Friday, May 11, 2018

Shirvell Disbarment Affirmed

A recent decision of the Michigan Attorney Discipline Board affirms the disbarment of Andrew Shirvell

Disbarment is well within the realm of discipline that could have been imposed by the hearing panel. The panel's conclusions are supported by the record and by an appropriate application of the American Bar Association Standards for Imposing Lawyer Sanctions. Respondent filed a completely unfounded and frivolous lawsuit, without any consideration for the harm and expense it would cause the defendant or the waste of the court's resources. Likewise, respondent publicly made unfounded, offensive, defamatory statements about Armstrong with absolutely no consideration for the harm it would cause. In doing so, respondent demonstrated an egregious failure of professional judgment and character. Such conduct demands discipline for the protection of the public. Therefore, the hearing panel's order of disbarment is affirmed.

The board cites the history of the misconduct set forth in an opinion of the United States Court of Appeals for the Sixth Circuit.

The Grievance Administrator filed a Formal Complaint alleging in three separate Counts that respondent committed professional misconduct. Specifically, Count One alleged respondent harassed and stalked Armstrong; Count Two alleged respondent engaged in frivolous litigation; and Count Three alleged a conflict of interest based upon respondent's employment as an Assistant Attorney General. The hearing panel determined that petitioner had established the misconduct charged in Counts One and Two,  but found that the Grievance Administrator failed to prove respondent violated MRPC 1.7(b)(2) [conflict of interest], as alleged in Count Three.

Shirvell appealed the panel order

Respondent petitioned the Attorney Discipline Board for review of the hearing panel's order, raising six issues, arguing that: (1) the disciplinary proceedings were fatally compromised where all three panel members failed to disclose alleged biases against respondent; (2) respondent was not given fair notice that his questioning of Deborah Gordon during her deposition would subject him to a finding of misconduct; (3) the hearing panel abused its discretion by admitting into evidence the Sixth Circuit Court of Appeals' opinion in Armstrong v Shirvell, supra; (4) the hearing panel abused its discretion in failing to admit three of respondent's exhibits; (5) the panel's findings of misconduct are not supported by the record; and (6) the discipline imposed does not fit the misconduct established in this matter.

As to his claim of panel bias

Respondent's argument is misplaced and otherwise without merit. Respondent is claiming persecution for his beliefs and political views and is focusing on what he presumes are the beliefs and political views of the three hearing panelists; however, this case is not about beliefs, it is about respondent's behavior. There is no evidence respondent was disciplined by the hearing panel because of his beliefs; rather, the evidence supports the conclusion that it was respondent's behavior that warranted a finding of misconduct.

The merits

With regard to Count One, there is overwhelming support for the panel's finding of misconduct. Respondent's blog was a public forum and contained vicious, unfounded attacks against Armstrong personally. This was not merely disagreeing with Armstrong's views - this was a "smear" campaign against Armstrong, where it seemed respondent had no boundaries. For example, the home page of the blog featured Armstrong's face next to a swastika; respondent referred to Armstrong as "the privileged pervert;" he referred to Armstrong as a "gay Nazi" on national television; he accused Armstrong of hosting an orgy at his University of Michigan dorm; he accused Armstrong of being sexually promiscuous and engaging in lewd activities in churches and children's playgrounds - all allegations that had absolutely no factual support. The civil jury concluded that, in total, 100 statements made by respondent were defamatory - and more than 60 of those were made with actual malice. Respondent also repeatedly followed Armstrong to various public establishments and private parties, including Armstrong's personal residence. Even when Armstrong was working in Washington D.C., respondent contacted Armstrong's employer. Respondent's rhetoric was not political as asserted; it was hostile and vindictive, and a personal attack on Armstrong.

Likewise, with regard to Count Two, misconduct is also clear. In the complaint against Deborah Gordon, respondent alleged Gordon interfered with the internal investigation the Attorney General's office conducted regarding respondent's actions, and as a result, he was discharged from the AG's office. Respondent made these allegations recklessly without any support or concern for the truth. In fact, prior to filing the lawsuit, respondent knew the AG special investigator had already testified that he had never communicated with Gordon prior to the completion of his investigation. As determined by the district court and affirmed by the Sixth Circuit Court of Appeals, respondent's claims were based entirely on speculation. For these reasons, there was also sufficient evidence introduced to support the panel's finding of misconduct in Count Two.

(Mike Frisch)

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