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.

Speaking again of rarer occurrences

Last week I dedicated a post to highlighting some topics of note that I hadn’t written about in a while.  This is another such post as the Tennessee Supreme Court has again taken action on its own initiative to increase discipline against an attorney beyond a result that both the accused attorney and the prosecuting entity had decided not to even appeal.  I previously wrote about such an occurrence back in April 2015.

Any time it happens it’s an interesting outcome because for lawyers in such proceedings, and the lawyers who represent them, the possibility always looms in the background when handling a matter but does not frequently occur.  As the opinion explains, Tenn. Sup. Ct. R. 9, § 15.4 imposes a duty on the Court even if no one has appealed to “review the recommended punishment provided in such judgment or settlement with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case.”

This more recent instance has occurred to a Nashville criminal defense lawyer by the name of Paul Walwyn and you can read the full ruling here.

The nature of case against the lawyer reads in a pretty straightforward manner:

This case arose from Mr. Walwyn’s representation of Jonathan Gutierrez in a first degree murder trial in 2011. At the time, Mr. Walwyn had been licensed to practice law since 1996 and had been practicing criminal law for fifteen to sixteen years. Following
Mr. Gutierrez’s convictions for first degree murder and four counts of aggravated assault, he was sentenced to life in prison and four consecutive four-year sentences, for a total effective sentence of life plus sixteen years. Mr. Walwyn filed a motion for new trial,
which was subsequently denied on September 30, 2011. However, Mr. Walwyn did not file a notice of appeal in Mr. Gutierrez’s case until May 8, 2015, even though the Tennessee Rules of Appellate Procedure require that a notice of appeal be filed within
thirty days.  The trial court appointed new counsel, Mr. Richard Strong, on June 3, 2015.  The Tennessee Court of Criminal Appeals subsequently accepted the late-filed notice of appeal in the interest of justice. See Tenn. R. App. P. 4(a).

The opinion reveals there were some factual wrinkles, including questions about how (in)frequent communication with the client was during the delay in noticing the appeal and that a TV interview the lawyer provided after trial meant he shouldn’t handle the appeal, but the primary focus of the disciplinary matter was on the 3 1/2 year delay in filing a notice of appeal.

Originally the hearing panel imposed a one-year suspension with all of the time served on probation rather than active suspension.  While that used to be an acceptable framework in Tennessee, the rules changed within the last few years and, now, if an attorney is to be suspended they must have an active period of suspension of no fewer than 30 days.  Because the hearing panel managed to overlook the rule changes, disciplinary counsel filed a motion to have the judgment altered to comply with the rules.  In response, the hearing panel altered the punishment not by imposing 30 days of active suspension but by reducing the punishment to a public censure along with certain conditions, including a practice monitor.  Thereafter, Mr. Walwyn (not surprisingly) did not appeal and neither did disciplinary counsel (surprisingly).

The Court exercised its Section 15.4 obligation to review, however, and indicated it would consider increasing the punishment.  After that point, the Board – which is allowed a second bite at the apple in such a situation – did begin to advocate to the Court that Mr. Walwyn should be suspended.  The Court agreed and imposed a 12-month suspension with 6 months of active suspension and 6 months on probation with a practice monitor as well as imposing some additional CLE requirements as the final sanction.

In the end, the driving force was the fact that the attorney had previously been disciplined several times for very similar conduct.

Prior to this disciplinary hearing, Mr. Walwyn had been disciplined on five separate occasions. In 2003, he received a private reprimand for failing to file a proposed order for four years. In 2004, he received a public censure for filing a proposed order late
in a child support and custody case, filing a notice of appeal in a criminal case five days late, filing an appellate brief sixty days late, and failing to file a timely petition to this Court, resulting in the petition being denied as untimely. In 2006, he received a public
censure for failing to timely respond to Disciplinary Counsel. As a condition of his guilty plea, Mr. Walwyn was required to undergo a law practice management evaluation by another attorney; audit the law practice management course at the Nashville School of
Law; and complete six additional hours of CLE hours on subjects related to client relations, the management of a law practice, the Rules of Professional Conduct, or disciplinary actions of the Board of Professional Responsibility. In 2006, Mr. Walwyn received a private informal admonition for neglecting to have a default judgment set aside and for failing to provide an affidavit to Disciplinary Counsel. Finally, in December 2015, Mr. Walwyn was suspended from the practice of law for six months, with thirty days to be served on active suspension and five months to be served on
probation. See Walwyn v. Bd. of Prof’l Resp., 481 S.W.3d 151, 161-62, 171 (Tenn.2015). Mr. Walwyn was still completing this probation at the time of his disciplinary hearing in this case.

Loyal readers of this blog (or at least those with eidetic memories) will recall that December 2015 suspension of Mr. Walwyn as being the case in which his lawyer articulated the “rambling and bordering on incoherent” attack on the structure of the disciplinary system in Tennessee.  (That same lawyer represented Mr. Walwyn in this matter as well.)

Finally, having received a bit of feedback from a fellow ethics nerd as a comment on my post about my perceived delay in a California disciplinary case last week, I also want to mention that this case also shows some of my perspective as to timing.  A review of this latest Walwyn matter will show that the time between the filing of the formal petition for discipline and this ultimate outcome from the Tennessee Supreme Court, even with all of the added procedural hurdles involved, was just under 2 years.

Hey Genis! Don’t do that.

I’ve represented a lot of lawyers over the years in disciplinary proceedings in Tennessee.  It is certainly fair to say that the process is slow when you want it to be fast and sometimes vice versa.

I noticed a story that the ABA/BNA Lawyers’ Manual on Professional Conduct ran with that made me realize that the disciplinary process is pretty remarkably slow in a lot of places.  Mike Frisch has written at length, and repeatedly, about his views on how slow the DC disciplinary process is, but this is about the long and winding road that is a disciplinary case against a California DUI lawyer.

The article in the Lawyers’ Manual caught my attention immediately because I remember the lawyer in question — not only because of his punny name but because I highlighted certain aspects of what he was going through at a past Ethics Roadshow — the 2014 Ethics Roadshow.  Back then there had been a recommendation that he be suspended for 90 days for, among quite a few things, improperly questioning police officers in front of the jury about prior perjury allegations.  At that time, I also mentioned that he was going to have to deal with more allegations, the pending charge against him for his stealing materials from the prosecutor on the other side of a case – and being caught on video doing so — and lying to the judge when confronted.

From the ruling itself, here is a very pithy description of the underlying facts:

In sum, a prosecutor alleged that on July 9, 2014, Genis “fiddled” with his papers during a court recess and then rearranged and hid a document from him. The prosecutor promptly reported this to the trial judge. The judge then asked Genis in a series of four consecutive questions whether he touched, moved, or hid any of the prosecutor’s documents, and each time, Genis denied the allegations. On the fourth inquiry, Genis “categorically” denied any wrongdoing. The trial judge later reviewed a videotape of the
courtroom that revealed to him that Genis did what he denied doing.

Back in June the ruling – or at least the recommended outcome – was issued suggesting that he should be suspended 60 days for the misconduct.  Interestingly, of course, the emphasis is not on the act of stealing the material – which is mentioned as being “sophomoric” – but on the lying to the Court about having done it.  (Equally interestingly, the first ruling that was appealed by the disciplinary authority was that the lawyer only be admonished rather than disciplined.)  You can read the full recommended ruling here.

In reading this new ruling, I also learned that the 90-day proposed suspension that was my primary focus during the 2014 Ethics Roadshow was ultimately reduced to only a 30-day suspension based on, at the time, Genis’s lack of any prior disciplinary history.

Now sticking with focusing on the “delay” aspect, this particular lawyer likely cares not a whit about how long this process has been pending because, as ABA/BNA also reported, he is presently serving a two-year federal prison sentence over willfully failing to pay his taxes.

As as an outsider and someone who is normally an advocate for lawyers, I find it harder to understand how it would take three years to go from start-to-finish on this one — that feels like much too long to resolve (and I’m kind of inclined to think that the 60-day suspension is still a bit light really).

Friday installment of “I beg to differ.”

It has been a long time since I have had reason to strongly disagree with the insights offered by Karen Rubin and company over at their excellent blog – The Law for Lawyers Today – but here we are again.

Karen has written a thought-provoking piece about a criminal defense lawyer with a parody Twitter account and his role in the insanity that is the delusional Pizzagate conspiracy theory that led to a man going into a pizza parlor and firing shots.  She shakes out of a belief that the lawyer in question ought to be pursued for violation of the ethics rules in Florida — specifically that state’s version of RPC 8.4(c).  I think interpreting that rule to apply to circumstances where a lawyer is engaged in parody and satire is dangerous and unwise.

Admittedly, such an interpretation is not as dangerous and unwise as riling up stupid people to do stupid violent things in aid of trying to investigate a stupid conspiracy theory which is what the Florida lawyer may have been a part of, but still dangerous and unwise.

I manage to talk a good bit about RPC 8.4(c) when I speak at seminars, and, in fact, I brought it up again this year during my tour of the state for the 2016 Ethics Roadshow.  The rule, as written, fascinates me because all reasonable lawyers have to agree it doesn’t mean 100% of what it says.  It reads: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Now Karen is absolutely correct that the rule applies to lawyers even when they are not being lawyers, but it also can’t literally mean what it says.  Otherwise, as I always have fun pointing out to large-ish crowds, it would mean that lawyers could essentially never play poker (even when doing so is legal and not illegal gambling) because we would not be allowed to bluff.  Deceit.  Also, and particularly salient for the time of year, it would mean that those of us who are parents would have to tell the truth to our children about Jolly Old St. Nick the first time we are asked/confronted because to do otherwise would be engaging in conduct involving dishonesty.

We all know that the rule could never be enforced in such a manner and that no one would ever try to discipline a lawyer for such conduct.  Thus, the rule can’t be read 100% literally.  Figuring out exactly where the line is between untenable applications of its prohibition and reasonable applications is the hard part though.

A good example of conduct it definitely was intended to address was a relatively recent situation where a law school dean got suspended for his role in fudging the law school’s statistics.  You can go back and read about that here.

Taking the position that it can be applied to a lawyer’s parody account on Twitter to me is on the wrong side of the line, and so I beg to differ with Karen on this one.

(P.S. If you are really looking for someone who truly deserves scorn for his role in pushing the ridiculously stupid conspiracy theory on the ridiculously gullible people who bought into it (and perhaps still do), this guy deserves heaps of scorn even though he’s not a lawyer.)

 

Glitch in the TN disciplinary procedural rules?

I got a call a week or two ago from another Tennessee lawyer trying to noodle through a situation.  The caller was curious to see if I could offer any insight about why a situation that seemed a bit broken was not.

I couldn’t.  Instead, I was able to sort of confirm for the lawyer that the situation does seem to be a bit broken.  The situation involves an aspect not of the ethics rules in Tennessee but the rules that govern disciplinary proceedings and the enforcement of their outcomes – which are housed in Tenn. Sup. Ct. R. 9.

More particularly, the situation involves the application of a provision that governs certain things a lawyer must do by way of notice when being disbarred, suspended (even temporarily), or having their license transferred to disability inactive status.  The problem arises from treating suspensions and disbarment the same way.  When the suspension is a lengthy one, these provisions make sense, but when you are talking about a short suspension — 30 or 60 days for example — the analogy breaks down.

The specific section, Section 28, contains 11 sub-parts of provisions addressing requirements that are triggered by any order of disciplinary suspension just as with an order of disbarment.  The first four sub-parts, Section 28.1 through 28.4, present no real issues as they address the effective date of an order, that a notice has to be sent by the lawyer to clients, and opposing counsel/adverse parties within 10 days of the order, and requirements to maintain records about such things having being timely done.

The problem with having this rule apply to”[o]rders imposing disbarment, suspension, transfers to disability inactive status, or temporary suspension” alike kicks in with the next three sub-parts of the rule:

28.5.  Return of Client Property.  The respondent attorney shall deliver to all clients any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property.

28.6.  Refund of Fees.  By no later than fifteen days after the effective date of the order, the respondent attorney shall refund any part of any fees, expenses, or costs paid in advance that has not been earned or expended, unless the order directs otherwise.

28.7.  Withdrawal from Representation.  The respondent attorney shall within twenty days after the effective date of the order file in the court, agency or tribunal in which the proceeding is pending a motion for leave to withdraw or a motion or agreed order to substitute and shall serve a copy of the motion or agreed order on opposing counsel or the adverse party, if unrepresented, in the proceeding.

Now, again if we are talking about a lengthy suspension, these provisions make sense.  And, Section 28.6 at least acknowledges that the order imposing a suspension could even direct otherwise as to refunding unearned fees, but similar language, however, surely needs to be added to Sections 28.5 and 28.7 because the application of these requirements might not only be contrary to a client’s interest but will have the impact of essentially practically extending the length of an otherwise short-term suspension.

Looking at Section 28.7 specifically, if you do not even have to file such a motion until twenty days from the order, by the time you have it heard and ruled on by a court, a lawyer’s 30-day suspension will either be over, or practically will be over.

Now, perhaps the justification for these provisions is that even for 30 days a client shouldn’t be left defenseless in a matter and represented by a lawyer who cannot do anything, but there seems to be a very good reason to believe that all three of these provisions ought to reference the potential for an order to direct to the contrary and not just Section 28.6.  It may be more trouble for client and lawyer alike for these things to have to happen for just a short suspension rather than permitting the order to say to the contrary so that the client can simply choose to wait out the suspension.  Likewise, in situations in which more than one lawyer (whether at the same firm or different firms) is representing the same client in the same matter, during the suspension the client won’t be left defenseless at all.

This situation particularly seems in need of fixing when other related provisions in Rule 9 are examined.

Section 28.10 indicates that “[p]roof of compliance with Section 28 shall be a condition precedent to any petition for reinstatement.”  Section 12.2(a)(1) makes clear that, unlike in the past when lawyers could automatically resume practice after certain short-length suspensions, “no attorney suspended” under any part of Rule 9 :shall resume practice until reinstated by order of the Court.”

And, Section 12.2(a)(3) plainly indicates that all suspensions “regardless of duration” are subject to Section 28 “unless otherwise expressly provided in” Rule 9.

Rambling and bordering on incoherent is no way to do anything much less make a constitutional challenge.

I have made reference in the past on this blog about the problems that can come from the fact that Tennessee is one of a very few states that still use the “preponderance of the evidence” standard in disciplinary proceedings against lawyers.  Fewer than a dozen jurisdictions including Tennessee still use that standard.  Around forty U.S. jurisdictions require proof of misconduct by the much higher “clear and convincing evidence” standard in order to discipline a lawyer.

I have long believed that, with the right case, an as-applied constitutional challenge to the standard could be successful in Tennessee.  Personally, I would like to see Tennessee as a matter of public policy just come to the determination that joining the overwhelming majority of the states on this issue is simply the right thing to do.  The difference in the standard of proof wouldn’t make much difference at all in many cases where conduct is egregious and easily proven.  Where the different standard could really make a large amount of difference is upstream in disciplinary investigations well before formal proceedings are even initiated and would decrease the pressure on lawyers to agree to a resolution of their case with the imposition of a reprimand or a censure because of the fear that they could lose a contested case and potentially receive more severe punishment if a hearing panel ends up deciding that it was just slightly more likely that the accuser’s version of events was accurate.

I’ve never thought that a facial constitutional challenge would be a successful endeavor because the problem with the use of the standard is not that it defies due process in every case.  Only an as-applied challenge was ever going to have a chance at success.  And the right kind of fact pattern would be key.

We have something of a weird little cottage industry of lawyers who have their own track record of problems with past discipline and who have handled their own cases attempting to then trumpet themselves as lawyers for lawyers in disciplinary proceedings.  As a result, what I have long worried about is that someone might pursue a constitutional challenge to the standard in the wrong kind of case and end up the first vehicle for the Court to address the issue.  The risk of that sort of outcome is that the Court might find itself so strenuously justifying its system that any effort to win the day just on a public policy rationale would be lost.  Unfortunately, just such an event occurred earlier this month as a Nashville lawyer represented by a lawyer with her own quite checkered disciplinary history appears to have done just that.  And, as a bonus, did it in a fashion that the Court called “rambling and border[ing] on incomprehensible.”  You can read the Court’s opinion here.

It’s really a bit mind blowing that any lawyer would think that this particular case was a good one to pursue that constitutional argument.  The respondent was looking at a 6-month suspension but only 1 month of it as an active suspension, had previously been privately disciplined twice and publicly censured twice more for conduct similar to the most recent charges and, as even the Court pointed out in a footnote, the evidence of misconduct was more than sufficient to satisfy even the clear and convincing standard.   It appears that neither the lawyer whose license was actually at stake, nor his first lawyer were off-the-mark enough to originally think that was an avenue worth exploring.  But things changed once an additional lawyer was added to the team.

What is truly frustrating (in addition to why any lawyer would hire the lawyer who handled the defense of the case)   is that the rambling, nearly incomprehensible argument did manage to cause the Court to pontificate about how the preponderance of the evidence standard strikes the right balance because of it how it serves to protect the public from lawyer misconduct.

The only silver lining to be found in this dingy, dark grayish cloud is this:  although this ruling certainly forecloses any facial challenge to the standard as unconstitutional, it does not mean that a successful as-applied challenge cannot be brought in the right circumstances.  It certainly doesn’t make the task any easier though.

Tomorrow, I’ll be doing the first of my four stops on the roadshow across Tennessee, starting at home sweet home, Memphis.  If you are a lawyer in Memphis in need of dual credits, it isn’t too late to sign up and attend.  And, if you can’t make Memphis, I’ll be doing it again in Nashville on Thursday.