August 4, 2009
A Nebraska attorney was suspended for 120 days for misconduct in connection with his representation of his paralegal (now associate) on charges of operating a motor vehicle without a valid registration and proper proof of insurance. The attorney wrote a letter to the prosecutor that said that the newly-elected county attorney was in violation of the same law, enclosed a draft of a motion to appoint a special prosecutor and concluded:
Obviously, these motions are only proposed. Can't you dismiss [this case]? Our lips, of course, are forever sealed if [the paralegal's] case gets dismissed.
The attorney sent a second letter of similar import with a proposed motion to dismiss for selective prosecution and later said that he "was trying to inject a little humor into this [situation]." The prosecutors did not get the joke and moved (successfully) for the appointment of a special prosecutor.
Disciplinary charges were brought and sustained by the Nebraska Supreme Court. The court reasoned that the first letter exceeded the bounds of zealous advocacy. The lawyer "offered to keep mum about what he believed to be illegal conduct by the county attorney in exchange for the dismissal of charges...a conditional threat to disclose the county attorney's alleged violation. This a lawyer cannot do."
The court rejected the "I was just joking" defense:
[his] purported "joke" resulted in the appointment of a special prosecutor, consistent with the motion [he] threatened to file. Perhaps [he] did not actually intend to file any of the motions he prepared. But a reasonable person in [the prosecutor's] position could not help but take [his] threats seriously. No one- not the county attorney or the Counsel for Discipline or the referee or the members of this court-has believed [his] claim that he was only joking.
The attorney had been disciplined on two prior occasions. (Mike Frisch)
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