Thursday, December 21, 2017

Testimony Payment Proposal Draws Reciprocal Discipline

The Idaho Supreme Court imposed a 35-day suspension as reciprocal discipline

In the Nevada disciplinary case, Mr. Callister was counsel for a party who contested the legitimacy of a will in probate. In that case, Mr. Callister sent a letter to the witnesses of that will who had also submitted affidavits. In exchange for their honest testimony that they never witnessed the decedent signing a will, the letter offered to pay $5,000 to each witness, release all claims against them for their allegedly erroneous affidavits, and offered a further incentive of $2,000 to the first witness who called to accept the offer and “provide required testimony.” The letter also threatened the witnesses with personal liability and the “legal implications of perjury” if they failed to disavow the will.

The Nevada Supreme Court found that it is unethical for a lawyer to offer money to a fact witness contingent on the content of the witness’s testimony under N.R.P.C. 3.4(b), and that a lawyer may not threaten a witness with criminal prosecution for refusing to testify as a lawyer directs under N.R.P.C. 8.4(d).

In the Idaho hearing, Mr. Callister contended that the Nevada disciplinary proceedings were so lacking in notice or opportunity to be heard as to constitute a deprivation of due process and that imposing a reciprocal 35-day suspension would result in grave injustice. The Hearing Committee of the Professional Conduct Board and the Idaho Supreme Court concluded the Nevada procedure was not so lacking in notice or opportunity to be heard as to constitute a deprivation of due process and that imposing an identical sanction in Idaho would not result in grave injustice.

In an unrelated matter the court reinstated an attorney

On December 14, 2017, the Idaho Supreme Court entered an Order reinstating Dale R. Russell to practice law in Idaho. A condition of Mr. Russell' s reinstatement is that he not prepare on behalf of a client, any instrument or pleading naming himself or his spouse as a personal representative, trustee, guardian, or agent of a personal representative, trustee, or guardian unless he is related to the client as defined by I.R.P. C. 1. 8( c). 

(Mike Frisch)

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