Wednesday, September 13, 2017

Document Removal Draws Informal Admonition

The District of Columbia Office of Bar Counsel has informally admonished a Seyfarth Shaw partner

Disciplinary Counsel opened an investigation after receiving an Order Regarding Sanctions dated April 20, 2017, from the United States Civilian Board of Contract Appeals. The Board found that your actions "seriously interfered with the administration of justice and impeded the orderly and expeditious disposition of this appeal."

We have completed our investigation and find that your actions violate Rule 8.4 ( d).

Rule 8.4(d) prohibits a lawyer from engaging in conduct that seriously interferes with the administration of justice. We find that you removed documents from GSA's counsel's table without their knowledge or consent and then failed to immediately return the documents upon their request. Because of your actions, the full Civilian Board of Contract Appeals held a special telephone conference and suspended the merits hearing in the underlying case to hold a hearing to address your conduct. We find that this conduct seriously interfered with the administration of justice.

The sanctions did not form the basis for reciprocal discipline

The United States Civilian Board of Contract Appeal issued a Public Reprimand in this matter. Because the judges sitting on the Board are not Article 3 judges, we are unable to take reciprocal action in this case. We are issuing you an Informal Admonition in this matter, based on your acknowledgment that your conduct violated Rule 8.4 ( d) and your agreement to accept this Informal Admonition.

The case is In re James Newland, Jr. Bar Docket No. 2017- D144 and can be accessed at this link.

The reprimand imposed by the Civilian Board of Contract Appeal is linked here. 

The litigation involved a dispute involving a federal post office and courthouse in Massachusetts.

At some point, GSA brought four large, bound rolls of interlineated (also called conformed or posted) contract drawings into courtroom 3. Because this particular set of drawings had not yet been added to the electronic appeal file, counsel, the presiding judge, and witnesses used these documents in their paper form during the hearing.

On February 2, 2017, the Board adjourned the hearing at 2:32 p.m., upon the completion of the direct examination of Suffolk’s witness, Murray Smith. The parties left the courtroom and entered their respective conference rooms. GSA left the bound drawings and binders containing the contract specifications in the courtroom. GSA counsel planned to begin cross-examining Mr. Smith when the hearing reconvened on February 7 at the E. Barrett Prettyman United States Courthouse in Washington, D.C., to which the hearing was to be relocated while the Board’s courtrooms were undergoing renovations.

The Board’s security camera footage shows that at 2:58 p.m., Mr. Newland, Mr. Smith, Nadine Ebersole (then employed by Suffolk as a paralegal), and Glen Stevens (an expert witness for Suffolk) walked out of their conference room carrying trial materials. As they walked past the door to courtroom 3, they stopped. Mr. Newland motioned the others to follow him into the courtroom, which they did. Once in the courtroom, Mr. Newland removed the interlineated contract drawings from GSA counsel’s table. At 2:59 p.m., the four emerged from the courtroom with the drawings. Ms. Ebersole carried two rolls of drawings and Mr. Smith carried the remainder. They walked down the corridor toward the exit. Conference room A is visible from the corridor through a wall of windows. GSA representatives were in conference room A at the time Suffolk’s teamleft the courtroomwith the drawings. In declarations submitted to the Board, Mr. Newland and others say that they thought that GSA had left the materials behind in the courtroom, and Mr. Newland stated that he decided to help GSA by transporting the drawings from the courtroom to the Prettyman Courthouse for their use the following Tuesday, when the hearing was scheduled to resume. The four, however, did not take all of the material in the courtroom. They left behind GSA’s  copy of the contract specifications, as well as a series of demonstrative drawings on a large sketch pad that had been designated and identified as hearing exhibits.

The four walked past conference room A, where GSA representatives remained, past the office of the Clerk of the Board, past the Board’s security staff, into the elevator lobby, and departed, carrying the drawings and other trial materials. Mr. Newland did not inform GSA representatives, or anyone else, that he had removed the drawings from GSA’s counsel’s table, the courtroom, or the building. Mr. Newland placed the drawings into the trunk of his car, drove his witnesses to the D.C. offices of Seyfarth Shaw LLP, and then proceeded eventually to his home, which is some distance south of Washington, D.C.

Shortly after 3:00 p.m., GSA’s Mr. Scott left conference room A, went into the courtroom, and discovered that the interlineated contract drawings were missing. Mr. Scott contacted the Clerk of the Board and other Board personnel and expressed concern that the documents had been removed without his knowledge. At 3:10, he called Mr. Newland to ask him about the drawings. Mr. Scott left a voicemail message [questioning about the drawings]...

Mr. Newland at some point decided to “send [the drawings] out and have them scanned while we had them because we had a four day break for trial.” Transcript at 1233. At 6:50 a.m., on Friday, February 3, 2017, a third-party vendor picked up the drawings from Mr. Newland’s house to scan them. Half an hour later, Mr. Newland advised Mr. Scott by e-mail [that led to a series of further emails between them]...

On Monday, February 6, 2017, the Board (with all three panel members participating) held a conference call to discuss the situation. GSA requested that appellant’s counsel be sanctioned for taking the contract documents and having them scanned without GSA’s permission.

On sanctions

Mr. Newland admits to removing GSA’s interlineated contract drawings from opposing counsel’s table, without permission and without notice. He admits that he took the drawings off the Board’s premises, placed them in his car, and drove them to his home. Disregarding GSA counsel’s request that he return the documents immediately,Mr. Newland elected to have them scanned and copied by a third party, delaying their return until late the following afternoon. As with the removal, the reproduction occurred without GSA’s consent. This conduct is troubling, to say the least.

As much as we are troubled by Mr. Newland’s removal of GSA’s drawings from the courtroom, we are equally, if not more, troubled by Mr. Newland’s changing and irreconcilable explanations for his actions. As noted above, on February 2, in response to Mr. Scott’s e-mail message sent to him immediately after Mr. Scott discovered the drawings were missing, Mr. Newland initially said that “we thought we would bring ½ the documents to prettyman.” This first explanation appears to be what Mr. Newland conveyed to his trial team. In the sworn declarations submitted by Mr. Smith, Mr. Stevens, and Ms. Ebersole, all stated that they understood that Mr. Newland would be acting as the custodian of the documents for the purpose of transporting the drawings to the new hearing location for the next day of hearings.

On Friday, in his February 3 e-mail message to the presiding judge, however, Mr. Newland stated that he sent the drawings to a third party vendor for scanning on Thursday evening. Later, Mr. Newland claimed that the drawings were sent to be scanned and copied on Friday, early morning. Mr. Newland did not inform GSA counsel that he planned to have the drawings scanned and copied, nor does it appear that he told Mr. Smith, Mr. Stevens, or Ms. Ebersole about this plan. Mr. Newland further neglected to advise the presiding judge that he had taken possession of the drawings and decided to hand them over to a third party
for scanning without attempting to coordinate any of this with GSA.

At no time has Mr. Newland acknowledged his misconduct in removing the drawings from opposing counsel’s table without permission. During the conference call before the panel on February 6, as well as during the February 9 hearing, Mr. Newland admitted removing the documents (we “literally carried out what we were able to carry”), seemingly unaware that his actions were problematic.  In response to GSA’s allegations concerning the nature of the materials, Mr. Newland suggested that, in the absence of a protective order, he could freely remove any documents from the courtroom. Mr. Newland has elected to focus on GSA’s failure to add these drawings to the electronic appeal file. However, as Mr. Newland also acknowledges, during the course of the hearing, he never informed the presiding judge of GSA’s failure to produce the interlineated contract drawings. Instead, Mr. Newland took matters into his own hands. Mr. Newland’s decision to appropriate the drawings from opposing counsel’s table is inexcusable and violates the standards of professional conduct. Mr. Newland’s attempt to shift the focus away from his conduct and to blame GSA is problematic.

The board rejected proffered expert ethics opinions in defense of the attorney.

Board Judge Zischkau concurred in part

Mr. Newland’s conduct was an aberration in the way he has conducted himself during the past four years. At the February 9 hearing, he apologized for his conduct. As the presiding judge, this isolated event does not change my belief in Mr. Newland’s honesty, trustworthiness, and fitness to practice before the Board. I have no doubt that he will fulfill his duties as counsel for the appellant, cooperate with GSA counsel, and support the Board’s role in the fair administration of justice for the remainder of these proceedings. I believe the circumstances call for an admonishment from the bench, rather than a public reprimand.

There is a dissent

With the matter before the full Board, I disagree with the ultimate conclusion to issue a simple public reprimand to Mr. Newland. Original documents were removed from agency counsel’s table without the consent of agency counsel. Those documents were the property of the agency. The intentional removal is unacceptable and contrary to notions of the proper and ethical practice of law. That taking of the documents merits barring Mr. Newland, who acknowledges initiating the removal, from further participation in these appeals. For me, that is the crux of the sanction proceeding.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/09/disciplinary-counsel-opened-an-investigation-after-receiving-an-order-regarding-sanctions-dated-april-20-20-17-from-the-uni.html

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