Monday, August 9, 2021

An Offer You Can't Make

The Indiana Supreme Court has ordered a 30-day suspension with automatic reinstatement 

The genesis of this case was Respondent’s breakup with his girlfriend in July 2018. In the immediate aftermath of that breakup, criminal and protective order proceedings were brought against Respondent in Hamilton County, and Respondent filed suit against his now ex-girlfriend alleging defamation and other counts. A few months later, Respondent’s ex-girlfriend and her sister filed disciplinary grievances against Respondent with the Commission.

In December 2018, Respondent sent an email to opposing counsel in the defamation case. Respondent’s email demanded, among other things, that the disciplinary grievances filed against him be withdrawn as a condition precedent to settlement discussions.

The criminal and protective order proceedings against Respondent in Hamilton County eventually were dismissed. The Commission also eventually dismissed the grievances filed by the two sisters against Respondent. During its investigation, though, the Commission learned of the email Respondent had sent to opposing counsel in the defamation case, and in July 2019 the Commission filed a disciplinary complaint alleging that Respondent’s demand in that email violated Professional Conduct Rule 8.4(d).

Conduct prejudicial to the administration of justice

But prejudice under Rule 8.4(d) is measured in relation to the “administration of justice” and not any particular outcome for the parties. There can be little question that disciplinary investigations are encompassed within the administration of justice, both in terms of protecting the public from attorneys who commit misconduct and protecting attorneys from unwarranted claims of misconduct made against them. See Admis. Disc. R. 23(1)(c). Accepting as true that the grievances against Respondent were meritless simply begs the question the Commission was charged with answering. See Admis. Disc. Rs. 23(10),

 At the time Respondent made his demand, the Commission had objectively good cause for its investigation, as Respondent was facing criminal charges and was the subject of a temporary protective order in connection with his alleged conduct toward his ex-girlfriend. That much of this eventually was resolved in Respondent’s favor does nothing to alter the need for the Commission to investigate the allegations made in the grievances, and for that process to occur free from any attempts to undermine it.

Respondent’s frustration at having to deal with meritless disciplinary grievances certainly is understandable. He is not alone in that regard. The vast majority of grievances filed against attorneys are dismissed by the Commission for want of reasonable cause to believe misconduct has occurred...

It also is understandable under the circumstances that Respondent might wish to have other pending matters against him be resolved before entering into any settlement in his defamation case. But there is a right way and a wrong way to go about addressing these matters, and our precedents make clear that any attempt—however mild or unsuccessful—to interfere with the investigatory process required by Rule 23 or use the disciplinary process to leverage more favorable settlement terms is forbidden.

An aggravating factor

Were this the end of the story, we likely would issue a public reprimand here as well. Respondent has no prior discipline, his improper demand to opposing counsel was a minor violation, and no other acts of misconduct have been charged in this matter. But in assigning a sanction, we consider aggravating and mitigating factors as well. See, e.g., Matter of Bernacchi, 83 N.E.3d 700, 703 (Ind. 2017). Here, we simply cannot turn a  blind eye to Respondent’s abusive conduct during these proceedings against the Commission’s staff, the hearing officer, the judge in his defamation case, and even members of this Court. Accord id. at 703-04 (considering the respondent’s conduct during the disciplinary proceedings when deciding on sanction). While we will not repeat here the full range of epithets and ad hominem attacks Respondent has directed toward others, he repeatedly attacked the Commission for incompetence and corruption, including calling the Commission’s Executive Director a “buffoon” and “playground weakling” and the Commission’s staff attorney an “errand boy.” (Comm’n Exs. 9, 10, 11, 13, 20, 27, 33, 35, 36, 41). Respondent has also accused the judge in his defamation case of having “betrayed and shamed his oath and his office,” he has accused the hearing officer of being a “puppet,” and he has repeatedly accused members of this Court of having improperly attempted to influence the hearing officer in this matter. (Comm’n Exs. 30, 33, 36, 38, 41; Pet. for Rev. at 10, 17).

Let us be clear: attorneys have every right to defend themselves in disciplinary investigations and proceedings using every bit of persuasive power that facts, law, reason, and rhetoric can offer. But they do not have a right to merely hurl senseless invective and baseless allegations toward opposing counsel, judicial officers, and everyone else with a connection to the matter. Such vituperative and unfounded conduct unnecessarily undermines the legitimacy of proceedings and “has no place within the contemporary practice of law.” Matter of Crumpacker, 269 Ind. 630, 663, 383 N.E.2d 36, 52 (1978). It also is not effective advocacy, whether on behalf of a client or oneself. Respondent has advanced colorable arguments on occasion during these proceedings, but it has not helped his cause that we have had to wade through reams of vitriol to find them.

The Indiana Lawyer reported on the bar case and has a link to the complaint, (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/08/an-offer-you-cant-make.html

Associates, Bar Discipline & Process | Permalink

Comments

Yet another state supreme court has helped perpetuate one of the most dangerous deceptions in American legal practice. The Indiana Supreme Court objected to (and apparently punished) an attorney because he “also accused the judge in his defamation case of having ‘betrayed and shamed his oath and his office,’ he has accused the hearing officer of being a ‘puppet,’ and he has repeatedly accused members of this Court of having improperly attempted to influence the hearing officer in this matter.”

The deception at issue here is as prevalent and pernicious as it is, in part, because almost certainly most judges and attorneys actually believe it. Even so, the premise is clearly erroneous and clearly unconstitutional. There is nothing inappropriate (much less amenable to any type of punishment) in an attorney’s criticism (even harsh criticism) of judges or other court employees regarding their performance or failure to perform their official duties. But definitely don’t take my word for it.

First, read Garrison v. Louisiana, 379 U.S. 64 (1964). In Garrison, an attorney publicly impugned the work ethic and integrity of judges and even implied that their conduct might be criminal. See id. at 66 (“inefficiency, laziness, and excessive vacations” and “impugning their motives”). See also id. (“The judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigations . . . This raises interesting questions about the racketeer influences on [such] judges.”). What the Supreme Court said about that is eye-opening.

Next, with Garrison in mind, read New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Don’t believe the myth/deception that Sullivan is limited to defamation. The Court was clear that it did not “give any more weight to the epithet ‘libel’ than [it has] to other ‘mere labels’ of state law.” Id. at 269. The issue the Court address was the fact that “the rule of law applied by [any] courts” In all matters (civil, criminal or regulatory) must “provide the safeguards for freedom of speech” that are “required by the First and Fourteenth Amendments” for “critics” of “a public official” for “his official conduct.” Id. at 264. The Court even emphasized that any “repression” of “criticism of the judge [for his official conduct] or his decision” must and “can be justified, if at all, only by a clear and present danger of the obstruction of justice.” Id. at 273. The “constitutional standard demands” that the “proof presented to show” each material fact must have “convincing clarity.” Id. at 285-286.

Then, re-read Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) with the First Amendment in mind. The “First Amendment mandates a ‘clear and convincing’ standard” of proof regarding each fact that is material to the government’s case. Id. at 252. Under the First Amendment, any tribunal addressing criticism of the official conduct of a “public figure” always “must bear in mind the actual quantum and quality of proof necessary to” comply with “New York Times.” Id. at 254.

Obviously, common sense and common decency are important too. Mere name-calling is exceedingly unlikely to be appropriate or helpful in any legal mater.

Posted by: Jack Jordan | Aug 10, 2021 10:44:18 AM

Post a comment