Name That Sanction! Sex, Lies & Videotape Edition

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1 Name That Sanction! Sex, Lies & Videotape Edition Adam Kilgore is General Counsel for The Mississippi Bar where his duties include reviewing all Bar complaints, conducting investigations regarding Bar complaints, prosecuting attorney discipline cases, handling appeals before the Supreme Court of Mississippi, and serving as Bar liaison for the Board of Bar Commissioners, Committee on Professional Responsibility, and the Ethics Committee. Adam is a member of The Mississippi Bar, National Organization of Bar Counsel, Capital Area Bar Association and the Professional Responsibility Section of the American Bar Association. Adam earned his Bachelor of Science in Business Administration with a concentration in Communications from Mississippi College in 1992, and graduated from Mississippi College School of Law in 2000 where he was a member of the Moot Court Board. Upon graduation Adam served as a law clerk at the Supreme Court of Mississippi for Chief Justice Edwin Lloyd Pittman. Adam has worked at The Mississippi Bar since 2002, serving as Assistant General Counsel for two years prior to becoming General Counsel in Melissa ( Missye ) Selman Martin serves as Deputy General Counsel of the Mississippi Bar. Missye evaluates and investigates Bar complaints, attorney incapacity matters, and reinstatement cases pursuant to the Rules of Discipline for the Mississippi State Bar, the Mississippi Rules of Professional Conduct and applicable statutes. In addition, Missye works with the Ethics Committee in developing opinions interpreting the Mississippi Rules of Professional Conduct and serves as the liaison between the Office of General Counsel and the Lawyers and Judges Assistance Program. She also prosecutes disciplinary matters and assists General Counsel in other litigated cases. Prior to coming to the Bar, Missye focused her private practice on civil litigation, real estate transactions and appeal work. She is licensed in the state and federal courts of Mississippi and Tennessee, the United States Court of Appeals for the Fifth Circuit, and the United States Supreme Court. She is an honor graduate of the University of Mississippi and the University of Mississippi s School of Law. While in law school Missye was a member of the Mississippi Law Journal, serving as Mississippi Cases Associate Editor. 1

2 Background on the Disciplinary Process The Supreme Court of Mississippi maintains exclusive and inherent jurisdiction over the attorney discipline process. 1 The Court has designated several entities to serve as its disciplinary agents, including the Committee on Professional Responsibility and the Complaint Tribunals. 2 The Committee on Professional Responsibility functions as a grand jury in attorney discipline matters. 3 If the Committee refers the matter for the filing of a Formal Complaint, the matter is then tried before a Complaint Tribunal. 4 Complaint Tribunals are appointed by the Court and consist of a sitting judge and two practicing attorneys. 5 Trials before a Complaint Tribunal are conducted as in Chancery Court. 6 If the Complaint Tribunal finds by clear and convincing evidence that an attorney has violated the Mississippi Rules of Professional Conduct, it is then tasked with imposing discipline upon that attorney. 7 A Complaint Tribunal may impose a Private Reprimand, Public Reprimand, Suspension or Disbarment. 8 A disciplined attorney or the Bar can appeal to the Court, who in turn conducts a de novo review. 9 The Factors In considering the appropriate level of discipline to impose the Complaint Tribunals and the Court consider nine factors: A) Nature of the misconduct involved; B) The need to deter similar misconduct; C) Preservation of dignity and reputation of the legal profession; D) Protection of the public; E) Sanctions imposed in similar cases; F) The duty violated; G) The lawyer s mental state; H) Actual or potential injury resulting from the misconduct; and I) Existence of aggravating or mitigating factors. 10 Additionally, Complaint Tribunals and the Court consider the American Bar Association Standards for Imposing Lawyer Sanctions to determine the appropriate sanction to be imposed. These factors are: A) The duty violated; B) The lawyer's mental state; C) The actual or potential injury resulting from the misconduct; and D) The existence of aggravating or mitigating factors Rule 1, Rules of Discipline for the Mississippi State Bar ( MRD ) 2 Rule 3, MRD 3 Rule 7, MRD 4 Id. The Committee is also authorized to issue a letter of admonition, private reprimand, or public reprimand if its investigation reveals a minor ethical violation or an isolated instance of minor misconduct. 5 Rule 8, MRD 6 Id. 7 Id. 8 Id. 9 Rule 9, MRD 10 Liebling v. Miss. Bar, 929 So. 2d 911, (Miss. 2006). 11 L.S. v. Miss. Bar, 649 So. 2d 810, 815 (Miss. 1997); Goodsell v. Miss. Bar, 667 So. 2d 7, 12 (Miss. 1996). 2

3 Aggravating factors may justify an increase in the degree of discipline to be imposed and include: 1) Prior disciplinary offenses; 2) Dishonest or selfish motive; 3) A pattern of misconduct; 4) Multiple offenses; 5) Bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency; 6) Submission of false evidence, false statements; or other deceptive practices during the disciplinary process; 7) Refusal to acknowledge wrongful nature of conduct; 8) Vulnerability of victim; 9) Substantial experience in the practice of law; 10) Indifference to making restitution; and 11) Illegal conduct, including that involving the use of controlled substances. 12 The presence of mitigating factors, on the other hand, may justify a reduction in the degree of discipline to be imposed. They include: 1) Absence of a prior disciplinary record 2) Absence of a dishonest or selfish motive; 3) Personal or emotional problems; 4) Timely good faith effort to make restitution or to rectify consequences of misconduct; 5) Full and free disclosure to disciplinary board or cooperative attitude toward proceedings; 6) Inexperience in the practice of law; 7) Character or reputation; 8) Physical disability; 9) Mental disability or chemical dependency including alcoholism or drug abuse when: a) There is medical evidence that the respondent is affected by a chemical dependency or mental disability; b) The chemical dependency or mental disability caused the misconduct; c) The respondent s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and 12 ABA Standards for Imposing Lawyer Sanctions

4 d) The recovery arrested the misconduct and recurrence of that misconduct is unlikely 10) Delay in disciplinary proceedings; 11) Imposition of other penalties or sanctions; 12) Remorse; and 13) Remoteness of prior offenses. 13 Sanctions based on clearly developed standards are necessary in order for lawyer discipline to be effective. 14 Inappropriate sanctions, whether too lenient or too onerous, can undermine the goals of lawyer discipline. 15 Too lenient a sanction fails to adequately deter misconduct and lowers public confidence in the profession. 16 To harsh a sanction impairs confidence in the system and may deter lawyers from reporting the ethical violations of other lawyers. 17 Ultimately the purpose of attorney discipline proceedings remains protecting the public and the administration of justice from attorneys who fail to discharge their professional duties to their clients, the public, the legal system and the legal profession. 18 Case Scenarios Scenario Attorney became acquainted with a law student while she was working as a summer intern at his firm. The intern was an actress who had appeared in several films prior to law school. A social relationship developed after the intern returned to law school for her third year. While Attorney expressed an interest in having a romantic relationship with the intern, she consistently rebuffed his advances for two years. Now employed by a different firm and rejected one too many times, Attorney contacted the producer of a horror movie in which the intern appeared to be topless. A body double was actually used in the movie. Attorney then recruited his paralegal to send an with the movie clip to members of his former firm and other local attorneys stating her movie appearance was harmful to all professional women and indicating that she had obtained her job at his former firm by performing sexual acts. In response to both the grievance filed by the intern with the attorney discipline commission and the civil suit filed by the intern Attorney claimed not to have drafted the because he did not prepare the that was actually transmitted and did not select the recipients himself. The hearing officer rejected his hyper-technical parsing of ordinary English words and sentences finding he knowingly made a false statement of fact to a tribunal with his discovery responses and knowingly made a false statement to the disciplinary authority. The Attorney has no prior disciplinary history. He also expressed some remorse but only about involving his paralegal. He also recently learned his sister had been diagnosed with cancer. 13 ABA Standards for Imposing Lawyer Sanctions ABA Standards for Imposing Lawyer Sanctions, Preface 15 Id. 16 Id. 17 Id. 18 ABA Standards for Imposing Lawyer Sanctions, In Re: Usher, No. 49S DI-298 (Ind. 2013). 4

5 Scenario Attorney was the lead prosecutor in a first-degree capital murder case in which the state was seeking the death penalty. During a five month period of time from four days prior to the jury returned its guilty verdict to the day the judge imposed the death penalty, Attorney exchanged 949 cell phone calls and 471 text messages with the judge. All communications were personal in nature and none related to the capital murder case. None of the communications were disclosed to the attorney representing the defendant. Once the communications were discovered the state attorney s office agreed to a new trial in the case. The attorney has substantial experience in the practice of the law, a good reputation and no prior disciplinary history. He cooperated with the disciplinary proceedings and showed remorse. Scenario Attorney represented two plaintiffs in a whistleblower action against the City of Detroit and its former mayor Kwame Kilpatrick. Attorney disclosed certain embarrassing and incriminating text messages to the mayor s attorney as an inducement to settle the lawsuit. When asked about the location of the text messages, Attorney did not disclose he had already given a disk with the messages to a reporter at the Detroit Free Press and led opposing counsel to believe the confidentiality of the messages could be maintained. Attorney agreed to separate the confidentiality agreement from the settlement agreement so existence of the text messages would not be disclosed in any response to a Freedom of Information Act request. The confidentiality agreement drafted by Attorney only addressed prospective not retrospective disclosure of the messages. Attorney requested less than the statutory fee for a whistleblower action and stated during the disciplinary proceedings that he did not believe it ethical to settle the case without the information related to the mayor s perjury becoming public. Attorney has practiced more than 40 years with no prior disciplinary history Scenario Attorney purchased a Harley Davidson motorcycle in another state. When registering the motorcycle in his home state he represented that he paid $800 for it instead of $14,000. Accordingly he paid only $40 of sales tax instead of the $833 in taxes and fees that would have been assessed if he had accurately disclosed the purchased price. The next year he purchased a second Harley Davidson again in another state. When registering this second motorcycle the Attorney presented a sales contract that showed a trade in of another motorcycle for a value of $16,000. The attorney had actually sold the other motorcycle and paid cash for the new motorcycle. The result again was paying significantly less in taxes had he properly reported the terms of the purchase. Attorney has practiced law since 1982 and was employed as the county attorney at the time. He had no prior disciplinary history, made restitution to the taxing authority and showed remorse. 20 Fla. Bar v. Scheinberg, 129 So. 3d 315 (Fla. 2013). 21 Grievance Administrator v. Stefani, GA (Mich. ADB Feb. 21, 2013). 22 Bd. of Prof. Resp. v. Barnes, 297 P.3d 77 (Wy. 2013). 5

6 Scenario Attorney instructed his employee to prepare two sets of tax returns. Attorney presented one set of returns to a car dealership in order to qualify for financing on the purchase of a Honda Fit. This set represented that the attorney had an income of $75,585 in 2009 and $82,330 in Attorney presented the second set of returns to the Department of Education in order to obtain forbearance of his law school debt of $100,000. This second set of returns represented that the attorney had an income of $8,663 in 2008, $7,578 in 2009 and $7,018 in Attorney had not actually filed income tax returns for any of these years. Attorney, this same employee and her sister also used the credit cards of his bankruptcy clients for cash advances and purchases and then discharged the resulting debts in the clients bankruptcies. Attorney persuaded the employee to plead guilty to identity theft by continuing to pay her salary and her mortgage. The Attorney also sent the sister to Mexico during the proceedings. Attorney has practiced law since 1997 Scenario Attorney convinced a personal injury client to fire his attorney and instead hire him. He assured the client that the two attorneys would come to an understanding as to how to divide fees. No contingency fee contract was executed. At the conclusion of the case Attorney obtained forty percent of the recovery but paid the first attorney nothing. The first attorney has obtained a judgment against the client for his fees. 23 In re: Aubel, M.R (Ill. Jan. 3, 2013). 24 In re Malevitis, Comm. No. 2010PR00197(Ill. Jan. 28, 2013). 6

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