March 30, 2009
Suing The Complainant
An attorney who had been suspended in Colorado for a year and a day violated ethics rules by bringing legal actions against persons who had reported his misconduct, according to a hearing board report imposing additional sanctions. Interestingly, the Colorado immunity for bar complaints rule is not absolute, as in many jurisdictions. Rather, a lawyer may sue a complainant for violating confidentiality rules or for complaints brought in reckless disregard of the truth or in bad faith. The board found that filing the suit against the complainants was conduct prejudicial to the administration of justice but not frivolous because the suit "is still pending in federal district court where substantive legal issues are yet to be resolved."
The story starts with the termination of a two-lawyer firm. The lawyers agreed to pay each other from the proceeds of pending cases. The suspended lawyer (Rasure) failed to pay the former partner (Dugan) his share of a contingency case that had settled for $200,000. Dugan consulted a second lawyer (McLachlan), who in turn contacted Rasure's then associate Sitter. As a result, Sitter terminated his business relationship with Rasure. When Dugan got paid, he did not follow McLachlan's advice to report the misconduct to the People. McLachlan later told a member of the People's staff of a number of things about Rasure which were "substantially true."
Sitter also decided not to report the misconduct. However, he was contacted in the wake of McLachlan's disclosures and reluctantly cooperated (the reluctance "stemmed from his fear that Respondent would retaliate if he cooperated with the People)." A disciplnary complaint was brought and violations were found concerning the contingent fee.
Rasure, after stipulating to the violations, sued McLachlan and Sitter (whose fears proved well-founded) in federal district court for malicious prosecution, abuse of process, slander, civil conspiracy, intentional interference with contract, and extreme and outrageous conduct. The board here found that Rasure had admitted the conduct reported by McLachlan and Sitter. He thus could not prove that they had acted in reckless disregard of the truth. The board concluded that the reporting attorneys did not act in bad faith or fail ito nvestigate: "If such level of scrutiny were required in any instance before citizens could report perceived lawyer misconduct, few reports would be made."
The attorney was again suspended for a year and a day and will be required to submit to an independent medical examination before applying for reinstatement. (Mike Frisch)
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