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.