Iowa Supreme Court rejects recommendation to disbar lawyer because of insufficient notice in the complaint; correct result?

The Legal Profession blog is reporting on a case from Iowa in which the Supreme Court refused to adopt a recommended sanction because according to the court, the attorney did not have sufficient notice of the possibility that he faced disbarment.  The court held that

The complaint only alleged he obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned. [The lawyer] admitted, as required by the commission’s sanction, all the allegations in the complaint, but the possibility that he faced a revocation of his license to practice law was not raised until the conclusion of the hearing. . . .Under the circumstances, [the lawyer] did not have a fair opportunity to know the issue of theft was in play and to produce evidence to show he had a future colorable claim to the retainer.

I am with the Disciplinary Board that recommended disbarment on this one.  An allegation that the attorney "obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned" is, by definition, an allegation of misappropriation and anyone who went to law school knows that misappropriation, if proven, is more than likely going to result in disbarment.  In short, if the accusation is for misappropriation, any lawyer knows that they are facing disbarment.  I would say that not knowing this is, in and of itself, incompetence.

So, I am willing to be convinced that I am wrong, but for now, I stand with the Board.  Granted, the complaint may have been drafted better, but I don't find the court's conclusion convincing.

Bar counsel taking plea deals to avoid disbarment? What would you do?

 Mike Frisch (Georgetown) who runs the Legal Profession blog has posted a great question: 

You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.

The presumptive sanction for such misconduct in your jurisdiction is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.

Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred. Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.

You know (1) that a fully litigated case might take five years or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct. That happy event is likely at least two to three years away.

So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.

Do you take the deal if your system gives you the authority and responsibility to do so? If your system does not permit a consent disposition under these circumstances, is there something wrong with your system? 

Please go here to post your comments on this question.

As for me, I think I would take the deal because under the circumstances it would likely result in the equivalent of permanent disbarment (given the attorney's age and plans to retire).  Others might disagree and I am willing to be convinced I am wrong...

To me, the worst part of the scenario is the fact that disbarment is only the equivalent of a five year suspension.  If it were up to me, disbarment would always be permanent. 

Attorney sues disciplinary board alleging the board has been engaging in unethical conduct

In an interesting turn of events, the Legal Profession blog is reporting that two Nashville lawyers are suing the Tennessee ethics board for what they call ethical violations and a cover-up.

ND State Bar opinion finds use of medicinal marijuana is a violation of the rules of conduct even if the use is legal according to state law

Legal Ethics in Motion is reporting on an interesting Advisory Opinion issued a couple of months ago by the Ethics Committee of the State Bar Association of North Dakota that concludes that a lawyer licensed in North Dakota who uses medical marijuana in a state that authorizes its use, violates North Dakota Rule of Professional Conduct Rule 8.4(b).  You can read the short opinion  here.  (Opinion 14-02, issued August 12, 2014)

I don't agree with the opinion.  Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]”  Why does this rule apply if the lawyer is participating in a legal activity?  And even if it is illegal, how does using marijuana for medicinal purposes reflect adversely on a person's honesty or fitness?  It is one thing to say that a lawyer is unfit because he or she is suffering from a the medical issue that is so debilitating it prevents the lawyer from meeting his or her duties, but that is not what the opinion says.

The basis for the conclusion is that the use of medicinal marijuana has not been legalized by federal law.  Based on this reasoning, a lawyer (indeed, anyone at all) who uses medicinal marijuana even in a state where it is legal to do so, could be found to be in violation of federal law.  And, due to that possibility, a lawyer should not engage is conduct that is potentially a violation of federal law.

I understand the logic, but I am still not convinced, particularly since I am not convinced that the "crime" is the type of crime, by itself, that reflects adversely on honesty or fitness.  According to the Committee's logic all crimes reflect adversely which makes the language of the rule superfluous.

Better to ask for forgiveness or permission?

You may have heard the expression "better (easier?) to ask for forgiveness than to request permission" (or something to that effect), right?  Well, think again, if the question involves a disciplinary authority.  As reported by the Legal Profession blog:

An attorney who had been reinstated to practice on conditions admitted to violation of the conditions by handling criminal cases without supervision or malpractice insurance. He then sought to amend the conditions to allow for what he had already done. The Delaware Supreme Court denied the petition stating "The Court is troubled that the petitioner returned to private practice in a manner that violated the Court's Order in substantial, myriad ways without first seeking leave of the Court to modify the conditions of his reinstatement."

Connecticut Appellate Court holds that there is no duty to disclose exculpatory evidence

About a week ago, the Connecticut Appellate Court addressed a very interesting question that I have to confess I had not thought about before.  Now I want to do some research to see how it has been approached in other jurisdictions.

The question is whether the state has an obligation to disclose exculpatory evidence to an attorney as part of a disciplinary proceeding.  In this case, an attorney was disciplined, but he later argued that he was entitled to a new trial because bar counsel allegedly suppressed evidence that may have disproved the charge.  The court however held that Brady v. Maryland does not apply in bar disciplinary cases, stressing that Brady‘s applicability is limited to criminal prosecutions.  However, the court also hints that the argument was irrelevant in any case because the attorney in the case had knowledge of the evidence that he accused bar counsel of suppressing.

The case is Smigelski v. Dubois and you can read the decision here.

Comments on how disciplinary system does not work to protect the interests of those it is supposed to protect

The Legal Ethics Forum has a story on (and link to) a recent report that concluded the disciplinary system in Wisconsin is inadequate in a number of ways.  Mike Frisch, of the Legal Profession blog, has some thoughts on the same issue about the Washington DC system.  Mike's point is very interesting because it suggests the current system is apparently based on conflicting interests.  And, as I have said before in other contexts, I agree with him in that protecting the "dignity" of the profession should not be a standard used to make disciplinary decisions.

Is "dignity" a proper standard for judicial office campaigns?

The Legal Profession blog has a story here.  In short, the South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that a judicial candidate can advertise in a movie theater as long as it is done "with dignity," a reference that apparently would apply to both the ad and the movie itself.  I posted a comment to the story and got some replies.  Go here to check it out.

My comment is that I am always troubled by the use of "dignity" in any decision judging speech by attorneys. It seems to me the use of "dignity" as a standard goes against the principle that the First Amendment stands to protect speakers against the state imposing sanctions based on the fact that some might find the speech offensive.  Granted, that principle was significantly weakened by the US Supreme Court's decision in Florida Bar v. Went for it, but the other cases in the long line of attorney speech cases still stand, including Zauderer, where the court said that regulating the dignity of the illustration of the IUD was not a good enough state interest.

Investigation based on complaint about anonymous criticism closed

Back in January I commented on a complaint filed by a law professor against a blogger for what the professor called cyber-bullying or harassment.  The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger.  Even though, I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions.  If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different.  However, it seems like the issue is now closed.

Calls To Reform Wisconsin Attorney Discipline

The Legal Profession blog has an article on calls to reform the disciplinary system in Wisconsin.

How not to practice law: if you are a judge, start a relationship with the prosecutor in the case; if you are cited to a disciplinary proceeding, show up in shorts and a t-shirt; if you like someone you interviewed, send her "sexting" messages.

Here are three recent stories to add to the on-going list of "how not to practice law" posts:

1. While serving as the presiding judge in a capital first-degree murder case, Gardiner commenced a significant emotional relationship with the lead prosecutor in the case.  Story here and here.   Interestingly, the prosecutor was only suspended for two years.  Why disbar the judge but not the prosecutor?

2.  Show Up For Your Disciplinary Hearing In Shorts, T-Shirt And Running Shoes.  Story here.

3.  Sext.

Indiana Supreme Court decides case that can help define the limits of the state's authority to discipline lawyers for comments about judges

I have been following the debate about whether (or under what circumstances) should the state be allowed to discipline a lawyer for comments about judges or other lawyers.  For example, see here, here, and here.  Adding to this discussion, the Indiana Supreme Court recently decided a case that may be helpful for defining the limits of the state's authority to discipline for speech about judges or other lawyers.

The case is called Brewington v. State.  It involved a non-attorney's conviction for intimidating a judge.  The conviction was upheld but the court's discussion develops an interesting analysis based on the distinction between speech that may be a threat to someone's reputation (which is protected) and speech that actually expresses a threat of physical harm (which would not be).  For a discussion of the case go here.

Vetoed legislation allowing California State Bar to impose fines for unauthorized practice of law is quietly revived

The ABA Journal.com is reporting today that legislation allowing the California State Bar to levy fines for unauthorized practice of law has been proposed again after having been vetoed last year.  According to the story, earlier this month, the same legislative proposal "was quietly slipped into another bill that had been stripped of its original content, which let it skip the committee markup process just before an 11-day break for the legislature, the Sacramento Bee reports." 

Why was this judge not disbarred?

Yesterday, the Michigan Supreme Court issued an opinion (available here) removing from the bench a judge who was in the news some time ago after it was discovered that he "texted" a shirtless photo of himself to a courtroom bailiff and that he had sex in his chambers with a complaining witness in a child-support case.  The court found that (1) the conduct was clearly prejudicial to the administration of justice, (2) that the conduct exposed the legal profession or the court to contempt, censure, or reproach, (3) that the judge engaged in conduct that was contrary to justice, ethics, honesty, or good morals, (4) that he testified falsely under oath, (5) that he failed to maintain high standards of conduct so that the integrity and independence of the judiciary may be preserved, (6) that he failed to avoid all impropriety and appearance of impropriety, (7) that he failed to promote public confidence in the integrity and impartiality of the judiciary, (8) that he allowed sexual relationship to influence his judicial conduct or judgment, (9) that he failed to be faithful to the law, (10) that he engaged in ex parte communications, and (11) that he failed to disqualify himself when he should have.

As a sanction, the court removed the judge from the bench and, if the judge is reelected as a judge in November, suspended him for six years.

Sounds like a pretty substantial suspension; but it really isn't.  Essentially, the sanction is a way to prevent the judge from running for the position again.  Were he to get elected, he would not be allowed to serve because he would be suspended without pay.  But the suspension does not apply if he is not elected.  So what is the judge to do?  Simple.  Not run for re-election and continue to practice law.  Wait. What? Wasn't he suspended?  No.  He was suspended from the bench.  Not from the practice of law.

I don't understand why the sanction was so lenient.  I think the judge should have been disbarred.  Or at the very least, suspended from the practice of law.

UPDATE (3/29/14):  One of my readers e-mailed me to let me know that in Michigan, to disbar a judge removed from office, a separate disciplinary proceeding needs to be filed by the Attorney Grievance Commission.  So, that explains that.  I still would have liked to have seen the court take a stance on the issue, though.  I would have liked to have seen the court say that such a grievance should be filed.  This is not necessary and I assume the Commission might take on the case anyway, but it never hurts to have a state Supreme Court remind lawyers in the jurisdiction that misconduct should not be tolerated.

Maryland Disbars Attorney For Accusing Judges of Misconduct in Emails. Was it justified?

Disbarring the Critics is reporting that in late February, the Maryland Court of Appeals disbarred a long-time Maryland attorney for alleging in emails that several Maryland judges had engaged in misconduct. The decision, Attorney Grievance Commission v. Frost, is available here.

Disbarring the Critics has a long comment on the case here, in which it concludes: "Make no mistake about it, the the justices on Maryland's highest court were not taking the action they did to protect the public, but were instead acting to protect their colleagues from what they believed to be unfair criticism by Frost. Undoubtedly those judges also know that the Frost case will be a warning shot to let other Maryland attorneys know that if they dare to criticize a judge publicly or privately they can be targeted for discipline."

Should an attorney be disciplined for comments about another lawyer in a blog?

As we all know, the practice of the profession is heavily regulated and part of that regulation includes limits on our freedom of speech.  However, that does not mean that attorneys do not have the right to express their opinions, including their opinions about other lawyers.

As reported in a number of blogs, a law professor from the University of Denver has filed a complaint with the Illinois disciplinary authorities based on the fact that a certain Illinois lawyer has been engaging in what she considers cyber-harassment (or cyber-bullying) by leaving insulting, racist and sexist comments on her blog and other blogs.

I have not seen all the actual comments the professor is complaining about and maybe if I did I would change my mind, but from what I have read about the allegations, I am skeptical that allegations of improper speech should be sufficient to support a disciplinary complaint and, if they are, I am troubled by the implications of such a complaint on the principles of freedom of speech.

There is no question that some of the comments cited in the various blog posts about this story are inappropriate, and many are quite offensive, but others are just exaggerated expressions of opinion meant to make fun of the work of law school professors.  (Some of the comments could very well have been about me and my work.)  Yet, I don't think that the comments, or more accurately, the conduct of posting the comments, should be the basis for disciplinary sanctions.

(If you want to pause now and look at the blog posts in which the professor explains her views and some of the comments to which she is responding, go here, here, here, here and here.  Otherwise, finish my post and come back to them later.)

As law professors, scholars and bloggers we put ourselves and our ideas out there for open criticism.  The fact that some of that criticism is done behind the protection of anonymity, the fact that some of the criticism is offensive, and the fact that sometimes we have no recourse to respond to the criticism should not allow us to ask the state to impose sanctions upon those who have exercised their right to criticize.

The rules of conduct in most states do recognize a duty not to engage in speech that is prejudicial to the administration of justice (a standard that is too vague also), but that standard is not at issue in this case.

The professor's effort to punish the attorney who criticized her threatens free speech and may result in a chilling effect on those who wish to engage in discussions whether in writing, in the classroom, on the internet or anywhere else.  The most basic principle underlying the notion of freedom of speech is that the state cannot punish someone for protected speech merely because someone might find the speech offensive.  That could be the result of the complaint at issue here, and that is why I think the request for sanctions is troubling.  If the state agrees with her, the precedent will diminish the freedom we now have as academics to engage our students in the discussion of controversial and important issues because of the fear that someone might be offended.

The controversy reminds me of Richard Delgado's work on hate speech and the possibility of recognizing a cause of action for damages inflicted by words - other than defamation.  It was an interesting proposal but it was very difficult to reconcile it with the principles of freedom of speech.  Similarly, in his works on hate speech he has argued for what some call a "responsible regulation" of speech.  Again, I understand the concern and I am sympathetic to the idea, but the problem is how to define what is responsible regulation.  And who will define that?  By definition, someone will have to decide what is acceptable speech and what isn't, and if that someone is the state... well, that is what the first amendment is there to prevent.

Neither the Illinois Rules of Professional Conduct nor the ABA Model Rules have a specific section on offensive speech, but both have clarified in the comment to rule 8.4 that manifesting bias by words may be considered misconduct if it is prejudicial to the administration of justice.  However, this is limited to circumstances where an attorney is "in the course of representing a client," as opposed to where the attorney is expressing his or her own biased opinions or world views.

Interestingly, the issue of whether an attorney can be disciplined for offensive speech is not new to Illinois, although in a different context.  If the case moves forward and if it reaches the state Supreme Court, it may give the Court the chance to address the question it did not address in 1999 when it decided not to review the denial of admission to practice to a white supremacist.  In that case, the Committee on Character and Fitness denied admission and the applicant appealed arguing that "the Committee’s use of his expressed views to justify the denial of his admission to the bar violates his constitutional rights to free speech."  The Supreme Court denied review thus avoiding the issue and not setting any precedent.  In a short but interesting dissenting opinion, however, one of the justices argued that the appeal raised a significant constitutional question that deserved explicit, reasoned resolution by the court. Unfortunately, the Court did not go for it.

Although the context is different, I think the issue is similar.  One of the issues discussed by the dissenting opinion in that case is the question of whether an applicant can be denied admission to practice for expressing views that would not subject a practicing lawyer to discipline.  The judge, thus, seems to imply that there is a strong argument that expressing racist views would not subject an attorney to discipline.

For more commentary on the freedom of speech implications of this case, you can check out:

Prof. Jonathan Turley's Res Ipsa Loquitur blog ("That does not sound like the basis of an ethics complaint.")

My Shingle (the "decision to file an ethics complaint against the commenter sets unspeakably bad precedent for bloggers exercising their First Amendment rights.")

Above the Law (I don’t see how it’s workable to sanction lawyers who say disgusting things online. Lawyers say racist, sexist things all time.)

Disbarring the Critics ("...disdain for the First Amendment by attempting to silence a critic, albeit an anonymous one, by using very general rules in the Rules of Professional Conduct...")

Having said all that, however, it is possible there is more to the story.  My comments (and those of the other blogs I linked to) are based on the assumption that the disciplinary complaint is based merely on commentary (speech), not on conduct.  The distinction is, of course, significant.  If the allegations are about conduct, particularly conduct that can be classified as criminal, then the issue is different and there would be a lot more support for the argument in favor of discipline.


UPDATE (July 21, 2014):   The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger. Even though I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions. If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different. However, it seems like the issue is now closed.  

What should be the proper discipline for dishonesty on a resume?

When discussing the inconsistencies among states when it comes to disciplinary sanctions, I always tell my students that what they need to remember is that regardless of the conduct "you always risk disbarment" (simply because you never know what the authorities are going to do).

Now, this leads me to the question of the day.  Should an attorney be disbarred for embellishing his resume?

The ABA Journal is reporting today that a former Paul Hastings partner in London has been disbarred for embellishing his resume. He originally faced a three-year suspension, but the United Kingdom's Bar Standards Board imposed disbarment instead.

Are the authorities stricter (or the standards higher) in the UK?  I don't know about that, but I don't think an attorney would be disbarred in the US for just one instance of dishonesty on a resume.  Over the past few years, I wrote about a case in California where an attorney was suspended for using an outdated resume (here), and a case in Illinois where the attorney was suspended for altering a law school transcript in an attempt to get a job (here).  In that second case, I argued the attorney should have been disbarred because the conduct was particularly egregious in my opinion (and was not limited to the issue with the transcript).  Yet in the end the attorney was suspended for three years.  That is a pretty severe sanction, but it is not disbarment.

Please complete this survey, it may help suggest changes to the disciplinary process in Georgia

Clark D. Cunningham, the Director of the National Institute for Teaching Ethics & Professionalism (NIFTEP) and Professor of Law and Ethics at Georgia State University College of Law has asked me to post this message:

A case in Atlanta that has caught the attention of the media this week opens a brief window of opportunity during which it may be possible to get an initiative going to  strengthen Georgia’s attorney discipline procedures. I am thinking of writing a letter to our state bar’s Committee on Disciplinary Rules and Proceedings recommending a number of changes. I would like to have as much comparative information about other states as possible when I write that letter. I have developed a very short on-line survey that would take less than 5 minutes to complete if the person is familiar with their own state’s disciplinary system. As you can see on the form, I offer to share the results.  Here is the link:  www.surveymonkey.com/s/DisciplinarySurvey  

Cordially,

Clark

As you will see from the survey it appears that Georgia has some unique rules.  Clark is trying to gather information on whether other jurisdictions have similar rules.  I completed the survey and it really does take less than five minutes to do so. 

DC's strange concept of moral turpitude

In Washington DC if an attorney's conduct is found to involve "moral turpitude" disbarment is automatic.  The problem is that there is no clear definition of the concept of moral turpitude and the boards and courts continue to make very strange rulings on it.  For example, a few years ago the Board on Professional Responsibility concluded that a lawyer's conviction for murdering his wife did not establish moral turpitude (here), but this was later reversed.  Then there is the case of a lawyer who lied, cheated and stole property from a store for personal gain.  He was convicted for it, yet the DC Court of Appeals found that the conduct did not involve moral turpitude - even if it could be considered to be a "serious crime."  I wrote a long comment on that case here.  And finally, there is the case in which an attorney who was convicted of felony traveling for the purpose of engaging in sex with a minor was found not to have engaged in conduct involving moral turpitude. According to an account of the case, the attorney had made a 12-year-old boy his sex slave for six years and was convicted and sentenced to 15 years behind bars.  My comment on that one is here.

But not all is hope is lost.  While holding a child as a sex slave is not moral turpitude, it has been decided that tampering with a witness constitutes moral turpitude (here). And today comes news that a new opinion of the DC Court of Appeals has found that a conviction for obstruction of justice constitutes moral turpitude per se.  The Legal Profession blog has more on the case, including a comment on it from the Huffington Post here.

I guess I just don't understand the concept of moral turpitude.  It would seem to me that it has to mean something broader than interference with the judicial process, which seems to be what the DC decisions are limiting it to.

More comments on prosecutorial misconduct: why do some courts protect the anonymity of prosecutors?

Here is a link to a recent article in the Huffington Post that discusses the fact that the names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct.

There's no formal rule precluding the publication of a prosecutor's name in an opinion.  Apparently, the practice is rooted in what some call "professional courtesy."  But I don't see why a prosecutor should deserve professional courtesy if they are found to have engaged in misconduct, particularly when other lawyers are not granted the same courtesy in published disciplinary decisions.   I just don't think there's a legitimate argument as to why prosecutors should get more protection from allegations of wrongdoing than other attorneys.

Thanks to the Legal Ethics Forum for the link to the article.