How Not to Practice

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A Washington lawyer was disbarred last month by the state supreme court in a disciplinary case with an interesting array of issues:  the heavy penalties for using trust account money to “rob Peter to pay Paul;” the danger of treating the representation of a relative too casually; “compassion fatigue” as a potential mitigating factor in lawyer discipline; and the application of the Constitutional protection against double jeopardy in the disciplinary setting.

Rob Peter, pay Paul

The lawyer was a sole practitioner with a personal injury practice.  Alerted to overdrafts in his client trust account, disciplinary counsel investigated and found numerous irregularities:

  • The lawyer transferred trust account money to his operating and personal accounts when they were overdrawn or short of funds, in the process converting more than $10,000 to his own use.
  • He also failed to pay several clients the full amounts of settlements they were entitled to, and made misrepresentations to them in the process.
  • The lawyer shuffled money in and out of the trust account, using funds properly belonging to one client to pay settlement amounts owed to others.

Misusing and misappropriating client funds in these kinds of ways is the most serious ethics breach in the rule-book, and the court found violations of Washington’s versions of Model Rule 1.15 (Safekeeping Property) and Rule 8.4(c) (dishonesty, fraud, deceit and misrepresentation).  In Washington, as in many jurisdictions, the presumptive penalty is disbarment.

All in the family

Additional counts of the disciplinary complaint involved the lawyer’s representation of his nephew in a car accident case.  There was no fee agreement, but the lawyer eventually settled the case for $90,000 and took a $20,000 fee.  Later, however, after a change in Washington law, the tortfeasor’s insurer sent the lawyer more than $17,000 as an additional settlement payment.  The lawyer failed to notify the nephew, signed his nephew’s name on the check and eventually disbursed it to his office account, using it to pay bills.

The lawyer testified that his sister — the client’s mother — authorized him to negotiate the check, and that the nephew’s drug problem made it inappropriate to give the additional settlement money to him.  The sister had power of attorney over her son at one point, but it had expired long before the lawyer distributed the additional settlement funds to himself without the client’s knowledge or permission.

The court found that in addition to violating the trust account rules and converting the funds dishonestly, the lawyer violated the state’s version of Model Rule 1.4 (Communication).

“Compassion fatigue”?

The lawyer argued that the disciplinary board, which unanimously recommended disbarment, should have considered his emotional problems as a mitigating factor.  In the same year that he committed the charged misconduct, he had lost three personal injury trials in a row.  A psychiatrist testified at the disciplinary hearing that these losses and the lawyer’s over-identification with his clients led to “compassion fatigue,” a syndrome in which people in the helping professions become ill themselves as a result of working with traumatized populations.

The lawyer’s expert witness said that symptoms of “compassion fatigue” can include becoming “jaded,” and mentally disassociating from daily life, and that it had caused the lawyer to become careless and to avoid the stress of dealing with his bookkeeping.

The court accepted the concept of “compassion fatigue” as a potential mitigating factor.  Under Washington law, the mitigating factor of emotional problems requires merely some connection between the asserted problem and the misconduct; the court found that the psychiatrist’s expert testimony established that connection at least as to  some of the lawyer’s misconduct.

Nonetheless, the court said, under the totality of the circumstances, the lawyer’s emotional problems carried “little weight.”  “Compassion fatigue” did not actually cause the lawyer to forge his nephew’s signature, or convert client funds, the court said; and he testified that he was still aware of his ethical obligations.

In order to justify mitigation where the presumptive sanction is disbarment, the court noted, the circumstances must be “extraordinary.”  Here, they were not, and the failure to preserve the integrity of his clients’ funds led the court to rule that the lawyer’s emotional troubles could not reduce the sanction.

Double jeopardy and lawyer discipline

Last, the lawyer argued that being charged with multiple rule violations stemming from single instances of misconduct meant that he was being punished more than once for the same conduct, in violation of the Constitutional protection against double jeopardy.

This was an issue of first impression in Washington.  However, numerous jurisdictions have considered whether the double jeopardy clause is implicated in lawyer disciplinary proceedings, and answered “No,” and the Washington Supreme Court was persuaded by these holdings.  The weight of authority is that the sanctions for professional misconduct — reproval (or admonishment or reprimand), suspension or disbarment — are not criminal sanctions (which consist of fines or incarceration).  Thus, disciplinary sanctions are not “punishment” for purpose of the double jeopardy clause, the court held.

As the legal market continues to change, attorneys face more challenges when it comes to client relations. While the trend has been for clients to slash attorney’s fees by hiring third party auditors to review bills, or to aggressively seek discounts on fees, ethical considerations, and now the United States Court of Appeals for the 10th Circuit, make it clear that overbilling clients cannot be a solution for legal revenue woes.

In a recent opinion, the Tenth Circuit left a law firm with a legal bill of its own when the Court ruled that the firm’s malpractice insurer was entitled to recover its expenses from defending an overbilling malpractice claim not covered under the firm’s policy.

What happened?

In 2012, the Colorado Attorney General’s Office began investigating attorney Michael P. Medved for allegedly overbilling clients, and later filed suit against him.  Additionally, Medved was facing a class action suit from former clients relating to the same allegations. Medved reached out to his firm’s malpractice insurance provider, Evanston Insurance Company, for representation in both matters.  At the time, Medved’s firm had a malpractice policy that covered “wrongful acts by reason of professional services.” Evanston agreed to defend Medved subject to a reservation of rights. Both cases resulted in relatively quick settlements.

Evanston later sued Medved seeking reimbursement for legal fees and costs incurred, arguing that the malpractice policy did not cover claims related to overbilling because overbilling was not a “wrongful act by reason of professional services.”

The 10th Circuit Court of Appeals agreed, reasoning that:  “The alleged wrongful act (overbilling) lacked the required connection to professional services rather than the claim itself, and the ‘by reason of’ phrase does not create a connection between the wrongful act and the professional services . . .”

Medved argued that Evanston’s failure to properly reserve its right to challenge the representation should estop Evanston’s claims, but the Court of Appeals quickly dismissed this argument, finding that Medved had failed to show prejudice.

Ethical considerations

Model Rule 1.5 prohibits a lawyer from collecting unreasonable fees or an unreasonable amount of expenses from a client. While this rule seems pretty simple on its face, there is no bright-line test to determine what is, or is not, reasonable. Given there is no bright-line rule, the ABA Model Rules provide eight factors you should consider when determining the reasonableness of a fee.

All jurisdictions have adopted some version of Rule 1.5.  Clients and courts have been paying more attention to attorneys’ billing practices; the Tenth Circuit’s ruling here points to the risk of not being able to rely on malpractice insurance to cover the cost of defending against overbilling claims.

The Tenth Circuit ruling also shines a light on the importance of heading off billing problems with clients before they start.  Communicating with clients about fees is more important than ever, and it’s also part of your duty under your jurisdiction’s version of Model Rule 1.4 (Communication). Thoughtful communication with the client throughout the course of a matter is the best practice.  However, the more transparently you communicate with clients about your fees and billing practices on the front end, the less likely it is that you’ll have to defend against an action based on overbilling on the back end.

*Imokhai Okolo is a rising second-year law student at the University of Akron School of Law where he serves as an Assistant Editor on the Akron Law Review, member of the Akron Law Trial team, Vice President of the Akron Black Law Students Association, and Student Director of the Driver License Restoration Clinic.

Four quick takes on social media pratfalls by judges, lawyers and others — just from the last few weeks.  Don’t let these happen to you!

  • A Kentucky state court judge posted a comment on a pending murder case on her “official” Facebook page:  “This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.”  The judge agreed to a public reprimand, for violating judicial ethics rules, including refraining from public comments that could affect the outcome of pending cases.
  • Another judge was sued last month in federal district court because he allegedly scrutinized his secretary’s Facebook posts, called her into his office to express his disapproval of her politics-related posts, and eventually fired her two weeks after she posted criticism of President Trump’s immigration policies, and those of some Texas politicians.  The secretary had worked for the court for 14 years.
  • You’ve undoubtedly seen the rant of a New York City lawyer against Spanish-speaking staff in a restaurant.  His profanity-laced tirade was captured on a cell-phone (of course), and went viral.  His apology on Twitter was called “too little, too late” by a United States congress member, who filed a formal complaint with the attorney discipline system, as reported by the ABA Journal.  According to CNN, he was kicked out of his office space, too.
  • Last, a grand juror is awaiting sentencing after pleading guilty to sending a Facebook message disclosing a Florida federal grand jury indictment to the girlfriend of the man charged.  Grand jury proceedings are secret; the grand juror warned the girlfriend that the man had been set up by a snitch, and later sent her photos of the indictment.

Facebook and LinkedIn and Twitter (oh my)

Social media is great — we are bombarded with messages about the benefits for us as lawyers in credentialing and marketing ourselves (love to blog!) and educating the public on legal issues.  And lots of lawyers and judges use it successfully.  The downside, of course, is that it’s so easy to use these tools, that we can get careless and make missteps.  And when we do, social media is also there to show our gaffe to (potentially) millions.

Interestingly, there are lots of stories about Facebook follies — but anecdotally, it would seem that fewer lawyers use it for professional purposes than LinkedIn, for instance.  A recent ABA Journal “question of the week” asked if lawyers planned to de-activate their Facebook accounts in light of the flap over FB’s disclosure of information to Cambridge Analytica, a data-mining company.  While not a scientific poll, the responses seemed to show that respondents weren’t very much into using FB professionally anyway.

The ABA’s 2017 Legal Technology Report suggests a similar conclusion.  Less than 40% of firms (of all sizes) reported having Facebook accounts.  (In contrast, 75% of respondents said they had an individual LinkedIn profile.)

Of course, the watchword here is to be sensible and cautious.  Speed kills:  slow down, and think before you click.  Don’t do anything on social media you wouldn’t want millions to see — because they might.  And of course, check your local rules and ethics opinions.  By now, there is lots of such guidance about friending judges, social media as advertising, pretexting to gather data on opposing parties, not disclosing client information and other issues.

Representing a campus sexual assault victim-turned-activist and later using her confidential information in representing an alleged campus assailant with interests adverse to the former client is a “textbook” conflict of interest.  That’s the message the Pennsylvania Supreme Court sent in suspending a lawyer for a year in a consent-to-discipline case published this week.

Former -client conflict

Most lawyers know that it’s a conflict of interest to take on a new representation adverse to a former client they’ve represented previously in a substantially related matter — at least without consent from both the new client and the former client.  Model Rule 1.9, “Duties to Former Clients,” codifies the rule.

In litigation, engaging in this kind of former-client conflict of interest will likely get you disqualified.  But as this case illustrates, disciplinary action is also possible.

The complainant in the disciplinary case, Hope Brinn, was a former Swarthmore College student who alleged that she had been sexually assaulted on campus, and who subsequently became a victims’ rights advocate, including for other students allegedly assaulted at the college.

Swarthmore activism 

Following her assault, the lawyer reached out to Brinn via Facebook, suggesting that she hire him.  She responded “I hire you!”  During their many communications by e-mail, Facebook, phone and in person, the lawyer said he intended to support Brinn in litigation, campus adjudication against her assailant, and in her national activism.  He also assured her that anything she shared with him was confidential.

He assisted Brinn in preparing a class complaint, which she and another activist filed in 2013 with the Department of Education’s Office for Civil Rights on behalf of 12 other Swarthmore students, raising concerns about how the college handled sexual assault complaints.  One of several alleged campus assailants was identified as “Juan Doe” in the  complaint.

A month after the OCR class complaint was filed, Brinn terminated the lawyer’s representation.  Almost two years later, the lawyer represented the same Juan Doe in filing suit against Swarthmore.

“The Angry Feminist Cabal”

The lawyer’s 135-page complaint in federal district court on Juan Doe’s behalf alleged that Swarthmore discriminated against him by giving credence to false allegations against him of sexual assault asserted by “Jane Doe,” and making him the unfair target of “vigilante justice from student activists.”  The complaint, filed under seal, referred to Brinn at least 55 times by a pseudonym, “Student  Activist No. 1.”

The complaint had a long section titled “The Angry Feminist Cabal within Swarthmore’s OCR … Complaints Trigger Jane Doe’s Complaint Against Juan,” in which the lawyer alleged on behalf of Juan Doe that Brinn had encouraged Jane Doe to manufacture a sham complaint of sexual assault against Juan Doe.  The complaint also alleged that Brinn and others became radicalized, and made false accusations in their attempt to make Swarthmore “a safe place for women.”

The complaint contained confidential information that Brinn had provided to the lawyer during the former representation.

DQ granted … and then suspension

The district court judge granted Swarthmore’s motion to disqualify the lawyer from representing Juan Doe, based on violations of Rule 1.6 (“Confidentiality”) and Rule 1.9, arising from his former representation of Brinn.  The court found a “clear and complete disregard” by the lawyer of the rule against unconsented-to former-client conflicts and his duties of confidentiality.

Likewise, the disciplinary board found in adopting the consent-to-discipline petition that the lawyer engaged in “a textbook conflict of interest by representing Juan Doe in a matter substantially related to [the lawyer’s] representation of Ms. Brinn in which Juan Doe’s interests were materially adverse to the interests of Ms. Brinn.”  In addition, the board found, the lawyer lied to disciplinary authorities during their investigation, claiming that the judge in the Juan Doe case had denied the disqualification motion.

In addition to the conflict raised by representing Juan Doe, the petition detailed the lawyer’s misconduct in two other cases as well, involving claims against his mother’s employer.

Take-home lessons

Be alert for former-client conflicts, of course (including ones like this, which would seem clear-cut), and be aware that disqualification is not the only potential adverse outcome.  And, of course, if you find yourself in a disciplinary investigation, never misrepresent anything; that can never help you.

You might remember our report last year on the Florida judge who resigned after accepting Tampa Bay Rays baseball tickets from lawyers who had a pending case before him.

The lawyers were representing plaintiff in a slip-and-fall case against Wal-Mart.  The day after the jury came back with a defense verdict, one of the lawyers called the judge’s assistant and offered the judge tickets to that night’s Rays game against the Boston Red Sox.  The judge accepted five tickets (for great seats, if that makes a difference).

The judge asked for more tickets to a game against the Twins — four days after hearing the lawyers’ motion on behalf of the plaintiff to set aside the jury verdict.  The firm complied; this time, one of the lawyers delivered the tickets in open court.

The judge granted the plaintiff’s motion to set aside the verdict, and granted a new trial.  The judge resigned ahead of a disciplinary hearing on his conduct.

What about the lawyers?

At the time, I wondered about the lawyers, pointing to Model Rule 3.5(a) (barring lawyers from seeking to influence judges by means prohibited by law) and Model Rule 8.4(f) (knowingly assisting judge in conduct that violates rules of judicial conduct or other law).

Sure enough, a referee last week recommended that each lawyer receive an admonishment and a year’s probation for his misconduct — and be required to speak at CLE’s for new lawyers and veteran lawyers about the incident.  Each was also ordered to pay almost $5,400 in costs. The recommendation now goes to the Florida Supreme Court for review.

“It never crossed my mind…”

At the disciplinary hearing, one of the lawyers said that in offering the tickets, he thought they were doing something nice for the judge because the trial had been contentious.  They had seen the judge wearing a Red Sox cap, and knew it was his favorite team.

The other lawyer testified that “It never crossed my mind …  how bad it looked and how improper it was … it should have, but it didn’t.”  He said he had no intent to influence the judge, and it never occurred to him that the judge might be influenced by the tickets.

The lawyers each had more than 30 years of experience.  They testified that their firm’s policy now prohibits offering baseball tickets to anyone at the courthouse.

The referee recommended that the lawyers be found guilty of violating Florida’s versions of Model Rule 3.5(a) (so I called that one).  The other violations found were Rule 8.4(d) (conduct prejudicial to the administration of justice); Rule 8.4(a) (violating a Rule or assisting another to do so); and a rule unique to Florida, Rule 3-4.3 (commission of any act that is unlawful or contrary to honesty and justice).

Paved with good intentions

The referee did not find that the lawyers “acted with any corrupt intent to create a quid pro quo situation.”  But they should have known that their gift would create an appearance of attempting to influence the judge presiding over their case.  “The rules require the profession, both attorneys and judges, always to think about the implications of their words or actions. That these two attorneys … were so thoughtless and oblivious here is unacceptable.”

The referee based the recommendation for an admonishment and probation on several mitigating factors:  the absence of actual prejudice to the defendants in the underlying case (the grant of the motion for new trial was set aside on appeal, although not because of the tickets); the lawyers’ remorse and acknowledgment of their misconduct; and evidence of their good character and their “many public service and charitable works.”

Lessons learned

What are the lessons here?  Giving gifts is nice, but you shouldn’t step into the batter’s box when the umpire is the judge on your case.  An admonishment and probation, while the lightest forms of discipline in Florida, are nothing to welcome.  And, as we’ve mentioned before, if you are caught in a rundown, taking responsibility for misconduct is certainly the way to go.

In a warning to semi-retired lawyers and others, the Sixth Circuit Court of Appeals earlier this month affirmed a 90-day suspension for a lawyer who let others draft and sign his name to deficient  pleadings, saying that “a lawyer’s good name and professional reputation are his primary stock in trade, an asset to be cultivated and safeguarded throughout his career — even after ceasing the active practice of law.”

“One size fits all” briefs

The case started out in a Michigan district court, which found that briefs filed under the lawyer’s name from 2012-2015 in multiple social security benefits cases were “woefully deficient both as to the quality of the briefs and the management and monitoring of the appeal process on behalf of clients.”  The briefs sometimes had little to do with the facts of the particular case in which they were filed; the district court hearing panel, in its opinion, called them “one size fits all” briefs.

The panel found that in the process of retiring from the firm in which he was a senior partner, and withdrawing from actively practicing, the lawyer authorized his firm for a period of some years to continue submitting district court filings in his name in numerous social security benefits appeals as though he were attorney of record.  But he didn’t review these filings, or supervise the lawyers who actually prepared them.  Rather, his participation was simply a “façade” to help the firm.  (In fact, said the panel, the firm’s social security practice was essentially run by a secretary.)

The panel described how once a brief was filed in the district court, no further work would be done on a social security appeal.  Neither the lawyer whose name was used nor any other lawyer at the firm saw the opposing party’s brief, no lawyer submitted any type of response, and none ever saw a report and recommendation or a final decision.

In this process, the clients obviously got short shrift.  The panel described at least one of them as having been “abandoned.”

Duty to supervise, duty of candor

In its panel opinion, the district court said that the lawyer violated Michigan’s versions of Model Rule 5.1 (duty to supervise subordinate lawyers) by not supervising preparation of briefs that were submitted using his signature and his filing credentials; and Rule 3.3 (candor to the tribunal), by authorizing submission of briefs bearing his name – thus falsely representing that he had reviewed or monitored their preparation.

The district court panel recommended a 90-day suspension; as one of the aggravating factors, the panel noted that the lawyer had a “selfish motive” in lending his name to the appeals, since it helped keep the firm profitable, and his retirement benefits flowing.

The Sixth Circuit adopted the panel’s findings and recommendations.  It wrote that “this case presents a sad example of a decent lawyer, who in the autumn of a successful career, became careless in permitting the use of his name for improper purposes and needlessly brought dishonor to himself, his firm, the profession and the justice system.”

Takeaways…

First, whether you’re winding down your practice or in your prime, it’s clearly risky to let anyone use your name to sign court filings you don’t have control over, even if it’s someone at your firm.

Second, and maybe not so well-known, is that your state’s disciplinary authority is not the only body that can mete out professional discipline.  The federal district courts have inherent power to regulate the conduct of the lawyers who appear before them; they usually have their own disciplinary procedures laid out in their local rules; and by local rule, the district court usually adopts the lawyer conduct rules of the jurisdiction as the ones that govern.

And last, the lawyer here came under extra criticism for his “continuing resistance to this disciplinary action and stubborn refusal to acknowledge his leading role in the failings.”  If you  ever find yourself in the disciplinary cross-hairs, don’t do that — it will seldom help your cause.

In the ethics class that I teach as an adjunct law prof, I refer to Model Rule 8.4(c) as “The Four Horsemen of the Apocalypse,” because of the four things the rule prohibits:  dishonesty, fraud, deceit and misrepresentation.

While these ethical no-no’s are certainly not equivalent to the biblical “four horsemen” (Death, Famine, War and Conquest), violating Rule 8.4(c) can have a bad (if not apocalyptic) effect on your law license, as lawyers in Rhode Island and Oklahoma recently discovered in two separate disciplinary cases — each involving false documents.

False deeds = misdeed

In the Rhode Island case, the lawyer was counsel to a homeowner association that managed a timeshare development.  If a time-share owner failed to pay annual maintenance fees, the association could foreclose on the delinquent party’s interest in the property, and the lawyer regularly represented the client in these foreclosure proceedings.

The foreclosure process involved preparing a deed for execution by the client’s authorized officer.  The signature was to be witnessed by a notary public; after being properly executed, the foreclosure deed was recorded.

To expedite the process, the lawyer began signing the client’s president’s name on the foreclosure deeds, and then acting as the notary witness to the false signature.  The lawyer then caused the falsely-executed documents to be recorded.

After these actions came to light during unrelated litigation, the lawyer self-reported to the state disciplinary authority, and the supreme court issued its opinion publically reprimanding the lawyer for violating the state’s version of Model Rule 4.1 (truthfulness in statements to others) and Rule 8.4 — the four horsemen.  (The relatively light penalty stemmed from the lawyer’s “lengthy unblemished history” and “heartfelt remorse.”)

If you are like most lawyers, you’re a notary; and maybe you think that you’d never falsely sign or notarize a document.  But it’s possible that the lawyer’s actions here were aimed at not bothering the client’s executive officers.  And imagined or real pressure to avoid inconveniencing clients can tend to disorient even the best lawyer’s ethical compass.

I get teased by relatives when I refuse to notarize car titles they present to me after they’ve signed them.  Start by resisting your relatives, and you’ll likely be able to resist any temptation to execute or notarize a document falsely!

Turning back the hands of time…

In the Oklahoma case, the grievance was filed by a county judge, who reported that the lawyer had turned back the date on the court clerk’s file stamp to make it seem that a pleading had been filed on April 15, when actually it had not been submitted until April 19.  The lawyer admitted the misconduct, and pointed to three other instances when the lawyer “may have” done the same thing.

The supreme court’s short opinion fails to explain what happened here, or the circumstances that made it possible for a lawyer to dial back a clerk’s time-stamp (not something that would be physically possible in my bailiwick).  But significantly, while disciplinary counsel and the lawyer’s counsel stipulated to a penalty consisting of a public reprimand, the trial panel rejected that proposal and recommended a six-month actual suspension, instead.

The panel observed that intentionally backdating an official court document is a serious offense deserving of more than a public reprimand.

The state supreme court agreed, adding that “such conduct is the type of dishonesty, deceit and misrepresentation while engaged in the practice of law that is forbidden” by the Sooner State’s version of Model Rule 8.4.

It’s hard to derive a moral from this case, without knowing more of the background.  But one thing is for sure:  any time you are tempted to get on any of those four horses, you should ride the other way.

Out of Massachusetts comes a disciplinary opinion illustrating (again) the multiple consequences that can come from the unauthorized practice of law.  In this one, however, the twist is that two brothers were involved — and they apparently got away with their UPL for 18 years.

Practicing in the Ocean State

The two brothers were licensed only in Massachusetts — but they opened a law office in Providence, Rhode Island, which was run by one of the brother’s then-wife.  She was licensed to practice in Rhode Island; but she worked only limited hours, owned only two percent of the firm, and did not have any supervisory authority over the brothers.

Seven years after they opened the Providence office, the brothers hired another Rhode Island-admitted lawyer; he had no cases of his own, and also lacked any supervisory authority.

The brothers made all the decisions on the firm’s cases, the court found, and did all the work on them — except for signing pleadings and filing appearances in court.  They apparently delegated those functions to admitted lawyers, which is what might have allowed them to fly under the radar for so long.

Eventually, though, Rhode Island authorities caught up with the brothers, and they pleaded no contest to five criminal misdemeanors there, related to their UPL.  The brothers agreed to cease practicing law in Rhode Island, and they were barred from maintaining an office there.   Lesson #1:  UPL is a criminal violation in many jurisdictions, as well as an ethical violation under state versions of Model Rule 5.5.

Although the firm website correctly stated that the brothers were licensed only in Massachusetts, the site featured images of the Providence skyline.  Each brother’s web bio stated that he was “born and raised in Rhode Island.”  (That should count for something, right?)   Lesson #2:  A website that shaves the corners will not help your cause in a UPL proceeding.

Discipline in the Bay State

The bar discipline opinion, though, comes from the Massachusetts Supreme Judicial Court, not from Rhode Island.  So if the brothers were considering starting over in Massachusetts, where they were licensed, that hope was dashed — the Massachusetts court suspended them both from practice there.  That’s in accord with Model Rule 8.5(a), which specifies disciplinary authority in the state of licensure and where the effect of the conduct is felt.  Court rules in many jurisdictions likewise specify the ability to impose “reciprocal discipline” in response to disciplinary orders issued from outside the state.  Lesson #3:  Professional discipline can be imposed not only where the effect of your conduct is felt, but also by your state of licensure.

In fact, while the parties had stipulated to a two-year suspension with the entire period stayed on conditions, the Massachusetts court rejected the agreement as too lenient, and imposed an actual one-year suspension.  Lesson #4:  While parties in disciplinary cases can agree on recommended sanctions, the final arbiter is the court hearing the matter.  A court can depart from the recommendation downwards — or upwards, as here.

Don’t let this happen to you

A cautionary tale to be sure.  In support of its sanction, the Massachusetts Supreme Judicial Court pointed to the length of the UPL, that the brothers were “well aware that they were not authorized to practice law in Rhode Island,” and that by doing everything but signing pleadings and appearances, and by failing to clearly advertise that they were unlicensed in the Ocean State, they intentionally created a system “designed to evade the rules of licensure.”

When a court orders you to meet and confer with opposing counsel about a discovery dispute, it requires you to do “something more than bickering with [opposing] counsel ….”  That’s what a California state appeals court noted in affirming $12,600 in sanctions against a defendant represented by a large national firm.  According to the opinion, a partner of the firm was uncivil, patronizing and condescending to the plaintiff’s counsel.  The court cited the transcript of the meeting.

The court didn’t consider any ethics rules in making its ruling; but the case is still a reminder about professional conduct, including Model Rule 3.4(d) (failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party), as well as professionalism guidelines that your jurisdiction may have adopted, as my home state of Ohio has in its Lawyer’s Creed, for instance.

Discovery standoff

The sanctions came in a case alleging labor law violations, brought under California’s Private Attorney General Act.  The plaintiff was seeking discovery about other former and current employees of the defendant company; she asserted that in a wage-and-hour representative action she was entitled to the identities of other possible “aggrieved employees.”  The defendant refused to respond to any discovery about such employees.

In a 14-page meet and confer letter, the plaintiff explained her position.  To address the defendant’s stated concerns over the privacy of other employees, she proposed an opt-out process developed through prior California case law in representative actions.  The defendant responded with a two-page letter, refusing to budge.

The plaintiff filed motions to compel and requested monetary sanctions; the defendant’s response relied heavily on a case that on its face supported its position, but which had been de-published and lacked any precedential effect.

Before ruling on the motions to compel, the court ordered the lawyers to meet and confer, and that’s where things got hot, “quickly [becoming] contentious,” as the court said.

A contentious meeting

During the meeting, defense counsel said that opposing counsel’s arguments were “idiotic,” and that she had “lost it;” he interrupted her “multiple times,” and patronized her with comments like “if there’s something you don’t understand about what I’m saying, tell me so I can try to clarify it for you.”  He told her that questions she asked him “made no sense,” and he “taunted” her.  He refused to negotiate for even minimal discovery, although plaintiff’s counsel offered to compromise on the scope of her client’s request.

In sum, the court of appeals ruled, defense counsel “was hostile and unreasonable, and failed to display a sincere effort to resolve the discovery impasse,” and held that the trial court hadn’t abused its discretion in imposing the $12,600 in sanctions.

Just be nice

There are lots of ways lawyers have misbehaved when litigating, but discovery seems to bring out the worst behavior, whether it’s throwing coffee at opposing counsel, eye-rolling and being sarcastic at a deposition, or just objecting every two seconds to your opponent’s cross-examination, and coaching the witness.  As the trial court said to defendant’s counsel here,
“[Y]ou weren’t very nice to anybody at the meet and confer.   So it kind of took away from your papers [i.e. the opposition to the motion].”

Let’s treat each other with respect, people.  And if we don’t, there can be sanctions – against you or your client – waiting at the other end.

A lawyer who offered a witness $7,000 for his “honest testimony” was suspended for 35 days by the Nevada Supreme Court, after a state discipline board divided on whether a public reprimand was sufficient.

The opinion is a reminder about the limits of advocacy.

Truth is no defense

The lawyer’s client disputed a will.  The lawyer sent a person, identified in the court’s opinion as D.E., a letter offering money “in exchange” for D.E.’s testimony that D.E. had never witnessed the decedent signing a will, and that the will he had witnessed was a fake.

In the several-page letter, the lawyer also threatened D.E. with personal liability and cited “the legal implications of perjury if D.E. didn’t disavow the will.”

A month later, the lawyer re-sent the letter in an e-mail, and reiterated the cash offer.

The hearing panel unanimously found a violation of Nevada’s Rule 3.4(b) (identical to the Model Rule), which prohibits offering “an inducement to a witness that is prohibited by law.”  Here, the lawyer overstepped with the threat of a perjury accusation if D.E. didn’t execute the affidavit — that violated the state statute criminalizing extortion, the court said.

The lawyer argued that the will was in fact forged, and that the only testimony being solicited from D.E. was truthful.

The court shot that argument down, citing the Restatement of the Law Governing Lawyers, which emphasizes that the prohibition is against offering any consideration contingent on the content of the testimony.  As an Illinois district court held, for purposes of the rule, it doesn’t matter if the testimony is “truthful or not.”

Not merely negligent?

Two of the three members of the hearing panel proposed that the lawyer merely be reprimanded, urging that the conduct was only “negligent.”  But the court sided with the third panel member, finding that the conduct was intentional, and deserved an actual suspension.

This was no “casual comment in a courthouse elevator that an unnoticed witness accidentally overheard,” the court said.  The court ruled that the letter and e-mail to D.E. showed that the lawyer intended the conduct, and the only negligence was perhaps in not recognizing that it violated the ethics rules.  But ignorance of the ethics rules — like the  law — is no excuse, according to the court.

Systemic costs

Interestingly, the pay-for-testimony deal never actually went forward — the court noted that, to the lawyer’s credit, the offer to D.E. was revoked after the lawyer talked to a law partner about “the ethical problems it posed,” and before any money changed hands.

While that helped prevent further harm, the court said, the lawyer’s conduct nonetheless injured the client because the trial judge excluded D.E.’s testimony and disqualified the lawyer after learning of the misconduct.

The misconduct also harmed the system itself, the court said, “fostering public cynicism [about] a system where fact witness testimony appears to be bought and sold.”

Take-home lessons

Getting suspended from practice is never a good thing — whether it’s for a month, as here, or for a longer time.  But in the grand scheme of things, 35 days off is not terribly harsh, and there’s room to consider two mitigating points in this case that appear to justify the penalty.

First, based on the opinion, the lawyer was trying to elicit true testimony. The disciplinary opinion omits some details that would have explained why the lawyer could have thought it was necessary to offer money (was the witness reluctant? did the lawyer think the witness would be untruthful?), but the court seemed to accept that the lawyer was not trying to have the witness offer untrue testimony.  Second, when advised that it was improper (and yes, the lawyer should have known that), the lawyer revoked the offer.

The court itself noted that the lawyer otherwise enjoyed a good reputation, and this was a first disciplinary offense.

Bottom line — don’t let this happen to you.