April 8, 2009
Clerks III: Disbarred For, Among Other Things, Phone Behavior With Judge's Law Clerk
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Wow, Alan, good find.
I haven't been commenting lately simply because of time and because I view many of the things that I contemplate saying to be repeats of things that I have said earlier.
This case is different though. It cries out for comment. I frankly cannot see what ethical rule the attorney violated and the case opinion does not help by citing one. He was disciplined following a contempt proceeding and not a disciplinary proceeding. What's more, he participated in this contempt proceeding after being told that it was a civil contempt proceeding and not a criminal contempt proceeding.
More troubling is that at each stage, the various courts vacated the proceeding and then used the testimony at that proceeding to justify greater punishment. To me, the flaws in that testimony seem to be quite technical.
The lawyer also raises what I view as a very reasonable issue of the mechanism for the court to obtain evidence and the opportunity he had to confront that evidence. His reward is more discipline.
Most troubling of all is that the court vacated its final order on the matter after the lawyer sought disqualification of the court for bias and then disbarred him. It is clear as day that the judges did so because he had sought their disqualification. The lawyer argued bias and it certainly appears that way to me.
Someone should take a closer look at the ethics of the judges in this case.
Posted by: FixedWing | Apr 9, 2009 6:29:44 AM
The decision is awful. Sure, the guy was probably rude (I wonder if there is another side to that). He probably confused a Rule 16 conference with Rule 26 disclosures, which can be waived.
He had the temerity to be rude on the phone, but what really sealed his fate was asking to have the judge recused.
The 5th Circuit seems to recognize something is wrong, but treats it as just another discretionary ruling to yawn through review of; it gets less thought than some hearsay rulings.
This is a poor contrast with their recent decision in In re Warren (No. 08-10765), where an attorney was- quite correctly- disbarred for ineffective assistance to a criminal client.
This decision, by contrast, is ridiculous.
Posted by: Rick | Apr 10, 2009 10:07:46 AM
I suspect that the key fact was the lawyer's equivocation under oath to the district judge. Lawyer failed to mention, when asked about his disciplinary record, that he had been ordered to spend 90 days in jail because he failed to comply with previous sanctions (though the sentence was subsequently suspended). I think his problem was cumulative douchebaggery more than any one, single, unprofessional act. Had this simply been a matter of being mean to the clerk, I get the impression disbarment wouldn't have been on the table at all.
Posted by: dmv | Apr 11, 2009 11:47:46 AM
The 5th Circuit did not resolve whether alleging judges committed misconduct was disciplinable. Yet, neither did it determine the disciple's severity was justified without that charge.
See http://tinyurl.com/cko3xa for analysis.
Stephen R. Diamond
Posted by: Stephen R. Diamond | Apr 12, 2009 11:27:11 AM