Wednesday, December 24, 2008

Coin Of The Realm

An attorney was disbarred by the District of Columbia Court of Appeals for serious dishonesty and related misconduct in his dealings with a business partner with whom he had a romantic relationship. The attorney was found to have drafted legal documents that listed only his name on joint ventures and made a series of false statements about the situation, including testimony under oath in an arbitration and the disciplinary hearing. After losing the arbitration, he filed a meritless appeal that caused the California Court of Appeal "to verbally chastise him for 'blatant misrepresentation' of one of the court's rulings..." ("If a reputation for honesty is the coin of the judicial realm, [the attorney] has squandered his riches on such positions most unwisely").

   His criminal conduct (proven without a conviction) was found to amount to theft. He also engaged in "unconscionable actions in the courts, especially the California courts." Disbarment was appropriate even though he had no prior disciplinary history, as he had engaged in "persistent, protracted,and extremely serious and flagrant acts of dishonesty." Reinstatement is conditioned on full restitution to the Clients' Security Fund with interest and satisfaction of all judgments "against him and in favor of [the partner] or related business entities."

According to the court's opinion, the attorney was admitted in the District of Columbia in 1995 and "[e]ventually,...moved to Virginia and accepted a post as a professor of law at Regent University." (Mike Frisch)

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The opinion is written in the style of a law review article where all case citations are relegated to footnotes rather than being included in the text of the opinion as would normally be expected in a court opinion. I personally prefer this style, but it does leave me wondering who wrote the opinion. Note also that it took eleven months for the court to release the decision. On the whole, the opinion appears to have been very carefully written. Could this be because the subject is a law professor?

Nonetheless, I note one very big problem with the opinion. The Court applied a number of professional rules which, by their term, only apply to lawyers representing clients yet the law professor was acting pro se. Indeed, the Hearing Committee had dismissed a number of charges for that very reason. On the other hand, the Board has taken the position that rules which, on their face, only apply to a lawyer in a representative capacity also apply to a lawyer acting pro se. In re Williams, Bar Docket No. 295-05 at 15 (BPR Oct. 3, 2007) (my own case); In re Pelkey, Bar Docket No. 67-03 at 40-41 (BPR July 31, 2006). Other jurisdictions are split on whether these rules apply to lawyers acting pro se. The Court has never determined the question. Given the procedural history of this specific case, and the care with which they approached this opinion, I really cannot believe that the Court didn’t know that they were papering over this issue.


Posted by: FixedWing | Dec 24, 2008 5:10:13 PM

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