Abuse of “Iowa nice” leads to rare Dubuque rebuke.

Readers of this space know that a large part of my practice involves representing lawyers in disciplinary proceedings. Disciplinary proceedings are difficult for all that are involved, but rarely can anyone involved question that they don’t know the stakes. They are what they are and they have their own rules and procedures.

Today’s post involves a story of a lawyer getting actual discipline in Iowa, in the form of a public reprimand, not through Iowa’s disciplinary system, but imposed by a federal district judge in Iowa through a sanctions-style set of proceedings deemed “informal disciplinary proceedings.”

And, as a lawyer who does a great deal of disciplinary defense but who also does still have a “normal” litigation practice as well, I’m quite torn. Based on the story that the federal court opinion tells, the Los Angeles lawyer absolutely deserves to be on the receiving end of discipline. And the court is a bit kind when it refers to the situation as being a “he said/he said” sort of dispute when, in fact, it was a “he said/he said and this other he said and then this other he said and this she said and this other he said” dispute.

The toxic approach to litigation the Los Angeles lawyer seems to embrace is something that a handful of lawyers in my state do as well, and they almost always manage to skate through without ever being sanctioned for their conduct because, when you are dealing with them, it’s always in your client’s best interest to just try to limit the amount of time you have to deal with them rather than increase it by pursuing discipline against them for their conduct. I’m confident Tennessee is not exceptional and that there are a handful or two of these folks in just about every state. Yet, given that there exists a system for pursuing discipline rather than monetary sanctions in Iowa, no matter how bad the conduct was it feels like the federal judge should have just made a referral to the Iowa disciplinary authorities instead of imposing discipline directly.

I’m also a bit torn that the only ethics rule upon which the court premised its punishment was RPC 8.4(d) – the notion that the conduct of the lawyer was prejudicial to the administration of justice. And, throughout, the extent of the analysis is not far from saying that just about anything improper that multiples or complicates litigation proceedings to make them unnecessarily protracted or unpleasant is the same thing as being prejudicial to the administration of justice. That is something of a slippery slope under normal circumstances but also problematic when there exists a separate remedy in federal court, under 28 U.S.C. 1927, for handling litigation tactics that unreasonably and vexatiously multiply proceedings.

Yet, here, all of the misconduct found to have happened would also have run afoul of RPC 4.4(a) — ” In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….” — so part of me thinks, at least as to the particular situation, that this falls into a “much harm, no foul” category. But the idea that the “wrong” ethics rule was also used to get to what was likely the right outcome is just further fuel for the fire that the better path would have been to refer the matter to disciplinary authorities.

You can go read the full opinion and draw your own conclusions about whether it was the right manner for imposing discipline by clicking on the download button below.

And a word of thanks to Todd Presnell for spotting this case and sending it my way as fodder for discussion. If you aren’t reading Presnell on Privileges, well, under normal circumstances I’d chide you and say you should, but we’re all doing what we can to hold things together these days so … what I’ll say instead is, if you’ve got the mental bandwidth to add it to your reading list, it’s really good.

A tale of two signature issues.

There are certain things that ought to be ingrained in lawyers that they know they cannot do. Maybe we could reach agreement on all of what should be on that list of things, but that task is far too ambitious for any Friday, much less this Friday.

I would hope we could agree that an item on that list though is not to sign someone else’s name to something and claim that they were the one who actually signed it. In a lot of circumstances, this is called… and I’m going to use the technical term here, “forgery.” (Fun fact: this is also something that people who are not lawyers really shouldn’t do as well. This includes if you were [hypothetically-speaking] an 18-year old filling out a permission form that they think their parents would likely have signed.)

Now, admittedly, lawyers in collegial litigation practice settings certainly will, on many occasions during their professional career, end up signing opposing counsel’s name to an order for entry with the Court. But, the key of course in doing so is that the lawyer (a) always indicates that it is being done with the other lawyer’s permission; and (b) doesn’t try to make the signature look at all like that lawyer’s actual signature.

Earlier this week, a lawyer in Kansas has been visited with a weighty suspension from practice, in part, for signing names of folks for whom she should not have been doing that. Unfortunately, examples involved falsifying the signature of a judge on a court filing as well as a separate instance of a court clerk’s signature. Although it was the aspect that garnered the media attention, forging signatures was just really the tip of the iceberg regarding the findings of misconduct against that lawyer. Many others involving misrepresentations to other lawyers and clients and neglect of several different matters. A full read of the order imposing a two-year suspension also reveals that, as is often true of lawyers who make very bad decisions, the lawyer suffered from severe depression and anxiety.

But, also recently and in my own backyard, there was an instance of what turned out to be a much grayer area of a lawyer’s ability to sign someone else’s name to something that resulted, after prolonged disciplinary proceedings, in a determination that the lawyer did not commit any professional misconduct. If you are not at all familiar with the concept of a “conformed signature,” then reading the case will provide you with a bit of an education on that front.

But, the short version to walk away from that case though I think is still that the lawyer really should have gone about things in a markedly different fashion. Perhaps it is only true with hindsight, but I tend to think that even in real time, a lawyer would think that doing something more to clearly denote when placing a “/s [someone else’s name]” onto a document to then be used in litigation exactly what the lawyer is doing. For that particular lawyer, doing it the way they did certainly did not ultimately result in actual discipline, but it certainly ended up costing an awful lot of time and money to have to get all the way through the process to the Tennessee Supreme Court before being fully exonerated.

(P.S. Tomorrow is the 5th anniversary of this blog. In celebration, go treat yourself to something nice. It’s on you.)

PDA: If you’re going to get disbarred in TN, get it done before July 1, 2020.

Because if you can get it finalized by June 30, then you might still have the chance to be reinstated starting July 1, 2025. In this instance, PDA is short for “public disservice announcement,” not “public display of affection.” You might remember back last year I wrote about a proposed revision to the rules of disciplinary enforcement in Tennessee and my reasons for thinking it was not a necessary change.

On Friday, the Court entered an order adopting the revisions as proposed. The order mentions that in addition to comments filed by the Tennessee Bar Association, the Board of Professional Responsibility, and the Knoxville Bar Association, there were comments filed by two individual lawyers. It should probably come as no surprise to anyone reading this that all of the comments, except for the BPR’s comment, voiced opposition to the proposed changes. You can read all of the comments that were submitted here.

The Court’s order offers no explanation for why the Court thought the revision to be necessary in the first place, nor does it undertake any explanation of why it disagreed with the majority of the comments or what about the Board’s position it found persuasive, if anything. (The most effort that the Board put into its response was actually to talk at length about the Hughes case that already demonstrates that the Court had the power and willingness under the current system to refuse to reinstate a disbarred lawyer who it doesn’t feel should be reinstated.) So … disbarment in Tennessee is about to become a “forever” punishment, putting Tennessee into a very small group of states that embrace such an approach, and we still don’t know “why” the Court thought the change was needed.

Thus, on the present record, there seem to be only two possible conclusions to draw: (1) the Court simply thinks that disbarment under the current system is not sufficiently severe in terms of a penalty because it provides for a second-chance; or (2) the Court thinks that disbarment should truly be reserved only for the worst-of-the-worst offenses and that most lawyers who get disbarred should actually be hit instead with a suspension of somewhere between 6 and 10 years in length.

Which one is it? Only time will tell I guess.

Two updates: Ruff[alo]ed feathers in Georgia & Piercing personal jurisdiction in California

Apologies for the drought in content over the last little bit as I’ve been traveling my state for my Ethics Roadshow doing a three-hour presentation in four cities about what I think the future looks like for those who will still be practicing in 2025.

For today, two updates of note that involve important, ongoing topics but that also involve strikingly different interactions.

I’ve written quite a few posts during 2019 and I’ve had subsequent interactions with lawyers involved in two of those matters. One of the interactions has been cordial and one has not. As with all things in the world, their situations and lives have continued and more has transpired regarding their disputes since I interacted with their stories.

The lawyer taking on whistleblower status in a high-profile dispute with his former law firm that involved litigation on both coasts that I wrote about earlier this year (under the heading “A lawsuit about a lawsuit that touches on everything about 2019?”) has emailed me on a few occasions to update me about the litigation proceedings. His dispute with his former law firm involves very serious allegations being thrown in both directions by the adversarial sides.

Most recently, the California lawsuit that was filed against him by his former firm, after he had filed his own lawsuit against his former firm in New York, appears to have been dismissed/quashed on the basis of a lack of personal jurisdiction.

The New York litigation between the parties is ongoing, however. One piece of the ongoing dispute appears to be over whether the lawyer will be entitled to obtain a copy of the investigative report upon which the firm allegedly relied in deciding to terminate him and whether another sealed litigation matter in New York should be unsealed. Should you be interested, you can read the firm’s opposition to those efforts and the lawyer’s reply to that opposition at the buttons below.

Another post I wrote earlier this year was about a Georgia lawyer who was being disbarred and who provided an example of how difficult it can be in a disciplinary case to plead the Fifth Amendment without being visited with dire consequences for one’s license. She has also corresponded with me, but her interactions with me have involved demanding that I delete my prior post about her disbarment.

Given that my prior writing on her situation relied upon both the Georgia Supreme Court disbarment order and reporting by the ABA Journal online, I’m not concerned about any threats or demands to delete content. What I’ve written is clearly covered by fair report privilege as well as worthy of protection under my state’s anti-SLAPP statute.

But I did want to share a filing she has sent me that she has made with the United States Supreme Court because it raises issues of potential real importance in the world of lawyering and disciplinary defense.

As I wrote back at the time, even though disciplinary proceedings are treated as quasi-criminal, lawyers who plead the Fifth when trying to defend their licenses invariably have such refusal to testify held against them. This particular lawyer is now seeking relief from the U.S. Supreme Court to hear her case and to stay the disbarment, in part, on the basis of arguments over the correct application of In re Ruffalo and other U.S. Supreme Court decisions addressing the impact of asserting the Fifth Amendment on a disciplinary matter.

Her effort to have the Court take her case and overturn the disbarment also raises an issue that I talked about some during my recent Ethics Roadshow, the impact of the United States Supreme Court’s ruling in North Carolina State Dental Board v. FTC on the risks for unified bars of potential attacks based on antitrust liability when the majority of the decision-makers are active practicing lawyers.

I would imagine that the likelihood of the Court taking this lawyer’s case up is small, if for no other reason than that statement is true about any effort to get the Supreme Court to hear a case. But the motion seeking stay makes arguments that, if the Court does take the matters up, could make for interesting developments and it makes for interesting reading in terms of how those arguments are constructed as well.

You can read that U.S. Supreme Court motion filing at the button immediately below:

What happens when it Gaetz worse?

So, I’m doing everything I can to only write about this stuff occasionally, but the latest stunt in connection with the ongoing investigations into the current administration requires at least some discussion – not just because of the brazen hypocrisy (after all the ethics rules do not prohibit lawyers from being hypocrites) but because the incident raises a fascinating question (at least for me) about the application of RPC 8.4(d).

Ok, before I go further assuming you know what I’m talking about, I’m talking about Congressman Matthew Gaetz, a Florida Republican, who appears to be the closest thing to the Jonah Ryan character from Veep that we have in the Trump cinematic universe version of that show.  Gaetz, who is a Florida lawyer, led a group of 40 Republican congressmen in unauthorizedly barging their way into the SCIF.  (Technically, 13 of them sit on committees that are entitled to be in there so, unless they were among the ones with phones, their involvement wasn’t unauthorized just outlandish.)

Now, if you are unfamiliar with the rules of Congress regarding the use of a SCIF or even what that stands for, you can go read this excellent article on the topic here.  Now as the news has come out, in addition to the fact that the only thing missing from the event to fully underscore the Olympic-level hypocrisy would have been for Gaetz to scream “Benghazi” as they pushed their way in, there are now indications that the activity may have been coordinated with the POTUS and, ultimately, it resulted in the Sergeant-at-Arms coming and declaring that the members were in violation of the rules of the legislative body.

While it is clear that this conduct, spearheaded by Gaetz, was in violation of the House’s own rules on such things, it is less clear to me about whether it involved an actual violation of the law.  On its face though, one thing that seems absolutely clear to me:  given that this was aimed at obstructing impeachment investigation proceedings, something that is a power given solely to the House, is there any argument that it is not conduct prejudicial to the administration of justice for purpose of Rule 8.4(d)?

I mean, there are several level of problems with storming a secure area in order to seek to disrupt Constitutionally-authorized proceedings, but given that it happened in connection with a deposition that was being given by a witness who was testifying in response to a lawful subpoena the day after pretty-damning testimony from the Ambassador to Ukraine raises the specter of witness intimidation in a way that would likely raise red flags for someone who hadn’t already faced proceedings about improper conduct that could be viewed as threatening witnesses to official proceedings much less someone who already found themselves in the cross-hairs defending themselves against such issues.

This might be an academic question only because Florida’s version of Model Rule 8.4(d), though expanded recently to reach harassment and discrimination, only prohibits conduct “related to the practice of law.” So it appears that you’d have to conclude this was a crime to come after him and constitutional protections for legislators under the Speech and Debate clause are pretty robust.

But, it really is not an academic question because Gaetz has already put his license at risk over such behavior. He has previously had to deal with a disciplinary investigation over a Tweet he directed at Michael Cohen, a former fixer/lawyer for Trump, which appeared to threaten Cohen at a time in which Cohen was scheduled to testify before Congress. Apparently, that matter was resolved with no disciplinary action but merely a letter of advice.

It would appear that Gaetz, like the man he appears to be willing to risk his license for, has not taken that kind of advice to heart.

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.