Friday, April 19, 2019

The Fault Is In D.C. 's Flawed Default Rules

I may be in error (an increasing possibility on all levels) but I believe that the 254-page Ad Hoc Hearing Committee Report filed today in the District of Columbia is the longest in history.

The evidentiary hearing of this case was held on March 12-15, 2018. ODC was represented by Julia L. Porter, Esq., Senior Assistant [now Deputy] Disciplinary Counsel. Respondent did not file an Answer to the Specification, participate in the hearing, or file a post-hearing brief. During the hearing ODC called four witnesses and submitted 176 documentary exhibits, all of which were admitted into evidence.

After the conclusion of all testimony and closing argument, the Hearing Committee recessed in executive session pursuant to Board Rule 11.11 to determine on a preliminary, non-binding, basis whether ODC had proved a violation of at least one disciplinary rule. Upon resuming proceedings, the Chair announced that the Hearing Committee had made such an affirmative determination. Upon inquiry by the Chair if there were any additional matters in aggravation of sanction that ODC wished to place before the Hearing Committee, ODC stated that Respondent had no record of prior legal ethics violations.

In the ODC case the Respondent set forth his position before declining to further participate

Pleases don't kill trees, waste taxpayer resources and ODC personnel on me.

ODC has no credibility or legitimacy to me. Or the drivel you generate.

You are simply dishonest lawyers who do nothing to regulate honest lawyers.

And racists to boot.

Rather than wasting time, money, and paper on your sophistries, please disbar me.

Disbarment by ODC would be an honor.

To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt.

But a disbarment letter from ODC will be framed and go up right alongside those diplomas.

Please do me the honor of disbarring me.

I will be so very very [sic] proud.

The committee declined to bestow the honor, proceeded to execute a veritable forest and rejected ODC's proposed disbarment in favor of a three-year suspension. 

The committee describes in exacting detail patterns of frivolous litigation, causing unnecessary delays, failures to follow rules and procedures and alleging ethics violations by his opposing counsel and a judge. 

And using social media to harass  and intimidate

On December 1, 2016, Respondent made a Twitter posting directed to the plaintiffs in different case [United States District Court] Judge Boasberg was handling, asking, "Would any of your members or supporters be interesting [sic] in protesting at the home of Judge Boasberg?" FF 161. Respondent's action was clearly improper. At a time when the issue of the ultimate sanction against Respondent was still undecided, Respondent used of a medium of mass communication directed to individuals entirely unrelated to him and the Hall case which was likely to ̶ and in fact did (id.) ̶ come to Judge Boasberg's attention, seeking to bring public pressure to bear on the adjudicative process itself. This was done not in the pursuit of any noble cause or issue of public importance, but simply to carry forward Respondent's own sense of private grievance against Judge Boasberg. It was the dark whisper, "We know where you live." This attempt at intimidation had the potential for causing serious interference with the administration of justice, and was a blatant violation of Rule 8.4(d)...

In his internet postings on April 7, 2016 (FF 100) and May 2, 2016 (id. n. 62), however, Respondent crossed the line between arguably proper representation of a client's interests and improperly acting to inflict intentional harm on Ms. Dettling and Ms. Dekker. In the context of stating that he represented a former client of Ms. Dettling, Respondent broadcasted to the world the accusations that Ms. Dettling had tried to cheat him, that Ms. Dettling and Ms. Dekker had mishandled a client's case and were being sued for malpractice, and that Ms. Dettling was a "slimeball" (id.). Ms. Dettling clearly felt embarrassed and burdened by Respondent's April 7, 2016 e-mail: she testified that she viewed it as "extortion." Id. This repeated use by Respondent of a means of mass communication directed to unknown third parties ̶in contrast to the prior e-mails he directed solely to Ms. Dettling and Ms. Dekker ̶ in order to say derogatory things about Ms. Dettling and Ms. Dekker is clear and convincing evidence that Respondent acted with no substantial purpose other than to embarrass and burden Ms. Dettling and Ms. Dekker, in violation of Rule 4.4(a).

And falsely accused a school official of filming exercising female teachers

Respondent also made two separate internet postings to the School Board's website. In the first posting, on September 7, 2016 posting (FF 215), Respondent suggested that assistant superintendent Goffredo (a target of some of the allegations in the Stevenson case (FF 195; 217 n. 109)) was "caught" secretly videotaping female teachers while they exercised. This posting was grossly inappropriate and not at all related to the issues of the Stevenson case...

On September 7, 2016 Respondent sent Mr. Meiswich a coercive e-mail that abused Respondent's role as an attorney in gathering information about the Stevenson case, and that threatened further abuse of the judicial process in order to harm Mr. Meiswich. FF 214. On the same day, Respondent made a salacious internet posting on the School District's Facebook page about the School District's assistant superintendent for human relations, Mr. Goffredo (FF 215), an individual who was explicitly viewed as an opponent in the Stevenson case.

He filed bar and judicial complaints and

The foregoing facts constitute clear and convincing evidence that Respondent made threats of criminal charges for the sole purpose of obtaining an advantage in a civil matter. Respondent's threats of criminal charges were directly proximate in time and made with reference to Ms. Bromley's termination and personal property disputes with e Management; Respondent threatened criminal charges explicitly as part of his attempt to obtain a settlement for Ms. Bromley; Respondent sent senior e-Management personnel copies of his July 8 e-mail to ensure they were directly aware of the threat he was making personally against them; and the repetition of Respondent's threats over a period of several weeks is strong evidence that they were made for the sole purpose of furthering Ms. Bromley's claims. The Hearing Committee therefore concludes that Respondent's threats of criminal charges violated Rule 8.4(g).

Why no disbarment?

Although, as previously noted in this Report, ODC argues for a sanction of disbarment (ODC Br. at 75-78), the Hearing Committee's reading of the foregoing  cases leads it to conclude that absent evidence of dishonesty or material misrepresentation, disbarment is not warranted. Nevertheless, considering the extreme seriousness of Respondent's misconduct, the multiple Rules violations involved in this case ̶ including, as in no other case discussed above, Respondent's attempted intimidation of a federal judge ̶ and the self-serving nature of Respondent's actions in the Dettling matter, it would understate the gravity of Respondent's misconduct to recommend a suspension of less than three years.

With fitness

In the present case there is clear and convincing evidence in the record that  Respondent shows absolutely no sign of recognizing the seriousness of his misconduct. To the contrary, he is expressly proud of his misconduct, and openly contemptuous of the disciplinary system. FF 270. Unlike the attorney in Tun, 195 A.3d at 74, there is no acknowledgement by Respondent that some sanction is warranted, and, therefore, no evidence that Respondent understands the seriousness of his misconduct.

I'm sure I will have more to say if I live long enough to read this report but I'll start with one question:

If an attorney does not deign to contest any aspect of bar charges, is a full plenary hearing a necessary and useful allocation of limited disciplinary resources?

Four days of hearings and an extensive (at least 80 page) post-hearing brief by ODC for an attorney who gave the disciplinary system a middle finger salute.

I have no doubt of the hearing committee's diligence - Chairman Martin Shulman is a paragon of thoroughness and professionalism as is Deputy Disciplinary Counsel Porter - but their laudable efforts should be directed to matters involving accused attorneys who care to contest serious charges. 

Many if not most jurisdictions deem a default as both an admission of the alleged facts and serious misconduct in and of itself. 

D.C.'s crabbed views on defaulting accused attorneys date back to this 1983 decision. It is well past time to rethink this policy. 

The case is In re Glenn H. Stephens III. (Mike Frisch)

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