Tuesday, February 7, 2023
Misconduct As Client Draws Bar Charges
The North Carolina State Bar has filed a complaint alleging that an attorney (acting as a client, not as counsel) had back-dated documents to defeat charges of self-dealing in civil litigation.
Sanctions had been imposed in the underlying litigation by the General Court of Justice
the Court concludes that Plaintiffs have satisfied their burden with respect to the Laramie Emails that were created by Russell on 28 December 2020 and backdated to 10 July 2019. [forensic expert] Walton opined to a reasonable degree of certainty that Russell both created and backdated the emails. It is undisputed that she forwarded the false emails to her counsel to produce with discovery responses, and that counsel, relying on her representation that the emails were authentic, produced them in discovery. The Court concludes that Russell’s egregious and intolerable litigation misconduct and violation of the certification required by Rule 26(g) warrants sanctions against her.
Default was too harsh
That said, Russell’s fabrication of the Laramie Emails unnecessarily complicated and extended this litigation resulting in significant expense to the other parties. The Court concludes that these costs would not have been incurred but for Russell’s actions. Therefore, the Court, in its discretion, awards to Plaintiffs, the Association, the New Entities, and Jurgens the costs associated with Plaintiffs’ Motion, the parties’ related briefs and supplementary materials, the expense of the Plaintiffs’ expert to perform services and testify, and the hearing on this Motion. These costs are to be paid personally by Russell.
In levying this sanction, the Court specifically finds that, in falsifying the Laramie Emails, Russell acted to further her own personal interests and failed to act in good faith or with reasonable grounds to believe that her actions were in the best interests of the Association or the New Entities.
Finally, the Court is constrained to observe that, in this case, Russell is a litigant. Had she appeared as a practicing attorney, this Court would be compelled to sanction her further for the base violation of professional responsibility that has occurred. It understates the severity of the offense to say that this type of conduct is inconsistent with the integrity necessary to be a licensed member of this State’s Bar. Therefore, even though this Court shares jurisdiction with the State Bar in matters involving attorney discipline, see N.C.G.S. § 84-36, the Court declines to exercise that jurisdiction here, opting instead to refer this matter of general impropriety to the State Bar to consider Russell’s transgressions in a manner consistent with the North Carolina Rules of Professional Responsibility and its prior decisions.