas Attorney General immediately filed an emergency petition for mandamus and prohibition on the next day April 15, which was a Saturday.  The Attorney General was seeking to have the TRO vacated and Judge Griffen removed from the case.  By a little before noon on April 15, the Court sent out a notice providing the parties with a deadline for responding to the petition by 3:00 pm on that Saturday.  Because of the nature of the proceeding – one seeking mandamus and prohibition – Judge Griffen should have been copied on all of the filings to this point but had not been.  The Clerk of the Court realized later in the day that Judge Griffen had not been given any notice and sent an email with copies of the filings to Judge Griffen’s chambers email address just before 4:30 pm on that Saturday providing a deadline for responding by 9:00 a.m. on Monday April 17, 2017.

When that deadline came and went without a response from Judge Griffen, the Arkansas Supreme Court entered an order that not only vacated the TRO but made a ruling regarding Judge Griffen that no party had requested – that all the cases assigned to him involving the death penalty were to be reassigned and that any future cases also be reassigned and that he be referred to the Committee for potential discipline.

Ten days later, Judge Griffen filed a judicial disciplinary complaint against all seven members of the Arkansas Supreme Court.  In what seems like a remarkably bad judgment call, one of the justices responded – apparently on behalf of all of them – with an argument that the Commission did not have jurisdiction to take any action.

The fundamental takeaway from the decision of the Judicial Discipline and Disability Commission to move forward with formal charges is difficult to pinpoint as the order finding probable cause does not directly engage in much analysis of any particular judicial ethics rule.  Rather, the order sets out a number of rules stated as being implicated in evaluating all the parties but does not do more than that.  The only one in the mix that seems to apply directly to the question of the justices conduct in taking action against Judge Griffen with the barest of notice though is Arkansas Code of Judicial Conduct Rule 2.6(a): “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

The other rules flagged largely would appear to be more pertinent to questions about whether it is appropriate for Judge Griffen to hear cases involving the death penalty or not.  Along those lines, the order manages with one noteworthy paragraph to put in stark relief the Commission’s willingness to conclude that the justice may have acted arbitrarily and capriciously and explain why those who would jump to a conclusion about whether Judge Griffen’s conduct was wrongful should not move so hastily:

In acting on such matters involving judges, it is important to consider the well established case law that judges are presumed to be impartial and unbiased and presumptively will act with honesty and integrity in adjudicating cases.  [citations omitted] A personal belief of a judge, even if expressed publicly by word or conduct, is insufficient to overcome this strong presumption of a judge’s impartiality in ruling on matters of law before the court.

Any outcome in this matter will certainly bear watching.  Not only is a special prosecutor involved in the bringing of the charges, but any ultimate resolution of the case would likely eventually have to be heard by a specially-appointed set of replacements for the sitting justices.

Neither a stalker nor a burglar be.

Matters of the heart have caused people lots of problems throughout the course of human history.  Matters of the heart, when the heart is located inside the chest of a lawyer, work pretty much the same way.

Of course, sometimes stories that, on the surface, seem like matters of the heart might be more fairly characterized as being really about the inability of men to avoid controlling or toxic behavior directed toward the women in their lives (or who used to be in their lives).

This post is about a story of a Pennsylvania lawyer who is now suspended from practice over really bad judgment flowing either from a matter of the heart or from the more toxic issue of controlling behavior.  I don’t know the back story or the people involved in any way so I don’t know which, but I have my suspicions.  The story itself makes for an interesting post (maybe?) over and above just being an example of a lawyer behaving badly because it offers another reminder of how aspects of the ethics rules can apply to a lawyer even when they aren’t practicing law, and it taught me that I apparently do not know the full extent of what can constitute burglary.

If this blog is on your reading list, you likely already have read at least one article about this suspended lawyer (hopefully this one) — but in case you haven’t the suspension flowed from his secretly putting a GPS tracking device on the back of his ex-girlfriend’s car and hiding an audio recording gadget insider her car (under the driver’s seat to be more specific) in order to spy on her in hopes of finding out who she was now dating.

To some extent, being suspended for a year followed by four more years of probation is a secondary problem professionally for this particular lawyer because he also will be serving probation in the criminal system for five years as result of a guilty plea to two felonies: criminal trespass and to something of a violation of a criminal wiretapping statute in Pennsylvania for the same conduct.

Because of the felony convictions, it should certainly come as no surprise that the ethics violations with which he was tagged include a violation of Pennsylvania’s Rule 8.4(b) – conduct involving the commission of a crime reflecting dishonesty.

His suspension was also premised on a violation of Rule 8.4(c) which is simply the general provision prohibiting lawyers from engaging in any conduct involving dishonesty or fraud.  I’ve written in the past about the problematic potential scope of Rule 8.4(c)’s prohibition for lawyers given that it is not in any way actually textually moored to representation of a client or even to conduct related to the practice of law.

This probably would not be the kind of case where a lawyer would get much traction trying to argue that applying that rule to this kind of conduct would amount to overreaching.

As promised above, the other tidbit of note – more just educational for me – is the notion that, although he didn’t plead to the charge, he was also charged with burglary under Pennsylvania law for what he did to his ex-girlfriend.  That’s a new one for me given that while he may have broken into her vehicle, he didn’t actually take anything out of it but instead left something inside of it.

Turns out, under Pennsylvania law, burglary is defined to be entering any building or occupied structure with the intent to commit a crime inside.  So, this must mean that for the charge against him to have been colorable, his ex-girlfriend’s car was inside a garage at the time he put the recording device inside.

So, while there are many lessons to take from the situation described above, hopefully for most of you reading this the most practical one — the one that addresses the thing you are most likely to do that would be bad — is to remember that if you do not regularly practice a particular area of law you probably don’t know as much about it as you think you do.

(Also, though I know you don’t need this reminder, once your significant other moves on, you should too.  And, even if you can’t, don’t stalk them.  Seriously.)