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.)

Nebraska demonstrating less patience than Tennessee

Although I live in SEC country, I am a Chelsea FC fan rather than a follower of college football.  So this is not a sly college football reference in my title.  (I am aware that apparently UT lost its first game of the season but have literally no idea whether the Cornhuskers have even played yet in 2018.)  This post title is actually a very short description of the difference in how quickly the Nebraska Supreme Court managed to disbar an attorney who was obviously flouting the rules than did the Tennessee Supreme Court in the last matter about which I wrote.  The less patient approach on display in Nebraska was entirely understandable because the underlying rule being flouted was related to trust accounts and not conflicts.

The now-former lawyer in question – John Nimmer – went from one prior instance of having received a public censure to being disbarred for his next offense in 2018 because he repeatedly commingled funds and used money in client trust accounts to pay an array of personal expenses.  He also managed to get disbarred because his only defense to the charges – which were first pursued in 2016 but covered his banking for more than a decade – was something of an attempt to plead ignorance.  (He also managed a too-cute-by-half variation of something I’ve written about before as apparently having worked for one particular Wisconsin lawyer – failing to also keep records sufficient to fully prove what you did.)

Interestingly, before I tell you all that I will tell you about why the outcome seems so justifiable, it is worth noting that the initial decision against him was not disbarment, it was merely a 1-year suspension followed by 2-years of probation.  Nimmer objected to/appealed that proposal and, ultimately, got disbarment.  (It likely would come as no surprise to anyone who does disciplinary defense to hear that Nimmer was pro se on appeal.)

Also interestingly, unlike your normal trust account violation disciplinary proceeding, this one began when the SEC (no, not that one I referenced earlier, the Securities and Exchange Commission) made a referral in March 2016 to Nebraska bar regulators after gaining access by subpoena to Nimmer’s trust account records and finding much questionable activity.

The SEC’s “review of Nimmer’s trust account transactions revealed that he wrote numerous checks for personal expenses, ranging from rent and child support to
dog boarding and landscaping fees.”

Nebraska bar counsel first asked Nimmer to explain a number of the checks and he declined to do so.  They then issued their own subpoena for his trust account records covering a time period going back more than 10 years to January 1, 2006.  Thereafter, they pursued a formal petition for discipline against him alleging that:

between January 2006 and February 2016, Nimmer wrote personal checks on
his client trust account to 29 different businesses, individuals, and organizations. Additionally, it alleged that on December 20, 2007, Nimmer deposited a $10,000 check from his mother issued to him with the notation “loan” into his client trust
account.

As often happens in pro se disciplinary proceedings, Nimmer first challenged (unsuccessfully) the notion that there was any jurisdiction since bar counsel worked for the Supreme Court and also sought out a requirement that bar counsel should have to be disqualified because Nimmer was going to call him as a witness.  He ultimately got a special counsel assigned to his case, but the dismissal motions were unsuccessful.  Nimmer also tried a number of other procedural “Hail Marys,” including trying to have his trust account records barred from evidence because he was only actually required to keep records going back 5 years.

You can read the 31-page opinion here (N00006179PUB) and the array of transactions that were involved and that Nimmer admitted happened.  But, I’ll end with a quick elaboration on that “ignorance of the law” defense, paired as it was with an attempt to argue that he was acting at all times in good faith.

Essentially, the record was undeniably clear that Nimmer used his trust account like a personal checking account — he repeatedly wrote checks to pay the power company, his internet service provider, to pay for his daughter’s camps and health insurance, to pay for his cell phone service, and even one to pay his Nebraska State Bar dues out of his trust account.

Nimmer attempted to argue that “maybe” he was actually using earned fees he had deposited into the trust account to make these payments but he didn’t exactly offer documentation to support the possibility.  He also argued that the commingling rules were less than clear so he didn’t understand that he couldn’t, for example: receive a loan from his mother for $10,000, deposit that into his trust account, and then use that $10,000 to pay a whole series of personal debts.

Nebraska grabbed language from our nation’s capital to quickly dispatch of such an argument in this situation:

The District of Columbia Court of Appeals explained it well: “If a failure to understand
the most central Rules of Professional Conduct could be an acceptable defense for a charged violation, even in cases of good faith mistake, the public’s confidence in the bar and, more importantly, the public’s protection against lawyer overreaching
would diminish considerably.”  In re Smith, 817 A.2d 196, 202 (D.C. 2003).

Can’t stop, won’t stop. Now … full stop.

I’m really, truly not trying to fall into the habit of only managing one post a week.  As proof, here’s a post about a Tennessee lawyer who couldn’t/wouldn’t follow the rules.

It is a fascinating case study for at least two reasons.  One is that discipline for conflicts of interest is, all things considered, relatively rare and, yet, this lawyer’s failure to recognize and avoid a conflict of interest has now led to disbarment.  Second is that it really wasn’t the conflict of interest that got punished with disbarment it was the lawyer’s violation of another rule I’ve mentioned before: The First Rule of Holes.  “When you are in one, stop digging.”

When you violate that rule, you end up in a hole from which you cannot climb out.  That is the end of the story for Homer Cody.

Cody has now been disbarred by the Tennessee Supreme Court in an opinion released earlier this week.  How did he get there?  Well, here’s the short version: he took on a representation that created a conflict from day one and then, despite the imposition of escalating discipline, refused to comply with court orders saying that he had to withdraw from the representation and then kept representing the clients involved even while suspended.

The slightly longer version?  Well, here goes:

A lawsuit was filed all the way back in 2002 that sought judicial dissolution of a childcare entity and its executive director over alleged self-dealing transactions between the executive director and the entity.  In 2003, that executive director was indicted by a grand jury, and then pled guilty to, two counts of theft from the childcare entity.  Near the end of 2004, Cody entered an appearance in the civil lawsuit as an attorney representing both the childcare entity and its executive director.  Joint clients with an obvious conflict between their interests.  That case ended in a ruling that the executive director had failed in her fiduciary duties to the childcare entity and a judgment entered against her in favor of the receiver  – overseeing the entity now in dissolution – for almost $300,000.  Cody filed a notice of appeal from that ruling again as an attorney for both the entity and the executive director.  Who continued to be two clients with glaringly obvious conflicts between them.

In 2007, counsel for the receiver moved to disqualify Cody and, ultimately, in 2008, our state’s Court of Appeals, ruled that Cody was disqualified from representing either of the clients.  Cody, however, continued to undertake actions representing both clients, a contempt action was pursued, and another Court of Appeals ruling was issued emphasizing that Cody had a conflict and was to refrain from representing the entity or the executive director and sent its ruling to our Board of Professional Responsibility.  The BPR filed a petition for discipline in 2011 and that proceeding ended in a public censure being issued against Cody in March 2012.

Despite that fact, Cody (shovel in hand) continued to file pleadings in court as an attorney for both clients.  This resulted in a second disciplinary petition.  In response to that second disciplinary petition, Cody filed a RICO case in federal court, as attorney for the same two clients, claiming that pretty much everyone involved in the court proceedings against his clients were using the Tennessee judicial system “to steal, embezzle, defraud, and to carry out other illegal activities.”  The pending disciplinary case was amended to bring more charges over the representation in the new federal court case.  That disciplinary case resulted in the imposition of an 180-day suspension of Cody’s license in 2015.

I’m guessing at this point, Dear Reader, you can guess what happens next (if for no other reason than that I sort of told you a few paragraphs up in the short version).  During his 180-day suspension, Cody drafted appellate briefs for the same clients, after their RICO case had been dismissed, and had them sign and file them as if he was not involved.  That resulted in a new disciplinary proceeding and culminated in a new one-year suspension in 2016.  Thereafter, Cody prepared three more appellate briefs for those clients — including a petition for cert with the U.S. Supreme Court (!) during his one-year suspension and, in 2017, was hit with a new two-year suspension.  During the one-year suspension but before the two-year suspension began, Cody went back to the state level trial court where it all started and filed an “Open Refusal to Obey Judicial Orders,” along with one or two other filings (including a challenge to the receiver’s fees and expenses), and then, during the two-year suspension period, he filed a “Motion for Determination of Proper Venue.”

Those acts resulted in Cody being found in criminal contempt and actually sentenced to 30 days in jail earlier this year.  Those acts also brought about yet another disciplinary proceeding against him, which he defended by denying the legitimacy of the orders of the Court suspending him, and that resulted in August 2018 in an order disbarring him from the practice of law.

All in all, his saga is a remarkable story that demonstrates at least three things:

(1) you can dig a pretty deep hole over the course of 14 years;

(2) there has to have been something else going on to explain the public meltdown that this lawyer managed to have after apparently practicing for more than 25 years without receiving any public discipline; and

(3) the BPR can truly be dedicated to the concept of incremental discipline when it wants to be as it is almost as hard to believe that Cody was given 180, 1-year, and then 2-year suspensions in these circumstances before ever being disbarred as it is to believe that he kept going out and getting new shovels.

Traps for the Unwary – Married lawyers edition.

Within the last week, there was an interesting Law.com article (subscription required) on a topic that has been something of a pet . . . well not really “peeve” of mine, and not really a pet project of mine, but a topic that I feel like is somewhat uniquely overlooked by the people to whom it should be most relevant — spouses/significant others who are both lawyers but who work different places.

The article discusses an Ohio disciplinary case that is ongoing and that involves something that – based on anecdotal evidence over the course of my career — is an extremely frequent occurrence:  the sharing of information about cases and matters between spouses and significant others who both are lawyers but who aren’t both representing the client in question.

Although (as indicated above – unless you are particularly wily about how you use the Internet and various search engines ability to “cache” content — you need a subscription to read the article, here’s a snippet to give you a flavor of the fact pattern involved.

The Ohio high court is set to review a proposed disciplinary sanction against two education law attorneys, ThomasHolmes and Ashleigh Kerr, who are engaged to one another and admitted to exchanging emails that included work product and confidential client information.

Although Holmes and Kerr focus on similar types of law—namely the representation of public school districts—they have never shared clients and they worked at different firm. Holmes practiced most recently at [a firm] in …Ohio, and Kerr practiced at [a different firm] in … Ohio.

In a disciplinary complaint lodged in December against the couple, the Ohio Supreme Court’s board of professional conduct said the two have lived together since October 2015 and became engaged in November of that year. From January 2015 to November 2016, the disciplinary complaint alleged, the two exchanged information related to their client representations on more than a dozen occasions.

“Generally,” the board alleged, “Kerr forwarded Holmes an email exchange with her client in which her client requested a legal document (i.e. a contract, waiver or opinion). In response, Holmes forwarded Kerr an email exchange with his client which attached a similar legal document that he had drafted for his client. More often than not, Holmes ultimately completed Kerr’s work relative to her particular client.”

If you want more of the detail, you can access the disciplinary complaint here.  And you can go read the pending recommendation of the Ohio board as to the discipline — which has been agreed to by each of the lawyers here.

The proposed, agreed discipline is a six-month suspension from the practice of law for each lawyer (but with the suspension fully stayed/probated.)

I suspect the outcome of that matter – and perhaps even the fact of disciplinary proceedings at all — will come as a huge surprise to many lawyers.  But the simple fact is that the underlying practice — sharing information about cases in order to try to get your spouse or significant other to help you — despite how much it may seem consistent with human nature is almost always going to be undeniably a violation of the ethics rules.  It is possible that one of the lawyers could get the client to consent to the arrangement, but beyond that approach there are very few ways to avoid the simple fact that RPC 1.6 in almost any jurisdiction won’t permit doing this.

I also strongly believe that most lawyers who do this kind of thing — if they think about it from an ethics standpoint – believe that the risk is quite low of ever being found out because of the marital privilege.  But not only because of some of the inherent limits on how far that may take you, but also because of the increasing frequency in which we all do everything digitally… this case demonstrates that there are a number of ways that the communications can surface into the light without anyone ever having a spouse voluntarily provide information any marital privilege notwithstanding.

Far too often anger begets violence both by, and against, lawyers.

I failed again as a blogger last week and do not have anything resembling a good excuse.  There is a lot going on in the world that is troubling and last week was simply a week where it felt like writing anything that was not about how our country has become okay with putting children in cages seemed frivolous.  That topic was not one that had any legal ethics component, however, so …

I’m still very angry about what my government is doing, but beyond the 50 or so words that precede this one, I’m not writing about that today.

There are two short stories sitting in my idea pile that have anger as their common thread so I’m threading them together today to simply talk about how easily anger can get the better of people if not channeled to something productive.  One story involves a lawyer being properly disciplined for failing to manage his own anger.  The other involves a tragic end of life for a lawyer who was slain by someone else who let anger take over.

A lawyer in Maryland, who already had a track record of disciplinary problems, now finds himself suspended from the practice of law for 30 days as a result of engaging in “road rage.”  Dana Paul’s suspension, premised upon violations of RPC 8.4(a), (b) and (d) is not only yet another in a long list of incidents where angry lawyers do inexcusable things but also a reminder that RPC 8.4 is the kind of disciplinary rule that applies to lawyers even when they aren’t engaged in the practice of law.

The Maryland opinion describes the three different versions (Paul’s, the other driver’s, and a third-party witness to some of the incidents) of the events presented in evidence in the case which involved sustained interactions between Paul and another driver spanning over two counties in Maryland.  Paul’s own testimony minimized his conduct but he ultimately did plead guilty to two counts – negligent driving and failure to return to/remain at the scene of an accident.  Paul claimed that things started when the other car slowed down in front of him and he observed the driver of the other car on her cell phone.  Paul says he passed her and beeped at her – claiming that he always beeps at people on their phones “as a way of telling drivers to not use their phones while operating a vehicle.”  Paul then claimed that the vehicle passed him and cut him off and then would intentionally slam on her brakes.  Then at a red light, Paul left his vehicle to question the driver.

The other driver testified to a different version of events at Paul’s criminal trial.  A third-party witness who saw both the altercation at the traffic light and the moment when Paul’s car and the other car impacted each other offered testimony that the court found persuasive:

At the traffic light, [witness] asserted that Paul exited his vehicle, displayed both of his middle fingers towards [other driver,] and reentered his vehicle and drove of.  Approximately eight miles later, [witness] was driving in the right lane while [other drive] drove next to [witness] in the left lane.  [Witness] witnessed Paul’s car drive in between [witness] and [other driver’s] cars, causing [witness] to move to the right shoulder.  [Witness] attempted to alert Paul that he could drive in front of her in order to avoid injury to any party  Thereafter, [witness] observed Paul’s vehicle make contact with [other driver’s] vehicle.  After the cars hit, [witness] stated that Paul moved behind [other driver] and took a picture of [other driver’s] license plate.  Once [other driver] then pulled off onto the shoulder, [witness] did the same and gave [other driver] her name and address.  [Witness] later drove to Easton at the request of the police to identify Paul as the person who struck [other driver’s] vehicle.

Paul’s conduct on the road did himself no favors, but Paul’s own statements to law enforcement were damaging as well as he was confronted by a state trooper after he had stopped at a restaurant to use the restroom and asked what had happened to his vehicle.  After Paul said nothing happened, and after the state trooper pointed to paint on the side of Paul’s car, Paul then denied the allegation that he had hit the other driver’s car.

Ultimately, the Maryland court concluded that it had been proven by clear and convincing evidence that Paul’s “road rage” conduct was both criminal and of a nature that reflected adversely on his “fitness as an attorney” to be a violation of RPC 8.4(b) and also that because his conduct “involved dangerous, harmful, and threatening behavior stretching across two counties,” it was sufficiently prejudicial to the administration of justice to be a violation of RPC 8.4(d).

Of course, lawyers can be victims of unhealthy anger as well.  Last week the ABA Journal online posted a story of a Georgia lawyer (just three years younger than I am) who was found dead in his law office after having apparently been gunned down by the husband of one of the Georgia lawyer’s divorce clients.  The husband was also found dead in his former wife’s bed from an apparently self-inflicted gun shot.  The police knew to go to the law office only after the husband had called his former wife and confessed to killing her lawyer.  Although I was just a baby lawyer when it happened, I remember well when something not too different than this happened in Memphis back in 2002 when Robert Friedman was ambushed in his parking garage by the husband of one of Friedman’s divorce clients.

It is a difficult time to begrudge anyone the right to be angry, and you can count me on the side of those who don’t take kindly in the political arena to slavish calls for “civility” that really only amount to trying to prevent relatively powerless people from sending a message to powerful people, but if you are reading this and you get violent when you get angry, seek out ways to learn how to manage your anger.

That escalated … but not all that quickly.

You’ve likely already read something this week about the Florida lawyer who was disbarred last month as the culmination of his “cumulative and escalating misconduct,” so I don’t know that I have anything truly unique to offer about the situation.

But because I so clearly remember talking about the first event in his series of bad behavior in seminars I did about 8 years ago, I feel compelled to write about his disbarment.

Back in 2010, an opinion came out that suspended Robert Ratiner for 60 days over an incident involving a highly aggressive and inappropriate reaction to another lawyer putting a sticker onto his laptop during a deposition.

That case garnered some substantial legal media attention because the Florida Supreme Court described Ratiner’s conduct as something that ought to be viewed in professionalism courses to teach lawyers how not to behave.  In that incident which happened in 2007, Ratiner responded to the other lawyer’s placement of the exhibit sticker by first trying to physically run around the table to where the lawyer was and then, instead, forcefully leaned over the table, angrily yelled at the other lawyer, and through the wadded up sticker at him.

Between that incident and the latest, Ratiner received a three-year suspension in 2015 flowing from more litigation behavior evidencing problems both with inter-personal skills and with recognizing and respecting physical boundaries.  In that case, Ratiner first called opposing counsel a “dominatrix” during a document review session and, on the following day, tried to grab a document away from her which prompted the involvement of a security guard.  That event happened in October 2009.

The February 2018 order of disbarment (which you can read here), unlike the prior two incidents, involved conduct inside the courtroom.  Ratiner was accused of loudly kicking the table of other counsel during a hearing, saying “lie, lie, lie” during the cross-examination of one of his law partners, and wrinkling and throwing documents in court.

The ethics rule Ratiner ran afoul of is Florida’s slight variation on the traditional Model Rule 8.4(d) about not engaging in conduct prejudicial to the administration of justice.  That rule in Florida reads:  “A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers.”

Perhaps remarkably, the initial proposed discipline for this event was another 3 year suspension rather than disbarment.  The Florida Supreme Court decided, however, that disbarment was required.

As the Florida Supreme Court explained:

Ratiner has denied the existence of such objectionable, disrespectful conduct over the years, even in the face of videotaped evidence and witness testimony. His argument or belief that said conduct constitutes the zealous representation of his clients is completely unacceptable.

[snip]

In cases where lawyers have previously been disciplined for engaging in misconduct of a similar nature, the Court has generally taken an incremental approach in imposing discipline, increasing the severity of discipline in each instance.

[snip]

Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.

Other than what is set out in the various opinions, I do not know anything more about this lawyer’s situation.  Although none of the opinions include anything to clearly signal underlying, treatable problems plaguing this lawyer,  this certainly feels like a sad story that has issues of lawyer wellness at its heart.

It also involved a pattern of conduct spread out over a fairly long time (though not as long as it feels at first when you have 10 years elapsing between the sticker-throwing incident that prompted the first, short suspension and the disbarment) when you think about it in terms of “escalation.” Ratiner practiced law for 28 years before being disbarred.  Almost 4 years passed between the deposition sticker row and the table-kicking courtroom incident.

Nevertheless, it’s as good a reason as any to remind people in our profession to add this report from the National Task Force on Lawyer Well Being to your reading pile and to actually read it.  Particularly, when news in the world of lawyering brings developments like this shooting — a situation which I would say truly involves quick and very scary escalation — and the notion that this odious lawyer is out there representing our profession to the public.

Preparing for disbarment.

The panel I was fortunate enough to participate in at the meeting of the Association of Professional Responsibility Lawyers in Vancover earlier this month has received a very good write up appearing in a Bloomberg Law publication.  You can go read it here.  We talked about a number of things other than the looming GDPR deadline, but that is what is the focus of the article.  (I do promise to write more about GDPR issues before that May 2018 deadline rolls around, but not today.)

One of the very good panel presentations I had the chance to observe at the APRL mid-year meeting involved representing lawyers in disbarment cases and how difficult it can be to manage your client when you know what’s coming – they are going to be disbarred – but they do not yet realize that’s the future (or they are still struggling mightily to convince themselves it will play out differently.)  There are certainly lawyers who deserve to be disbarred, but even those lawyers, if they’ve hired a lawyer for their matter, deserve the best advice and guidance their own lawyer can provide them about their situation.  It was a very good panel discussion and offered some good insight about the kind of skill sets lawyers who handle such matters need to possess.

Last week was a pretty big week in Tennessee for removing lawyers from the rolls as the Tennessee Supreme Court issued two opinions disbarring two lawyers in largely different scenarios.  The two prominent things they have in common are: (1) as with lots of disbarment scenarios there were conversions of client funds from trust in the mix of problematic conduct; and (2) they both involved what should have been viewed as quite obviously doomed arguments to try to have an order of disbarment be made retroactive to a much earlier date.

One of the things that lawyers representing lawyers ought to recognize – and that was at least something of an implicit theme in parts of the panel discussion – is that, sometimes, the best representation you can provide involves helping your client get disbarred as quickly as possible.  In jurisdicitons where disbarment is permanent, that isn’t necessarily true at all.  But, in jurisdictions like Tennessee, where a lawyer can apply for reinstatement even after being disbarred, but cannot do so until at least five years has passed, getting to disbarment quickly can be incredibly important.  (And, to be clear, I have no insight into the handling of this particular case.  The lawyer for the lawyer might have been trying to do everything possible in that regard and might have even made it perfectly clear to the lawyer client that the price of continued appeal was that the disbarment clock was not going to start for many years.)

One of the two opinions – likely quite rightly – describes the conduct of that lawyer as seeming to be “more bungling than nefarious” so this post will focus instead on the case that pretty clearly drips with nefariousness.  You can, of course, go read the full opinion here, but here’s a very quick and dirty, bullet point version of the wrongdoing:

  • The lawyer convinced someone to give him more than $5 million for a financial venture, promised the funds would be held in escrow and not moved without the person’s permission, and promised payouts to the person from the venture to begin within 30 days.
  • The lawyer did not keep the funds in the manner promised, made no payouts, only returned $1 million of the deposited funds, never provided an accounting to the person of what happened to the money, pulled those funds out for a variety of purposes, and then falsified accounting records filed with a court to show the money was still in trust when it wasn’t.
  • The lawyer defied a court order requiring transfer of whatever funds were still in the trust account to the Clerk of Court for holding and instead directed the bank to transfer those funds to a bank account of an employee of his law firm.
  • At around the same time, the lawyer took a $1,500 retainer from a client. wrote one letter, and then stopped communicating with the client, and didn’t refund the money.
  • A year before those situations, the lawyer separately got a payment of $5,000 from a client, did very little work, and then stopped communicating with the client altogether and ignored counsel for the opposing party, and did not refund the client’s money.
  • Later, after a temporary suspension had been entered and while on disability inactive status (NB: the only apparent claimed defense for any of the above hinged on a claim to have suffered a head injury in an attack involving being hit on the head with a metal pipe.), the lawyer worked as an assistant for another attorney (NB: back at a time when in TN we did not have the “can’t sweep the floor” rule I wrote about here.) and scammed $10,000 out of one of that attorney’s clients based on false statements that the attorney wanted the payments.

I mean, if you have a decent amount of experience with the disciplinary system, you know the end of this story once you’ve gotten up to speed with the facts:  That’s the tale of a lawyer who will be disbarred.

It’s also the tale of a lawyer who will have a very, very hard time ever being able to be reinstated to the practice of law in the future and whose best hope of reinstatement ever coming to fruition likely turns as much on what they do during the disbarment proceedings as what they do to rehabilitate themselves and become a different person over the following five years.

This is also the story of a lawyer who needed someone to remind him that there are things you can do on hills besides die on them.

If that kind of reminder was given in the form of legal advice, it certainly wasn’t followed.  Instead, a really big hill was located.

The primary argument pursued on the appeal of the case to the Tennessee Supreme Court was that the date of disbarment should have been made retroactive back some 6 to 7 years earlier.  Setting aside just the pure legal flaws associated with trying to argue that the concept of disbarment (rather than suspension) can be made retroactive to a period of ongoing temporary suspension, the act of pushing this argument in this case required someone to stand in front of the Court and ask it to enter an order of disbarment for the above conduct but agree that the lawyer could immediately turn around and apply for reinstatement.

Hope may spring eternal and all that, but that’s such an obviously untenable position that I would have hoped no lawyer would build an entire appeal around it.

In the end, as indicated above, this is the story of a lawyer that likely has no realistic chance at ever being reinstated, but, by persisting on appeal long after the ghost should have been given up (and while having been sidelined from practice for the last 7+ years), any effort at reinstatement cannot be pursued until 2023.

 

 

Friday follow up. Good news and bad news.

I seem to be trending toward this model of one new/fresh substantive post early in the week and one of these “FFU” posts at the end of the week, but I’m not sure if this is a rut or my script going forward.  A very intelligent and thoughtful lawyer asked me while I was in Vancouver what my publishing schedule was, and I had to embarrassingly admit that a fixed schedule was not something I had.  I told him what I’d tell you – if you asked — I try my best to at least post twice a week, but the days varies and some weeks I am better at this than I am other weeks.  Not the kind of consistent excellence that builds a readership, I readily admit.

So, oh year.  The follow ups.  Good news and bad news.

First, the good news.  The Oregon Supreme Court has approved the revision to RPC 7.3 in that state that I wrote a bit about recently.  You can read the Oregon court’s order . . . eventually (I can’t find it yet online) [updated 2/10/18 – Thanks to Amber Hollister, you can now see the order hereAmended SCO 18-005 Amending RPC 7-3 and 8-3 signed 2-7-18], but you can get your confirmation that I’m not lying to you here.

Second (also last), the bad news.  D.C. has now officially issued a 60-day suspension (with potential for it to be much longer) for the former G.E. in-house counsel that I wrote some about quite a few moons ago.  One of the panel presentations I had the chance to sit through in Vancouver touched on issues of lawyer whistleblowers.  You can reach your own conclusions about whether we currently live in a world in which lawyers should be encouraged to be whistleblowers (particularly, for example, in-house lawyers in Washington, D.C. these days), but the only conclusion that can be drawn from this D.C. outcome is that anyone who learns about the punishment that was sanctioned will be a whole lot less willing to do so than they would otherwise be.

I remain particularly skeptical of the treatment afforded Ms. Koeck by the D.C. bar given the fact – as discussed way back when (which was itself a FFU almost a year ago so…) – that they also decided to punish the lawyers who gave Ms. Koeck advice and guidance along the way.  Which is, as far as these things go, even a more chilling wrinkle.  You can read a National Law Journal piece on the news out of D.C. here.

Disturbing development in a recent disciplinary case

Late this Summer, the Tennessee Supreme Court issued an opinion, over a dissent, that imposed a public censure against a lawyer for what were, pretty clearly, a series of failures on the part of the lawyer’s staff in the handling of a client’s matter.  What makes the case, Garland v. BPR, interesting, and worthy of that dissent, is not the level of discipline imposed but the choice of the particular rules the lawyer was charged with violating.  The things that make it interesting and dissent-worthy are also the things that make it potentially disturbing as precedent for lawyers and lawyers (like me) who defend lawyers.

Even though the case was clearly one in which the staff to whom the lawyer delegated tasks and responsibilities failed to do their job correctly, the Board did not charge the lawyer with a violation of the rule that is tailor-made for that situation, RPC 5.3.

RPC 5.3 requires the following of a lawyer in Garland’s position:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the nonlawyer is employed, or has direct supervisory authority over the nonlawyer, and knows of the nonlawyer’s conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Instead of trying to build a case against Garland for any failures under RPC 5.3, the Board charged him with violations of RPC 1.3 and RPC 1.4, contending that he personally failed to act diligently in the client’s matter and failed to properly communicate directly with the client.  The Board also charged Garland with what is often an add-on violation, RPC 8.4(a), but appears to have done so with an unusual twist — justifying it on the argument that the lawyer committed violations of the rules “through the acts of another,” where the “another” was a member of his own staff.

Justice Kirby, in her dissent, made the point that the rule that should have been the focus of the case was not:

The facts in this case center on the failure of Mr. Garland’s staff to response to [client’s] inquiries, the staff’s failure to make Mr. Garland aware of things that needed his attention, or staff members’ general incompetence in tasks such as filing and mailing.

Despite the fact that, “Rule 5.3 was tailor-made for situations such as the one presented in this case,” Justice Kirby trumpeted that the Board did not pursue any charge against Garland for a violation of that rule but instead leveled RPC 1.3 and 1.4 charges and explained her reluctance to adjudicate the disciplinary matter when the Court had “no findings on what measures Mr. Garland should have had in place to supervise his staff,” “no findings on what efforts Mr. Garland should have made to reasonably ensure that his staff’s conduct was appropriate,” and “no findings on whether Mr. Garland ordered or ratified his staff’s infractions, or whether he learned of them at a time when the consequences to [the client] could have been avoided or mitigated.”

Justice Kirby not only dissented from the ruling but also scolded the Board for not pursuing the case under the correct disciplinary rule — “I fault the Board primarily for the posture of this case. It is important for ethical charges against lawyers to be properly framed, so that the rules adopted to govern certain situations are applied to the intended situations.”

Justice Kirby’s admonition to the Board is important for at least two reasons.  First, as she herself writes:

There are countless lawyers in Tennessee with law practices similar to Mr. Garland’s high-volume practice, in which many daily tasks and interactions with clients are delegated to nonlawyer staff. Delegating such tasks to nonlawyer employees does not
violate ethical rules, but failing to properly supervise nonlawyer employees does. It is important for practicing lawyers to understand what this Court expects from them in terms of supervising nonlawyer staff to whom mundane but important tasks are delegated.

Hopefully, and perhaps even more vitally, Justice Kirby’s admonition to the Board needs to have an impact because of the significant problems that could be created for lawyers if the Board is allowed to use RPC 8.4(a) to impose discipline in situations where RPC 5.3 would not support that outcome.  In other words, Justice Kirby’s words — “Delegating tasks to nonlawyer employees does not violate ethical rules” — need to continue to be the law in Tennessee.  If the Board is permitted to charge lawyers with infractions of RPC 8.4(a) on the basis that the failing of a staff member is the lawyer violating the rules through the “acts of another,” then RPC 5.3 essentially becomes surplusage in the rules altogether.