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There are
many awards that recognize remarkable conduct in the legal system. Dumb
Crook Awards are for mentally challenged criminals. The Whiplash! Awards
go to litigants who abuse the legal system. Dumb Lawyer Awards typically
highlight the (often unintentional) humor in the practice of law. But
what of 'ethically challenged' lawyers, whose temporary or permanent
lack of a moral compass sometimes leads to shocking results? I herewith
present, in no particular order, several cases decided during the last
year or so that I believe reflect outstanding misconduct and which qualify
for what I have denominated the Blind Justice Awards.1
Fortunately, none of the recipients are members of the Oregon State Bar.
Their experiences, however, are instructive. And so, without further ado
…
1. IMPERSONATING
DEFENSE LAWYER
A Colorado deputy district attorney was suspended for three months for
passing himself off as a defense lawyer in hopes of persuading an admitted
ax murderer to surrender to authorities. The disciplinary panel was not
persuaded by the lawyer's argument that his deception was necessary to
induce the killer's surrender before anyone else got hurt. After a lengthy
standoff with police during which the prosecutor provided advice, the
killer said he wanted to talk to a lawyer. When the specific lawyer the
killer requested couldn't be reached, he asked for a public defender.
The prosecutor decided that a defense lawyer shouldn't be called because
defense counsel would likely advise the killer to discontinue his dialogue
with the police. He also decided that the killer would not likely be fooled
by a police officer posing as a defense lawyer. The subterfuge came to
light when the killer told the public defender service that he was already
represented by one of their lawyers. The disciplinary panel concluded
that regardless of how well-intentioned the DDA was, the 'ends do
not justify the means.' It also was troubled by the DDA's lack of
remorse and testimony that he would do that same thing again if circumstances
warranted.
2. PERPETRATOR
REPRESENTING VICTIM
A lawyer was charged with domestic battery after an altercation with his
girlfriend and was subsequently discharged from his employment as a part-time
prosecutor in Indiana. The victim expressed her desire not to be questioned
by police. The lawyer then informed the police that he represented the
victim and that any interviews of her should be arranged through his office.
The court found 'disingenuous' the lawyer's argument that he
was only relaying that he represented the victim in other matters. The
court recognized that Rule 1.7(b) allows representation in the face of
a self-interest conflict if the client consents and when the lawyer reasonably
believes that the representation will not be adversely affected. 'However,
it is had to imagine a circumstance where any lawyer could reasonably
believe there would be no adverse effect attendant to the lawyer's representation
of the victim of an alleged crime the lawyer is charged with committing.'
The lawyer's 30-day suspension also involved other misconduct.
3. ATTEMPTED
BRIBERY OF CONGRESSMAN
A lawyer agreed to pay a U.S. congressman $12,000 for the congressman's
help in getting the lawyer's uncle moved to a prison closer to home. When
the scheme was exposed, the lawyer cooperated with federal prosecutors
in their investigation of the congressman, who pleaded guilty to a multi-count
indictment including one count of extortion for this matter. Lawyer was
not charged with any criminal conduct, but was suspended for four years
by the Massachusetts Supreme Judicial Court. The Florida Supreme Court
then disbarred the lawyer for the same misconduct, finding that bribery
is a 'particularly noxious ethical failure.' The court rejected
the lawyer's contention that he was entitled to lenience because he was
trying to help his family. 'Making life more convenient for family
members is simply not adequate justification for such egregious misconduct.'
4. ONLINE
SEX WITH MINORS
This particular lawyer resided in Virginia but was licensed to practice
in Maryland. Using online chat rooms, he communicated with young girls
between the ages of 13 and 16, asking them to meet him and have sex with
him. Although he met some of the girls, no sexual contact ever took place.
One of the lawyer's online correspondents was an undercover FBI agent.
The lawyer's criminal conviction was overturned, but he was disciplined
in Maryland for his violation of a Virginia statute prohibiting 'taking
indecent liberties with children.' The Maryland court suspended him
indefinitely and prohibited him from applying for reinstatement for one
year. The dissenting opinion recommended disbarment, saying the majority's
message was: 'Steal money and you are disbarred. Steal a quarter's
worth of parking time and your are disbarred. Forever steal a child's
innocence and you're suspended.'
5. BRIBING
DETECTIVES
At the conclusion of a hearing at which a lawyer represented a defendant
on felony charges, the defendant was arrested on unrelated domestic violence
charges. The defendant begged the officers not to take him to jail, but
they wouldn't relent. The lawyer told the officers they needed to talk
about his client 'at a level they could all understand.' He
pulled cash, including a $100 bill, from his pocket and said that if the
officers would 'forget the matter,' the defendant would turn
himself in the next day. The officers refused the lawyer's proposition;
the next day he went to the police station and apologized. At his disciplinary
hearing, the lawyer professed to have been joking with the officers and
made the purported offer of money only to show his client that nothing
would prevent his immediate incarceration. The lawyer said he did not
believe the officers would accept a bribe. The Colorado Supreme Court
suspended him for three years, with one year suspended, finding that his
subjective belief that the bribe would not be accepted did not alter his
intent, 'it merely bears upon the potential of success.'
6. DECADE-LONG
AVOIDANCE OF ARREST
In 1987, a lawyer was indicted on conspiracy and tax fraud charges and
a federal warrant was issued for his arrest. He was living in the Cayman
Islands at the time, and over the ensuing years lived in Central America,
Europe and Africa. He returned to the US in 1997, surrendered to authorities
and pleaded guilty to criminal contempt. After serving a six-month prison
term, the lawyer requested reinstatement to active status in Iowa without
disclosing his criminal conviction. Lawyer served for some time as counsel
to the Iowa legislature. In the disciplinary proceeding, the court was
not persuaded by the lawyer's contention that he stayed abroad to avoid
assassination by the Medellin drug cartel. The court was also affronted
by the lawyer's contention that he was fit to practice law because, as
legislative counsel, he worked on the judicial budget. The court suspended
him indefinitely and barred him from seeking reinstatement for one year.
The lengthy suspension was warranted, said the court, because of the lawyer's
prolonged defiance of the federal court, his lack of candor before the
trial panel, his inability to acknowledge the seriousness of his misconduct
and his attempt to improperly influence and intimidate the court.
7. FALSE
MCLE REPORT
In December 1987, a lawyer submitted an MCLE compliance report claiming
7.5 hours of credit for a program scheduled for January 1988. Lawyer was
informed he could not claim credit for courses he planned to attend in
the future and was advised to resubmit the report after the hours were
earned. Lawyer's resubmitted report was selected for audit and it was
determined that the program sponsor had no record of his attendance. Lawyer
claimed that he registered, paid the fee and went to the program but arrived
after it ended because he was mistaken about its location and length.
Lawyer claimed not to understand that a late arrival would nullify the
credit for attendance; he contended it is customary for lawyers to receive
full credit for programs when they pay the fee, show up to sign the attendance
log and then leave. Justifying a 90-day suspension, the South Carolina
Supreme Court said that truthful representations on MCLE compliance reports
are essential to provide the public with competent, educated lawyers.
Neither the lawyer's eventual compliance nor his account of what other
lawyers supposedly do was considered in mitigation.
8. ALERTING
CLIENT TO FBI RAID
When a lawyer learned of an impending FBI raid, she called a former client
who she suspected was a drug dealer and told him to 'clean up his
act' or to be 'squeaky clean.' After his arrest, the client
testified that he understood the lawyer to be suggesting that he dispose
of any drugs in his possession. The lawyer was convicted of attempted
obstruction of justice and sentenced to six months in jail. The Ohio Supreme
Court suspended her for one year, with six months stayed during which
time she would be on monitored probation to assist her in exercising proper
professional judgment. Although the court found that the lawyer had simply
exercised bad judgment rather than acting with malicious intent, it held
that her conduct involved moral turpitude because she disregarded her
duty to uphold the law faithfully and used her status as an attorney to
obstruct justice.
9. BAD-MOUTHING
CLIENT AFTER WITHDRAWAL
This particular lawyer represented a corporation and its president in
a Chapter 11 bankruptcy proceeding and in a rent dispute with the corporation's
landlord. Upon learning the corporation wasn't going to pay the back rent
and dissatisfied with president's response to inquiries about funds missing
from the corporation's retirement plan, the lawyer withdrew from the representation.
The lawyer then wrote to the attorney for the bankruptcy creditors' committee
and to the landlord's attorney informing them that his withdrawal from
the representation was due to the president's refusal to get help for
his chemical dependency and his propensity to write bad checks. He also
wrote to more than 25 individuals and government agencies (including the
vice president, the attorney general and the Internal Revenue Service)
accusing the corporation's president of committing murder, making death
threats, engaging in 'serial' bankruptcies and stealing the
corporation's retirement plan funds. The Minnesota Supreme Court suspended
the lawyer for an indefinite term, conditioning reinstatement upon adequate
psychological or medical evidence that the lawyer no longer suffered from
the psychological problem that apparently caused his misconduct.
10. SLURS
TO ADVERSARIES
A lawyer represented the husband in a divorce and custody matter. During
the course of depositions, the lawyer made disparaging and profane remarks
to belittle and humiliate the opposing party and her attorney and threatened
to beat up the opposing party's father. He referred to the opposing party
as 'a nut case' and 'crazy.' He told opposing counsel
that she was 'a stupid idiot' and a 'bitch' 'who
should go back to Puerto Rico.' He made insulting facial gestures,
told opposing counsel she was a 'bush leaguer' and that depositions
weren't conducted according to 'girls' rules.' The lawyer argued
that his verbal flare-ups did not prejudice the administration of justice
and that a prior instance of profanity had not resulted in discipline.
The Florida Supreme Court admonished the lawyer and required him to undergo
evaluation for possible anger management or mental health assistance.
The court said that his disrespectful and abusive comments crossed the
line from zealous advocacy to unethical, prejudicing the administration
of justice by exacerbating relationships with opposing counsel and the
judges in an already difficult situation. +
ENDNOTE
1. So named because these lawyers give Lady Justice a
good reason to cover her eyes.
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