Like the doctors in a M*A*S*H unit, lawyers working in the disciplinary field need to maintain their sense of humor in grim circumstances. This doesn't mean they don't take their jobs seriously or that they are insensitive. Making wry observations helps them relieve the stress of the work.
The following are some of my experiences from my former life at the Office of Disciplinary Counsel, updated according to how my memory is functioning. Names have been omitted to protect the deservedly embarrassed.
Dodging Tomatoes and Other Forms of Welcome
One of my functions at the Office of Disciplinary Counsel was to give talks on ethics upon invitation. You might not think Bar members wanted to listen to me, and you're right! But since all lawyers were required to earn a certain amount of continuing legal education credits in ethics or law office management, I was in demand as the speaker they loved to hate.
I would try to ease the tension at the beginning of my presentations by offering use immunity to anyone who wanted to share an ethical dilemma. At the conclusion of my talk, I'd leave room for questions and was often met with stoney silence. . .until I walked off the podium. Then I would be button-holed by people who didn't want to ask questions in front of their peers, but were willing to line up in the hallway.
I preferred the quiet groups to the vocally hostile ones. At the office, Disciplinary Counsel would rank the various groups in terms of the worst audience. Those were tough calls, but we usually agreed that the Cabell County Bar and the Prosecuting Attorneys' Association were neck-in-neck. The Cabell Bar members would be sullen at first, but then one of them would jump up and say, "Do you mean to tell me that I can't do such and such? That's absolutely crazy!" Scenting blood, the rest of the pack would begin braying and howling.
The Prosecutors would act so rudely that the President of the Association would usually end up apologizing. Someone would always start out a question or comment with, "You don't know what it's like down here in the trenches. . . ." I told them that, in my opinion, defense counsel had a tougher time. They had to worry about getting paid, either from the client or Public Defender Services, which always ran out of money; they had to put up with clients who were sometimes really unlovely, and they didn't have the same kind of investigative resources at hand. My audience was surprisingly unsympathetic to this point of view.
I put up with the Cabell Bar, because they began inviting me to speak at their Thanksgiving weekend seminar at Myrtle Beach. Not only that, but a certain firm graciously allowed me to accompany its members on their annual outing to the Doll House in Myrtle Beach. The Prosecutors offered me no such inducements, and I quit speaking at their meetings. I sent someone else instead, but no Disciplinary Counsel was willing to undertake the task more than once. Fortunately, turnover at the Office was high, and I almost always had fresh meat to throw into the lions' den.
Truth, Justice and the American Way
I have always been respectful of the power that attorneys sometimes wield in society, and I like the opportunity to use that power for good. I got that opportunity once when a complaint was filed against a nonlawyer for alleged conduct which occurred in Maryland. I should have sent the complainant a form letter explaining that we had no jurisdiction, but I was touched by her plight and knew that an attorney might be able to resolve the situation easily.
This complainant had consolidated her debt as part of refinancing her West Virginia home with a finance company. At the closing in Maryland, her credit card balance with AT&T–around $2,000--should have been paid off by the closing agent. However, she began to receive dunning notices from AT&T. Her efforts to resolve with this with AT&T were unsuccessful. She complained that the closing agent had not done what he was supposed to do.
I called the closing agent, who informed me that he was not an attorney. But he explained that he had sent AT&T a check at closing, and had later sent the company a copy of the back of the check, which showed that it had been negotiated. I asked him to send me a copy, too.
I then wrote to AT&T and was careful to explain that I did not represent anyone involved in the matter. I pointed out that the complainant's account number typed on the memo line of the $2,000 check was incomplete, and that AT&T had cashed the check nonetheless without crediting the complainant's account. I asked that this matter be checked out, that the complainant's account be fully credited and that the ensuing penalties and late charges be removed.
AT&T complied to my request, possibly because I am a lawyer and I had a long, nifty-sounding title. My victory didn't translate into a statistic to turn into the Supreme Court, since I couldn't even docket the complaint. But for one day, I experienced a warm glow of satisfaction that justice had been done–and without making anyone mad, at that!
Hold My Magnolia. . .
I freely admit I'm a Northerner. I often make reference to my parents and grandparents, who grew up in West Virginia, to avoid looking like a carpetbagger, but my outlook and upbringing are strictly Northern. Northerners are simultaneously fascinated, charmed, amused, repelled and impatient with Southern culture. West Virginia is not a completely Southern state; it's an interesting blend of Appalachian, Southern and even Northern culture, sometimes varying from county to county. But its close proximity to the quintessential Southern state, Virginia, made the following experience possible.
I received a call from a Virginia lawyer who was full of righteous and eloquent indignation about the conduct of a West Virginia lawyer who was opposing counsel in a Virginia lawsuit–something about cursing a judge. It took some questioning on my part to get at the heart of his complaint, which was: During a deposition, the two lawyers got in a dispute over a line of questions. The Virginia lawyer insisted on telephoning the judge, and the West Virginia lawyer responded in frustration, "Well, then get the damn judge on the phone." The call to the judge was not made until after the offending comment had been made.
When I ventured my humble opinion that such behavior probably did not amount to unethical conduct under West Virginia's Rules of Professional Conduct, the Virginia lawyer huffed, "I can assure you that Virginia does not tolerate such behavior from its lawyers." Since that time, when I get annoyed with my West Virginia brethren and sisters, I fantasize about practicing in mannerly Virginia where the lawyers are oh, so refined.
Heartless
A member of the Board of Governors once accused me of being heartless! Those who know me will be as shocked as I was. Who planted perennials and annuals in front of the State Bar Center several years in a row? Who tried to get a bird unstuck from the State Bar's three story drain pipe? Who spent a whole hour in an auditorium filled with alternatively sullen and smart alecky junior high school students on Law Day because some other coward backed out at the last moment?
What prompted this accusation was this: At the Board of Governor's meeting during the State Bar's annual meeting, a resolution was proposed to memorialize all the lawyers who had died the preceding year. This is a rather routine resolution that speaks in glowing terms of the deceaseds' contributions to the legal profession. This particular year I noticed the name of a lawyer whose law license had been suspended and had never been reinstated before his death. Moreover, the lawyer had actually been disbarred many years before and had been reinstated in a controversial Supreme Court decision, only to get a suspension ten years after reinstatement.
I merely brought it to the attention of the Board that this deceased lawyer had not been entitled to practice law at the time of his death and wondered whether he should be included with those other lawyers who justly deserved to be remembered. This sparked some debate which was concluded with one member saying, "The man is dead. SOME of us have a heart, and this lawyer should not be removed from the resolution."
The lawyer's name was duly included in the resolution, and I found it ironic to learn later on that at the time of his death, he was under a criminal investigation for misappropriation of funds as an executor of an estate. In cases like this, my heart was always with the clients, not the lawyers, however dead they may be.
My Life as a Juror
Gregor Samsa in Kafka's The Metamorphosis woke up one morning and found himself transformed into a giant insect; I woke up and found I had turned into an honest-to-goodness juror. When I walked through the Kanawha County Judicial Annex proudly sporting my "JUROR" badge, all I got from fellow lawyers was bulging eyes and remarks like, "Oh my God-YOU'RE a juror?" or "Man, they'll let anybody be a juror!" Needless to say, I was insulted. I was a damn fine juror.
I had received my summons to jury duty with enthusiasm but with no real expectation that anyone would let me stay on a panel. I was not only a lawyer, but was also the Chief Lawyer Disciplinary Counsel who made other lawyers nervous just by telephoning them. To my delight, I was left on the panel of a criminal trial. The charge was attempted murder of a law enforcement officer who sustained a rather small cut on his finger during an altercation with the defendant. The prosecutor reasoned that, as a disciplinary counsel, I possessed the heart of a prosecutor. I never learned why defense counsel left me on.
The rest of the jurors concluded that I was a court spy. The first morning I walked into the jury room, everyone stopped talking. I had to assure them that I was a juror like anyone else. But wanting to be one of the guys placed me in a position of conflict. I was still an officer of the court. When the jurors would start discussing the case during breaks, I would hesitate about when to remind them not to do that. Observations about the lawyers and the judge seemed harmless to me. I also felt it was my duty to elbow my neighboring juror when he would fall asleep. I refrained from imparting information the others wouldn't know, such as the fact that the defendant's lawyer was a public defender.
I was surprised how heavy the responsibility of being a juror seemed. As a disciplinary counsel, I was an advocate; someone else made the decisions. Here, whether a person would be imprisoned was up to me and 11 other people. My stomach was knotted with anxiety every day.
Lawyers assume that a lawyer-juror will dominate the others and control the deliberations. Such was not my experience at all. The other jurors did look to me to explain the process to them. For example, when we began deliberating, the first thing they asked was "When are we going to find out what went on during those bench conferences?" They were incensed to learn they wouldn't. They picked me to be forewoman, and I agreed to do it to make sure that deliberations didn't go astray. They wanted to vote quickly, but I made sure that we reviewed each element of each charge and that everyone got the opportunity to speak. I did not express any views until finally someone said, "We've heard from everyone else, what do you think?"
Being a lawyer, I could see both sides and found it difficult to form an opinion. But since everyone else was firmly for acquittal, I joined in. What I observed of the jury surprised me. They were ready to believe that the police officers were lying (this being after the O.J. Simpson trial); they dismissed the emotional tone of closing argument by one of the prosecutors as irrelevant; they were unimpressed by the testimony of the Chief Medical Examiner; they did not find it unusual that the defendant might be frying potatoes at 2:00 a.m. (as the reason why the defendant held a knife when the police officers came into the kitchen); and while the defendant was African-American and lived in public housing and the jurors were Caucasion, no one member expressed anything resembling a racist remark. We were all a little nervous about acquitting in a case in which a police officer was the victim. We issued our verdict and quickly exited the Judicial Annex in a group.
One aspect of the judicial process struck me as inane. The jurors should be given a copy of the jury instructions. No one really believes that a jury listening to 20 minutes of instructions and an hour of argument will ever remember them. For example, we were read the elements of several lesser included offenses. When it came time to consider one, we couldn't remember all of the elements. I sent a note to the Judge asking if he would read the instructions pertaining to the elements of this particular offense. Predictably, he offered to read all of the instructions again or none. When he asked me to make a choice, the other jurors hissed, "No, no." So we went back to the jury room and muddled through. No one wanted to listen to all that stuff on reasonable doubt, etc. at 5:30 p.m. Also, jurors should be allowed to take notes, if for no other reason than to stay awake and focused.
My father was recently on a civil jury in Ohio, and his jury was provided with a copy of the instructions. The members were permitted to take notes, but they were collected after deliberations. He tried his best to get me disbarred by wanting to chit chat on his cell phone during breaks (before deliberations), but that's another story.
Tar Babies
There is an Uncle Remus tale about the Tar Baby. (I've seen it attributed to author Joel Chandler Harris in the 1800's.) Brer Fox made a doll out of tar, and he placed it in the roadside to even the score with his archenemy, Brer Rabbit. Brer Rabbit spoke to the Tar-Baby, got angry when it did not answer him, struck it, and got stuck. The more he struck and kicked the figure, the more hopelessly he became attached.
I learned during my years as disciplinary counsel that some complainants and respondent lawyers can be tar babies: The more contact you have with them, the worse off you are. But, boy, are you tempted to take another swipe. The Alger Hiss case is a fine example. Hiss had been a highly placed lawyer in the State Department. He was accused in the late '40's of passing documents to Communists by a somewhat disreputable guy named Whittaker Chambers. The accusations by Chambers fell on deaf ears, but Hiss couldn't let the episode die. He sued Chambers for defamation. Eventually, Hiss was investigated by the Committee on Un-American Activities and a federal grand jury. He was convicted of perjury before a grand jury and was disbarred in 1952. Whittaker Chambers was definitely a Tar Baby whom Hiss should have walked on past.
Tar Babies typically accuse you of all sorts of wrongdoing with little justification and are just plain trouble. See "Sticks and Stones" below. Such conduct angers you, and you want to retaliate in some fashion. It helps to remember the Tar Baby story and walk away, if you can. Sometimes you get a good result defending a client, and the client naturally wants to sue for malicious prosecution, etc. Depending on the facts, I usually trot out the Tar Baby speech.
There was one complainant who was a Tar Baby . When his ethics complaint was dismissed, he filed complaints against me, another disciplinary counsel and the respondent's attorney. The handling of these complaints was farmed out to special counsel. When they were dismissed, the complainant filed complaints against special counsel and the Investigative Panel Chairman who signed off on the closing. Every lawyer who touched the complaint in some fashion was ending up with an ethics complaint. Eventually, an administrative order was entered forbidding the complainant from filing any more ethics complaints.
Sticks and Stones. . .
As Disciplinary Counsel, I viewed myself as a messenger delivering bad news, rather than being the source of the problem. Some lawyers did not share this perspective. Others thought that an offense was a good defense. So I was accused of every type of misconduct possible, except for being the second shooter behind the grassy knoll.
One lawyer, whom I'll call "Michael C. Allen," accused me during a hearing of manufacturing a document his lawyer/client had actually given me during the investigation. He also claimed I was obstructing justice when I talked to the complainant during a break in her testimony. Actually, she had told me something the day before which differed from her testimony on cross, and I was trying to get her to tell the truth–which was, in fact, harmful to my case.
Another lawyer, trying to stop his own disciplinary hearing from going forward, argued before the Supreme Court that I was guilty of unspecified "criminal conduct." He had been charged with recklessly making false accusations against a judge.
Yet another lawyer wrote to the Chief Justice that I was persecuting her and that she couldn't wait to get her hands around my throat, except that since I was such a heavy cocaine user, she might not want to get too close.
My assistant received an anonymous call which informed her that "if Sherri Goodman doesn't get her facts straight, I'm going to break her f----ing neck!" Another caller, once he got me on the line, hissed, "you bitch" and hung up. I checked with my husband, who claimed it wasn't him, so I had to conclude this was work-related.
When I was prosecuting a case involving a certain public official who was chummy with the local newspaper, the editor ran three editorials accusing me of being immature and overzealous and recommending that the State Bar pay a larger salary to get a more mature person for the job. We decided at the office that the editorial really meant that a man should be hired and it would cost more to hire one.
Recently, in a disciplinary hearing which was not complete before I left, I achieved the penultimate accusation--murder. The respondent/lawyer stated in a brief to the Supreme Court that he had been told information he could not confirm, but he would repeat it anyway: In 1983, I lured my dinner date to a restaurant where he was shot in the parking lot. I was a suspect, but the investigation stalled, only to be resurrected when a new prosecutor took office in 1989. This prosecutor wanted to have a hold over me so I wouldn't investigate any complaints against him. (There actually was a shooting in a restaurant parking lot in 1982, but I hadn't moved to West Virginia yet.) Sadly, one of this respondent's problems, brought out at the disciplinary hearing, was that he tended to believe every wild story of conspiracy, destruction of evidence, etc., his criminal defendant clients told him, causing him to make accusations with reckless indifference to the truth.
A Lawyer Who Represents Relatives Has a Fool for a . . . Lawyer!
I'm told there are three things you learn in law school. The first is not to take boundary dispute cases; the second is not to represent yourself. I forget the third, but I'd like to add a fourth: If you value your law license, don't represent your relatives.
A lawyer whose father was a victim of embezzlement by an employee threatened criminal prosecution to obtain restitution and ended up before the Lawyer Disciplinary Board. Another lawyer briefly represented her brother in his divorce, called her sister-in-law to "mediate" and got a complaint filed against her for talking to a represented party. Another lawyer, who helped his sister avoid a paternity action in West Virginia, so she could give the baby up for adoption, ended up with a very large judgment against him when the putative father sued.
My theory is that a lawyer has a harder time saying "no" to a relative than any other client, and therefore gets pressured into doing things he/she would never dream of doing otherwise. But it's not only an ethics complaint or lawsuit from the opposing party you have to be concerned about.
If you think that one of your relatives would never file an ethics complaint against you, think again. We had complaints from sisters, aunts, uncles and cousins. (I was once accused of being so tough that I would investigate my own mother. I assured her this wasn't true--since she lived in Ohio where I had no jurisdiction)
Let me tell you about my mother, as the replicant in the movie Blade Runner said before he shot the man interviewing him. After years of piously warning lawyers about representing their relatives, I ended up defending my parents in a tortious interference with expected inheritance suit in Ohio. (West Virginia also recognizes this bizarre cause of action.)
My mother's best friend, who died in her forties, had two sons. Their father made a will several years before he died, leaving everything to the youngest son. After the father died, the older son sued both of my parents, claiming that they had convinced his father to make this will by making false accusations against him (involving the son's handling of his grandmother's estate). Confused yet?
My parents' lawyer had already begun representing the youngest son when they were also sued and decided he could not represent all of them. They did not want to hire a perfectly strange lawyer and give him/her lots of money. Frankly, I did not want them to hire a perfectly strange lawyer and give him/her MY inheritance. So when my mother called and asked me to represent them, I agreed.
Between the two of them, they began calling me daily and sending me loads of handwritten notes. I started referring to them as my PITA clients (pain in the you know where). Mom was PITA #1 and Dad was PITA #2.
They also ignored all of my instructions, such as don't talk about the case to the youngest son, their codefendant. And the lawyer who was so high-minded that he couldn't represent all of the parties, still called my parents to talk about the case without my permission.
I traveled to my hometown in Ohio one weekend to take a recorded statement from the younger son, who lived overseas. My mother and I drove him back to his father's house after the statement, As they were sitting in the front seat of the car discussing the case, I put my hands over my ears and chanted "I am not hearing this; I am not hearing this," like the lawyer in Sister Act when his mobster client was giving orders to his henchmen to eliminate a witness.
Mercifully, the case ended quickly. I filed a motion to dismiss on the grounds that probate court lacked jurisdiction to hear a tort action, and it was granted before opposing counsel had a chance to file a response. Unfair, you say? Justice delayed is justice denied.
WARNING: Nothing in this segment is funny; in fact it is heartbreaking. As disciplinary counsel, I was the sad witness to the self-destruction of lawyers by alcohol or drugs. By confronting these lawyers or bringing disciplinary or impairment charges against them, I hoped to serve as a wake-up call to them, but there were some who wouldn't or couldn't hear.
A young lawyer had been charged with drug buying from or selling to inmates in a county jail. He became drug-free, but continued to drink. During a disciplinary hearing, he steadfastly denied that he had a drinking problem which required treatment. While the disciplinary proceeding was pending, he died suddenly of an alcohol-related organ failure.
We had a complaint about a middle-aged lawyer whose performance in a criminal matter seemed incredibly ineffective. Some reluctant conversations with his peers uncovered that he had a drinking problem. I asked him to come to the office for an informal talk at 2 p.m. one afternoon. He showed up somewhat disheveled and reeking of alcohol. He was extremely thirsty throughout our meeting. He denied drinking that day, but admitted that after several weeks of not drinking, he had gone on a bender the night before. He disclaimed any anxiety about our impending meeting. I found it hard to believe that he had not been drinking on the day of our meeting, but I have since learned that the smell of alcohol can permeate the drinker long after the drinking episode. I recall sitting at the conference table wanting to shake him and scream, "You're killing yourself." We discussed his getting outpatient treatment for his drinking, and he did make some effort. But he died not long after our meeting.
Another lawyer insisted that the reason so many people believed he was drunk in court was that he used cherry/vanilla pipe tobacco and its odor clung to him.
Drug-addicted lawyers are in a different class from the alcoholics. An alcoholic will conceal the extent of his/her drinking, but a drug user has to deny his/her use altogether because of its illegality. Drug users have a striking ability to lie fervently and convincingly. One lawyer's license was suspended temporarily after showing up in an emergency room in an incoherent state. After several years he regained his license, but he was arrested for crack possession twice. In a telephone conversation, he emphatically proclaimed, "Ms. Goodman, I do not use drugs. I swear on my mother's grave that I do not use drugs." I called the addictions counselor who worked with us for a reality check. He assured me that drug users are accomplished liars. At a day-long disciplinary hearing involving client money, we watched the lawyer disintegrate before our eyes. He started out okay, but by late afternoon, he was like the Wicked Witch of the West who melted into a puddle. His testimony was rambling and disjointed. He contradicted himself badly on cross- examination. Several days after the hearing, he was arrested once again for stealing a check from his paralegal and forging it. I understand that during one of these criminal proceedings, he blamed his conduct on his cocaine addiction.
Goodman's Theory of Relativity - x8.4(c) /y = disbarment
Rule 8.4(c) states that a lawyer shall not engage in conduct involving dishonesty, deceit, fraud or misrepresentation. We can conclude from that broad proscription that lawyers should not lie...for the most part except when they're cheating on their spouses, when the work pressure is just too great or they are being questioned by their own lawyer (everybody lies to his/her lawyer at some time). In fact, there are other admonitions about lying peppered throughout the Rules of Professional Conduct: Don't lie to the court about material facts; don't lie to third persons; don't knowingly introduce false evidence.
But what happens in the disciplinary system to a lawyer who lies depends on whom she is lying to (the x factor) and what body is reviewing the lie (the y factor).
There is a hierarchy involved in the x factor. To the Court (the y factor), lying to opposing counsel or lying in pleadings is mostly shrugged off as zealous representation or a sharp practice. Lying to a client will merit a public reprimand or, if the lawyer was stupid enough to commit the lie to paper or the client was smart enough to tape the lawyer, a shortish suspension. The Court is only a little more excised about lying to the Lawyer Disciplinary Board or the Board of Law Examiners. One Justice sometimes observed from the bench, "It seems to me that if a lawyer is cooperative and simply rolls over, the Hearing Panel goes easy on him. If a lawyer vigorously contests the charges, you want a more severe sanction." But if a lawyer lied to a judge, then it was off with the lawyer's head!
But the seriousness of the lie all depends on who is reviewing the conduct (the y factor). A lawyer who regularly defends lawyers told me that a long time ago, he overheard the Hearing Board deliberating in a case he was defending. The charged involved relatively mild misconduct. The refrain coming from the room, however, was, "But he lied to the Hearing Board!"
Of course, I was the most concerned about lawyers lying to the Office of Disciplinary Counsel! True to the Theory of Relativity, however, I couldn't get the Hearing Panel too excited about that.
Reach out and touch someone
Doing disciplinary work day in and day out sometimes made me forget the potential impact on a lawyer that "a call from Sherri Goodman" would have. For example, while investigating a complaint, I telephoned a lawyer one Friday afternoon for some information. This lawyer was NOT the subject of the complaint. He was out of the office, so I left a simple message asking him to call me. On Monday morning, I received a return call from the lawyer, who was clearly agitated. When I explained the purpose of my call, he informed me that he had spent the entire weekend being upset and wondering why I had called.
Of course, this type of response always left me speculating just what the lawyer had done to leave him so vulnerable to such anxiety. There were occasions when I called a lawyer for an innocuous purpose, and he/she blurted out, "I know why you're calling." He/she would launch into a passionate explanation of some conflict with a client of which I knew nothing about. . .until then.
Once, when I called a member of the Lawyer Disciplinary Board on some administrative matter, he even said, "Boy, it makes me nervous when I hear that you're calling me."
When I telephoned a lawyer for information unrelated to a complaint about him/her, I often left the message with the receptionist, "You're not in trouble" to head off undue panic. But I suspected that my calls were not returned as quickly. One of the few benefits of doing disciplinary work was that most people returned my telephone calls.
It was refreshing, albeit annoying, when a lawyer not only had no concern about the subject of my call, but was overtly hostile to me. The "Oscar the Grouch" award went to an older lawyer who is now deceased, but was very much alive and kicking when I called him. I had received a call from an Assistant U. S. Attorney from a western state. She was trying to work out a plea agreement on a criminal matter involving a West Virginia resident, but could not get the defendant's lawyer to return her calls. I offered to telephone the lawyer to help facilitate communication. When I explained the purpose of my call to the lawyer, he responded, "You go to hell!" and hung up on me.
Complaining about the complainants
Lest I be accused of only picking on lawyers, the following are some of my fondest memories of the people who made complaints about them:
* People on the telephone asking for my help would finish their request by saying, "Of course, you're a lawyer, too, so I know you won't do anything." Since I have the unfortunate but subconscious habit of insulting people just before I ask them for a favor, I was not too offended by this. It was also gratifying that they at least recognized I am a lawyer. I had spoken and met with complainants over a period of months who would eventually ask me "Are you a paralegal?"
* One gentleman, whom I never met, faxed the office off and on during my nine-year tenure, complaining about a lawyer who represented him on a Workers' Compensation claim in 1963. Any office or public official who would not help him became part of a pervasive, corrupt conspiracy. This guy continues to fax his accusations to agencies and lawyers all over the state.
* One frequent complainant always mentioned in her letters that she was the illegitimate daughter of John F. Kenndy and Marilyn Monroe. She once wrote from a state mental facility that she had been recruited by a lawyer to work for the state crimes task force. Her assignment was to infiltrate the state facility, but now they would not let her leave. She also claimed that she had been operated on against her will and turned into a "Kenndy robot". When I told the (then) Chairman of the Investigative Panel about the Kennedy robot, he responded, "I haven't seen one of those for years."
* Lawyers were also sometimes complainants. I viewed with skepticism any complaint from a lawyer which began, "It is with deep regret that I must file this complaint about Lawyer Jones." This disclaimer reminded me of the personal injury clients who filed complaints about the small amount of money for which their attorney had settled their case and mentioned that they had wanted to sue the tortfeasor for the "principle of the matter, not the money."
Shakespeare portrayed Polonius as an insufferable toadying windbag who deserved to be skewered by Hamlet even if it was an unfortunate case of mistaken identity. But lawyers should take Polonius's advice when it comes to trust accounts and clients' pockets.
Many lawyers know of the problems of loaning clients money. But most aren't aware of the converse: clients loaning money to their trusted attorneys. It happens more often than even I, who was accused of being cynical, heartless and overly suspicious, imagined.
One lawyer reminded me of Wimpy, who told everyone he met "I will gladly pay you tomorrow for a hamburger today." This lawyer asked just about any person he had contact with for a loan: clients, a client's girlfriend, and even a real estate purchaser whom he met for the first time at a closing.
What is amazing to me was the number of people who lent him money. My experiences as a young lawyer would not have led me to believe clients would ever part with any money they had. Except for those accused of drug dealing, the criminal defendants couldn't pay their bills after the retainer was used up. One time, the first retainer check, which was a trust fund check endorsed over by the incarcerated client to the law firm, turned out to be kited by $100,000. Personal injury clients would ask me for an advance before the ink was dry on the contract (to which I piously replied that the ethical rules prohibited me from doing so, much as I'd like to).
Even more amazing was how much clients were willing to loan their lawyer. These were not corporate type clients either. One loaned an attorney representing a relative on a serious criminal charge $180,000 over a period of 14 months. Another loaned his lawyer $100,000.
The only reason I learned about those transactions was that the lawyers, having the incredible good fortune of receiving a loan from the client, hadn't paid back a dime. The Wimpy lawyer lost his license and was last seen selling prepaid legal service plans.
Sometimes disciplinary work seemed like a never-ending episode of I Love Lucy with Ricky glowering, "Lu-cee, you got some 'splaining to do". When called upon to account for their conduct, lawyers could be quite creative. And why not? We are legal spin doctors, trained to put the best face on the worst set of facts in advocating our clients' causes. These are my favorites:
When asked why he did not respond to any of his client's increasingly frequent and agitated calls and registered letters asking about the status of her legal matter over a period of months: "Nothing new had happened in her case, so I didn't have anything to tell her."
Called upon to account for his failure to file personal income tax returns for 12 years, a lawyer said, "My law practice was time-consuming, and I put my clients' needs ahead of my own."
A lawyer who had a client's settlement money had delayed paying the client for months with a veritable pot pourri of excuses. Having my suspicions, I set an appointment for him to come to our office, to which he readily agreed, so he could deliver the money. The client, who was in a wheelchair, made the trip into town. Three o'clock came and. . .no lawyer. But five minutes later, he called. We had the following exchange: HIM: "I'm on route 35, and my car overheated." ME: "Do you have a check for the client with you?" HIM: "Of course." ME: "I'll send someone to pick you up, bring you to the office and then take you back to your car." HIM: "No, I'd better see to getting my car fixed right now." ME: "Are you telling me that you have enough money in your trust account this very minute to pay the client." HIM: "Yes". ME: "I went to your bank today with a subpoena and your trust account is overdrawn." HIM: "I have another trust account at the bank." ME: "I had them look at all of your accounts, and there is no other trust account." HIM: "Well, I meant at another bank." And so on, and so on.
A lawyer in the northern part of the State who had not responded to an ethics complaint or to a number of threatening letters from us, had been subpoenaed to appear in Charleston on December 24 at 9:30 a.m.and answer to the complaint in person. (The Investigative Panel later accused me of being Scrooge for making him come in on Christmas Eve day.) He did not show. He later called the office and left a message for me that he was unable to appear. He sent me a written response to the complaint with an explanation for his failure to comply with the subpoena. It seems that the evening before, he had been fishing in a stream and had slipped and fallen into the water. He lost his glasses in the fall and could not see to drive.
A lawyer disbarred for misappropriation of funds petitioned for reinstatement. In the years following disbarment, he had never worked a steady, salaried job. Instead, he had worked "helping" people obtain business financing that never seemed to materialize after the borrower had put up money. He had filed for bankruptcy and been evicted from two different homes he owned. He had personally borrowed money from scores of people. When I asked him why he hadn't worked as a paralegal, he responded, "I didn't want to get into ethical trouble."
Upon becoming disciplinary counsel, I never dreamed I'd learn so much about lawyers' private lives. It reminded me of the opening sequence in David Lynch's movie, Blue Velvet. In a suburban setting, a man is watering his nice, green lawn. As the camera pans down, it takes you into the grass where there's all these creepy, crawley things. And the creepiest, crawliest aspect of my job was finding out about a lawyer's sex life.
No Kenneth Starr was I, on a puritanical mission to uncover illicit relations and recount them in great detail. But there were some complaints about sexual misconduct which needed to be investigated. Mainly lawyers used sexual conduct as a mitigating circumstance for their law-related unethical conduct.
I learned that when a male lawyer testified at his disciplinary hearing that he had been having "marital difficulties", that meant he was having an affair with his secretary or client. When he was having "severe marital difficulties" his wife had caught him in the act of having an affair with his secretary or client.
We are all familiar with the scenario of lawyers hitting on their divorce clients. One lawyer (now disbarred) referred to his domestic relations practice as "stocking the pond". Another lawyer had an affair with one of his divorce clients and ended up getting a divorce himself and marrying her. That marriage ended when his wife found him with another divorce client!
In the '80's, one lawyer whose divorce client alleged that he had pressured her into a sexual relationship admitted that he had engaged in oral sex with her after she had lured him into her bedroom (on one occasion) and a motel room (in another). But, he continued in his written response, he knew his ethical obligations and steadfastly refused to have "vaginal intercourse" with her. I think this lawyer went on to be President Clinton's legal advisor.
While researching the question of whether it is a conflict of interest for a lawyer to have a clandestine affair with his personal injury client's wife, I ran across the following disciplinary case. A lawyer representing a man in a criminal matter stopped by the client's home, but the client wasn't there. He then offered to pay the client's wife and the client's girlfriend to have sex with him, preferably at the same time. (Apparently, the client, wife and girlfriend lived together.)
Ghost Pleadings and Other Things that Go Bump in the Night
Procrastination is one of the deadliest and easiest traps a lawyer can fall into. Ironically, it takes more energy to procrastinate than it does to get the task done: Angry clients, bosses or ODC have to be avoided or appeased; you have trouble sleeping at night; you become irritable when your staff tries to broach the subject.
Some lawyers go beyond the normal scenario and pretend to do the work. This really takes a lot of energy. It reminds me of my aversion to taking baths, as a child. I would lock myself in the bathroom and create a convincing scene of wet soap, damp towels and tub when I could just as easily have taken the bath. (I'd like to add here that I overcame this aversion many years ago.)
These lawyers, who were supposed to file a civil action, prepared a bogus pleading to give to their client. The complaint was usually sufficient to file, but was not filed. One lawyer, to keep the charade going, prepared a bogus answer from nonexistent opposing counsel to give to the client.
A lawyer, who was supposed to foreclose on property but had not, held a phantom judicial sale on the court house steps with his client looking on. Another wrote indignant letters, with copies to the client, to a defendant who had purportedly stopped making installment payments on a settlement, when it was actually the lawyer who had embezzled the lump sum settlement and had pretended to agree to installment payments to forestall discovery.
My favorite is the attorney who prepared interrogatories purporting to come from opposing counsel and made his client spend time answering them. All the while, the lawyer had never filed the lawsuit. Talk about adding insult to injury! The attorney representing him in disciplinary proceedings argued earnestly that the respondent should only receive a public reprimand. My response was that he deserved to have his law license suspended, if for no other reason than those interrogatories.