How Not to Practice

Subscribe to How Not to Practice

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.

A lawyer who was physically dependent on opioids and in an “opioid haze” was disbarred earlier this month for stealing more than $117,000 from a client.  Her chronic pain and addiction were not “extraordinary mitigating” factors that justified departing from the presumptive penalty for client theft, the Washington Supreme Court held.

The decision is a stark reminder at a time when the ravages of lawyer substance abuse have been spotlighted in studies, books and current events.

Trust account theft

The lawyer had a family law practice and worked with one associate.  In 2009, she agreed to represent a client in dissolving his marriage, took a $5,000 retainer and assigned the case to her associate, a recent law school graduate.

The court soon entered a dissolution decree, and awarded the client more than $117,000 as an equalization payment for his interest in the family house, which the lawyer put in her trust account.

The lawyer never paid the client.  Instead, she moved her trust account to another bank, and eventually transferred all the money to her personal account.  She used some of the funds to keep her practice afloat, but also for symphony and Mariners tickets, manicures, groceries, pet food and restaurants.

Most of the client’s many calls to the lawyer went unanswered.  When the lawyer did respond, she said she had been sick and needed time to get back to the client about the funds.  At the time, the client was destitute and sleeping on a friend’s couch while waiting for the settlement funds to help him get back on his feet.

In the meantime, the lawyer stopped coming to her office, and stopped attending to her practice.  The associate registered her concern in an e-mail, citing the trust account irregularities and the “ethical conundrum.”  In reply, the lawyer said that the associate had no responsibilities regarding the office’s finances, and purported to “relieve [the associate] of any ethical obligations regarding the firm’s financial business…”  The associate soon left the firm.  (A lawyer in such circumstances might need to consider whether Model Rule 8.3, “Reporting Professional Misconduct,” could be applicable.)

In 2014, the lawyer pled guilty to a criminal charge of first degree theft, and was sentenced to nine months of electronic home monitoring.

“Opioid haze”

The lawyer had been in successive car accidents in 2003, 2004 and 2006, and had developed chronic pain.  After the lawyer unsuccessfully tried several pain management techniques, her doctor prescribed a variety of opioids in 2006; the lawyer started taking the medication in increasingly large amounts and became dependent.

In her disciplinary filings, the lawyer said that she was in an “opioid haze,” and that her chemical dependency caused her to “overlook the proper disbursal of the trust funds” to the client.

Evidence at the hearing depicted the lawyer’s personality changes.  As her drug use mounted, she became chronically lethargic, “would pass out midsentence and was unable to complete simple tasks.”

Finally, in 2012, the lawyer entered a detox program.

No mitigation

Under the ABA’s Standards for Imposing Lawyer Sanctions and Washington law, the presumptive punishment for client theft is disbarment.  Only “extraordinary” mitigation will merit reducing that sanction, the court noted.

The disciplinary hearing officer found that the lawyer had a physical disability due to her chronic pain; that she was chemically dependent; and that these two factors justified a three-year suspension rather than the presumptive disbarment penalty.

But the full disciplinary board — by an 11-0 unanimous vote — disagreed, and the state supreme court adopted the board’s recommendation of disbarment.

The court rejected the argument that the lawyer’s significant pain was an “extraordinary mitigator”:  “We do not wish to minimize the debilitating and disabling impact that chronic pain has on many individuals’ lives.  Nevertheless, such pain does not excuse extreme lapses of an attorney’s moral judgment.”

And the court held that the lawyer’s chemical dependency, either alone or in combination, would not justify a sanction short of disbarment — even if the lawyer had been able to show that her opioid dependence caused her to steal client funds.

The court wrote that it has consistently found that alcohol and drug addiction are not extraordinary mitigating factors in cases involving client theft.  Rather, the court said, despite her “opioid haze,” the lawyer was to some degree “culpable and responsible for her actions.  At some point, she ‘chose the path’ that led to her misconduct.”  The court refused to view the lawyer as an “innocent victim of forces beyond [her] control …. We must hold her responsible for the harm she caused to the real victim here [the client].”

Harsh result — or appropriate?

This was a tragic situation — for the client, whose money was stolen by the fiduciary who was supposed to protect his rights; and for the lawyer, whose professional life has now been foreclosed by a terrible lapse.

As a profession — and as individuals — we need to do a much better job of intervening in the chain of life events that led to the result in this case.  Our failure to do so when we are aware of a situation like this makes us bystanders.  Our obligation as humans demands more.

Putting your law firm name on coffee mugs and giving away donuts to prospective clients is apparently not enough anymore.  Recent firm branding campaigns have included sponsorships of pro golfers and cricket players, including emblazoning the bats with the firm name.

That may be the trend of the future in Biglaw, but a much more modest marketing effort recently landed an Ohio lawyer in disciplinary trouble.

No Justice, no peace?

According to the opinion, from 1981-1997, the lawyer in question practiced with another attorney, who eventually became (and continues to be) a Justice of the Ohio Supreme Court.  Fast forward to 2015.  With the permission of the Justice, the lawyer began using their old firm name, including on business cards, and hung a sign outside the office saying “O’Neill & Brown Law Office (Est. 1981).”

That only lasted for a few weeks before the local bar association began investigating.  After the disciplinary authorities advised the Justice that the sign violated Ohio ethics rules, the Justice instructed the lawyer to remove his name from the sign, and eventually the lawyer did so.

False and misleading

The Ohio Supreme Court (with the Justice in question not participating) agreed with the Board of Professional Conduct that the firm name on the sign and business card, and the reference to the firm having been established in 1981 were false or misleading communications that violated Ohio’s version of Model Rule 7.1.  The court also found a violation of Rule 7.5(c), which prohibits using a judge’s name in a firm name or other firm communication, unless the judge regularly and actively practices with the firm.

By a 4-3 vote, the court imposed a two-year stayed suspension on the lawyer.  A significant aggravating factor contributed to the sanction:  this wasn’t the lawyer’s first rodeo — he’d been disciplined several times before, according to the opinion, including a previous suspension for threatening a judge who served as chair of the local bar grievance committee.  But in mitigation, the court noted that his conduct “did not involve the provision of legal services,” that no clients were harmed, and that the Justice participated in the decision to use the “O’Neill & Brown Law Office” name on the sign.

The three-judge minority would have imposed an “indefinite” suspension, which in Ohio is a term of at least two years.

Stick to the tchotchkes

A good lesson here.  A prominent legal moniker on your office sign may be good marketing, but it would be best to stick to the coffee mugs — or cricket bats.

Hot on the heels of the publicity for Brian Cuban’s new book, “The Addicted Lawyer:  Tales of the Bar, Booze, Blow and Redemption,” comes the searing account in the New York Times of the 2015 death of a former IP partner at Wilson Sonsini Goodrich & Rosati, who secretly battled drug addiction and reportedly died of a bacterial infection that often afflicts intravenous drug users.

Cuban’s book (he is the brother of billionaire Dallas Mavericks owner Mark Cuban) is, by all accounts, a story of perseverance and recovery; Cuban redeemed his life, although he does not practice law any longer.

But the New York Times article, authored by the Wilson Sonsini partner’s ex-wife, is a harrowing call to arms about the need to do a better job — in the organized bar, in BigLaw, small law, corporate law and everywhere else — of identifying and helping addicted lawyers.

“Last call” — dial-in to a work conference

The Wilson Sonsini partner, identified in the NYT article only as “Peter,” is described as successful, driven and work-obsessed.  After a stellar law school career, in which he graduated first in his class, he replicated that success in a legal career that saw him regularly working 60-hour weeks over the next 20 years.

His ex-wife, with whom Peter maintained good relations, found him dead on the floor in his house, near half-filled syringes, a tourniquet, and crushed pills.  She had no idea that he was struggling with a severe addiction — reflected in detailed notes the lawyer kept of the times and amounts of his drug injections — although she writes that she noticed wild mood-swings in the months before his death, and voice mails consisting of “meandering soliloquies.”

Most poignantly, the lawyer kept working right up to the end.  The last call he made from his cellphone, his ex-wife wrote, was to dial in to a work conference call, even though he was “vomiting, unable to sit up, slipping in and out of consciousness.”

At Peter’s memorial service, his ex-wife wrote, while a weeping young associate eulogized the partner he had come to know, firm lawyers were bent over their own cellphones, tapping out e-mails — unable to put down their work even then.

Grim statistics

The statistics on lawyers and alcohol abuse are grim, and well-known.  More than a fifth of all lawyers are problem drinkers, according to last year’s joint report of the Hazelden Betty Ford Foundation and the American Bar Association Lawyers.

The statistically-robust report drew responses from 12,825 licensed and practicing lawyers from 19 states.  But only 25 percent of respondents answered questions about drug use — out of fear of answering, according to the study’s lead author.  Quoted in the NYT story, he said that  “I think the incidence of drug use and abuse is significantly underreported,” because in contrast to alcohol use, drug use is illegal.

In his book, Cuban describes snorting cocaine in his former law firm’s bathroom, to keep going after boozing it up and using drugs the night before.  Other memoirs, like “Girl Walks Out of a Bar,” by a former Pillsbury Winthrop lawyer, underscore the reality of lawyer drug addiction.

What is the profession doing to help?

Accounts like Cuban’s and the death of the Wilson Sonsini lawyer spotlight the need for the legal profession to step up its efforts to help.  The ABA’s Model Rule on Continuing Legal Education calls for just one credit of CLE every three years on mental health or substance abuse.

Some states, like my home state of Ohio, have moved away from a specific substance-abuse requirement;  since rule amendments in 2014, many subjects qualify to meet our “professional conduct” CLE requirement, so a lawyer never needs to have any substance abuse CLE.

Yet, in the days before that change was made, when lawyers still needed to get one hour of  substance abuse training every two years, each time I spoke on ethics at a CLE seminar, I observed at least one lawyer going up afterwards to the person who had spoken on substance abuse, and speaking earnestly.  These were lawyers in trouble — and we need to do more to help them.

Jurisdictions like Illinois seem to be moving in the right direction, as reported by Chicago ethics lawyer Allison Wood.  Under amended rules, Illinois lawyers are now required to take one hour of mental health and substance abuse CLE as part of their six-hour professional responsibility requirement.  Both the directive to have at least some substance abuse training, and the size of the PR requirement are laudable.

Law firms also have a huge role to play — there’s room to ask whether firm culture “enables” alcoholism.  De-emphasizing the historic link between lawyering and drinking , including at firm events, would help.  So would increasing access to law firm employee assistance programs, as highlighted in guidelines here, from Massachusetts “Lawyers Concerned for Lawyers.”

And as I have done before, here’s a state-by-state list of links to lawyer assistance organizations.  No problem is ever made worse by seeking help.

Being inexperienced can contribute to getting into disciplinary trouble, but it can also be a mitigating factor in a bar disciplinary case.  That’s the message of a recent opinion of the Oklahoma Supreme Court, which imposed a six month suspension from state practice as reciprocal discipline on a lawyer who had already been suspended from federal bankruptcy court practice for five years.

Raising the risk?

Something like 37,000 students likely graduated from law school this year; that’s a lot of newly-minted JD’s coming into the world of practice.  And while they might know more about legal ethics when they graduate than they ever will again (as I tell the law students I teach as an adjunct ethics prof), it’s also surely true that simple inexperience can play a role in going astray and getting into disciplinary trouble.

For one thing, with the legal job market being what it is, many new lawyers will likely be hanging out their own shingles.  There are lots of opportunities for a novice to get mentoring, advice, and hand-holding from more-veteran members of the  bar.

But failing to take advantage of those resources can mean that an inexperienced solo lawyer is stuck in an echo-chamber, without the corrective that a more-seasoned viewpoint can contribute.  And even in a firm, it’s easy to make a mistake if the proper supervision is lacking.

Sooner State of confusion 

The lawyer in this disciplinary case was admitted to the Oklahoma bar and started practicing in 2013.  About 18 months later, she got her first client — a couple who were attempting to set aside a bankruptcy court order.

Her attempt on the couple’s behalf went badly wrong, and then spiraled out of control:  the bankruptcy court found the lawyer’s set-aside motion to be without any legal or factual basis; she missed the deadline to supplement the filing; and then she sued the trustee, the judge, the state courts of two counties and the layers representing the creditors.

The court dismissed that suit with prejudice, and the creditors moved for sanctions against the lawyer in the bankruptcy court, asserting among other things that she had filed frivolous litigation, misrepresented facts, and had threatened the bankruptcy trustee and attorneys with criminal prosecution in bad faith.

Before the sanctions hearing, the lawyer entered into a settlement, accepting a five-year suspension from practice in both Oklahoma bankruptcy courts.

Inexperience counts

It’s a little-known fact that drawing professional discipline in one jurisdiction where you are admitted to practice (including before federal courts), can bring reciprocal discipline in other jurisdictions where you are admitted.  That’s what happened here.

In response to the state bar’s disciplinary charges, the lawyer creatively argued that because her bankruptcy suspension was a result of an agreed settlement and not an “adjudication,” there was no basis for reciprocal state discipline.  The Oklahoma supreme court swept that argument aside, and held that her conduct violated the Sooner State’s versions of Model Rules 1.1 (competence); Rule 3.4 (unfairness to opposing parties and counsel; and Rule 8.4(d) (conduct prejudicial to the administration of justice.

But in weighing the appropriate reciprocal discipline, the court significantly took as a mitigating factor that the lawyer “was new to the practice of law and without supervision or training.”  Without intending to hold “new legal practitioners to different standards from  more seasoned lawyers,” the court nonetheless took account of the fact that the lawyer “was practicing on her own with little prior training or supervision and refused to ask for help.”

Thus, although acknowledging that the lawyer exceeded the bounds of zealous advocacy, and “displayed a lack of competency and insolence in the practice of bankruptcy law,” the court imposed only a six-month suspension from practice.

Don’t let this happen to you 

If you’re a newbie, recognize the limits of your knowledge and get help.  Don’t count on your inexperience to save you from harsh professional discipline; you don’t want to go there in the first place.  If you practice by yourself, take advantage of all the formal and informal mentoring and training resources available via state and local bar associations and law schools.

My hometown Cleveland Metropolitan Bar Association, for instance, has a solo and small firm practice section.  The Ohio Supreme Court has a lawyer-to-lawyer mentoring program, linking veteran lawyers with new practitioners.  Last, here are other mentoring programs, listed by state.

Businessman with boxing gloves punching man in the faceWe’ve written before about deposition conduct that crosses the line between valid advocacy and sanctionable misconduct.  Here’s the latest example, in which a New York federal magistrate imposed sanctions on a defense lawyer for the City of New York, who interjected over 750 statements on the record, including more than 600 objections across 84 percent of the deposition transcript pages.

Deposition duel

The case arose after the plaintiff was arrested at work, held in jail and released the next day.  The discovery trouble broke out at the deposition of one of the defendant police officers.

As described in the opinion, defense counsel’s conduct ran the gamut of obstructionist deposition tactics:

  • she instructed the witness not to answer at least 20 times;
  • she made speaking objections that suggested the answer to the witness — including objections that encouraged the witness to resist the question;
  • she objected to questions on the basis that they had already been asked and answered, even though they had not been answered;
  • she objected to questions on the basis of relevance, although that is an improper objection under Second Circuit law; and
  • she threatened to walk out of the deposition.

The lawyers called the judge’s chambers twice during the deposition.  The first time, the judge’s law clerk instructed that objections should be short and concise “and there is really nothing else that needs to be said, other than ‘objection to form.'”  The second time, the judge herself directed that any contested questions were simply to be marked in the transcript.  But despite the calls to the court, defense counsel failed to curtail her objections.

Excessive objections = sanctionable conduct

The magistrate judge granted plaintiff’s motion for sanctions, ordered the city to pay reasonable attorneys’ fees and costs associated with the deposition, and gave plaintiff an additional shot at deposing the witness.

The judge noted that Federal Civil Rule 30(c)(2) mandates that deposition objections be stated concisely, “in a non-argumentative and non-suggestive manner,” and instructions not to answer are limited mainly to preserving privilege.  Rule 30(d)(2) authorizes sanctions for impeding, delaying or frustrating the “fair examination of the deponent.”  Bad faith is not necessary, and making an excessive number of unnecessary objections may itself constitute sanctionable conduct, as the Rules Advisory Committee notes provide.

The court held that defense counsel’s behavior “clearly impeded the progress of and unnecessarily extended the length of the deposition,” meriting sanctions.

Effect of Haeger ruling?

Curtailing deposition misconduct means that judges must be willing to penalize lawyers who cross the line.  In April, the U.S. Supreme Court arguably made that prospect somewhat more remote, unanimously ruling that when based on the district court’s inherent authority to sanction bad faith discovery conduct, the amount of sanctions cannot be punitive, and must be tied to the costs and fees proximately resulting from the misconduct.  That obviously limits the potential sting of sanctions for deposition misbehavior.

In the New York federal case, the basis of the court’s ruling was Rule 30(d), and not its inherent power, as in Haeger.  And the court expressly said that its ruling didn’t require bad faith on the part of the sanctioned counsel.  But the court still limited the amount of the sanction to the plaintiff’s fees and costs resulting from the deposition.

That is a measured response to conduct that derailed a deposition.  In egregious cases, more is called for if the persistent problem of deposition misconduct is to be addressed effectively.  Courts and bar associations can continue to extol the virtues of professionalism, but if more trial courts don’t become engaged and take forceful action against it, and courts of appeal don’t confirm that forceful action, discovery abuse will continue to undermine our justice system.