The Over/Under and a Bizarre Disciplinary Hearing

I was a disciplinary prosecutor for almost 14 years.  My role afforded me an opportunity to witness some rather strange stuff during disciplinary hearings.

But nothing so bizarre as recent events in the Cal State Bar court.

I suspect many of you have heard of Michael Avenatti.

As I blogged here, Stormy Daniels’ former lawyer has been charged with federal crimes in two different jurisdictions.  In the Southern District of New York, prosecutors allege that he conspired to extort Nike.  Meanwhile, in the Central District of California, the government alleges that he misappropriated approximately $1.6 million from a client named Gregory Barela.

The Cal State Bar has initiated a disciplinary case against Avenatti.  It’s based on his dealings with Barela.  A preliminary hearing took place last month.  As reported by AP News, Fox News, and the San Diego Tribune, Avenatti didn’t have much good to say about the disciplinary case against him.  Among other comments:

Okay then!

Anyhow, things took an even stranger turn yesterday: IRS agents arrested Avenatti during a break in his disciplinary hearing.

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You read that correctly.  You can read more about it pretty much everywhere, including The Daily Beast, CNBC, The Washington Post and The New York Times.

In gambling, a popular bet is the “over/under.” Bettors wager that a particular number will be over or under a number that is set by the house.

For example, in Monday night’s college football championship game between LSU and Clemson, most sports books closed the “over/under” at 66 total points.  The final score was 42-25, for a total of 67.  Thus, those who bet “the over” won.

By the numbers, most lawyers go through their careers without ever having to appear at a disciplinary hearing.  Even more make it to retirement without getting arrested.

Until today, I’d never stopped to consider a lawyer’s odds of being arrested during the lawyer’s own disciplinary hearing.  Having thought about it, if the “over/under” for how many times it will happen in the rest of my natural born life is “1,” I’ll take the under.

Of course, that’s the same bet I’d have made last week, last year, and last century.

And look how that would’ve turned out.

California Bar Exam Essay Topics Released — Vermont is NOT Affected.

(Updated at 1:35 PM to include the NCBE’s response)

A stunning development from California: mere days from the bar exam, it appears as if California’s essay topics were leaked.  In an attempt to ensure fairness, the State Bar of California apparently responded by sending all examinees an email disclosing the essay topics.

Please note:  California is not a Uniform Bar Exam jurisdiction.  The situation in California will NOT impact the Vermont Bar Exam or the bar exam in any UBE jurisdiction.

Here’s a tweet from the Cal State Bar’s verified account:

It was followed 17 minutes later by this tweet:

The Bar Exam Guru has been in front of this story.  On Twitter, Guru posted what is described as the email that the Cal State Bar sent to examinees:

A screenshot of the entire email is here.

Again, this impacts only the California Bar Exam.  Unlike California, Vermont is a UBE jurisdiction.  The UBE has not been compromised.  Indeed, from the verified Twitter account of the National Conference of Bar Examiners:

On the bright side, as bar counsel, I’m pleased to learn that California is testing Professional Responsibility this year.

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Don’t tell the opposing party to commit suicide.

Not too long ago, I’d often use the Was That Wrong? trope to highlight outrageous attorney misconduct.

This story gets its own post.

Yesterday, the New York Supreme Court, Appellate Division, First Judicial Department suspended a lawyer’s license for 4 months.  The lawyer’s violations included telling an unrepresented opposing litigant “you’re one of those people in the world that really should just kill themselves because you’re worthless.” Above The Law, the New York Law Journal, and the New York Post reported the decision, which is here.

The lawyer’s misconduct involved two different matters.  In the first, and per the decision, the lawyer entered an arbitration, took pictures of a witness who was testifying, and said to the witness:

  • “This will be in the newspaper when I put this in there after we kick your asses. You should be ashamed of yourselves for kicking people out of a building and you have to live with yourself.”

The second matter?  Well, I’m not sure you’d believe me.  So, I’ll quote from the decision:

“In the second matter, respondent’s firm represented the owner of several residential buildings. A resident of one of these buildings, James Dawson, allegedly made postings to a website accusing the owner of overcharging tenants. Respondent sent a letter to Dawson dated September 7, 2016, accusing him of creating a false and defamatory website and demanding that he take it down or face a lawsuit. Respondent received no response to this letter.

On September 13, 2016, respondent sent Dawson a text message which read, in relevant part:

‘We are filing a lawsuit against you for millions of dollars of damages you have caused as a result of your defamatory website. . . . We are also in contact with the location [sic] police station and we have a copy of the complaint your ex-girlfriend filed against you and we will be using all means necessary to protect our clients.’

Later on the same day, respondent telephoned Dawson, who recorded the conversation. Respondent told Dawson, inter alia, that Dawson was ‘not that bright,’ and that, if he did not take the website down, he would ‘be bankrupt soon.’ Respondent told Dawson that he ‘should commit suicide. . . . [y]ou’re one of those people in the world that really should just kill themselves because you’re worthless.’ While still on the phone with Dawson, respondent said to a person in his office about Dawson ‘start the lawsuit. . . . I need him arrested. . . . I gotta get this guy. He’s gotta be arrested.’ Respondent told Dawson that respondent’s employee who would be ‘running the investigation’ of Dawson ‘used to run the district attorney’s office,’ and claimed that respondent’s office was ‘in contact’ with the District Attorney’s office. He told Dawson, ‘[y]ou have no idea what you stepped into. . . . Welcome to my world. Now you’re my bitch. . . . you’re gonna be paying for this heavily for the rest of your life.'”

In case you still don’t believe it, the recording of the conversation is here.

This story reminds me of a conversation that broke out during a CLE I did at the VBA Mid-Year Meeting; a conversation that prompted me to suggest: be nice to someone today.  This is but another reminder.

Because the conduct?  Yes, that was wrong.

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Faking Cancer & Kids. Wait….what?

In Vermont, at least three rules go to honesty.

  • Rule 3.3 requires imposes a duty of candor to courts.
  • Rule 4.1 prohibits misrepresentations of fact or law.
  • Rule 8.4(c) prohibits conduct involving dishonesty, deceit, misrepresentation or fraud.

Astute readers might ask why we need Rule 8.4(c) when we already have Rule 4.1. Aren’t they redundant? Good question!   But the answer is “no, they aren’t.”

By its language, Rule 4.1 applies “in the course of a representing a client.”  By contrast, Rule 8.4(c) applies to conduct outside the attorney-client relationship.  For example, imagine I do my usual amount of not planning and wait so long to purchase airline tickets to visit my father that they’re prohibitively expensive.  So, what do I do? Like Costanza, I claim to be traveling to my friend’s aunt’s funeral in order to get a reduced fare.

Rule 4.1 wouldn’t apply because my lie didn’t occur in the course of representing a client.  However, Rule 8.4(c) would get me because my conduct involves dishonesty, deceit, misrepresentation and fraud.

The Vermont Supreme Court has made it clear that Rule 8.4(c) does not apply to every “white lie,” but only to conduct that, in addition to involving dishonesty, deceit, misrepresentation or fraud, also adversely reflects on the lawyer’s fitness to practice.

For example, many years ago, my friend JJ called.  His spidey-sense was going off.  He asked what I was up to that night, (correctly) sensing I was on my way to a date with a woman of whom he did not approve. I told him I was on my way to dinner with my grandmother.  Not an 8.4(c) violation. The opinion is here.

Alas, that’s the end of the CLE portion of today’s post. I think the conduct I’m about to relate is conduct that lawyers instinctively know to avoid without me suggesting that they do.

So, without further adieu, and speaking of Costanza and lying to attend a funeral . . .

There’s a story making the rounds in bar counsel circles.  It involves disciplinary charges filed by the Illinois Attorney Regulation and Disciplinary Commission (“IARDC”).  The story has been covered by The American Lawyer, the Legal Profession Blog, and The ABA Journal.  The IARDC alleges that the lawyer:

  • took the LSAT twice, scoring 158 & 173;
  • explained the lower score in a law school application by stating that the LSAT was shortly after multiple surgeries (and rigorous post-surgery treatment) to remove a cancerous tumor from his stomach;
  • years later, again used the cancer surgery excuse to request discovery extensions in at least two cases he was handling as a lawyer;
  • requested a discovery extension in a third case, claiming that his son was scheduled for the exact same type of stomach/cancer surgery; and,
  • asked a court to extend a deadline because he had to fly to Montreal for a relative’s funeral.

As you might guess, the IARDC alleges that the lawyer:

  • never had cancer;
  • does not have a son;
  • does not have a son who has cancer; and,
  • did not have relative who died and, thus, required a funeral.

Allegedly, the lawyer faked cancer, a child, a child with cancer, and a relative’s death.

Sometimes the only response is:


Wait What