The Duty to Cooperate.

Yesterday I posted The Boom Shakalaka Defense.  It’s the story of a lawyer who was charged with failing to respond to disciplinary authorities who were investigating the lawyer’s conduct. The lawyer argued that he’d responded in the “form of SILENCE. (BOOM SHAKALAKA).”  The Supreme Judicial Court of Massachusetts concluded that silence is not a response.

The absurdity of “Boom Shakalaka” tends to detract from an important point: lawyers have an affirmative duty to cooperate with a disciplinary investigation.  Violating the duty strikes at the heart of a profession that enjoys the privilege of self-regulation.

These days, it’s rare for a lawyer not to cooperate with a disciplinary investigation.  It used to happen a lot more often.

On July 1, 2000, I was deputy disciplinary counsel.  At the time, we had 178 active disciplinary investigations.  A few months later, my boss left for another job.  I became disciplinary counsel but would not hire a deputy until mid-2001.  The docket was overwhelming.

I don’t know if it was in recognition of the caseload, but it wasn’t uncommon for lawyers under investigation not to cooperate. So, I started charging lawyers with failing to cooperate.  Often, informing the lawyer that a hearing panel had concluded that there was probable cause to file public charges alleging a failure to cooperate would spur cooperation.  On occasion, however, I’d have to file the charges.  Cooperation would follow, with the charges being dismissed or, at most, the lawyer receiving a private admonition.

Still, it persisted.  So, in 2006, I upped the ante.

That summer, we received a complaint.  The lawyer failed to respond to several requests to answer the complaint.  Thus, I charged the lawyer with failing to cooperate with a disciplinary investigation.

I can hear you now.  What rule does it violate?

The rules that govern the operation of the Professional Responsibility Program state that discipline may be imposed for, among other things, “(f)ailure to furnish information to or respond to a request from disciplinary counsel, a hearing panel chair, or the Court without reasonable grounds for doing so.”  Supreme Court Administrative Order 9, Rule 7.D.

More importantly, Rule 8.4(d) of the Vermont Rules of Professional Conduct prohibits lawyers from engaging in conduct that is prejudicial to the administration of justice. It is well-settled that the failure to cooperate with a disciplinary investigation violates Rule 8.4(d).

Anyhow, back to my 2006 case.  I urged the hearing panel to issue a public reprimand.  The panel concluded that a public reprimand was not appropriate.

Instead, the panel suspended the lawyer for 30 days.

The panel’s decision is here.  Here’s a key statement from the decision:

  • “We do not disagree with much of Disciplinary Counsel’s reasoning. We believe, however, that the importance of the attorney’s obligation to the profession requires a serious response, particularly when an attorney, without offering any
    explanation, chooses to ignore a critical duty owed to the profession.”

From there, the panel stressed that a self-regulating profession “requires the cooperation of all members of the bar if it is going to work fairly and efficiently.”  The panel went on to state that the “(f)ailure to comport with the duty of cooperation seriously impedes the efficient administration of justice and erodes the public’s confidence in the profession.”

In conclusion, I often worry that the profession’s privilege to self-regulate, a privilege rooted in the notion of an independent Judiciary and the separation of powers, will come under attack.  A serious response to lawyers who fail to cooperate with the disciplinary process is one of our first lines of defense. So, while the Boom Shakalaka story might amuse, it shouldn’t distract from the importance of cooperating with a disciplinary investigation.

Cooperate Meaning - YouTube

The “Boom Shakalaka” Defense.

Don’t have time to read the entire post? Here are the key takeaways:

  1. The failure to cooperate with a disciplinary investigation is a violation of the Rules of Professional Conduct.
  2. If you don’t respond to disciplinary counsel, arguing that “my answer was provided in a form of SILENCE (BOOM SHAKALAKA)” might not work.

Now, the rest of the story.

As the blogger, I have access to the blog’s statistics.  Last week’s most-viewed post was one from December 4, 2018: That Time You Filed A Complaint In The Form of a Screenplay. Wait, What?  It recounts the story of Ilya Liviz, the lawyer who sued the Supreme Judicial Court of Massachusetts in federal court.  The fact that he sued the court isn’t what inspired my blog post. It’s that he drafted the complaint in the form of a screenplay.

Noting that “a complaint in the form of a movie script” violates the rules of procedure, a federal judge ordered Liviz to show cause as to why it should not be dismissed.  Liviz responded by moving to recuse the judge, citing the “Liviz recusal doctrine.”  Yes, a doctrine he named after himself.

While entertaining, the post’s newfound popularity struck me as odd.  No longer.

Attorney Liviz was trending again last week.  As reported by Bloomberg Law, Liviz’s law license was suspended.  The procedural history is a bit complicated, but here’s what happened.

In early 2019, Liviz did not respond to bar counsel’s requests for information during an investigation into his conduct.  As a result, his law license was suspended.  Later, Liviz was held in contempt for failing to comply with the suspension order.  He appealed the suspension order and the contempt finding.

With respect to the failure to cooperate, and per last week’s opinion from the Bay State’s highest court, Liviz argued that he “DID COMPLY, and DID PROVIDE AN ANSWER, and my answer was provided in a form of SILENCE. (BOOM SHAKALAKA).”

Wait What

The Court disagreed.  Concluding that silence is not a response, the Court affirmed the suspension.

I wonder if the summer’s blockbusters will include the release of a script to the sequel.

 

 

 

 

 

Public Enemy, Flavor Flav, and a very strange disciplinary case.

In 1990, Public Enemy released Fear of a Black Planet.  I doubt anyone ever expected that, 29 years later, two singles from the album would play somewhat prominent roles in a blog post on the nuances of the attorney discipline process.

Image result for public enemy images

One of the songs is “Can’t Do Nuttin’ For Ya Man.”  It includes the lyrics:

“It was you that chose your doom
You built the maze you can’t get through
I tried to help you all I can
Now I can’t do nuttin’ for you man.”

Last week, the District of Columbia Court of Appeals Board on Professional Responsibility said pretty much exactly that to a lawyer.  Strangely, the case was one in which the lawyer not only asked to be disbarred, but invoked Public Enemy (and Flavor Flav) in making the request.  More on that in a moment.

I first learned of the story via Professor Bernabe’s blog.  It was also reported by the ABA Journal, the Legal Profession Blog, and Above the Law.  Here are the opening sentences from the Board’s Report and Recommendation:

  • “In this extraordinary matter, Disciplinary Counsel seeks to have Respondent
    disbarred. Respondent has also unequivocally, and colorfully, sought to be disbarred.”

Intuition likely tells you “end of story.”  Not so fast my friends.

In 2017, D.C.’s Office of Disciplinary Counsel (“ODC”) served the respondent with four separate complaints.  The respondent did not answer, appear in any of the subsequent proceedings, or otherwise present a defense.  Rather, in March 2018, the respondent sent the following email to the disciplinary prosecutor:

“Please don’t kill trees, waste taxpayer resources and ODC personnel on
me.
ODC has no credibility or legitimacy to me. Or the drivel you generate.
You are simply dishonest lawyers who do nothing to regulate dishonest
lawyers.
And racists to boot.
Rather than wasting time, money, and paper on your sophistries, please
disbar me.
Disbarment by ODC would be an honor.
To date, aside from competing in the triathlon world championships,
my greatest honors are my PhD from UCLA and my law degree from
Boalt.
But a disbarment letter from ODC will be framed and go up right
alongside those diplomas.
Please do me the honor of disbarring me.
I will be so very very proud.”

Nevertheless, as required by D.C.’s rules of disciplinary procedure, ODC puts on its case.

Now, you might ask, “why?”  Well, “because.”

Like many jurisdictions, a lawyer under investigation by D.C. disciplinary authorities cannot simply resign their license.  Rather, there are specific steps that must be followed in order to consent to disbarment.

Vermont is similar.  Rule 19 of Administrative Order 9 sets out the process by which a lawyer under disciplinary investigation can consent to disbarment.  While the issue has never been litigated here, I doubt that an email to Disciplinary Counsel asking for “the honor” of disbarment would be deemed to comply with Rule 19.

Which brings me back to the D.C. case.

As I mentioned, ODC puts on its case.  It took four days and resulted in a hearing committee issuing a 252-page decision in which it recommend a 3-year suspension of the respondent’s law license.  ODC appealed, asking the Board to disbar the respondent.

In July, the Board ordered the respondent to show cause why it “should not recommend . . . that [he] be disbarred forthwith, based on his consent to be disbarred, without further consideration of the proceedings against him.”  ODC responded that the respondent should be “disbarred on the merits, and not on the basis of his email alone.”  In other words, ODC argued that the respondent had not complied with the D.C. rule on consent disbarment, but should be disbarred based on the conduct that was the subject of the underlying disciplinary charges.

The respondent did not respond to the Show Cause order.  Per the Report & Recommendation:

  • “Instead, he sent a mailing to the Office of Disciplinary Counsel. In that mailing, he enclosed a number of copies of a color image of Flavor Flav from the hip-hop group Public Enemy with the text ‘ODC is a joke’ in all caps at the top of the page in what one can only assume was a reference to Public Enemy’s 1990 song ‘911 is a joke.'”

And there you have it: this post’s second reference to a song from Fear of a Black Planet.

The Board obliged, essentially concluding that while the committee hadn’t recommended disbarment, the respondent had chosen his own doom.  That is, “in light of the Respondent’s unambiguous expression that he seeks to be disbarred, and his response to the Show Cause Order, we conclude that his response is the functional equivalent of meeting the requirements of” D.C.’s rule on consent disbarment.  As such, the Board recommended that the D.C. Court of Appeal “enter an order disbarring Respondent on consent, forthwith and without further consideration of the evidence in the case.”

Two Board members dissented.  While conceding that the respondent’s conduct was “inexplicable,” they argued that his email did not comply with the rule on disbarment by consent.  As such, they dissented “from the Board’s decision to decline to provide the Court with a report and recommendation based on the Board’s review of the Hearing Committee’s findings and recommendations.”

I’m interested in how the Court responds.  Having prosecuted more than one case in which a lawyer failed to respond or defend, I understand the desire to cut to the chase.  But rules are rules and, unless or until it’s changed, the process is the process.  Thus, I think I’d have found myself in the dissent.

I’ll track this and update this post once the Court rules.

Image result for public enemy rock hall of fame