“Pervasive incivility” was part of a package of wrongdoing that resulted in disbarment for a D.C.-area lawyer last month. The case sheds light on the potential, and very real, downsides when lawyers depart from professional conduct ideals.
Client authority lacking
The lawyer was admitted in Maryland and D.C., as well as Virginia, and his troubles arose from representing a plaintiff in a Fair Debt Collections Practices Act action in Virginia federal district court. According to the Maryland grievance commission’s petition, the lawyer entered into an agreed disposition in which his Virginia license was revoked; the Maryland Court of Appeals then imposed the same discipline in August. Law.com recently had the story here (subs. req.).
What got the lawyer into such hot water that he was disbarred in both jurisdictions? Litigation misconduct with an add-on of unprofessionalism.
According to the lawyer’s stipulations in the Virginia disciplinary case, he filed the FDCPA suit on behalf of the client against two lawyers for American Express, who were trying to collect the client’s past-due AmEx account. The lawyer later stipulated that he had prepared the FDCPA complaint without consulting with his client. He also admitted that he failed to convey an offer to the client that would have settled the case because “it did not include sufficient attorneys’ fees for [the lawyer’s] benefit.”
After rejecting the offer without the client’s authority, the lawyer then made a counter-demand — also without authority — that he characterized as his “standard demand,” since he “simply had no time to do customized demands in such cases.”
The client later testified at his deposition in the FDCPA case that he had no further interest in pursuing the litigation against the AmEx lawyers, and admitted that the suit was unjustified, since he had no legal injury. At the conclusion of the deposition, he fired his lawyer and settled with the defendant-AmEx lawyers.
The misconduct formed the primary basis for stipulations that the lawyer had violated Virginia’s versions of Model Rules 1.2 (scope of authority between client and lawyer); 1.4 (communication), 3.1 (meritorious claims and defenses) and 4.1 (truthfulness in statements to others). The Maryland court of appeals identified its own versions of the same rules.
“Unreasonable, bordering on the malicious”
Against this background, the Maryland and Virginia authorities also noted the lawyer’s lack of professionalism. The parties stipulated that in his pursuit of the client’s FDCPA action, the lawyer threatened to bring bar complaints against both the defendant-AmEx lawyers, and their counsel. He also opposed counsel’s pro hac vice admission without a good faith basis.
In addition, the lawyer engaged in “pervasive incivility” in the Virginia disciplinary case itself, said the disciplinary board, including “disrespectful conduct toward the tribunal” and “threatening outbursts both inside and outside the courtroom.” The district court magistrate judge in the underlying FDCPA case said that the lawyer’s conduct toward the defendant-AmEx lawyers and their counsel was “unreasonable, bordering on the malicious,” and that his “apparent distaste for his opponents spawned a host of unnecessary motions” that increased the litigation’s cost and wasted the court’s time.
The district court, adopting the magistrate’s recommendation, ordered the lawyer to pay more than $84,000 in attorneys’ fees and costs incurred by the AmEx lawyers — this on top of the license revocations in the two jurisdictions.
The Rules of Professional Conduct in your jurisdiction constitute a “floor.” That is, if you conform your conduct to those Rules, you should not be disciplined for ethical misconduct. But in addition, there is the matter of acting professionally. Here, the outcome involved both rule violations and a lack of professionalism. Even if you have “distaste” for your opposing counsel, as the lawyer here apparently did, if you let it affect your judgment to the extent of making threats, filing frivolous motions, disrespecting the court and having “outbursts,” your license and your pocketbook might both be at risk.