At least from the time of Richard Nixon, when people get in trouble, it’s always because of the cover-up. In this case, while an attorney’s out-of-court statements about a judge may have crossed the line, it was her lying at an ethics disciplinary hearing that sealed her fate. This decision involved reciprocal discipline by Oklahoma for discipline initially imposed by Illinois.
The attorney became involved in an Illinois political campaign between a present judge and a former judge. The incumbent had reported the former judge to the Judicial Inquiry Board “for providing allegedly deceptive responses to the police in a murder investigation.” Id. at *2. Supporters of the former judge then opposed retention of the incumbent at the next election.
The attorney, who joined the anti-retention group, created a website through GoDaddy entitled “firetheliarjudge.com,” and then linked it to another website entitled “firejudgeglesson.com.” Id. Although the attorney later claimed not to have posted anything but basic information, the websites and a Facebook page (to which she gave the anti-retention group access) would accept any posts from anyone. For example, one post accused the incumbent judge of “being part of a racist white supremacy group, including the Ku Klux Klan.” Id.
The attorney communicated with GoDaddy about the website multiple times—using an alias. On one occasion, although not mentioning the incumbent judge by name, she told the customer service representative: “I will tell you how evil it is. They’ve attempted to set up another judge of a different political party for murder… . And this is the guy who orchestrated it.” Id.
The Illinois Disciplinary Hearing Board found that statement was not an ethical violation because it did not identify the judge by name. However, the Illinois Review Board disagreed, finding that it violated the rule against false statements impugning a judge’s integrity.
It was not the statement the attorney admitted making that was the real problem, though; rather, it was the ones she denied making. At the Illinois hearing, the attorney, among other false statements, denied that she knew who set up the website or who controlled or managed it. Ultimately, she did admit she was asked to help set up the website.
In imposing discipline of 30 days’ suspension and required attendance at a professionalism seminar, the Illinois Supreme Court found that the attorney “knowingly made false statements during the disciplinary hearing,” in violation of the ethics rules. Id. at *1.
In upholding reciprocal discipline, the Oklahoma court stated that the record showed that the attorney, to minimize her involvement, falsely testified
that she did not set up the website; did not control or manage the website; that she did not know who set up the website; that she did not know when the website was set up; that other people set up the website; that she did not know what email address was used to set up the website; and that her role was limited to helping other people set up the website.
Id. at *4. The Oklahoma court found that those statements constituted both knowingly making a false statement of material fact and engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” Id. Based on all the facts in the record (which the attorney did not refute), the Oklahoma court sustained reciprocal discipline, mirroring that imposed by the Illinois court.
Given the relatively limited punishment imposed by both courts, the attorney might have escaped with much less—or perhaps even no punishment—but for lying at the disciplinary hearing in an attempt to cover up her actions.
This sanction decision arose out of a complicated fact pattern involving two separate lawsuits and some salacious charges. Ultimately, it was the party bringing those charges that was sanctioned both at trial and for a frivolous appeal.
The case began as a malpractice action by a woman claiming damages from breast reduction surgery. During that case, certain private information, including nude photos as well as medical records of a social disease and mental health issues, were filed with the trial court. The plaintiff brought a second action for invasion of privacy, abuse of process, infliction of emotional distress, and breach of conduct against the original medical defendants—and their defense attorneys—claiming that the private information that was revealed had “nothing to do” with the plaintiff’s initial health-care liability claims.
The plaintiff’s complaint in the privacy action (which the decision quotes in detail) claimed that the defendant doctor and his attorneys “conspired, and, indeed carried out a plan, to humiliate, embarrass, and terrorize [the plaintiff]: all in retaliation for retaining her specific attorneys” and for filing the malpractice action. Id. at *2. As part of this plan, the complaint alleged, the defense attorneys drafted a sanctions motion brief to which they appended copies of all the private information, including the nude photos, and filed the brief in court such that it was available to the public and the media.
The defendants responded to this complaint not with a denial or an apology but rather with another motion for sanctions—and a motion to dismiss.
At this point, the tenor of the story, in which the plaintiff had appeared the victim, changed. Rather than continuing to hear the plaintiff’s salacious charges, the trial court granted the motion to dismiss and scheduled a hearing on sanctions against the plaintiff’s counsel. Although subpoenaed, the plaintiff’s counsel failed to appear at the sanctions hearing. The defense counsel testified that the allegations in the privacy action complaint “were false and submitted for the improper purpose of harassing and intimidating defendants from pursuing sanctions against Plaintiff’s counsel in the previous healthcare liability cause,” which the plaintiff had ultimately voluntarily withdrawn. Id. at *4. The trial court awarded sanctions of $32,000 against the plaintiff’s counsel, stating, “This suit is frivolous; the Court does not know if it has ever seen a suit that is as frivolous as this case.” Id. The attempt to intimidate failed as the defendants recovered sanctions of approximately $70,000 in the first malpractice case.
How did a case that seemed so bad for the defendants turn completely around? The appellate court pointed out two major flaws in the plaintiff’s privacy action. First, the claims were barred by the one-year statute of limitations. Court records showed that the private information had been filed two years before the plaintiff alleged it had been filed. Second, rather than having “nothing to do” with the malpractice action, the information was submitted to demonstrate that the plaintiff had misrepresented the fact that her treating physician had actually been retained as an expert. The private information was produced by the plaintiff’s own treating physician witness in response to a subpoena. That production revealed that the plaintiff had supplied all of the private information in seeking to retain the physician as an expert. Although the plaintiff’s counsel “affirmatively represented to the Court on numerous occasions that [the doctor] had never been retained as an expert,” the medical records that the doctor produced (including the private information) “directly contradicted” earlier representations by the plaintiff’s counsel—and under Tennessee law made the doctor an expert. Id. at *9. Moreover, the plaintiff’s counsel admitted to the trial court that she intended to use the nude photographs as evidence in the malpractice action. Thus, as the trial court found, “the filing of the sensitive information was both necessary and relevant to the issues in the case.” Id.
The appellate court not only affirmed the sanctions imposed by the trial court but granted further sanctions for a frivolous appeal because the appeal “was so devoid of merit it had no prospect of success.” Id. at *12–13.
Besides confirming the adage that things are not always what they appear, the case has an additional twist. While this column has repeatedly pointed out the risks of appealing a sanction award at trial, here, the counsel, who was sanctioned, did not join the appeal—and, therefore, the plaintiff, who was not sanctioned, had no standing. So, the plaintiff, who was not liable for the sanctions below, became liable for bringing the frivolous appeal.
In an age of electronic filing, many attorneys complain about also having to file paper copies. This attorney did more than complain—and it cost him.
In this case, the U.S. Court of Appeals for the Seventh Circuit issued a show-cause order prompted by counsel’s failure to file paper copies of his reply brief, in an appeal that he lost. See United States v. Richardson, 60 F. 4th 397 (7th Cir. 2023). The court of appeals pointed out that this failure “was just the latest instantiation of [counsel’s] dogged refusal to comply with the rules and orders of this Court.” 2023 WL 2071688, at *1.
The opinion then recites a list of appeals in which the attorney failed to file paper copies of his briefs. In one example, the attorney failed to file a notice of appeal, failed to file required transcripts (resulting in an order to show cause), and failed to timely file an opening brief (resulting in a second order to show cause). When he finally filed an opening brief, he did not file paper copies, nor did he file copies with his reply brief.
In several of the listed cases, when the circuit court clerk sent deficiency notices, the attorney either did not respond or failed to file the required pleading within the extended deadline—and when he did file, he did not file paper copies. The court of appeals issued multiple orders to show cause, to which either the attorney did not respond or his response was untimely. As the decision states, “[i]n sum, none of [the attorney’s] ten most recent appeals—all of them as appointed counsel—has been error free.” Id.
In the present appeal, after oral argument, the court issued a second order to show cause, noting that the attorney’s response to the original order was unconvincing and giving the attorney 21 days to respond. As the court stated, “[b]ecause past is prologue [the attorney] failed to comply,” and still had not responded by the date of the decision. Id. at *2. Concluding that “[a]ction is therefore necessary to protect litigants and the authority and dignity of this Court,” the court imposed a monetary sanction—and suspended the lawyer from practice before the Seventh Circuit for one year. Id. The court also ruled that even if the attorney sought and obtained readmission after a year, “he shall not be appointed pursuant to the Criminal Justice Act unless and until he has demonstrated a willingness and ability to comply with the orders of this Court.” Id.
On the positive side, he will not be required to file any paper copies for at least a year.
The plaintiff in this case did not have much luck in picking lawyers, and they did not do well with him as a client.
The plaintiff sought damages from the U.S. Army for revoking his security clearance. During the administrative proceedings, the army offered to settle for $200,000. The plaintiff claimed that his attorney did not tell him about the settlement offer but admitted he learned about it the next day. After consulting with his attorney, the plaintiff rejected the offer. In retrospect, that turned out to be a mistake.
Although the general rule is that courts cannot review security clearance revocations, the attorney filed suit in the U.S. District Court for the D.C. District hoping to take advantage of a seemingly favorable U.S. Court of Appeals for the D.C. Circuit precedent. However, “[t]his strategy proved unsuccessful” when the D.C. District Court held that venue was improper and transferred the case to the U.S. District Court for the Eastern District of Virginia. As the U.S. Court of Appeals for the Fourth Circuit followed the general rule, the Eastern District of Virginia dismissed the case. Id.
At this point the plaintiff turned on his former lawyer and sued him for malpractice. However, the plaintiff was not best served by his new attorney. The district court granted summary judgment because the plaintiff (and his new attorney) presented no expert evidence of the relevant standard of care. The D.C. Circuit affirmed on the same basis.
As the court of appeals opinion points out, that left “one loose end.” Id. at *2. The parties, pursuant to Federal Rule of Appellate Procedure 30(c), had deferred their joint appendix until after the principal briefs were filed. In such cases, parties must file final briefs replacing record citations with citations to the joint appendix but make no other changes except to fix typographical errors. The plaintiff’s second attorney improperly “add[ed] fifteen pages of new material to his final opening brief.” Id. When the plaintiff’s prior attorney, representing himself, pointed out this violation, the circuit court imposed sanctions requiring the plaintiff’s second lawyer to pay attorney fees to the plaintiff’s first attorney.
There is no word yet as to whether the plaintiff has hired a third attorney to sue the second attorney for failing to present expert evidence as to the standard of care.
This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.
