Was that Wrong? Tomfoolery and a career marked by a consistent inability to comply with the ethics rules.

It’s rare that a court appearance results in a transcript that, when presented without indicia of being an official record of a judicial proceeding, might pass for comedy.  Whether an Abbot & Costello routine of yesteryear, or a Charlie-scene in the most recent episode of It’s Always Sunny in Philadelphia.

Today’s story brings us one of those rare moments.

But first . . .

. . . Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well, you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

This morning, I stumbled across an article that ran in the Baltimore Sun earlier this month.  As bar counsel, a basketball fan, and a lawyer who appreciates court opinions that cite to pop culture, the headline caught my eye:

Reflexively, I clicked.

As a basketball fan who went to law school in D.C., I’ve often wondered what happened to the rabid Washington Bullets fan whose incessant heckling of visiting teams secured him some level of fame.  I now have my answer.

In this opinion, the Maryland Court of Appeals disbarred him.

The opinion and the Sun article recount the story far better than I’ll be able to.  The twists, turns, and continual “it can’t get any crazier . . . oh, wait, it just got crazier” are well worth the read.  Still, a few thoughts.

I’ve read my fair share of disciplinary opinions.  It’s not uncommon to want to skip to the end to learn the result.  The Maryland court immediately quashed any interest in missing even a single sentence with this opening line:

  • “While a missed court date by an over-scheduled attorney who relies on office staff to meet the demands of a busy schedule or a good-faith fumble in the filing of a continuance motion would not ordinarily result in disbarment, the circumstances of [the lawyer’s] cases are far from typical.”

Interest piqued, I continued reading.

As I did, I noted statements that aren’t common in disciplinary opinions.  For instance, the court’s observation that the lawyer’s “lengthy disciplinary history since his admission may be unique in the annals of the bar.”  And the court’s remark that the lawyer, over the course of a lengthy career, “may have the unique distinction of having violated three iterations of the rules of professional conduct.”  By then, which was only page 3, I knew we had a potential Was that Wrong? on our hands.

Anyhow, after the court laid out the lawyer’s significant disciplinary history, it turned to the most recent charges.  Here’s what happened.

The lawyer was double-booked in two different courts.  So, the lawyer asked his assistant to file a motion to continue one of the scheduled cases.  The assistant – who was disbarred himself in 2013 – prepared the motion, signed the lawyer’s name, and filed it.  The motion included a statement that opposing counsel, Mr. Palisano, had no objection.  Alas, Attorney Palisano had left opposing counsel’s office months prior.

Understandably, the trial judge wanted an explanation. Eventually, the lawyer appeared. The ensuing exchange is what reminds me of a comedy routine.  It has all the hallmarks of the confusion that Charlie causes on Sunny. It also resulted in the lawyer being charged with making a false statement to the trial court.  Here’s how I envision the screenplay:

*********

Court: We’re going to get right to the point. It has come to our attention that you simply cannot comply with the ethics rules.  We’ve sanctioned you numerous times over the years and now this:  you weren’t exactly candid with the trial court when it asked about the motion that your disbarred assistant filed after signing it as you.

Lawyer: Who said that?

Court:  Well, you admitted to the trial court that you hadn’t signed the motion, but only after this exchange:

  •  TRIAL JUDGE: Sir we received your written motion by consent to continue this matter this morning. Is that right?
  • LAWYER: I believe – that’s what my office manager told me, Judge. He is now in the hospital.
  • TRIAL JUDGE: But this motion is signed by you, Sir.
  • LAWYER: Yes, it is.
  • TRIAL JUDGE: You’re counsel of record in this case?
  • LAWYER: No question about it.
  • TRIAL JUDGE: Correct?
  • LAWYER: Absolutely.
  • TRIAL JUDGE: You signed – you signed this motion though, Sir, instead, that’s what – is this your signature?
  • LAWYER: My name is on it, but my officer manager who’s been my office manager for 10 years.
  • TRIAL JUDGE: Sir?
  • LAWYER: Yes.
  • TRIAL JUDGE: Are you representing to this Court that you did not sign this motion, you had – you authorized someone who is not a member of the bar to sign this motion?
  • LAWYER: I’m saying I signed it, but I didn’t know that – I didn’t talk to Mr. Palisano, I didn’t know that Mr. Palisano’s name was in it, and . . .
  • TRIAL JUDGE: How could you not know if you’re signing it?
  • LAWYER: Mr. Palisano’s name was not in it when I signed it.
  • TRIAL JUDGE: When you signed it?
  • LAWYER: That’s right.
  • TRIAL JUDGE: So, you’re saying this document was altered after you signed it, Sir?
  • LAWYER: No, I’m not saying that. I’m just saying I did not sign anything that had Mr. Palisano’s name in it.
  • TRIAL JUDGE: So, are you saying that this is not your signature on the motion?
  • LAWYER: May I see it again?[1]

 Lawyer: Was that wrong?  Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.

Court: Disbarred.

Lawyer: Well, you didn’t have to say it like that.

***********

As always, be careful out there.[2]

costanza

[1] In real life, on the day after the hearing on the motion to continue, the lawyer’s assistant sent a letter to the trial court apologizing for making a mistake when using an old “template” motion.  He stated that he filed it in a rush, having just left the hospital against doctor’s orders after arriving for a routine exam only to be told that he required an emergency amputation. You can’t make this stuff up.

[2] The Shakespeare quote?  Referring to the lawyer’s prior disciplinary history and its relevance to the decision to disbar, the Maryland court wrote “It has been said that ‘what’s past is prologue,’” a line from Act II, scene 1 of The Tempest.

Prior Was that Wrong? posts:

Prior Entries:

Was That Wrong? Evading service of a disciplinary complaint by pretending to be your identical twin (who is also a lawyer).

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well, you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Now, on to today’s entry in the Was That Wrong? catalogue.

It came to my attention via this tweet in which a lawyer shared a news report that the Louisiana Supreme Court had disbarred an attorney:

The court’s opinion is here.

The misconduct is significant.  Indeed, the court concluded that the lawyer “neglected his client’s legal matter, charged and collected an unreasonable fee, converted client funds held in his trust account, failed to return his client’s file upon request . . .”

I agree that it sounds bad.  Alas, as regular readers know, so far, the misconduct doesn’t warrant a Was That Wrong? post.  Let me complete the quote from the court’s opinion:

“. . . and engaged in deceptive and dishonest behavior in the course of his disciplinary proceeding.”

What type of deceptive and dishonest behavior? 

First, when the client filed a disciplinary complaint, the lawyer asked for and received two extensions of the deadline to submit a response to disciplinary authorities. Then, the lawyer requested a third extension, stating that his response was on his laptop and that the laptop had been stolen when his truck was burglarized.  He included what purported to be a copy of a “Voluntary Statement” that he claimed he’d given to the police. When disciplinary authorities followed-up, the police had no record of a vehicle burglary being reported on the date that the lawyer claimed to have reported it. In addition, an officer noted “several irregularities in the ‘Voluntary Statement’ submitted by [the lawyer], including the absence of a complaint number or a description of the vehicle in question.”

Next, the lawyer had represented the client in an insurance claim. A broken water line damaged the client’s home.  The insurer sent payouts to the lawyer.  In response to allegations that he’d misused the funds, the lawyer informed disciplinary authorities that the client had instructed him to hold the funds in trust and to pay contractors who repaired the house.  The lawyer even submitted copies of what purported to be invoices and receipts.  The contractors later testified that the invoices and receipts were fabricated.

Eventually, disciplinary authorities filed formal charges against the lawyer.  Which, finally, brings us to the aspect of the story that convinced me to add it to the Was That Wrong? collection.  Here’s how I envision the screen adaptation:

  • Court: We’re going to get right to the point. It has come to our attention that you tried to avoid service of a disciplinary complaint by pretending to be your identical twin brother.
  • Lawyer: Who said that?
  • Court: The evidence.[i]
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred.
  • Lawyer: Well, you didn’t have to say it like that.

As always, be careful out there.

legal ethics

[i] Here’s the relevant portion of the court’s opinion:

“On March 20, 2018, the ODC’s investigator, Robert Harrison, traveled to respondent’s law office in Lafayette to serve him with the subpoena. Respondent’s office is located in a building that he shares with his identical twin brother, Jade Andrus, who is also an attorney. Upon his arrival, Investigator Harrison encountered respondent in the parking lot. After introducing himself to respondent and giving him a business card, Investigator Harrison informed respondent he was there to serve him with a subpoena. In response, respondent stated that he was not Brad Andrus, but was Jade Andrus, Brad’s twin brother. Following his conversation with “Jade,” Investigator Harrison went inside the building and asked to see respondent. The receptionist informed Investigator Harrison that respondent had just left the office moments before.”

Prior Was That Wrong? Posts

Conspiring to defraud the U.S. Government. Was that wrong?

This one left me stunned.  Even as the author of this column.

As most readers know, I’m a big fan of pub trivia.  The MVP on any pub quiz team is the person who can nail the “music round.”  A great tidbit of music trivia is that 10cc sang The Things We Do For Love. The relevant line today:

“You lay your bets and then you pay the price,

The things we do for love.”

First, and by way of background, Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well, you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Now, onto today’s story.

I’m fairly confident that none of our judges has a spouse who will end up charged with federal crimes.

I’m as confident that those who do understand the risks of tampering with the government’s witnesses.

Finally, I’m even more confident that those who are removed from the bench for witness tampering in a spouse’s criminal cases will not later engage in an elaborate scheme to convince the Federal Bureau of Prisons that their convicted spouse is an alcoholic when, in fact, they know that their spouse is not.

This one also left me feeling naïve.

Who knew there were businesses that, for a fee, would help convicted persons learn to lie their way into prison programming that would help them gain early release?

The story comes via Bloomberg Law (sub. req.) and the Legal Profession Blog.  The relevant documents from the disciplinary case are here.  I urge you to scroll to the “agreed upon statement of facts.” It begins on page 18 of the PDF.

Anyhow, here’s how I envision the Was That Wrong? adaptation:

  • Court: We’re going to get right to the point. It has come to our attention that you and others conspired to get your wife into prison programming for which you knew she did not qualify?
  • Lawyer: Who said that?
  • Court: You did. When you pled guilty to conspiring to defraud the U.S. Government.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred.
  • Lawyer: Well, you didn’t have to say it like that.

Lay your bets indeed.

costanza

Prior Entries:

Was That Wrong? Being shorted by drug buyers then claiming they robbed you.

As many readers know, I used to be a high-school basketball coach. One particularly memorable season, two of my players decided to rob a marijuana dealer. Their theory: the dealer wouldn’t report the crime.  Alas, he did and, as a result, the players missed the rest of the season.

To be clear: each player dealt with the consequences, learned his lesson, and is now a stand-up member of the community.  I consider each to be a fully vested member of the “My Former Players Club,” a club in which membership includes me doing whatever I can for you.

Back when the incident went down, never for one instant did I think that I’d encounter similar misconduct by a lawyer.  Well, R.I.P Sean Connery, and never say never.

With all that said, welcome to another edition of Was That Wrong?!

 Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss:She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

costanza

Today’s WTW? entry comes courtesy of David Kluft. Here’s the first line of David’s Twitter profile:

“Attorney. Bald.  Asst Bar Counsel @ Mass. Board of Bar Overseers.”

We are everywhere in lawyer regulation!!  Yesterday, David tweeted:

My interest piqued, I did a little digging and found this opinion from the North Dakota Supreme Court.

As it turns out, the lawyer did not appear or participate in the trial or appeal. I’m left to wonder whether the lawyer did not know about the Costanza Defense or, in a last-gasp demonstration of competence, concluded that it’d be fruitless.  Here’s how it might have gone:

  • North Dakota Supreme Court: We’re going to get right to the point. It has come to our attention that, after they shorted you in the transaction, you falsely accused people to whom you’d sold marijuana of robbing you at gunpoint?
  • Lawyer: Who said that?
  • Court: You admitted it the very next day.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred!
  • Lawyer: Well you didn’t have to say it like that.

Other Was That Wrong? Posts

Ripeness & what not to file during the pandemic.

Who would’ve guessed that this blog would serve as forum to discuss constitutional issues?

Nobody, that’s who.  Especially not my Con Law professor at GW.

Anyhow, with my 1L year in mind, I’m confident of two things: (1) I’ll get this wrong; and (2) fans of the justiciability doctrines will let me know that I got this wrong.  So, I’ll do what I usually do: use basketball to make my point.

First, for non-legal scholars, and VERY generally, courts rule on actual controversies.  Not theoretical claims.

For instance, many of you are familiar with the saying “that’s a moot point.”  In short, if you bring a claim to court after the controversy has resolved, you’re too late.  Your claim is moot.

Well, the opposite can happen: you can get to court too early.  If you bring your claim before there’s an actual controversy for the court to decide, the court will dismiss your claim as “not ripe.”

(inside lawyer joke: clearly, I loved the nutshells!)

Ripe Tomato Pictures | Download Free Images on Unsplash

For instance, when I was a high school basketball coach, coaches were famous for chatting up the refs before the game.  The friendly banter would often segue from “you are sooooo much better than the other refs in this league,” to “hey, #12 on their team fouls every time.”

Now, even if it’s true that #12 fouls every time, which it is, the ref can’t call a foul on #12 during warm-ups.  The ref has to wait until the game starts and then do what refs do: judge whether #12 fouls, with me yelling suggesting “FOUL!!” and the other coach suggesting  yelling “no, it isn’t.”

Intuitively, most know that if I had waited two or three plays to suggest that #12 had fouled, the ref would’ve asked “what do you want me to do about it now?”  That’s mootness.  Ripeness is me asking the ref to call a foul on #12 during warm-ups.

Ripe Strawberry - Maddcatt Vapors

What a long & winding road to get to the crux of this blog!  Which is this:

Was That Wrong? is one of the more popular features on this blog.  As loyal readers know, I don’t ask Was That Wrong? until a disciplinary sanction has been imposed against a lawyer’s license.  Basically, I’m a mootness guy.

Which is why this post is not a Was That Wrong? entry: the lawyer involved has not been sanctioned.  Thus, there is no controversy before me.  If you askWas That Wrong?, I will dismiss your question as  “not yet ripe.”

Instead, the following is intended to guide lawyers who are trying to figure out which cases to file during a pandemic in which Vermont courts are accepting only emergency filings.

Loyal reader Geoff Bok tipped me off to this post from the FindLaw Blog.  The post links to this March 18 order issued by United States District Judge Steven Seeger.

Trust me, Judge Seeger’s order is well-worth the the time you spent reading to the end of this blog.

Thank you Geoff!

And, yes, in my example, I had standing.  I was the aggrieved coach!

This post is dedicated to Paul Burgoyne.  Don’t take no crap from coaches Paul!

 

 

Don’t Be This Guy.

Two topics I’ve covered before are civility & puffery.  As to the former, my thoughts are best summed up by my post Don’t Be A Jerk.  As to the latter, well, puffery in negotiations isn’t necessarily unethical.  Assuming, of course, that the conduct at issue can legitimately be described as “puffery in negotiations.”  More on that in a moment.

Over the past 21 years, I’ve seen some incredibly bad behavior by lawyers.  I’ve never seen anything like the story I’m about to recount, a story covered by Above The Law and Professor Bernabe’s Professional Responsibility Blog.  I’m not the only one. Indeed, the story is one of  behavior so bad as to cause opposing counsel to file a request for relief that ended with:

  • “In a collective 75 years of legal practice, [defense] counsel have never seen
    behavior that even comes close to that of [plaintiffs’ counsel] here. It is unlikely that the Court has either.”

I can hear you now: “Mike, tell us more! What was this behavior?”

Here’s what I’m willing to share.

Water damaged a house.  A contractor hired by the homeowners’ insurance company estimated the damage at $150,000, which is the amount that the insurance company paid on the claim.  The homeowners sued, contending that they incurred $350,000 in covered damages.

Negotiations (and discovery) weren’t pleasant. So unpleasant that, last month, the insurance company’s lawyers asked a federal court to dismiss the complaint or, in the alternative, to disqualify plaintiffs’ attorney.  They also requested a restraining order against plaintiffs’ attorney and a protective order preventing plaintiffs’ attorney from deposing defense witnesses. A memorandum in support of the request opened with:

  • “Plaintiffs’ attorney . . . has embarked on a campaign of abusive and intolerable conduct that began with profanity-laced emails, escalated to discriminatory slurs, and culminated in repeated threats of physical violence against Allstate’s witnesses, Allstate’s attorneys, and their families.”

This is where my job as tour guide ends.  To continue the journey, the insurance lawyers’ memorandum in support of the request is here and a declaration from one of the lawyers is here.  I suspect the odds that you’ve seen conduct as egregious are greater than the odds that I will win next year’s Boston Marathon.

The Above The Law post includes an excerpt of plaintiffs’ attorney’s response:

 

Umm, that’s not the kind of puffery I blogged about.  Also, the attorney’s apology and promise not to do it again make me think of Costanza: was that wrong?  Perhaps the lawyer will soon join those who learned the hard way that the answer is “yes.”

For now, and per an update on Above The Law, the court ordered the plaintiffs’ attorney to appear and show cause why the insurance company’s requests for relief should not be granted.  The hearing is set for December 16.

Stay tuned.

costanza

 

 

 

 

Fake Lawyer Loses Job. Think deeper.

John Grisham’s The Rooster Bar is a novel.  That is, it’s a work of fiction.

Image result for the rooster bar images

The plot?

Without giving much away: three law students drop out of law school.  Under fake names, they pose as lawyers, open a law firm, and represent clients without ever having passed the bar exam or obtained law licenses.

Sometimes life imitates art.

Last week, an assistant public defender in Illinois was fired after a judge discovered that she did not have a license to practice law and had never passed the bar exam.  The law school grad had worked on “about 80 cases” since being hired last fall.  The ABA Journal,  Belleville News-DemocratEdwardsville Intelligencer and the Madison-St. Clair Record reported the story.

I considered posting this in the Was That Wrong? format.  For several reasons, I opted not to.  One of those reasons was my reaction to an aspect of the story,

Per the Madison-St. Clair Record, the non-lawyer’s former boss:

  • “said that he typically reviews the work of all staff, discussing with prosecutors and his own staff as to a defender’s competence.  There was ‘never anything that stood out to make me question her abilities,’ he said.”

Per the Edwardsville Intelligencer, the non-lawyer’s former boss “had no problem with [the non-lawyer’s] work . . . other than mistakes most new attorneys encounters.”

It makes me wonder: if she was providing competent legal services to her clients, what’s that say about the bar exam requirement?

Don’t get me wrong. I am not condoning the non-lawyer’s conduct.  It was infected with deceit and, as referenced in the news reports, might be criminal.  No matter our entry requirements, the privilege to practice law should be denied to people who lie to receive it and while exercising it.  Further, the non-lawyer’s decision to misrepresent herself as a licensed lawyer raises significant concern about her judgment, honesty, and trustworthiness.  If she’ll lie about having a law license, what else will she lie about?

But that’s a question for a character and fitness committee.

The fact remains that, for 8 months, she apparently provided competent representation to her clients despite never having passed the bar exam.

Small sample size?  Yup.  Maybe time would have proven she lacked minimal competence.

Still, I know for a fact that there are law grads here in Vermont who, unfortunately, have failed the bar exam too many times to be allowed to sit for it again.  Many did good, competent work in offices both pubilc and private while continuing to study to pass the exam.  In other words, despite track records of actual competence, track records of scoring too low on exams keep them from practicing law.  Most, understandably, have left the legal profession altogether.  I’m not sure why, but I can’t help but be reminded of this 2017 post in which I argued that we cannot let the perfect be the enemy of the good in the fight to increase access to legal services.

I started with Grisham.  I’ll end with Tolstoy, by way of Seinfeld and Edwin Starr.

In this scene, Elaine was wrong. The original title for War and Peace was not War, What Is It Good For?  Still, at least in the isolated incident involving the fake lawyer in Illinois, one might conclude that the bar exam was good for absolutely nothing.

Huh.

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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Don’t be an “Empty Head”

When I was a kid, my head was so big that baseball hats and football helmets wouldn’t fit.  So, one of my best friend’s brothers always called me “Mr. Potato Head.”

I didn’t love the name.

See the source image

But maybe it’s better than having a federal court reprimand me for “errors made with an empty head.”

As reported by Bloomberg’s Big Law Business, the Court of Appeals for the 7th Circuit recently did exactly that to an Illinois lawyer. The order is here.

The lawyer’s troubles began when the appendix to a brief she filed included material that should have been redacted.  Opposing counsel notified the court.  The court ordered the lawyer to file a redacted appendix.

She did.  Along with a brief that included “substantial changes . . . altering both propositions of fact and law.”

Opposing counsel asked for an extension of time to reply to the new propositions.  The court granted the extension, but ordered the lawyer to “file a new brief, identical to the original, making only the changes required to redact information in the appendix.”

Seems clear enough. So, lawyer filed a third brief.

As the appellate court noted, “yet again, changes had been made.”  The new filing “did not match either” of the first two.

The court ordered the lawyer to file a new brief that matched the original and to show cause why she should not be disciplined.

Lawyer argued that the original order to redact the appendix implied that she could change the brief that it accompanied.   Per the court, “we accept her assertion that she believed that she could do so, but errors made with an empty head are hard to excuse.”

Ouch.

The court added that “making an error once is bad; making it twice in a row . . . is unfathomable.”

But for the fact that the court reprimanded the lawyer instead of imposing a more serious sanction, this might have qualified for Was That Wrong?

Don’t be an empty head.