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.