November 28, 2018 Articles

Silly Lawyer Tricks XIV

There are rare cases where you shake your head and say, “I don’t believe a lawyer actually did that.”

By Tom Donlon

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.

Bd. of Prof’l Responsibility v. Parrish, No. W2017-00889-SC-R3-BP, 2018 Tenn. LEXIS 404 (Tenn. Aug. 14, 2018)

Although some actions by attorneys are routine mistakes, others are more unusual—and then there are rare cases where you shake your head and say, “I don’t believe a lawyer actually did that.” This is one of those.

In the underlying action, the attorney first sought a declaratory judgment in chancery court regarding the validity of a trust. Having lost, the attorney appealed. Routine so far. While that appeal was pending, however, the attorney brought a separate action in probate court, seeking turnover of assets based on the invalidity of the same trust. A bit aggressive, but perhaps acceptable. Then the appeals court issued a decision in the original chancery case, affirming the validity of the trust. The probate court quickly rejected the turnover petition based on res judicata. The attorney tried a second appeal, where the probate court decision was affirmed as well.

Not dissuaded, the attorney commenced a third action in civil court against the trustee bank. That action also was dismissed as res judicata. A third appeal led to not only a third affirmance but also sanctions for a frivolous appeal.

At that point, the attorney should have realized that it’s “three strikes and you’re out.” Instead, the attorney filed a motion for rehearing and compounded it with a motion to recuse the three judges on the appeals court who had imposed sanctions. It was that recusal motion that got him in real trouble.

So there could be no question as to the attorney’s misconduct, the Tennessee Supreme Court’s opinion, which upheld the subsequent disciplinary action against the attorney, quotes extensively (for 10 pages) actual language used by the attorney in the recusal motion. The attorney’s personal attacks on the appellate judges—in writing—are shocking. He accused them of “rigging the game.” Id. at *5. He charges the author judge with “prejudicial and baseless bias,” ruling opposite what the judge knew the law to be, “us[ing] half-truths to fabricate justification for judicial misconduct,” demeaning the attorney “to create a scapegoat for his judicial misconduct,” and awarding attorney fees “based on fabrication”—and that is just on the first page! Id. at *4–5. The attorney’s motion went on to make more outrageous statements, such as the following:

There is absolutely no way under the sun for [the attorney’s client] to fail to prevail in the instant appeal, except by judges deciding the appeal to turn a deaf ear and blind eye to the clearest possible provisions of [the statute].

* * *

[The judge] has victimized [the appellant] . . . even though a person minimally literate in the English language could very easily read the statute and know, without hesitation, that the statute does exactly the opposite.

Id. at *6. The judge is further accused of “purposeful fabrication,” providing “a façade of legitimacy,” “manipulation/rigging of the legal system,” and being “willing to abuse the power of his judicial office.” Id. at *7–8. The decision’s selection of quotes from the recusal motion ends with a series in which the attorney first disclaims that he “has no evidence . . . and makes no accusation that Judge Farmer has taken a bribe.” Id. at *12 (emphasis added). However, the attorney continues, “although there is no evidence that Judge Farmer received a bribe to do what he is doing, Judge Farmer is doing what a bribe-taking judge would do to victimize a litigant who was targeted by a bribe.” Id. (emphasis added).

After the appeals court submitted the recusal motion to the bar disciplinary authority, a hearing panel initially set punishment at only public censure. On review, the trial court increased the punishment to a six-month suspension. The attorney appealed, claiming that the original censure was enough. The Tennessee Supreme Court affirmed the trial court, holding that the hearing panel acted arbitrarily and capriciously in limiting the punishment. The supreme court rejected the attorney’s claim that his speech on the subject of judicial reform was protected by the First Amendment. The court pointed out that the attorney’s “attempt to justify his conduct by claiming that he is on a crusade for judicial reform misses the point. This case is not about [his] beliefs in judicial reform. Rather, this case involves [his] in-court derogatory statements about the integrity of three appellate court judges. . . .” Id. at *35–36.

Based on the facts, the attorney was fortunate not to be disbarred.

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