If you’re admitted to handle a case PHV, mind your P’s and Q’s.

Translation:  Pro hac vice admission to practice before a court outside the state where you’re licensed requires attention to a range of ethics duties, and running afoul of them can have bad consequences.  Two recent cases spotlight some of the issues.

We’re looking at you….

A Louisiana lawyer was admitted pro hac vice to represent a client in the Western District of North Carolina.  On the application, he certified that he had never been subject to a formal suspension or public discipline in Louisiana.  Whoops.  In 2014, the lawyer had been suspended in the Bayou State for neglecting a client matter and mishandling a client trust account, but the suspension was deferred pending successful completion of a two-year probation.

The lawyer argued that his certification on the PHV application was not a material misrepresentation.  Maybe not technically — but the district court in North Carolina was not buying it.  The lawyer’s missteps in his home state didn’t automatically disqualify from appearing in North Carolina, said the court.  But he was required to explain his disciplinary history.  The lawyer’s argument that he had to disclose only an actual interruption in his ability to practice was “manifestly not credible,” the court found.  Even making the argument demonstrated his lack of candor, the court noted.

The outcome:  revocation of the lawyer’s permission to represent his client in the case.

Lesson:  Your state has a version of Model Rule 3.3 (Candor toward the Tribunal), Model Rule 5.5 (Multi-jurisdictional Practice) and Model Rule 8.4(c) (dishonesty, misrepresentation).  Don’t try to shave the corner of the plate when you’re applying for PHV admission.  Explain anything that even arguably needs explaining.  Don’t try to justify a failure to disclose with an over-technical reading of the  requirements.  A court might not look kindly on that strategy.

Hand-flapping and harassment

An Ohio lawyer admitted pro hac vice before the Delaware Chancery Court was representing the defendants.  Things went awry when the lawyer deposed one of the plaintiff’s witnesses, and based on misconduct at the deposition, the court granted the lawyer’s own motion to withdraw his PHV admission.

From its review of the deposition transcript and video, the court noted that the lawyer

  • raised his hand and made yapping gestures toward plaintiff’s counsel while plaintiff’s counsel was speaking;
  • repeatedly interrupted plaintiff’s counsel and referred to him as “Egregious Steve,” and the “sovereign of Delaware”;
  • harassed the deponent with personal questions; and
  • called the deponent and plaintiff’s counsel “idiots.

For this conduct, which it called “not only rude, but tactically so,” the court granted the motion to withdraw, and also referred the matter to Delaware disciplinary counsel, along with imposing attorneys’ fees on the lawyer and his firm.

Lesson:  Be professional and dignified at all times, but especially when you are in someone else’s bailiwick.  As the court said, the lawyer was appearing in Delaware “as a courtesy extended to him to practice pro hac vice.”  Delaware, like many other jurisdictions, has a professionalism code, in addition to its Rules of Professional  Conduct.  The Delaware code stresses “civility,” respectfulness, “emotional self-control,” and refraining from “scorn and superiority in words or demeanor,” and is binding on those appearing pro hac vice, the court said.

The take-home from these two cases is obvious.  When you’re specially admitted before a court, any professional or ethical misconduct carries with it the added potential risk of being tossed from the case, with clear downsides for your client, as well as for you.  Mind those P’s and Q’s, and stay out of PHV trouble.

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.

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.

Caution text and sign.There should be a word that’s the opposite of “schadenfreude” — you know, that evocative German term that means “secret pleasure at another’s misfortune.”  Maybe there is such a word, but the one I’m searching for would convey the sense of “Please, let me not fall into the same error” as some other person did, because under the right (or wrong) circumstances we can all make ethical mistakes.  Here are three cautionary tales. You may read them and wonder how the lawyers involved came to such grief — or you may just be thankful that it wasn’t you, or that the demons these lawyers struggled with aren’t yours.

If you’re carrying meth, don’t forget your briefcase.

A Colorado lawyer left his briefcase in a courtroom overnight.  The judge’s law clerk found it and identified the lawyer by looking at the documents in the briefcase.  Unfortunately, as the disciplinary opinion describes, “a vial of white power and a syringe were also in the briefcase; a field test by courthouse deputies identified the power as methamphetamine.”  The lawyer retrieved the briefcase later and identified it as his.

A month later, police responded to a domestic violence call at the lawyer’s home.  His spouse told police that after the spouse found meth in the home and confronted the lawyer, the lawyer assaulted the spouse.

The lawyer also neglected clients in six cases, including leaving a client at trial without counsel, and failed to refund at least $7,000 in unearned fees, constituting conversion of client funds.

The court ordered disbarment for among other things, violating the state’s version of Model Rule 8.4(b), which makes some types of criminal conduct into ethical violations.  The court said that it could not consider any mitigating factors, despite the circumstantial evidence of the lawyer’s difficulties, because the lawyer failed to participate in the disciplinary case.

If you’re driving, wear a seatbelt. 

A California deputy district attorney and her co-worker got pulled over and received citations for the D.A.’s failure to wear a seatbelt.  The D.A. called a family friend, a sergeant in the police department’s traffic division, who agreed to dismiss the citations without talking to the traffic officer.  The D.A. then told her co-worker to destroy co-worker’s own citation, but co-worker refused.

The D.A. was tried and found guilty of conspiracy to obstruct justice, and two counts of altering a traffic citation — all misdemeanors.  The appeals court affirmed the conviction.  And in an order that took effect in November 2016, the D.A. was suspended for 60 days, ordered to take the Multistate Professional Responsibility Examination, and placed on two years’ probation.  In aggravation, the court found that the D.A.’s conduct damaged the integrity and credibility of the criminal justice system and the legal profession.

If you work at a firm, hand over the client fees.

A former partner in a Utah law firm worked on two client matters and directed that firm personnel write off some or all of the fees.  The client in each matter did construction work at the partner’s home:  one built a shed worth more than $15,000 and had all his legal fees written off and his retainer refunded; one built a railing for the partner, received $3,500 in cash from the lawyer for the work, and had more than $7,000 in legal fees written off, with the firm receiving just $700.

Each client testified that he had a deal with the lawyer to provide construction work in exchange for the lawyer’s legal services.

The district court concluded that the lawyer had violated the state’s version of Model Rule 8.4(c), barring dishonesty, fraud, deceit and misrepresentation.

As a sanction, bar counsel argued for disbarment, which is the presumptive sanction for misappropriating funds.  The lawyer argued that misappropriating funds from his law firm didn’t rate the same sanction as stealing from clients, and on its review, the state supreme court agreed, in an opinion suspending the lawyer for 150 days.

The court wrote that “that not all misappropriation is created equal. Misappropriation of firm funds does not ‘undermine the foundations of the profession and the public confidence’ in the same way that misusing client funds does,” and does not merit the same presumptive sanction.

Be careful out there

Takeaways?  (1) If your friend, associate or law partner is grappling with addiction or any other brain disease or mental health issue, reach out to your state’s lawyer assistance program.  It just might save their life, in addition to their license.  A list of every state’s program is here.  (2) Keep your moral compass in front of you at all times.  And, oh yes:  (3) Buckle up when you’re behind the wheel.