Wednesday, May 23, 2018
In a case that received a high degree of notoriety in a dimly-remembered past, the District of Columbia Board on Professional Responsibility rejected a non-suspensory sanction proposed by a hearing committee and unopposed by Disciplinary Counsel in favor of a 90-day suspension of former judge Roy Pearson
This disciplinary matter arises out of Respondent Roy L. Pearson, Jr.’s pro se lawsuit in D.C. Superior Court against the owners of Custom Cleaners, from whom Respondent eventually sought more than $67 million in damages in a dispute that started when the dry cleaner allegedly lost Respondent’s pants.
At its inception, Respondent’s civil action hinted at creative legal theories that “foster . . . growth in the law.” Westmoreland v. CBS, Inc., 770 F.2d 1168, 1180 (D.C. Cir. 1985). Creativity, however, has its bounds: attorneys may not champion an issue “unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.” D.C. Rule of Professional Conduct (“Rule”) 3.1.2
There are few cases involving violations of Rule 3.1, because showing that a claim is “frivolous” is a high standard. “Frivolous” is more than “ultimately meritless,” and the “good faith” exception to a Rule 3.1 violation allows a wide range of creative and aggressive challenges to existing law. As a general matter, this heightened standard is good; lawyers should be free to advocate for their clients. Attorneys in the District of Columbia should not fear discipline for making aggressive and creative arguments, bringing claims that expand existing law, or advancing novel damages claims – even if they have thin support or are unlikely to succeed. As a result, Respondent is the rare attorney who is properly disciplined for violating Rule 3.1.
At its start, the case was about a lost pair of pants. As his lawsuit progressed, Respondent alleged more and more aggressive positions, eventually demanding millions of dollars under a legal theory the Court of Appeals determined was “not supported by law or reason.” Pearson v. Chung, 961 A.2d 1067, 1076 (D.C. 2008). His case spiraled into a “four-year, no-holds-barred crusade.” HC Rpt. at 54-55.
Most lawyers are “wise enough to know that their most precious asset is their professional reputation. Filing unmeritorious pleadings inevitably tarnishes that asset. Those who do not understand this simple truth can be dealt with in appropriate disciplinary proceedings . . . .” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 413 (1990) (Stevens, J., concurring in part and dissenting in part). Respondent failed to recognize that maxim. As his lawsuit progressed, Respondent’s liability and damages arguments morphed into the preposterous.
The Ad Hoc Hearing Committee (“Hearing Committee”) consequently found that Respondent violated Rule 3.1 (bringing a frivolous proceeding or asserting a frivolous issue therein) and Rule 8.4(d) (serious interference with the administration of justice), but that he did not violate Rule 3.2(a) (delaying a proceeding when he knew or when it was obvious that such action would serve solely to harass or maliciously injure another). The Hearing Committee recommended a thirty-day suspension, stayed (with conditions) during a two-year probation period.
Disciplinary Counsel does not take exception to the Hearing Committee’s Report and Recommendation. Respondent, on the other hand, raises sweeping objections to the Committee’s factual findings and legal conclusions, and reiterates his numerous motions to dismiss, each of which was rejected by the Committee.
Following our review of the parties’ arguments and the record in this case, we agree with the Hearing Committee that Respondent violated Rules 3.1 and 8.4(d) but did not violate Rule 3.2(a). We disagree with the Committee’s recommended sanction, however. We believe the appropriate sanction for Respondent’s extreme conduct is a suspension of ninety days. Contrary to the Committee’s conclusion, we do not believe that the circumstances warrant a stay of that suspension. See In re Long, 902 A.2d 1168, 1171-72 (D.C. 2006) (per curiam).
On the boundaries of creativity
Courts cannot reinterpret the law if no one constructively raises new and novel legal issues. The full development of the law requires as much. Generations of lawyers have been inspired by such litigation, and rightly so. The Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), eliminated the “separate but equal” doctrine, but when Brown was filed, Plessy v. Ferguson, 163 U.S. 537 (1896), was good law. More recently, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), opened marriage to same-sex couples. Merely asserting a claim that conflicts with existing law is not sanctionable for that reason alone; Rule 3.1 recognizes that a lawyer can permissibly advocate for a “good-faith . . . extension, modification, or reversal of existing law.” Brown, Obergefell, and a host of more mundane cases appropriately fall within the permissive scope of the Rule. Lawyers who seek to change or redefine the law act pursuant to one of the most noble traditions of our profession. We applaud that practice.
But that is not what Respondent did.
Moreover, we recognize that the law sometimes allows results that are counter-intuitive. We do not conclude that Respondent violated Rule 3.1 based simply on a visceral reaction that Respondent’s theories or damages claims were absurd. Lawyers are free to make arguments when they are supported by fact and by existing law or a reasoned extension of the law even if they lead to results that at first appear to be unlikely, far-fetched, or questionable. Instead, we have considered the facts and the legal arguments made in Respondent’s briefs before both the trial court and the Court of Appeals, and we are convinced that no reasonable attorney would think that Respondent had even a faint hope of success in those claims.
Disciplinary Counsel began this investigation eleven years and one name change ago.
Seven years delay is no problem.
To the contrary, it is respondent's fault for being so contrarian.
We agree with the Hearing Committee that Respondent failed to establish that he was prejudiced by delay preceding the Specification of Charges. HC Rpt. at 39-40. Accordingly, we deny Respondent’s Motion to Dismiss. See, e.g., In re Saint Louis, 147 A.3d 1135, 1148-49 (D.C. 2016); In re Howes, 39 A.3d 1, 19 n.24 (D.C. 2012); see also Tr. 362-77. We similarly reject Respondent’s argument based on delay in the issuance of the Hearing Committee’s Report. See In re Green, 136 A.3d 699, 700 (D.C. 2016) (per curiam) (“Mere delay without a showing of substantial prejudice poses no impediment to disciplinary action . . . .”). Indeed, we note that Respondent himself has delayed the disciplinary process, not only by seeking extensions of time and permission to file overly long and prolix briefs, but by his excessive motions practice.
The board had no difficulty citing a string of cases for the proposition that a seven year delay was par for the course in the recent past.
The board had the case for nearly two years.
Respondent ironically – and utterly frivolously – accused Disciplinary Counsel of engaging in the very same types of misconduct that are the bases for the charges against Respondent:
Respondent improperly and groundlessly accuses Disciplinary Counsel of “a transparently frivolous effort to interfere with the administration of justice . . . and to harass or maliciously injure the Respondent,” of a “ploy” of submitting “144 paragraphs of inflammatory, prejudicial and legally unfounded alleged facts,” of bringing a disciplinary charge that is “slapstick, ludicrous and nightmarish,” of submitting a brief consisting of a “conglomeration of gibberish,” of failing to understand Respondent’s theories “that any sentient person would understand,” and of pursing a disciplinary action that is “an abuse of prosecutorial powers.”
The opinion is authored by board chair Robert Bernius.
Access here. (Mike Frisch)