Friday, March 24, 2023

From Big Law To Skype To Netflix To Proposed Disbarment

Misconduct in his own divorce litigation drew a proposed disbarment of an attorney by the District of Columbia Board on Professional Responsibility.

The Hearing Committee Report notes his impressive legal career

From September 1996 to 1999 or 2000, Mr. Libertelli worked as an associate at Dow Lohnes & Albertson. RX 5 at 62; RX 6 at 68; Tr. 62-63. From January 2001 through early 2005, Mr. Libertelli worked for the Federal Communications Commission. RX 5 at 62; Tr. 63-64. From March 2005 to December 2011, Mr. Libertelli worked at Skype as Senior Director of Government Affairs for the Americas. RX 5 at 61-62; Tr. 64. Between December 2011 and June 2017, he worked for Netflix as Vice-President of Global Public Policy. RX 5 at 60- 61. Since then, Mr. Libertelli has worked at various times on his own as a consultant and at other times in-house at other firms. See Tr. 65-68. Since November 2020, he has been General Counsel of Carrier Exchange d/b/a CarrierX. Tr. 60-61.

The facts recited by the BPR

Between August 2016 and November 2017, Respondent falsified at least 62 drug test results and fabricated five results for tests he did not take. FF 35-36. For approximately two months thereafter, he did not undergo any testing but submitted previous results with altered dates. FF 40. He thus concealed his positive tests for various opioids, cocaine, marijuana, and methamphetamine. FF 36-37. Respondent knew at the time that it was wrong and dishonest to submit false test results, but he believed that his deception was justified in order to preserve access to his children despite his drug problem. FF 38.

During a March 2017 merits trial in the divorce case, Respondent falsely claimed to be in recovery, introduced false evidence of clean drug test results, and argued that he was entitled to unsupervised access to his children. FF 41-43. To conceal the amount of money he spent on drug purchases, Respondent altered financial records before turning them over to Y.N. FF 48-51. To conceal his dissipation of assets—another key issue at trial—Respondent gave conflicting testimony about significant payments he had made to his then-girlfriend that were unrelated to his drug use. FF 45-46, 58. He also altered an investment account statement to hide two withdrawals he made in violation of a court order, for which he was later found in contempt. FF 52-55

Use of opioid addiction as mitigation

Based on the evidence in the record before the Hearing Committee, we agree there is support for its determination that Respondent proved by clear and convincing evidence that he was suffering from a disability at the time of the misconduct. The parties do not dispute that Respondent was addicted to opioids during the time of the misconduct, but Disciplinary Counsel contends that Respondent must also show that he was actually impaired – i.e., disabled by his addiction. We agree with the Hearing Committee that the first factor of the Kersey analysis only requires Respondent to show that he suffered from an addiction, subject to the limitations set by Marshall, and that the degree to which Respondent was impaired by his addiction is relevant to the issue of causation.

There is also substantial support in the record that Respondent’s addiction to opioids began after he was legally prescribed the medication for health conditions suffered as an adolescent and then again as an adult. See FF 102-127. Thus, his obtaining of opioids by illegal methods grew out of the early addiction to legally prescribed opioid medication. See HC Rpt. at 139-144. That scenario presents the question, for the first time, of whether a respondent could be eligible for Kersey mitigation where misconduct is substantially caused by illegal drug use that was itself caused by otherwise qualifying addiction. We conclude that permitting Kersey mitigation here would not condone illegal opioid use, nor would it “reward the attorney for illegal conduct” in such a way that “would adversely affect the perception of the Bar.”

Mixed drug use

The Hearing Committee also found that it was impossible, based on the record, to determine the extent to which Respondent’s impairment was due to his consumption of opioids, cocaine, other stimulants, or some combination thereof. FF 266(d); see HC Rpt. at 150. The record also did not establish whether Respondent’s substance abuse caused any particular instance of dishonesty, especially given that some of them were  designed to hide his dissipation of marital assets, rather than his drug use. FF 266(e); see HC Rpt. at 147. Finally, the Hearing Committee found it was especially significant that Respondent continued to lie after he stopped taking opioids in January 2018. FF 205, 266(g); see HC Rpt. at 150-51.

This relates to the causation element requirement of Kersey.

It is not hard to see how addiction causes neglect of cases; it is harder to see how it causes calculated dishonesty. That issue has bedeviled the system since Kersey was decided.

The Kersey case involved a once-respected and well-liked attorney whose alcoholism affected every aspect of his life and practice. Causation was demonstrated because the evidence established he was essentially unable to function as a lawyer.

Editor's note: I prosecuted the Kersey case.

Mitigation here was not established because he failed to demonstrate substantial rehabilitation.

Thus, disbarment.

The unreported decision of the Maryland Court of Special Appeals in the divorce litigation is linked here. (Mike Frisch)

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