Bar Counsel

Blind Justice Awards

(You may want to look the other way)

By Sylvia Stevens


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.


ABOUT THE AUTHOR

Sylvia Stevens is assistant general counsel and MCLE adminstrator of the Oregon State Bar. She can be reached at (503) 620-0222, ext. 359 or by e-mail at sstevens@osbar.org.


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