Espionage, Bribery, and Reinstatement to the Practice of Law – Part 1

Every now and then I try to blog about aspects of the disciplinary process that aren’t as commonly understood as others. Today, a pair of recent stories spur me to highlight on one such aspect: the process by which a lawyer seeks reinstatement following suspension or disbarment.

The first involves a lawyer who was disbarred after being convicted of espionage. Last month, a committee of the D.C. Bar’s Professional Responsibility Board held a hearing on the lawyer’s petition for reinstatement.  Among others, the ABA Journal, Reuters, and the Legal Profession Blog, covered the hearing.

Then, two days ago, the Oklahoma Supreme Court reinstated a lawyer who had resigned his law license following a criminal conviction for bribery.  In a post that included a reference to my current binge – Ozark – the Legal Profession Blog reported the decision here.  The Stillwater News Press and KOSU also have coverage.

Surprised to learn that disbarment isn’t permanent?  Don’t worry, you’re not alone.  Yet, in most states, Vermont included, it isn’t.

And that gets us to the reinstatement process.

In Vermont, reinstatement is governed by Rule 26 of Supreme Court Administrative Order 9.  Per the rule, a lawyer who is disbarred may apply for reinstatement five years after the effective date of the disbarment.  Similarly, a lawyer who is suspended for 6 months or longer may apply for reinstatement when within 3 months of the suspension’s termination.[i]

Once a lawyer petitions for reinstatement, the matter is referred to a hearing panel for what is, essentially, the reverse of a disciplinary prosecution.  By rule,

• “the respondent-attorney shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency, and learning required for admission to practice law in the state, and the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest and that the respondent-attorney has been rehabilitated.”

So, how does a lawyer meet their burden?  Well, I participated in a handful of reinstatement hearings when I was the disciplinary prosecutor. In my experience, Vermont’s reinstatement hearings have been similar to those described in the stories above.

Most start with the lawyer apologizing and expressing remorse.  For instance, according to the ABA Journal, the lawyer who was disbarred after having been convicted of espionage gave the following testimony during the reinstatement hearing:

• “My contrition is real. My shame is real. I hurt my country. I hurt my profession. I hurt the bar I was a member of and I would like once again to apologize.”

Next, lawyers seeking reinstatement typically provide evidence of having taken sufficient CLE to demonstrate that they’re current on the law.  Indeed, in its opinion reinstating the lawyer who was convicted of bribery, the Oklahoma court noted that, since 2016, the lawyer had completed 150 hours of CLE, including 13.5 in ethics.[ii]

Finally, reinstatement hearings often include character witnesses testifying in support of the lawyer who is seeking to return. Their testimony usually focuses on the lawyer’s community involvement and potential to contribute to the legal profession if allowed to resume practicing.  The stories linked above include examples of each.

In theory, reinstatement hearings are adversarial.  Vermont’s reinstatement rule states that “in all proceedings upon a motion for reinstatement, disciplinary counsel shall conduct discovery, cross-examination, and the submission of evidence, if any, in response to the motion.” That said, it was not uncommon for me not to take a position on reinstatement and to leave the lawyer to their proof.

Once the evidence is presented, it’s up to the hearing panel to decide whether the lawyer has met their burden.  Then, Vermont’s rule allows either disciplinary counsel or the lawyer to appeal the panel’s decision to the Supreme Court. Like any disciplinary case, even if no appeal is taken, the Court can order review on its own motion.  Absent an appeal or court-ordered review, the panel’s decision becomes final after 30 days.

So, that’s how the process works.

I have additional thoughts on reinstatement. Specifically, thoughts on the tension between “believing in second chances” and “protecting clients, courts, and the integrity of the profession.” Alas, this post is too long already, so I’ll share those thoughts in a soon-to-come Part II.

Stay tuned.

[i] A lawyer who is suspended for fewer than 6 months may resume practicing immediately upon the expiration of the suspension without having to petition for reinstatement.

[ii] I’ll circle back to this in Part II.

What not to do when a disciplinary complaint is filed against you.

Two weeks ago, I received a call from a lawyer who had just been notified that a former client had filed a disciplinary complaint against the lawyer.  The lawyer told me that the complaint was frivolous.  Then, the lawyer asked for my thoughts on the lawyer’s plan to refund a portion of the fee in exchange for the former client’s agreement to withdraw the complaint.

I cautioned against it.  In my view, asking the filer to withdraw a complaint is a violation in and of itself.

My view is not based on nothing.  There’s Vermont case law on point.

In the early 1990s, Lawyer sued Former Client for a fee. Former Client filed a counterclaim alleging malpractice.  Attorney represented Lawyer.  Seeking to resolve the matter, Attorney and Lawyer proposed to Former Client’s counsel that settlement include Former Client signing a release agreeing not to report Lawyer to the then Professional Conduct Board.  The PCB admonished both Lawyer and Attorney, concluding that the proposal violated the rule that prohibited “conduct prejudicial to the administration of justice.”

Alas, it’s no fun blogging about PCB decisions that are almost 30 years old.

Thankfully, this morning, Disciplinary Counsel Sarah Katz alerted me to the Legal Profession Blog’s post An Offer You Can’t Make.  The title tells the story.  It’s the story of an opinion issued last week in which the Indiana Supreme Court concluded that a lawyer “committed attorney misconduct by making an improper demand that disciplinary grievances filed against him be withdrawn as a condition for settlement in a civil matter.” The Hoosier Court suspended the lawyer’s law license for 30 days.

The facts evoke a soap opera plot.  Per the Court:

• “The genesis of this case was Respondent’s breakup with his girlfriend in July 2018. In the immediate aftermath of that breakup, criminal and protective order proceedings were brought against Respondent in Hamilton County, and Respondent filed suit against his now ex-girlfriend alleging defamation and other counts. A few months later, Respondent’s ex-girlfriend and her sister filed disciplinary grievances against Respondent with the Commission.”

The sister too!!

Anyhow, I digress.

Next:

• “In December 2018, Respondent sent an email to opposing counsel in the defamation case. Respondent’s email demanded, among other things, that the disciplinary grievances filed against him be withdrawn as a condition precedent to settlement discussions.”

Eventually, Indiana disciplinary authorities dismissed the sisters’ grievances.  However, in the process, disciplinary authorities learned of the lawyer’s demand that the grievances be withdrawn prior to settlement discussions.  So, they charged the lawyer with violating Rule 8.4(d) of the Indiana Rules of Professional Conduct.

Like Vermont’s, Indiana’s 8.4(d) makes it professional misconduct to engage in conduct that is prejudicial to the administration of justice. Thus, given the facts and circumstances peculiar to the case, the Indiana Supreme Court was left to decide:

• “can an attorney’s demand that disciplinary grievances filed by an opposing party in a civil matter be withdrawn as a condition of settlement be “prejudicial to the administration of justice” within the meaning of Rule 8.4(d) when those grievances were meritless?”

In the end, the Court answered “yes.”

First, the Court cited to prior holdings.  Then, the Court made an important point.

Examining the lawyer’s demand that the grievances be withdrawn, it matters not that they weren’t or that “hindsight informs us those grievances’ lack of merit destined them for eventual dismissal by [disciplinary authorities.”

Why?  Because

• “prejudice under Rule 8.4(d) is measured in relation to the ‘administration of justice’ and not any particular outcome for the parties. There can be little question that disciplinary investigations are encompassed within the administration of justice, both in terms of protecting the public from attorneys who commit misconduct and protecting attorneys from unwarranted claims of misconduct made against them. Accepting as true that the grievances against Respondent were meritless simply begs the question the Commission was charged with answering. At the time Respondent made his demand, the Commission had objectively good cause for its investigation, as Respondent was facing criminal charges and was the subject of a temporary protective order in connection with his alleged conduct toward his ex-girlfriend. That much of this eventually was resolved in Respondent’s favor does nothing to alter the need for the Commission to investigate the allegations made in the grievances, and for that process to occur free from any attempts to undermine it.” (internal citations omitted).

In other words, when subjected to a meritless disciplinary complaint, a lawyer should trust the process.

Can that be difficult?

Heck yes!

In fact, the Indiana Supreme Court recognized the difficulty:

• “Respondent’s frustration at having to deal with meritless disciplinary grievances certainly is understandable. He is not alone in that regard.”

However, the Court went on:

• “But there is a right way and a wrong way to go about addressing these matters, and our precedents make clear that any attempt—however mild or unsuccessful—to interfere with the investigatory process . . . or use the disciplinary process to leverage more favorable settlement terms is forbidden. “

Of interest is the Court’s decision to suspend the lawyer.  The opinion makes clear that the suspension resulted as much from the way the lawyer acted throughout the disciplinary process as it did from the violation itself. While worth a read, it’s not the topic I want to address in this post.

For today, remember: it’s not a good idea to ask a complainant to withdraw a complaint.

Ohio lawyer alleged to have engaged in sexual misconduct with court staff and clients allowed to resign prior to a public disciplinary hearing. How would a similar situation play out in Vermont?

It’s been a while since I’ve blogged.  I hope your summer is going well.

Today’s goal is to outline a little-known aspect of Vermont’s disciplinary program.   Perhaps I’m wrong to describe it as “little known.”  To test my assumption that it is, I’ll use this scenario:

1. Disciplinary complaint is filed against Attorney.
2. Screening Counsel reviews the complaint and refers it to Disciplinary Counsel for investigation.
3. Screening Counsel’s referral directs Attorney to provide Disciplinary Counsel with a written response to the complaint within 21 days.
4. Attorney sends Disciplinary Counsel a letter in which Attorney does not respond to the allegations in the complaint. Rather, Attorney writes “I hereby resign my Vermont law license and waive my right to reactivate it.  This ends this matter.  It’s moot. I no longer have a license for you to sanction.”

Does Attorney’s argument hold water?

No.  Attorney is as wrong as was the defense in My Cousin Vinny.

Before I get to Vermont’s rule, why am I even blogging about a lawyer’s attempt to resign while under disciplinary investigation?  Because, as reported by The Legal Profession Blog and Bloomberg Law, the Ohio Supreme Court recently accepted the resignation of an attorney who, according to a complaint filed by Ohio Disciplinary Counsel, had engaged “in inappropriate comments and conduct with female court staff and clients.”   The complaint can be accessed here.  As noted on the Legal Profession Blog, ‘[t]he lengthy charges make for painful reading.”

The disciplinary complaint did not result in a hearing.  Rather, last week, the Ohio Supreme Court granted the attorney’s application for “resignation with disciplinary action pending.”  The opinion is here.

One justice dissented, focusing on the fact that under Ohio’s rules, when the Court approves a request to resign while under disciplinary investigation, most of the details remain confidential.  As such, the proceedings:

• “are generally enshrouded in a cloud of secrecy that keeps the public, the bench, and the practicing bar ignorant of the reasons for the request to resign with discipline pending. This is problematic, especially when the allegations against an attorney describe a disturbing pattern of predatory behavior toward a vulnerable population.” (internal citation omitted.)

The dissenting justice acknowledged that the result left the attorney ineligible to practice law.  However, the justice added:

• “But I do not think that this court should favor a process that is quick over a process that is designed to obtain truth and dispense justice that more effectively protects the public. The disciplinary proceedings governed by this court may provide the victims, the public, and [the attorney] with much-needed transparency about the entire situation. While the alleged victims would bear the heavy burden of testifying before a hearing panel, I believe that they should at least have the opportunity to have their voices heard by the public and by this court. The public should know what this court and the numerous volunteers and employees participating in this court’s disciplinary process are doing to keep the public safe from attorneys who are alleged to have violated the Rules of Professional Conduct in perturbing manners. And at least in the disciplinary process, this court has the opportunity to provide help to the attorney should an addiction or other issue be the root cause of the problem. By accepting [the attorney’s] resignation, the court simply washes its hands of the problem without providing any real resolution.”

In Vermont, Supreme Court Administrative Order 9 establishes the Professional Responsibility Program and sets out the rules that govern the disciplinary process.  Rule 23 of A.O. 9 is entitled “Resignation by Attorneys Under Disciplinary Investigation.”  The rule allows an attorney under investigation to resign by affidavit.

Among other things, the affidavit must acknowledge “that the material facts upon which the complaint is predicated are true” and that “the attorney knows that if charges were predicated upon the misconduct under investigation the attorney could not successfully defend against them.”  Rule 23 also allows Disciplinary Counsel to file a statement of facts that supports a finding that the attorney violated the Rules of Professional Conduct. If accepted, the Court enters “an order disbarring the attorney on consent.”

Rule 23(D) is most relevant to today’s post.

• “(D). Disclosure. The order disbarring the attorney on consent as well as the affidavit and statement of facts shall be a matter of public record.”

So, returning to the scenario I posed at the beginning of this post, Attorney would not be able to avoid investigation and public scrutiny by writing to Disciplinary Counsel “I resign and that’s that.”

Unless you’re disciplinary counsel investigating an attorney who attempts to resign, or on the Supreme Court or the Professional Responsibility Board and tasked to review an affidavit by resignation, may this post never be one to which you need to refer for guidance.

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.

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).”

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.

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.