Oregon Law Institute
of Lewis & Clark Law School
26th Annual Ethics CLE
Addressing Discrimination,
Harassment, and Intimidation
in Legal Proceedings
November 8, 2013
Ambridge Event Center
1333 NE Martin Luther King Jr. Blvd.
Portland, Oregon
26th Annual Ethics CLE
Addressing Discrimination,
Harassment, and Intimidation
in Legal Proceedings
Course Materials from the
November 8, 2013 Program in Portland
OREGON LAW INSTITUTE
OF LEWIS & CLARK LAW SCHOOL
Gus J. Solomon Courthouse
620 SW Main Street, Ste. 706
Portland, OR 97205
(503) 768-6580
(800) 222-8213
Fax: (503) 768-6585
E-mail: oli@lclark.edu
Website: http://go.lclark.edu/oli
BOARD OF DIRECTORS
Oregon Law Institute
Lewis & Clark Law School
Martin F. Medeiros II, Esq., President
Katherine Heekin, Esq., Vice President
Meagan A. Flynn, Secretary/Treasurer
Hon. Marilyn E. Litzenberger, Past President
Jeffrey G. Condit, Esq., Member at Large
Thomas D’Amore, Esq.
Hon. Robert D. Durham
Mark Johnson Roberts, Esq.
Grace Y. Lee, Esq.
Richard F. Liebman, Esq.
Kathleen K. Miller, RP
James E. Mountain, Jr., Esq.
Hon. Lynn R. Nakamoto
Hon. Timothy J. Sercombe
Hon. Michael H. Simon
Richard A. Slottee, Esq.
Hon. Susan M. Svetkey
Dayna E. Underhill, Esq.
Jere M. Webb, Esq.
Robert Truman
Assistant Dean for CLE and
Director, Oregon Law Institute
Lewis & Clark Law School
The materials in this course book are published by the Oregon Law Institute, Lewis & Clark Law
School for the use of attorneys. Neither OLI nor the contributors make either express or implied
warranties regarding the use of these materials. Each attorney must depend upon his or her own
knowledge of the law and expertise in the use and modifications of these materials.
© 2013 by Oregon Law Institute, Lewis & Clark Law School
Schedule
9:00
Addressing Discrimination, Harassment,
and Intimidation in Legal Proceedings
10:30
BREAK
12:00
ADJOURN
Moderator: Robert G. Burt
John S. Gleason
Helen M. Hierschbiel
Faculty
Robert G. Burt, Robert G. Burt, P.C., Portland; B.A., University of Arizona (1965); J.D.,
University of Arizona (1972); LL.M in Taxation, Georgetown University Law Center
(1973); member of the Oregon, Arizona, D.C., and Washington State Bars; admitted to the
U.S. Supreme Court (1975), U.S. Courts of Appeals, First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, District of Columbia, and Federal Circuits,
U.S. Court of Claims, U.S. Tax Court, and U.S. District Court for the District of Oregon;
practices focuses on tax, business, mergers/reorganizations, nonprofit organizations, and
estate planning; past chair, Oregon State Bar Tax Section, the Professional Responsibility
Committee (Region 5), and the Certified Public Accountants Joint Committee; delegate to
the Oregon State Bar House of Delegates (Region 5) since 2008; chair of the Oregon State
Bar Legal Ethics Committee’s Task Force on Harassment, Discrimination, and
Intimidation—which ultimately spawned the Oregon RPC 8.4 Amendment approved by the
Oregon State Bar Board of Governors on July 13, 2013, and presented to the Oregon State
Bar House of Delegates on November 1, 2013.
John S. Gleason, Disciplinary Counsel and Director of Regulatory Services, Oregon State Bar;
former Regulation Counsel, Colorado Supreme Court Office of Attorney Regulation
Counsel; B.A., Bowling Green State University; J.D., Ohio Northern University Claude W.
Pettit School of Law (1985); member of the Oregon State Bar since 2013; past president,
Board of Directors of the National Client Protection Organization; member, ABA Center for
Professional Responsibility state consultation teams; fellow of the American Bar
Foundation; recipient, National Organization of Bar Counsel 2013 President’s Award;
recipient, American Bar Association Michael Franck Professional Responsibility Award
(2013).
Helen M. Hierschbiel, General Counsel, Oregon State Bar, where, among other things, she
provides guidance to lawyers and serves as liaison to the Legal Ethics Committee. She
started working at the Oregon State Bar in December 2003 in the Client Assistance Officer,
reviewing and investigating ethics complaints against lawyers. While at the bar, she has
written numerous articles and given dozens of presentations regarding lawyers’ child abuse
reporting obligations. Prior to working for the Oregon State Bar, she worked in private
practice in Portland, Oregon and for DNA-Peoples Legal Services on the Navajo and Hopi
Reservations in Arizona. She received her J.D. from Lewis & Clark Law School, in 1991 and
her B.A. from Amherst College in 1987, and is licensed to practice law in Oregon since 1997
and Arizona since 1991 (inactive).
Bonnie Richardson, Managing Partner, Folawn, Alterman & Richardson LLP, Portland; J.D.,
University of Oklahoma College of Law (1997); member of the Oregon State Bar since
1998; admitted to the U.S. Court of Appeals for the Ninth Circuit and U.S. District Court,
District of Oregon; practice focuses on litigation, legal malpractice, trust litigation, and
business litigation; member, task force to review the Oregon Rules of Civil Procedure to
address discrimination, intimidation and/or harassment in legal proceedings; member,
Multnomah Bar Foundation Board of Directors; past officer, Multnomah Bar Association
Board of Directors; past member, Legal Ethics Committee of Oregon State Bar; recipient,
Multnomah Bar Association Pro Bono Award of Merit (2009); recipient, Portland Business
Journal’s “Forty Under 40” award (2011); frequent speaker on ethics and the law.
ADDRESSING DISCRIMINATION,
HARASSMENT, AND INTIMIDATION
IN LEGAL PROCEEDINGS
Table of Contents
Page
PART A
CURRENT RPCS AND BACKGROUND/HISTORY
OF THE OREGON RPC 8.4 AMENDMENT
Robert G. Burt
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
AMERICAN BAR ASSOCIATION MODEL RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III.
OTHER STATES’ RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV.
OREGON RULES OF PROFESSIONAL CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
V.
OREGON’S 8.4 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
VI.
WORDSMITHING OREGON RPC 8.4 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . 9
PART B
OSB GENERAL COUNSEL’S INSIGHT INTO OSB CLIENT ASSISTANCE
PROCESS, OSB DISCIPLINARY PROCESS, AND ADEQUACY OF
THE OREGON RPCs BEFORE THE OREGON RPC 8.4 AMENDMENT
Helen M. Hierschbiel
I.
OSB CLIENT ASSISTANCE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II.
OSB DISCIPLINARY PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III.
ADEQUACY OF THE OREGON RPCS BEFORE THE OREGON
RPC 8.4 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A.
B.
C.
Selected Oregon RPCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Selected Oregon Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Practice Scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Table of Contents (continued)
Page
PART C
HISTORY OF CASES UNDER OREGON RPC 8.4(A)(4)
(CONDUCT THAT IS PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE),
CASES FROM OTHER JURISDICTIONS ADDRESSING OREGON RPC 8.4(A)(7)
(MANIFEST BIAS BASED ON PROTECTED CLASS), AND CASE STUDIES OF
SAMPLE SCENARIOS UNDER OREGON RPC 8.4 AMENDMENT; DISCIPLINARY
COUNSEL’S INSIGHT INTO FUTURE OSB ENFORCEMENT CRITERIA/
CONSIDERATIONS FOR OREGON RPC 8.4 AMENDMENT
John S. Gleason
Bonnie Richardson
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
II.
OREGON RPC 8.4(A)(4) [FORMERLY DR 1-102(A)(4)
(FORMERLY DR 1-102 (A)(5))] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
III.
OREGON CASES FINDING VIOLATIONS OF OREGON RPC 8.4(a)(4). . . . . . . . . 17
A.
B.
C.
D.
Making Misrepresentations/Lying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Failing to Appear/Respond/Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Alcohol/Drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Improper Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
IV.
THIRTY-ONE JURISDICTIONS PROVIDE SOME FORM OF A RULE
THAT PROHIBITS DISCRIMINATION OR BIAS AGAINST CERTAIN
PROTECTED CLASSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
V.
CASE STUDIES OF SAMPLE SCENARIOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
EXHIBITS
A.
B.
C.
D.
E.
F.
G.
Colorado Rule 8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
People v. Gilbert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Florida Rule 4-8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Illinois Rule 8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
New Jersey Rule 8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
In re Witherspoon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Washington Rule 8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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ADDRESSING DISCRIMINATION,
HARASSMENT, AND INTIMIDATION
IN LEGAL PROCEEDINGS
PART A
CURRENT RPCS AND BACKGROUND/HISTORY
OF THE OREGON RPC 8.4 AMENDMENT
Robert G. Burt
I.
INTRODUCTION
Lawyers have three separate roles that they must fulfill simultaneously: as a representative
of their clients; as an officer of the legal system; and as a public citizen having special
responsibilities for the quality of justice. In fulfilling their responsibilities for those roles, lawyers
sometimes focus on providing zealous advocacy as a representative of their clients, and forget about
aiding the administration of justice by improving the law and the legal profession, and exemplifying
the highest ideas of the legal profession. In zealously representing their clients, lawyers must still
promote the principles of equality, inclusion, and effectiveness in the legal system. Such civility
can, however, be elusive: perhaps nowhere more dramatically than when it involves bias or
prejudice based upon “race, color, national origin, religion, age, sex, gender identity, gender
expression, sexual orientation, marital status, disability, or economic status.” That collection of 12
identifiable classes, and lawyers’ conduct as it relates to each of them, has attracted the increased
attention of the American Bar Association, a growing number of state regulators, and, of course,
Oregon.
II.
AMERICAN BAR ASSOCIATION MODEL RULES
The American Bar Association’s Model Rules of Professional Conduct provide:
ABA Model Rule 4.4: Respect For Rights Of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights
of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the representation of
the lawyer’s client and knows or reasonably should know that the document or electronically stored
information was inadvertently sent shall promptly notify the sender.
ABA Model Rule 8.4: Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law; or
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(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law.
Comments
*
*
*
*
[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or
prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic
status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate
advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that
peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this
rule.
*
III.
*
*
*
OTHER STATES’ RULES
A review of variations to the ABA Model Rules by all 50 states and the District of Columbia
reveals that a total of 31 states and the District of Columbia currently include language (either in the
body of their Rules or in the commentary to their Rule) referencing protected classes and/or sexual
harassment.1
The following 22 states and the District of Columbia specifically include such language in
the body of their Rules:
1. California
Rule 2.400
2. Colorado
Rule 8.4 (g)2
People v. Gilbert, 2010 Colo. Discipl. LEXIS 79 (2010)3
People v. Sharp, 781 P.2d 659 (1989)[DR 1-102(A)(6)]
3. Florida
Rule 4-8.4 (d)4
Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001)
Florida Bar v. Buckle, 771 So. 2d 1131 (Fla. 2000)
Florida Bar v. Uhrig, 666 So. 2d 887 (Fla. 1996)
1
See, American Bar Association’s CPR Policy Implementation Committee’s Variations on the ABA Model Rules of
Professional Conduct Rule 8.4 Comment [3] (October 21, 2010).
2
See, attached Colorado Rule 8.4 at Exhibit A.
3
See, attached People v. Gilbert at Exhibit B.
4
See, attached Florida Rule 4-8.4 at Exhibit C.
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4. Idaho
Rule 4.4 (a)(1)
In re Warrick, 137 Idaho 86 (2002)
5. Illinois
Rule 8.4 (j)5
6. Indiana
Rule 8.4 (g)
In re Barker, 2013 Ind. LEXIS 697 (Ind. 2013)
In re Usher, 987 N.E. 2d 1080 (Ind. 2013)
In re Dempsey, 986 N.E. 2d 816 (Ind. 2013)
In re McCarthy, 938 N.E. 2d 698 (Ind. 2010)
In re Kelly 925 N.E. 2d 1279 (Ind. 2010)
7. Iowa
Rule 32:8.4 (g)
Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Steffes, 588
N.W. 2d 121 (Ia. 1999)
8. Maryland
Rule 8.4 (e)
9. Michigan
Rules 6.5 (b) and 8.4(c)
Grievance Administrator v. Fieger, 476 Mich. 231 (2006)
10. Minnesota
Rule 8.4 (g)
In re Charges of Unprofessional Conduct Contained in Panel Case No. 15976, 653
N.W. 2d 452 (Minn. 2002)
In re Charges of Unprofessional Conduct Contained in Panel File. 98-26, 597 N.W.
2d 563 (Minn. 1999)
In re Williams, 414 N.W. 2d 394 (Minn. 1987)
11. Missouri
Rule 4-8.4 (g)
12. Nebraska
Rule 3.508.4 (d)
5
See, attached Illinois Rule 8.4 at Exhibit D.
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13. New Jersey
Rule 8.4 (g)6
In re Witherspoon, (N.J. 2010)7
In re Vincenti, 114 N.J. 275 (1989)
14. New Mexico
Rule 16-300
15. New York
Rule 8.4 (g)
In re Monaghan, 295 A.D. 2d 38 (NY 2d Dep’t 2002)
In re Kavanagh, 189 A.D. 2d 521 (NY 1st Dep’t 1993)
16. North Dakota
Rule 8.4 (f)
17. Ohio
Rule 8.4 (g)
Cincinnati Bar Ass’n v. Young, 89 Ohio St. 3d 306 (2000)
18. Rhode Island
Rule 8.4 (d)
19. Texas
Rule 5.08
20. Vermont
Rule 8.4 (g)
21. Washington
Rule 8.4 (g) and (h)8
22. Wisconsin
SCR 20:8.4 (i)
23. District of Columbia
Rule 9.1
6
See, attached New Jersey Rule 8.4 at Exhibit E.
7
See, attached In re Witherspoon at Exhibit F.
8
See, attached Washington Rule 8.4 at Exhibit G.
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IV.
OREGON RULES OF PROFESSIONAL CONDUCT
The Oregon Revised Statues and the Oregon Professional Code of Responsibility provide:
Oregon ORS 9.527 Grounds For Disbarment, Suspension Or Reprimand.
The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper
proceedings for that purpose, it appears to the court that:
(1) The member has committed an act or carried on a course of conduct of such nature that, if the member
were applying for admission to the bar, the application should be denied;
(2) The member has been convicted in any jurisdiction of an offense which is a misdemeanor involving moral
turpitude or a felony under the laws of this state, or is punishable by death or imprisonment under the laws
of the United States, in any of which cases the record of the conviction shall be conclusive evidence;
(3) The member has willfully disobeyed an order of a court requiring the member to do or forbear an act
connected with the legal profession;
(4) The member is guilty of willful deceit or misconduct in the legal profession;
(5) The member is guilty of willful violation of any of the provisions of ORS 9.460 or 9.510;
(6) The member is guilty of gross or repeated negligence or incompetence in the practice of law; or
(7) The member has violated any of the provisions of the rules of professional conduct adopted pursuant to
ORS 9.490. [Formerly 9.480; 1989 c.1052 §11]
Oregon RPC 4.4 Respect For The Rights Of Third Persons: Inadvertently Sent Documents
(a) In representing a client or the lawyer’s own interests, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, harass or burden a third person, or knowingly use
methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or
reasonably should know that the document was inadvertently sent shall promptly notify the sender.
Oregon RPC 8.4 Misconduct [with 8.4 Amendment’s new (a)(7) and (c)]
(a) It is professional misconduct for a lawyer to:
(1) violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through
the acts of another;
(2) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the
lawyer’s fitness to practice law;
(4) engage in conduct that is prejudicial to the administration of justice;
(5) state or imply an ability to influence improperly a government agency or official or to achieve results by
mans that violate these Rules or other law;
(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law; or
(7) in the course of representing a client, knowingly engage in conduct that manifests bias or prejudice based
upon race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation,
marital status, disability or socioeconomic status.
(b) Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct
for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of
violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in
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compliance with these Rules of Professional Conduct. “Covert activity,” as used in this rule, means an effort
to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. “Covert
activity” may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the
lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking
place or will take place in the foreseeable future.
(c) Notwithstanding paragraph (a)(7), a lawyer shall not be prohibited from engaging in legitimate advocacy
to the bases set forth therein, or from declining, accepting, or withdrawing from representation of a client
in accordance with Rule 1.16.
V.
OREGON’S RPC 8.4 AMENDMENT
A.
On February 21, 1992, the Oregon Supreme Court established the Oregon Supreme Court
Task Force on Racial/Ethnic Issues in the Judicial System. The May 1994 Report of the Supreme
Court Task Force on Racial/Ethnic Issues in the Judicial System contained the following as part of
its “Footnote to Nonminority Readers” (p. iv):
This report repeatedly urges members of the majority to learn about the problems
discussed herein so that, ultimately, the majority agrees that racial discrimination in
our society is “our problem” too and that nonminorities must be involved in the
solution. Nonminorities have contributed to the problems that minorities experience,
and if the problems are ever to be solved, then nonminorities must work with
minorities to rectify the situation.
If a poll were taken of all the lawyers, court staff and judges in Oregon, it is doubtful
that even one person would admit that he or she discriminates against minorities in
any way. “Sure, “ they might say, “there’s a problem. But someone else is causing
it. Not me.” That attitude makes the education process even more difficult.
The truth is that many nonminorities were raised in a culture in which discrimination
was common, even accepted. Not surprisingly, the habits and attitudes learned as
children carry over into adult life.
This report, therefore, begins with a plea to nonminority judges, court staff, lawyers,
law school faculty and students, juvenile staff, corrections personnel, law
enforcement officers and others in government: recognize that our minority
population has serious problems in our society. Nonminorities, who have
contributed to the problems that minorities encounter, must work with minorities to
solve these problems. This report contains a number of suggestions to address the
issues of racial discrimination or ethnic bias at all levels in the Oregon judicial
system. Our hope is that the reader agrees with our recommendations and is
impelled to act.
B.
The Task Force’s work led to the amendment of the Oregon Code of Judicial Conduct, as
well as the following proposed DR 1-102(A)(6) at the September 28, 1996, Oregon State Bar House
of Delegates meeting (presented by then Chief Justice Edwin J. Peterson of the Oregon Supreme
Court):
(A) It is professional misconduct for a lawyer to:
*
*
*
*
(6)
Engage in conduct during any aspect of a judicial or administrative proceeding that the
lawyer knows, or should reasonably know, will be perceived by a reasonable person as biased or
-6-
prejudiced on the basis on race, ethnicity, gender or sexual orientation, religion or national origin,
toward any litigant, juror, witness, client, lawyer or member of the public, except for legitimate
advocacy relevant to a question of law or fact in the proceeding.
After a full and vigorous discussion, the House of Delegates rejected the resolution.
C.
In May 1998, the Report of the Oregon Supreme Court/Oregon State Bar Task Force on
Gender Fairness contained the following recommended action for the Oregon State Bar and the
Oregon Supreme Court (p. 8):
•
Review disciplinary rules to determine whether there is any gender-based unfairness
to lawyers, to clients, or to the interests that those rules are designed to protect. If
changes are warranted, the Disciplinary Rules and Procedures Committee should
make appropriate recommendations to the Oregon Supreme Court.
D.
In August 2006, the Report of the Oregon Supreme Court/Oregon State Bar Task Force on
Access to the State Courts for Persons with Disabilities contained the following recommended
action for the Oregon State Bar (p. 48):
•
Study the issue of access to lawyers and lawyer client relationships for persons with
disabilities.
E.
On March 18, 2011, the Oregon Women Lawyers (“OWLS”) sent a letter to the Oregon State
Bar Board of Governors stating that:9
OWLS believes there is significant gap in the RPCs because they do not directly
address discrimination, intimidation and/or harassment. Specifically, OWLS strongly
believes discrimination, intimidation and/or harassment by a licensed attorney
against any other person involved in a legal proceeding or legal matter in which the
attorney is involved should be ethically prohibited by the RPCs. Further, any new
or amended rule regarding discrimination, intimidation and/or harassment should
prohibit such conduct not only on the basis of gender, but also on the basis of race,
ethnicity, sexual orientation, and disability.
and requesting that the:
Board of Governors direct the above to the Legal Ethics Committee to (LEC) to
evaluate what, if anything can be done to strengthen and/or clarify the Rules of
Professional Conduct or other policies or rules for investigating complaints regarding
harassment, discrimination and/or intimidation, whether regarding sex, race,
ethnicity, disability, sexual orientation or other protected class.
F.
On April 22, 20122, the Board of Governors’ forwarded the request to the Oregon State Bar
Legal Ethics Committee.
G.
On May 14, 2011, the Legal Ethics Committee formed a Discrimination, Intimidation and/or
9
The OWLS letter (accompanied by a letter of support from the Multnomah Bar Association) was sent on behalf of itself
and the following:
Oregon Chapter National Bar Association
Oregon Minority Lawyers Association
Oregon Asian Pacific American Bar Association
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Harassment in Legal Proceedings (“HDI Task Force”). The HDI Task Force was comprised of
several members of the Legal Ethics Committee and representatives from OWLS and other
stakeholder groups with the Oregon State Bar membership.
H.
that:
In a September 21, 2011, letter to the Board of Governors, the Chair of the Task Force wrote
Although RPC 4.4(a), RPC 8.4(a)(2) or (4), and ORS 9.527 provide potential bases
to address discrimination, intimidation, and/or harassment by lawyers in legal
proceedings, the HDI Task Force agrees with OWLS – that it is in the interests of the
OSB and its members to now amend RPC 8.4 to advance, in a specific manner, a
policy against lawyers knowingly manifesting, by words or conduct, in the course
of representing a client or the lawyer’s own interests, bias or prejudice based upon
race, religion, age, gender, sexual orientation, national origin, marital status, or
disability. Toward that end, the HDI Task Force has prepared, and by this letter
recommends that the Board of Governors adopt a resolution for, an amended RPC
8.4 to implement such a specific policy by the OSB and its members.
I.
At its September 23, 2011, meeting, the Board of Governors (from meeting transcript):
[V]oted unanimously to accept the HDI Task Force conclusion the rules should
prohibit discrimination, intimidation and harassment in the practice of law and to
send the matter back to the Legal Ethics Committee to study whether the best
approach is a rule change or a formal opinion to clarify that such conduct is
prohibited.
J.
From September 2011 through June 2013, the Legal Ethics Committee worked with various
interested individuals and stakeholder groups to forge a viable RPC amendment to address
discrimination, intimidation, and harassment.10
K.
At its June 15, 2013, meeting, the Legal Ethics Committee adopted a revised version of the
Oregon RCS 8.4 Amendment for forwarding to the Board of Governors.
L.
At its July 13, 2013, meeting, the Board of Governors adopted the revised Oregon RPC 8.4
Amendment for presentation to the November 1, 2013, House of Delegates meeting.
M.
On November 1, 2013, the Oregon RPC 8.4 Amendment was presented to the House of
Delegates for approval and forwarding to the Oregon Supreme Court.
10
The interested parties and stakeholder groups included:
Oregon State Bar Disciplinary Counsel
Oregon State Bar Diversity and Inclusion Department
Oregon State Bar Diversity Section
Oregon State Bar Disability Section
Oregon State Bar Advocacy Committee on
Diversity and Inclusion
Multnomah Bar Association Board of Directors
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Oregon Women Lawyers
Oregon Minority Lawyers Association
Oregon Hispanic Bar Association
Oregon Chapter - National Bar Association
Oregon Assembly for Black Affairs
Oregon Asian Pacific American Bar Association
OGALLA: The LGBT Association of Oregon
Disability Rights Oregon.
VI.
WORDSMITHING OREGON RPC 8.4 AMENDMENT
Components of Oregon RPC 8.4 (a)(7)
(a) “in the course of representing a client”
(b) “knowingly engage in conduct that manifests bias or prejudice”
Oregon RPC 1.01 Terminology.
*
*
*
*
(h) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question, except that
for purposes of determining a lawyer’s knowledge of the existence of a conflict of interest, all facts
which the lawyer knew, or by the exercise of reasonable care should have known, will be attributed
to the lawyer. A person’s knowledge may be inferred from circumstances.
*
*
*
*
(k) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct
of a reasonably prudent and competent lawyer.
(l) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the
lawyer believes the matter in question and that the circumstances are such that the belief is
reasonable.
(m) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.
*
*
*
*
(c) “based upon race, color, national origin, religion, age, sex, gender identity, gender expression,
sexual orientation, marital status, disability, or socioeconomic status”
In re Eadie, 333 Or. 42 (2001)
In re Meyer, 238 211 (1999)
In re Haws, 310 Or. 741 (1990)
In re Rook, 276 Or. 695 (1976)
In re Charges of Unprofessional Conduct, 597 NW. 2d. 563
(Minn. 1993)
OAR 659A.030
ORS 9.460 Duties of Attorneys
(a) An attorney shall:
*
*
*
*
(4) Never reject, for any personal consideration, the cause of the defenseless or the oppressed.
[Amended by 1989 c.1052 §9; 1991 c.726 §5]
Oregon RPC 1.14 Client with Diminished Capacity.
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is
diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer relationship with the client.
*
*
*
*
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Oregon RPC 1.16 Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has
commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the
client; or
(3) the lawyer is discharged
*
*
*
*
Oregon RPC 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.
In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic,
social and political factors, that may be relevant to the client’s situation.
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PART B
OSB GENERAL COUNSEL’S INSIGHT INTO OSB CLIENT ASSISTANCE
PROCESS, OSB DISCIPLINARY PROCESS, AND ADEQUACY OF THE
OREGON RPCs BEFORE THE OREGON RPC 8.4 AMENDMENT
Helen M. Hierschbiel
I.
OSB CLIENT ASSISTANCE PROCESS
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II.
OSB DISCIPLINARY PROCESS
III.
ADEQUACY OF THE OREGON RPCS BEFORE THE OREGON RPC 8.4
AMENDMENT
A.
Selected Oregon RPC’s
Oregon RPC 1.2 Scope Of Representation and Allocation of Authority Between Client and Lawyer
(a) Subject to paragraphs (b) and (c), a lawyer shall abide by a client’s decisions concerning the objectives
of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are
to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out
the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case,
the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered,
whether to waive jury trial and whether the client will testify.
*
*
*
*
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Oregon RPC 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.
In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic,
social and political factors, that may be relevant to the client’s situation.
Oregon RPC 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
(a) knowingly and unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist
another person to do any such act;
*
*
*
*
(d) in pretrial procedure, knowingly make a frivolous discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery request by an opposing party;
*
*
*
*
Oregon RPC 1.16 Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has
commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the cient;
or
(3) the lawyer is discharged
*
*
*
*
Oregon RPC 4.4 Respect for the Rights of Third Persons
(a) In representing a client or the lawyer’s own interests, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, harass or burden a third person, or knowingly use methods of
obtaining evidence that violate the legal rights of such a person.
*
*
*
*
*
*
Oregon RPC 8.4 Rule 8.4 Misconduct
(a) It is professional misconduct for a lawyer to:
*
*
(4) engage in conduct that is prejudicial to the administration of justice;
*
*
*
*
(7) in the course of representing a client, knowingly engage in conduct that manifests bias or prejudice based
upon race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation,
marital status, disability or socioeconomic status.
*
B.
*
*
*
Selected Oregon Cases
(a) In re Eadie, supra.
(b) In re Meyer, supra.
(c) In re Haws, supra.
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(d) In re Rook, supra.
C.
Practice Scenarios
PROBLEM NO. 1
[Based on Mullaney v. Aude, Md. Ct. Spec App., No. 862 (June 3, 1999)]
Annie Anderson sued Bob Baker for fraud, negligence, negligent infliction of emotional
distress, and battery, alleging that Baker infected her with genital herpes. Defendant Baker was
represented by Bill Briton, and plaintiff Anderson was represented by Autumn Able. During a
pretrial deposition, Annie was asked about a certain document that she had neglected to bring with
her. As she prepared to leave the room to retrieve the document from her car, Briton gibed that
Annie was probably slipping out to meet a “boyfriend” at the car. Able informed Briton that his
comment was in poor taste and asked him to refrain from making further derogatory comments. In
response, Briton chided Able for presuming to be the arbiter of poor taste. After Able asked whether
Briton had a problem, Briton replied, “No, I don’t have any problem with you, babe.” When Able
objected to being called “babe,” Briton retorted, “At least I didn’t call you a bimbo.”
(a)
What should Autumn Able do?
(b)
When asked about his statements, Bill Briton explained that he was just being a
zealous advocate for his client, and was hoping to throw Annie Anderson and
Autumn Able off their game. His client asked him to “play the gender card” during
the deposition. Does this strategy provide a rationale for his actions??
PROBLEM NO. 2
[Based on hypothetical presented at ABA Conference by NYU Professor Stephen Gillers]
Shark Co. is being sold to Newco in a stock transaction for $10,000,000. You are a senior
associate representing Shark Co. According to the senior partner who supervises all work for Shark
Co., the CFO of Shark Co. thinks you should sit out the next meeting of the parties to the deal and
their lawyers, even though you know more about the key deal terms and negotiations than the senior
partner. “Our client, Shark Co., is an old school company with a rough and tumble approach to
acquisitions. They’re concerned that it sends the wrong message to be represented by a Latina
woman in this meeting, because we need to take some tough positions.”
Smiling, the senior partner promised, “But the firm will make it up to you: There are plenty
of East Coast companies that love it when we have a woman or a lawyer of color on our team. In
some cases, we would not get that work unless we have a woman or minority lawyer handling some
aspects of the deal.”
(a) How should the senior associate respond?
(b) Is this the client’s or senior partner’s call to make??
PROBLEM NO. 3
[Based on State v. Davis, Fla., No. SC02-803 (February 19, 2004)]
A young black defendant was accused of murdering an elderly white woman. To try to ferret
out any potential racist sentiment, during voir dire of an all-white panel of potential jurors, defense
counsel emphasized the interracial nature of the crime and said, “Sometimes I just don’t like black
people. Sometimes black people make me mad just because they’re black .… It makes me feel
ashamed.” In his penalty-phase closing argument, defense counsel stated that “We are all of us
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[counsel and jurors] white .… I will not believe that race will be a factor in your decision, but I will
ask you to be especially vigilant, because being a white Southerner, I know where I come from.”
(a)
How should the prosecutor respond? How would you respond if opposing counsel
was trying to inject issues of race, ethnicity, gender or sexual orientation in a case
in a divisive or harmful way?
(b)
When is it appropriate for a lawyer to address a client’s race, ethnicity, gender or
sexual orientation before a jury?
(c)
Should the lawyer ask the client for his or her input before addressing the client’s
race, ethnicity, gender or sexual orientation?
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PART C
HISTORY OF CASES UNDER OREGON RPC 8.4(A)(4) (CONDUCT THAT IS
PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE), CASES FROM
OTHER JURISDICTIONS ADDRESSING OREGON RPC 8.4(A)(7)(MANIFEST
BIAS BASED ON PROTECTED CLASS), AND CASE STUDIES OF SAMPLE
SCENARIOS UNDER OREGON RPC 8.4 AMENDMENT; DISCIPLINARY
COUNSEL’S INSIGHT INTO FUTURE OSB ENFORCEMENT
CRITERIA/CONSIDERATIONS FOR OREGON RPC 8.4 AMENDMENT
John S. Gleason
Bonnie Richardson1
I.
INTRODUCTION
As lawyers, we have been taught to be zealous advocates for our clients’ causes. There are
many who subscribe to the Rambo-style of litigation, likening the practice of law to war with the
object of wiping out the other side. That type of “scorched earth” practice often includes
intimidation and bullying as the main way to control the case and dominate the process in order to
achieve the win. But when does this form of vigorous advocacy become a cover for unprofessional
behavior or a means to use degrading sexual and/or racial comments to advance the cause?
In the past, harassment, intimidation and discrimination were not specifically addressed in
the Disciplinary Rules or the Rules of Professional Conduct. However, RPC 8.4(a)(4) provides a
general statement that prohibits some forms of harassing and inappropriate conduct.
II.
OREGON RPC 8.4(A)(4) [FORMERLY DR 1-102(A)(4) (FORMERLY DR
1-102(A)(5))]
Oregon RPC 8.4 Rule 8.4 Misconduct
(a) It is professional misconduct for a lawyer to:
*
*
*
*
(4) engage in conduct that is prejudicial to the administration of justice;
*
*
*
*
The Oregon Supreme Court has stated the following in determining a violation of RPC 8.4(a)(4) (Lawrence,
350 Or. at 487):
To establish a violation of RPC 8.4(a)(4), the Bar must prove that (1) the accused lawyer’s
action or inaction was improper; (2) the accused lawyer’s conduct occurred during the course
of a judicial proceeding; and (3) the accused lawyer’s conduct did or could have had a
prejudicial effect upon the administration of justice. See In re Kluge, 335 Or. 326, 345
(2003) (so stating for identically worded former DR 1-102(A)(4)). There are two pertinent
aspects to the “administration” of justice: “1) The procedural functioning of the proceeding;
and 2) the substantive interest of a party in the proceeding.” In re Haws, 310 Or. 741, 747
(1990). “A lawyer’s conduct could have a prejudicial effect on either component or both.”
Id. To prove prejudice to the administration of justice, the Bar must show that an attorney’s
conduct:
“[H]armed [or had the potential to harm] the procedural functioning of the judicial system,
1
The author thanks Jonathan Spare for his significant assistance in preparing these materials.
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either by disrupting or improperly influencing the court’s decision-making process or by
creating unnecessary work or imposing a substantial burden on the court or the opposing
party.”
Finally, prejudice to the administration of justice “may arise from several acts that cause
some harm or a single act that causes substantial harm to the administration of justice.” Kluge, 335
Or. at 345.
In re Complaint as to the Conduct of Carini, 354 Or. 47, 54-55 (2013).
III.
OREGON CASES FINDING VIOLATIONS OF OREGON RPC 8.4(A)(4)
There are about 45 Oregon Supreme Court cases finding violations of Rule 8.4(a)(4) . The
conduct generally falls into the following four categories:
A.
•
Making misrepresentations and lying to the Court or to an opposing attorney.
•
Failing to appear at hearings and before the Court, failing to respond to the Court,
client or another attorney, failing to handle a client’s case, and failing to act as
required by law or Court order.
•
Appearing at hearings under the influence.
•
Improper actions by the attorney, including improper ex parte contact with judges,
bribing a witness, improper negotiation tactics, converting client funds, and, in one
case, harassing court employees in an attempt to be assigned indigent clients.
Making Misrepresentations/Lying
In re Carini, 354 Or. 47 (2013). Attorney and his clients had failed to appear at four separate
hearings. The Supreme Court found that “the repeated nature of the [attorney’s] conduct”
resulted in “some harm” to the administration of justice, and attorney was suspended for
thirty days.
In re Hartfield, 349 Or. 108 (2010). Attorney was publicly reprimanded for violating RPC 8.4(a)(4)
where attorney had unreasonably prolonged a conservatorship proceeding by failing to
appear at scheduled hearing and failing to file an inventory or accounting.
In re Paulson, 341 Or. 13 (2006). Attorney was suspended for six months for violating DR
1-102(A)(4) (prior 8.4(a)(4)) in part for filing documents with a bankruptcy identifying
himself as counsel of record for clients who had terminated his representation.
In re Dugger, 334 Or. 602 (2002). By making misrepresentations at two different hearings to two
different judges, including false testimony under oath, attorney violated DR 1-102(A)(3) and
DR 1-102(A)(4) (prior 8.4(a)(4)). Attorney was suspended for 9 months.
In re Davenport, 334 Or. 298 (2002). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by making
false statements under oath.
In re Eadie, 333 Or. 42 (2001). Attorney’s misrepresentation resulted in trial judge having to redraft
his order, and such conduct violated DR 1-102(A)(4) (prior 8.4(a)(4)).
In re Koliha, 330 Or. 402 (2000). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) “by
representing a client in an Oregon circuit court proceeding while not an active member of
the Oregon State Bar.”
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In re Gustafson, 327 Or. 636 (1998). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)). Attorney
had threatened opposing attorney with criminal and ethical charges without any factual basis.
In re Stauffer, 327 Or. 44 (1998). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by using
probate and bankruptcy courts to improperly pursue attorney fee claim against client
resulting in “a staggering amount of unnecessary litigation.”
In re Garvey, 325 Or. 34 (1997). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by lying to a
grand jury and aiding his client’s escape from a correctional facility.
In re Staar, 324 Or. 283 (1996). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by making
false statements in a petition for a restraining order and failing to cooperate with bar
investigation.
In re Bourcier, 322 Or. 561 (1996). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by
misrepresenting to court which interfered with the appeal process.
In re Yacob, 318 Or. 10 (1993). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by presenting
fabricated documents to the Bar.
In re Spies, 316 Or. 530 (1993). Attorney’s repeated lying to the court and to court staff violated
DR 1-102(A)(4) (prior 8.4(a)(4)).
In re McKee, 316 Or. 114 (1993). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by making
an intentional misrepresentation to the court, which had resulted in the court dismissing a
case in error.
In re Hedrick, 312 Or. 442 (1991). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by failing
to make required disclosures to probate court.
In re Jones, 308 Or. 306 (1989). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by allowing
a non-attorney to file pleadings bearing his name, even though attorney took no part in their
preparation.
In re Walker, 293 Or. 297 (1982). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) by
misrepresenting status of estate to the court.
In re Greene, 290 Or. 291 (1980). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) by failing to
advise court of the nature of real estate investments by the conservatorship.
B.
Failing to Appear/Respond/Act
In re Jackson, 347 Or. 426 (2009). Attorney was suspended for 120 days for violating RPC 1.3 and
8.4(a)(4). Attorney violated 8.4(a)(4) by failing to appear at settlement conference and
repeatedly failing to respond to the arbitrator.
In re Worth, 336 Or. 256 (2004). Attorney was found to have violated DR 1-102(A)(4) (prior
8.4(a)(4)) where attorney failed to promptly address a client’s matter, failed to monitor his
cases properly and failed to communicate with clients, which caused multiple dismissals and
delays in attorney’s cases. The Oregon Supreme Court stated, “The multiple dismissals and
delays evidenced a pattern of misconduct that harmed the procedural functioning of the
judicial system.”
In re Gustafson, 333 Or. 468 (2002). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by failing
to destroy juvenile’s records as ordered by the court.
In re Rhodes, 331 Or. 231 (2000). Attorney had failed to comply with two contempt orders in his
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own dissolution proceeding. Oregon Supreme Court found that such conduct “prejudiced
the administration of justice” in violation of DR 1-102(A)(4) (prior 8.4(a)(4)).
In re Claussen, 322 Or. 466 (1996). Attorney’s repeated failure to fulfill his duties to the
bankruptcy court, including duty to disclose certain facts and to attend scheduled hearings,
were violations of DR 1-102(A)(4) (prior 8.4(a)(4)).
In re Altstatt, 321 Or. 324 (1995). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by
distributing assets of a probated estate to himself without applying for attorney fees in
probate court as required.
In re Weidner, 320 Or. 336 (1994). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by taking
money from an estate without first making a claim to the probate proceedings.
In re Gresham, 318 Or. 162 (1993). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by
repeatedly failing to administer an estate.
In re Devers, 317 Or. 261 (1993). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by collecting
a fee from the heirs in a probate proceeding without disclosing the fee to the court.
In re Jones, 312 Or. 611 (1992). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by neglecting
to appear in court for multiple clients.
In re White, 311 Or. 573 (1991). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by failing to
appear for hearings, follow a court order, and prosecute claims.
In re Miller, 310 Or. 731 (1990). Attorney had failed to make timely filings and pursue collections
due to an estate and violated DR 1-102(A)(4) (prior 8.4(a)(4)).
In re Paauwe, 294 Or. 171 (1992). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) by
neglecting matters entrusted to him resulting in delays in case.
State ex rel. Oregon State Bar v. Hollingsworth, 286 Or. 477 (1979). Attorney violated DR
1-102(A)(5) (prior 8.4(a)(4)) by negligently handling matters entrusted to him.
C.
Alcohol/Drugs
In re Meyer, 328 Or. 211 (1999). Each court appearance by an attorney while under the influence
of alcohol, violated DR 1-102(A)(4) (prior 8.4(a)(4)).
In re Wyllie, 326 Or. 447 (1998). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by appearing
in court multiple times under the influence of alcohol.
D.
Improper Actions
In re Thompson, 325 Or. 467 (1997). Attorney’s improper ex parte communication with judge over
the judge’s participation in what the attorney believed to be an improper decision was a
violation of DR 1-102(A)(4) (prior 8.4(a)(4)).
In re Jeffery, 321 Or. 360 (1995). Attorney “threatened to refuse to represent his client responsibly,
for the avowed purpose of creating reversible error.” This conduct violated DR 1-102(A)(4)
(prior 8.4(a)(4)).
In re Smith, 316 Or. 55 (1993). Attorney violated DR 1-102(A)(4) (prior 8.4(a)(4)) by improperly
threatening a potential witness with litigation if the witness testified.
In re Martin, 308 Or. 125 (1989). Attorney was disbarred for bribing a witness, which was found
to be a violation of DR 1-102(A)(4) (prior 8.4(a)(4)) among other rules.
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In re Boothe, 303 Or. 643 (1987). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) by attempting
to negotiate with former client in return for former client dropping bar complaint.
In re Crist, 297 Or. 334 (1984). Attorney stipulated to violating DR 1-102(A)(5) (prior 8.4(a)(4))
(among other rules) by not being experienced enough to handle a probate, which had
“resulted in inordinate delay of the completion of probate.”
In re Rochat, 295 Or. 533 (1983). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) by
“harass[ing] trial court employees in attempts to secure court appointments to represent
indigents.”
In re Thomas, 294 Or. 505 (1983). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) by
converting funds from conservatorship.
In re Smith, 292 Or. 84 (1981). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) “by persuading
his secretary to make a false acknowledgement.”
In re Rook, 276 Or. 695 (1976). Attorney violated DR 1-102(A)(5) (prior 8.4(a)(4)) by “refusing
to plea bargain with 15 criminal defendants on the same basis as previously offered to
another criminal defendant as long as they were represented by either of their two attorneys.”
IV.
THIRTY-ONE JURISDICTIONS PROVIDE SOME FORM OF A RULE THAT
PROHIBITS DISCRIMINATION OR BIAS AGAINST CERTAIN PROTECTED
CLASSES
The following are the 17 reported cases for violations of this type of rule.
COLORADO
RULE 8.4(g):
It is professional misconduct for a lawyer to:
(g) engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender
bias against a person on account of that person’s race, gender, religion, national origin, disability, age, sexual
orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel,
witnesses, parties, judges, judicial officers, or any persons involved in the legal process;
CASES
People of Colo. v. Gilbert, 2010 Colo. Discipl. LEXIS 79 (2010). Attorney referred to a female judge in
speaking with opposing counsel by use of a derogatory term for female genitalia. The Colorado
Supreme Court in finding that the attorney’s “use of th[e] insult served no purpose other than to
demean and degrade [the judge] based upon her gender” disciplined the attorney by publicly
censuring him.
FLORIDA
RULE 8.4(d):
A lawyer shall not:
(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice,
including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants,
jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of
race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age,
socioeconomic status, employment, or physical characteristic;
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CASES
Fla. Bar v. Martocci, 791 So.2d 1074 (2001). During a dissolution of marriage and child custody action,
attorney representing the husband continually made disparaging and profane remarks to wife and
wife’s attorney, including calling wife “crazy” and “nut case”, sticking out his tongue at wife and
wife’s attorney, and calling wife’s attorney an “idiot” and said she should “go back to Puerto Rico.”
The Florida Supreme Court publicly reprimanded the attorney and put him on two-year probation
for violating Rule 8.4(d).
Fla. Bar v. Buckle, 771 So.2d 1131 (2000). During representation of a criminal defendant, attorney for
defendant sent a letter to the alleged victim attaching various religious materials. Alleged victim
“testified that the letter was humiliating and disparaged her character and that it caused her to
consider abandoning the criminal complaint.” Based in part of finding attorney’s conduct violated
Rule 8.4(d), Florida Supreme Court publicly reprimanded attorney.
Fla. Bar v. Uhrig, 666 So.2d 887 (1996). Attorney representing wife in follow up child support hearing
wrote a letter to husband, which included “an inflammatory simile comparing [husband’s] opinions
to body odor” and other humiliating and disparaging language. Florida Supreme Court publicly
reprimanding attorney.
IDAHO
RULE 4.4(a)(1):
(a) In representing a client, a lawyer shall not:
(1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person,
including conduct intended to appeal to or engender bias against a person on account of that person’s gender,
race, religion, national origin, or sexual preference, whether that bias is directed to other counsel, court
personnel, witnesses, parties, jurors, judges, judicial officers, or any other participants;
CASES
In re Warrick, 137 Idaho 86 (2002). State attorney wrote the words “scumbag” and “waste of sperm” on an
inmate control board while visiting jail housing. The Idaho Supreme Court concluded that his
conduct “had no substantial purpose other than to embarrass Calfee and was intended to engender
bias in the local law enforcement personnel.” Based on attorney’s violation of Rule 8.4(g) and other
violations of the rules, the Court suspended the attorney for 30 days.
INDIANA
RULE 8.4(g):
It is professional misconduct for a lawyer to:
(g) engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based
upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or
similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial
judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish
a violation of this Rule.
CASES
In re Barker, 2013 Ind. LEXIS 697 (Ind. 2013). Court concluded “that accusing Mother of being in the
country illegally is not legitimate advocacy concerning [parents’ visitation dispute] and served no
substantial purpose other than to embarrass or burden Mother.” Attorney was found to have violated
Rule 8.4(g) and was suspended for 30 days.
In re Usher, 987 N.E.2d 1080 (Ind. 2013). After attorney’s continual romantic advances were rebuffed by
firm’s former female summer intern, attorney found a film containing the former intern as an actress
in a state of undress. Using the film clip, attorney drafted a fictitious email chain stating in part that
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companies should not use law firms that employ such women and then had his paralegal disseminate
to attorneys at multiple law firms. The Indiana Supreme Court suspended attorney for three years
but specifically found that the email did not violate Rule 8.4(g) because it did not show “bias or
prejudice against women in general” just one particular woman, the former female summer intern.
In re Dempsey, 986 N.E.2d 816 (2013). Attorney had entered into a land contract with a husband and wife.
During different hearings when husband and wife attempted to foreclose on the contract, attorney
made baseless comments about the husband’s daughter being mentally disabled. The attorney also
created flyers for his own Chapter 13 bankruptcy making disparaging comments about husband and
wife being Jewish and about Jewish people in general. Indiana Supreme Court suspended attorney
for three years based in part on his violations of Rule 8.4(g).
In re McCarthy, 938 N.E.2d 698 (Ind. 2010). Indiana Supreme Court suspended attorney for 30 days after
attorney at title company responded to an email from an agent’s secretary using the n-word as a
derogatory racist insult within the email. Court found suspension was warranted because attorney
offered no apology and had prior disciplinary suspension.
In re Kelley, 925 N.E.2d 1279 (2010). Attorney stipulated to public reprimand based upon attorney’s
violation of Rule 8.4(g) after attorney asked a company’s representative, who she called on behalf
of a client, “if he was ‘gay’ or ‘sweet.’
In re Campiti, 937 N.E.2d 340 (Ind. 2009). Attorney stipulated to public reprimand for violating Rule 8.4(g)
by making “repeated disparaging references [at child support modification hearing] to the facts that
the mother was not a U.S. citizen and was receiving legal services at no charge.”
In re Thomsen, 837 N.E.2d 1011 (2005). During the representation of the husband in a dissolution of
marriage action, attorney continually made comments about wife being in the presence of a “black
male,” “black guy,” and “black guy” and implying this was a negative. The Indiana Supreme Court
disciplined the attorney with a public reprimand finding that the man’s race had no relevancy to the
dissolution proceedings and was inappropriate and unnecessary.
IOWA
RULE 8.4(g) (formerly DR 1-102(A)(7)):
It is professional misconduct for a lawyer to:
(g) engage in sexual harassment or other unlawful discrimination in the practice of law or knowingly permit
staff or agents subject to the lawyer’s direction and control to do so.
CASES
Iowa Supreme Court Bd. Of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121 (1999). Attorney was
suspended indefinitely with the possibility of applying for reinstatement in two years when Iowa
Supreme Court found that attorney violated DR 1-102(A)(7) (now Rule 8.4(g)). Court had concluded
that attorney had no conceivable reason for taking frontal nude pictures of his client in her back
injury case, and that such conduct was sexual harassment under the rules.
NEW YORK
RULE 8.4(g) (formerly DR 1-102(A)(6) [22 NYCRR 1200.3(A)(6)]):
A lawyer or law firm shall not:
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining
conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status
or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other
than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought
before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has
become final and enforceable and as to which the right to judicial or appellate review has been exhausted,
finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie
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evidence of professional misconduct in a disciplinary proceeding;
CASES
In re Monaghan, 295 A.D.2d 38 (NY 2d Dep’t 2002). Attorney was censured by the Court based upon
attorney’s race-based verbal abuse towards opposing counsel during a deposition, including his
“continuing harangue of [opposing counsel] for her alleged mispronunciation of the words ‘establish’
and ‘especially.’” The attorney’s conduct violated former rule DR 1-102(A)(6) (now Rule 8.4(g)).
In re Kavanagh, 189 A.D.2d 521 (NY 1st Dep’t 1993). Under former disciplinary rules (no specific
discrimination rule), attorney was disciplined for making unsupported statements that opposing
counsel worked for the Mafia.
Principe v. Assay Partners, 154 Misc.2d 702 (Sup. Ct. N.Y. Co. 1992). Attorney was fined by the Court for
making gender-based insults, such as repeatedly addressing a female attorney as “little girl” or “little
lady.”
OHIO
RULE 8.4(g):
It is professional misconduct for a lawyer to do any of the following:
(g) engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race,
color, religion, age, gender, sexual orientation, national origin, marital status, or disability;
CASES
Cincinnati Bar Ass’n v. Young, 89 Ohio St.3d 306 (2000). Ohio Supreme Court suspended attorney for two
years finding that attorney violated former Rule 8.4(g) (DR 1-102(B)). Male attorney had sexually
harassed female intern creating a hostile work environment. The Court used the tests for sexual
harassment and hostile work environment under federal discrimination law Title VII to determine that
such conduct involved “discrimination prohibited by law.”
V.
CASE STUDIES OF SAMPLE SCENARIOS
CASE SCENARIO 1:
Do you see a violation of 8.4(a)(7)?
In a dissolution proceeding, lawyer A represented wife and lawyer B represented husband.
Husband was arrested for physically abusing wife. When lawyer A wrote to lawyer B and requested
that arrangements be made to drop personal property off at a neutral location so that wife would not
have any contact with husband, lawyer B responded:
It is readily apparent to me that you have a horrific gender bias against men,
especially men that you perceive (albeit correctly) as abusers.
To be sure, my client committed domestic violence against your client and
it is unfortunate and wrong. One of the children was apparently present when that act
occurred. Rather than try to heal and mend things, it is clearly your client, and her
attorney, are not acting in the best interests of these children, and are misusing and
abusing the justice system to advance their own personal and social agenda.
All that having been said, this matter can still be toned down and de-escalated, but
your client needs to get out of her angry, anti-male, victim mode, and start doing
what is in her’s and the children’s best interests, and I think her lawyer needs to drop
her personal and social agenda – which may be what is really driving this case
forward.
During the dissolution trial, lawyer B continued stating that lawyer A was a “man-hater” and
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had a “feminist vendetta.” The court awarded attorneys’ fees to lawyer A’s client finding as one of
the factors for the award:
The level of hostility increased to the point that Respondent’s attorney accused
Petitioner’s counsel of having a “feminist vendetta” or “man-hating” agenda. This
level of dialogue only caused, at best distraction, and in all likelihood increased an
unreasonable entrenchment of Respondent’s unnecessary legal positions. The court
found no basis for Respondent’s allegations.
CASE SCENARIO 2:
Lawyer A represented the plaintiff commercial landlord (corporation) in a lawsuit for the
nonpayment of rent by tenants (corporation and individual guarantors) for commercial space.
Lawyer B represented the defendant tenants. During the pendency of the case one of Lawyer B’s
clients had recently given birth. Lawyer B requested the arbitration be moved to a later date because
his client was suffering from postpartum depression. Lawyer A objected to moving the arbitration
date. Lawyer B accused Lawyer A, her law firm and her client of discriminating against his client
because of his client’s pregnancy, writing:
“I think we should all learn to be more understanding and accepting of female issues
concerning childbirth. I don’t think we should try to turn females into super-humans,
or into something akin to the male species.”
“[Lawyer A] expressed a hostility to [Lawyer B’s client’s] pregnancy.”
“[Lawyer A] was badgering the witness over and over again. This procedure made
it reasonable [sic] appear that [Lawyer A], her law firm, and/or her client, are
extremely insensitive to the female issue of pregnancy.”
“If anyone in this case was being insensitive or anti-female, it was [Lawyer A]. Each
time I advocated for delays in the case due to [Lawyer B’s client’s] temporary
disabilities, [Lawyer A] objected. Oddly, [Lawyer A] represented a male landlord
of Chinese descent.”
After an unsuccessful arbitration, Lawyer B proceeded to a jury trial de novo. At the trial,
Lawyer A happened to be pregnant. The judge granted a directed verdict against Lawyer B’s client
and in favor of Lawyer A’s client. Lawyer B made repeated references to Lawyer A’s pregnancy
in later filings with the court and accused the judge of mistreating Lawyer A (even though Lawyer
A won and Lawyer B was physically removed from the courtroom by a Sheriff’s Deputy by order
of the court):
“Given the late stage of your pregnancy I thought you did an [sic] very fine job with
the presentation of your case.”
“Yet [Lawyer A] represented a male client landlord. Again [Lawyer B] expressed
nothing but sympathy to [Lawyer A] regarding her state of pregnancy during the trial
and said he disagreed with the harsh words directed at her by Judge [].
“[Lawyer A] was at the time about seven (7) months pregnant with child. Based
upon [Lawyer A’s] bar number being from the same year as mine (1991), and based
upon a mathematical calculation of years gone by, [Lawyer A’s] age at the time is
probably not less than 46 or 47 years of age.”
“Because [Judge’s] tone was loud, angry and I felt demeaning to [Lawyer A’s]
position of working as a trial attorney at such a late stage in her pregnancy (there was
-24-
no one else at her firm that could try this case?)”
“And again I stated in writing my sympathies to [Lawyer A] regarding [Judge’s]
emotional tirade of her at trial because of her rather late stage of pregnancy.”
Lawyer B tells Lawyer A that he is considering making a complaint to the bar against
Lawyer A.
“One would only need to see that my representation of [defendant] and my
advocating for her physical limitations due to a difficult birth and pregnancy during
the course of litigation.”
“Last I checked I represent the female and you the male. I am of a half of a mind to
refer this to another attorney for her review and/or consider making a complaint to
the Bar.”
-25-
EXHIBIT A
COLORADO RULES OF PROFESSIONAL CONDUCT
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer
in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law;
(g) engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender
bias against a person on account of that person's race, gender, religion, national origin, disability, age,
sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court
personnel, witnesses, parties, judges, judicial officers, or any persons involved in the legal process; or
(h) engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects
on a lawyer's fitness to practice law.
*
*
*
COMMENT
*
*
*
[3] A lawyer who, in the course of representing a client, knowingly manifests by word or conduct, bias or
prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or
socioeconomic status, violates paragraph (g) and also may violate paragraph (d). Legitimate advocacy
respecting the foregoing factors does not violate paragraphs (d) or (g). A trial judge's finding that
peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this
Rule.
*
*
*
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EXHIBIT B
SUPREME COURT, STATE OF COLORADO
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
1560 BROADWAY, SUITE 675
DENVER, CO 80202
Complainant:
THE PEOPLE OF THE STATE OF COLORADO
Case Number:
10PDJ067
Respondent:
ROBERT EDWARD GILBERT
DECISION AND ORDER IMPOSING SANCTIONS
PURSUANT TO C.R.C.P. 251.19(b)
On October 25 and 26, 2010, a Hearing Board composed of Terry F. Rogers and Boston H.
Stanton, Jr., members of the Bar, and William R. Lucero, the Presiding Disciplinary Judge (“the
PDJ”), held a hearing pursuant to C.R.C.P. 251.18. Elizabeth E. Krupa appeared on behalf of the
Office of Attorney Regulation Counsel (“the People”), and Frederick P. Bibik appeared on behalf
of Robert Edward Gilbert (“Respondent”). The Hearing Board now issues the following “Decision
and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19(b).”
I.
ISSUE AND SUMMARY
This case requires us to consider whether Respondent's lack of civility to court staff,
intemperate behavior during a hearing, or use of a repugnant gender-based epithet in the course of
representing his client violate the Rules of Professional Conduct. While Respondent's rudeness and
lack of common courtesy has, no doubt, contributed to tarnishing the image of the bar in the eyes
of the public, the Hearing Board cannot find, under the facts presented at the hearing, that
Respondent violated Colo. RPC 4.4(a) or 3.5(d).
Nor does the Hearing Board find that Respondent violated Colo. RPC 8.4(d) by referring,
in the course of negotiating a plea deal with prosecutors, to a female judge as a “c**t;” Respondent's
subjective opinion, however uncouth, did not prejudice the administration of justice. However, the
Hearing Board does find that Respondent's use of this slur violated Colo. RPC 8.4(g), which
specifically proscribes a lawyer from engaging in conduct that exhibits bias or prejudice in the
course of representing a client.
II.
PROCEDURAL HISTORY
On June 21, 2010, the People filed a complaint, and Respondent filed an answer on August
9, 2010. An at-issue conference was held on August 24, 2010. At the October 25-26, 2010, hearing,
the Hearing Board heard testimony and the PDJ admitted the People's exhibits 1-4. At the request
of Respondent, to which the People did not object, the PDJ also re-opened the evidence following
the trial to allow the Hearing Board to consider an audio recording of Respondent's April 21, 2009,
court appearance in Clear Creek County Court.
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III.
FINDINGS OF FACT AND RULE VIOLATIONS
The Hearing Board finds the following facts and rule violations have been established by
clear and convincing evidence.
Jurisdiction
Respondent took the oath of admission and was admitted to the Bar of the Colorado Supreme
Court on August 19, 1984. He is registered upon the official records, Attorney Registration No.
13603, and is thus subject to the jurisdiction of the Hearing Board in these disciplinary proceedings.1
Respondent’s registered business address is P.O. Box 740712, Arvada, Colorado 80006.
The Hearing of March 17, 2009
On the morning of March 17, 2009, Respondent, attorney of record for Eli Curry-Elrod,
telephoned the Clear Creek County Court to advise the court of a resolution of the DUI case People
v. Eli Curry-Elrod, Case No. 08T1524, and to further advise the court that the hearing scheduled for
that afternoon could be vacated. Respondent spoke with Assistant Court Clerk Kimberly Devlin,
who put Respondent on hold to confirm the court’s procedures with Clerk of Court Kim Hill. Having
conferred with Hill, Devlin resumed her conversation with Respondent, conveying t\) him that he
was required to fax to the court a motion and a proposed order, with a fax charge of $1.00 per page.
Respondent became agitated and responded, “Who the hell made that rule [governing fax charges],
Judge Ruckriegle?” He also protested that every other court he had dealt with would vacate a
motions hearing based on a verbal request. Devlin testified that it was clear Respondent was angry,
and although she was bothered Respondent “would say something like he did about the judge,” she
was neither embarrassed nor upset by Respondent’s behavior.
Following Devlin’s instructions, Respondent drafted a cursory motion to vacate the hearing,
which he faxed to the Clear Creek court at approximately 1:49 p.m. that afternoon2—forty minutes
in advance of the scheduled 2:30 p.m. hearing. The Honorable Rachel J. Olguin-Fresquez quickly
reviewed and denied the motion, commenting that “Def[endant] has given no reason to vacate the
hearing.”3
Assistant Court Clerk bebbie Dhyne then called Respondent prior to the scheduled hearing
to alert him to the judge’s basis for denial and to advise Respondent to submit a more detailed
motion memorializing his verbal request to vacate. Respondent, who was practicing in another court,
was not in a position to fax another pleading, and he demanded Dhyne transfer his call to Judge
Olguin-Fresquez to discuss the matter. Dhyne demurred, since the judge was in trial and, in any
event, court policy dictated that “calls don’t go to the judge.” Respondent became irate and impolite;
his voice changed, becoming “curt, short, and louder,” and his “tone was condescending and angry.”
He berated Dhyne for not understanding her job and not knowing proper procedure, after which he
abruptly hung up. Dhyne testified that Respondent’s conduct “made me feel belittled,” and “his
telephone call made me antsy for the rest of the day.” Nevertheless, Dhyne said Respondent’s insults
did not prevent her from doing her job and, on the whole, merely caused her frustration.
1
See C.R.C.P. 251.l(b).
2
People’s exhibit 3.
3
Id.
-28-
At 2:30 p.m., Respondent failed to appear for the scheduled motions hearing. Although
Respondent had advised the court staff verbally that the matter was resolved, Judge Olguin-Fresquez
nonetheless issued a bench warrant for Curry-Elrod’s arrest, with execution of the warrant stayed
until a court date of March 24, 2009.4 Less than an hour later, at 3:20 p.m., Respondent faxed in a
more thorough motion articulating his reasons for seeking to vacate the hearing.5 By then, however,
the time for the hearing had already passed.
Clerk of Court Kim Hill testified that she could not locate Respondent’s fax number and thus
decided to telephone Respondent soon thereafter to notify him of the bench warrant and the March
24, 2009, hearing date. When she reached Respondent, she requested his facsimile number so she
could fax to him a copy of the order.6 Respondent replied that Hill would have to pay him $5.00 to
use his facsimile machine, so Hill asked Respondent whether she could instead read the order to
him. Before she could deliver the substance of the order, Respondent hung up on her. Respondent
acknowledged this was discourteous but explained he did so to avoid causing further harm: he
testified, “I hung up before I said something I would regret.”
Prior to leaving the court that evening, Judge Olguin-Fresquez telephoned Respondent
directly to confront him about his behavior with the court clerks. She left a message for him, and he
attempted to return her call that night, but the two never spoke with one another. Nonetheless,
Respondent telephoned Dhyne the following day to apologize for his behavior, acknowledging he
treated her unfairly. Also the next day, Judge OlguinFresquez wrote a letter to Respondent in which
she instructed him to submit all subsequent communications to the court in writing and explicitly
forbade him from initiating telephone contact with the court clerks.7
Two days later, on March 19, 2009, Judge Olguin-Fresquez formally denied Respondent’s
second more detailed motion to vacate, noting that “Matter is moot having been filed after
B[ench]W[arrant] had issued. BW is stayed to court date on 3/24/09.”8 Hill testified that because she
could not locate Respondent’s fax number, she mailed the order on Friday, March 20, 2009.
Respondent testified that he did not receive the order until the night of Tuesday, March 24, 2009,
after the hearing had already taken place and during which Judge Olguin-Fresquez lifted the stay
on the bench warrant for Curry-Elrod’s arrest.9
4
People’s exhibit 4.
5
Id.
6
Testimony at the hearing created significant ambiguity as to which document Hill wished to fax Respondent. Hill
initially testified she hoped to fax Judge Olguin-Fresquez’s second order. On cross-examination, however, she
acknowledged that she could not have possibly faxed the court’s order ruling on Respondent’s second motion on March
17, 2009, because it formally issued only two days later, on March 19, 2009. We have no choice but to conclude Hill
sought to fax the court’s order denying Respondent’s first motion but are left to surmise, with no satisfactory explanation,
why she would have done so, since Hill also testified that she was aware Dhyne had communicated to Respondent the
court’s disposition of that first motion.
7
The Hearing Board makes these findings based only on Respondent’s testimony that he had been contacted by Judge
Olguin-Fresquez, since a copy of the judge’s letter was not introduced into evidence.
8
People’s exhibit 4.
9
Although not germane to the issues before us, we are nonplussed by Respondent’s behavior following his receipt of
the court’s order denying his second motion. Respondent discovered via mail on March 24, 2009, that not only had his
second motion to vacate been denied, but that he had also missed a hearing that same day, subjecting Curry-Elrod to
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The People contend Respondent’s conduct violated Colo. RPC 4.4(a), which proscribes a
lawyer, in the course of representing a client, from using means that have no substantial purpose
other than to embarrass, delay, or burden a third party. Pointing to the asperity with which he treated
court staff while representing Curry-Elrod, the People argue that Respondent’s conduct served no
purpose other than to embarrass, delay, or burden court personnel, and thus is sanctionable under
the Rules of Professional Conduct. Respondent disagrees. He maintains that his calls with the court
clerks were intended to vacate a needless hearing and, while he was “not on his best behavior that
day,” his conduct was not designed to embarrass, delay, or burden anyone.
Colo. RPC 4.4(a) focuses on the “substantial purpose” of a lawyer’s actions and not on the
effect that conduct might have upon a third person.10 But the People failed to present clear and
convincing evidence that Respondent’s rude and indecorous remarks to court personnel were
substantially fueled by his motive to embarrass, delay, or burden them. Rather, we credit
Respondent’s testimony that he was focused on vacating what he considered to be an unnecessary
hearing, and although he was “feeling extreme frustration,” his comments were primarily intended
to communicate his view that the court’s procedure was irregular and to encourage the staff to
resolve the situation more to his liking. For this reason, we cannot find that Respondent violated
Colo. RPC 4.4(a). But we hasten to add that we do not condone Ryspondent’s ill-mannered
treatment of the court’s clerks; while such impolite bt;havior may not violate our ethical rules, it
both corrodes the profession’s reputation and potentially compromises clients’ interests.
The Hearing on April 21, 2009
On April 21, 2009, Respondent appeared at the Clear Creek County courthouse for a
scheduled hearing. That morning, before his court appearance, Respondent met with Deputy District
Attorney Michael W.V. Angel to discuss a possible plea agreement in Curry-Elrod’s case.
Respondent and Angel met in the jury deliberation room, a small chamber directly adjacent to Judge
Olguin-Fresquez’s courtroom, where Assistant District Attorney Scott W. Turner was also working.
In the course of negotiating a plea agreement, Respondent told Angel that he planned to file
a motion seeking to recuse Judge Olguin-Fresquez from Curry-Elrod’s case. Respondent listed his
reasons for seeking her recusal, chief among them his belief that the judge was biased against him
and his client, after which he launched into a discussion of his history with Judge Olguin-Fresquez.
Respondent told the prosecutors the judge had appeared before him as a district attorney when he
sat as a magistrate, referring to her as an “idiot,” and he recalled attending en bane meetings of the
judiciary with Judge Olguin-Fresquez during which, he opined, she asked “stupid questions.”
Respondent went on to impugn Judge Olguin-Fresquez’s legal acumen, challenge her intelligence,
and derisively refer to her as a “c**t.” Angel said he and Turner exchanged “shocked and
possible arrest. Notwithstanding the court’s order, Respondent failed entirely to inquire with the court about the status
of his motion to vacate or attempt to rectify his failure to appear at the March 24, 2009, hearing. Even more curious,·
Respondent never alerted Curry-Elrod to the fact that a bench warrant had issued for his arrest, although Respondent had
ample opportunity to do so, since Curry-Elrod was arrested on April 7, 2009—a full twelve days after the court’s bench
warrant issued. Had the People pled in their complaint Respondent’s failure to notify Curry-Elrod of these
developments—or his failure to otherwise take affirmative steps to avert CurryElrod’s arrest—the Hearing Board would
have had no trouble finding a violation of Colo. RPC 8.4(d). But we cannot infer these facts into the People’s present
Colo. RPC 8.4(d) claim, as Respondent was afforded no notice or opportunity to defend against them. See In re Ruffalo,
390 U.S. 544, 550, 88 S.Ct. 112, 20 L.Ed.2d 117 (1968) (stating due process requires disciplinary proceedings to afford
notice of charges made and opportunity for explanation and defense).
10
Accord Idaho State Bar v. Warrick, 44 P.3d U41, 1145 (Idaho 2002).
-30-
incredulous” glances, but neither chose to “make an issue of it” with Respondent.11 In the course of
this diatribe, Respondent inquired whether the district attorney’s office would object to a motion to
recuse Judge Olguin-Fresquez, and Angel said he would have no objection. At the end of the
discussion, Angel completed the paperwork necessary for the negotiated disposition and transferred
the file to the court staff.
Immediately following Respondent’s discussion with Angel, Respondent appeared before
Judge Olguin-Fresquez in Curry-Elrod’s case. Respondent immediately stated that he and Angel had
resolved the matter but that he planned to file a motion to recuse the judge from the case. Judge
OlguinFresquez inquired as to the grounds of Respondent’s motion in order to determine whether
or not she should even accept Curry-Elrod’s plea. Because Respondent refused to provide grounds,
the judge set the matter over for a plea and sentencing two weeks thereafter and attempted to
conclude the hearing with, “All right, gentlemen, if you will proceed up to the front window, the
clerks will give you setting slips, bond and all bond conditions will continue .... “12
Respondent then pressed Judge Olguin-Fresquez to vacate the bond, which she refused to
do, and he complained that “never in 35 years” had he been required, as he had on March 17, 2009,
“to file a motion to vacate a hearing for a motion to suppress.” The hearing thereafter digressed;
Judge Olguin-Fresquez upbraided Respondent for mistreating her clerks, while Respondent
criticized the courfs earlier failure to consult him when setting a date for jury trial in the matter. The
exchange ended abruptly when Judge Olguin-Fresquez ordered Respondent out of her courtroom,
saying, “Mr. Gilbert, go waste someone else’s time,” and “I’m frustrated with your arrogance to this
court. Go get your assignment and go.”13
Although the Hearing Board has reviewed the transcript of the April 21, 2009, hearing and
listened to the audio taped recording of the interaction,14 accounts nonetheless differ as to the tone,
mood, and aspect of the colloquy between Respondent and Judge Olguin-Fresquez. While no one
present during the hearing would characterize their dialogue as cordial, reactions otherwise run the
gamut. Respondent contends he represented his client zealously by making a necessary record, even
if his conduct may have been unpleasant.
Clear Creek County Deputy Sheriff Reggie Wilson, who was supervising inmate detainees in the
courtroom during the hearing, noted Respondent got “louder and louder” and his tone “escalated”
while at the podium, but Wilson otherwise noted nothing unusual. Turner testified the exchange “got
heated and loud on both sides,” but he did not observe any safety concerns. Angel said Respondent
was “extremely disrespectful to the court,” which was “unexpected and out of the ordinary.” And
Hill asserted that the argument reached a “fever pitch” when Respondent allegedly made menaging
gestures. Hill claimed although the evidence presented indicates that no other person shared Hill’s
alarm-that Respondent grabbed his briefcase, placed it on the podium, aggressively thrust his hand
11
Nor did either prosecutor feel compelled to report Respondent’s behavior to his superiors.
12
People’s exhibit 2.
13
Id.
14
Videotape of the courtroom interaction was destroyed, per court procedure, shortly after Respondent’s appearance,
and the audio recording of the encounter is all but inaudible: both Respondent and the People declined to play the
recording for the Hearing Board. However, the PDJ later granted Respondent’s October 27, 2010, motion to re-open the
evidence to submit the audio recording, to which the People did not object.
-31-
into the briefcase, and left his hand inside the case for several minutes. Hill said Respondent’s
behavior “scared me to death” and she “feared for my life,” since she “was afraid that [Respondent]
was going to shoot the judge or me.” In response, Hill remotely unlocked the judge’s chambers to
facilitate a “faster exit,” and she gestured to another clerk to call for additional security coverage.
Sergeant Chris Bridges, of the Clear Creek County Sheriff’s Office, responded to the call for
assistance made at Hill’s behest. As he approached the courtroom, Bridges passed within eighteen
inches of two gentlemen rounding a corner in the otherwise empty hallway; he overheard the older
of the two men, who was carrying a briefcase, say to the other, “She’s such a f****** c**t.”15
Bridges conceded he could neither identify the speaker nor confirm the subject of the speaker’s
invective. By the time Bridges arrived in the courtroom, the hearing had concluded and Respondent
had left the area. But Bridges checked in with Judge Olguin-Fresquez and court personnel, who
assured him that everything was fine and that no safety issues were present.
The People first argue that Respondent’s argumentative and, at least in Hill’s eyes,
threatening approach during the April 21, 2009, hearing violates Colo. RPC 3.5(d), which forbids
attorneys from engaging in conduct intended to disrupt a tribunal. They postulate that Respondent’s
irritation with the court intensified following Judge Olguin-Fresquez’s denial of his second motion
to vacate, engendering in Respondent a desire to confront and berate the judge on April21, 2009.
We do not interpret the transcript or the audiotape of the April 21, 2009, hearing in the same
way, and we find the People failed to marshal clear and convincing evidence demonstrating
Respondent intended to disrupt the tribunal in violation of Colo. RPC 3.5(d). While bystanders agree
that Respondent disrespectfully raised his voice while at the podium, there is nothing in the
transcript or the recording to reveal that Respondent’s principal aim was to disrupt the proceedings.
To the contrary, these sources suggest that Respondent was intent on continuing the hearing so that
he might present his case and make a record for subsequent review, which he was entitled to do.16
We also cannot credit Hill’s testimony that Respondent made threatening gestures while he
stood at the podium. Rather, the balance of the evidence indicates that Respondent never made such
gestures or caused anyone else in the courtroom to fear for their safety. Indeed, no other witness
recalled Respondent reaching into his briefcase in a threatening manner. Thus, we cannot find that
Respondent possessed the requisite conscious objective to interrupt or otherwise throw into disorder
the April 21, 2009, hearing.17
The People next allege Respondent prejudiced the administration of justice in violation of
Colo. RPC 8.4(d) by using gender-specific profanity in reference to Judge Olguin-Fresquez while
in the courthouse, by treating the court clerks and Judge Olguin-Fresquez disrespectfully, and by
failing to appear for hearings on March 17 and 24, 2009.
15
Respondent, in contrast, testified that while standing twenty to thirty feet from the courtroom, he remarked to his client,
“the judge is treating us like a c**t.” However, he claimed that the expletive referred to him and his client, rather than
the judge.
16
Colo. RPC 3.5, cmt. 4 (“A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s
default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record
for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence
or theatrics.”).
17
See In re Attorney C, 47 P.3d 1167, 1173 (Colo. 2002) (noting intent requires a conscious objective or purpose to
accomplish a particular result).
-32-
With respect to Respondent’s treatment of the court clerks and his demeanor during the April
21, 2009, hearing, we have already found no violation of the Rules of Professional Conduct. Because
these same operative facts do not lend themselves to sanctions under other, more specific, rules, the
Hearing Board finds no cause to impose discipline under Colo. RPC 8.4(d). As regards Respondent’s
failure to appear at the March 17 and 24, 2009, hearings, the Hearing Board has not been persuaded
by clear and convincing evidence that Respondent’s’ absences impeded or subverted the process of
resolving Curry-Elrod’s case:18 Further, we consider Respondent’s failure to attend the second
hearing understandable, if not excusable, when viewed in the context of his belated receipt of notice.
Thus, the Hearing Board turns to a key issue in this matter: whether Respondent’s use of a
gender-specific profanity in reference to Judge OlguinFresquez while meeting with Angel19
prejudiced the administration of justice. Respondent asserts his comment to the prosecutors is
opinion expressed as rhetorical hyperbole, which constitutes free speech protected by the First
Amendment.
The Hearing Board’s analysis begins and ends with the Colorado Supreme Court’s decision
in In re Green.20 In that case, Green, an AfricanAmerican lawyer, filed a C.R.C.P. 97 motion to
recuse a trial court judge, who was reconsidering the reasonableness of Green’s attorney’s fees
following remand from appeal. In his motion, Green lambasted the judge “for bias and prejudice”
and “callous indifference and impatience with [Green’s] oral arguments as reflected in [the judge’s]
facial grimaces.”21 Over the course of the next several months, while the judge reconsidered Green’s
fee award, Green wrote three letters and an additional motion to recuse in which he insinuated the
judge possessed a “bent of mind” that was not “free of all taint of bias and impartiality.”22 He also
denounced the judge as “a racist and bigot for racially stereotyping me as unable to be an attorney
because I was black.”23
Disciplinary counsel charged Green with violating Colo. RPC 8.4(d) by engaging in conduct
prejudicial to the administration of justice, but the Colorado Supreme Court dismissed the charge,
premising its decision on “the accepted legal principle that if an attorney’s activity or speech is
protected by the First Amendment, disciplinary rules governing the legal profession cannot punish
18
See In re Friedman, 23 P.3d 620, 628 (Alaska 2001) (finding the Alaska rule of professional conduct barring conduct
prejudicial to the administration of justice “contemplates conduct which impedes or subverts the process of resolving
disputes; it is conduct which frustrates the fair balance of interest or justice’ essential to litigation or other proceedings”).
19
The People have not presented clear and convincing evidence that Bridges’s testimony establishes a Colo. RPC 8.4(d)
violation. Bridges testified that an older man carrying a briefcase in the courtroom hallway referred to an unidentified
woman as a “f****** c**t.” Yet Bridges could not identify the speaker, and he acknowledges he did not know whom
the speaker was referencing; as such, Bridges’s testimony neither implicates Respondent nor confirms that Judge
Olguin-Fresquez was being discussed by the man in the hallway. To the extent the People’s Colo. RPC 8.4(d) and 8.4(g)
claims are premised on Bridges’s testimony, we must reject them.
20
11 P.3d 1078 (Colo. 2000).
21
Id. at 1081.
22
Id. at 1082.
23
Id.
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the attorney’s conduct.”24 The court determined that sanctioning an attorney for criticizing a judge
is analogous to a defamation action by a public official for the purpose of a First Amendment
analysis and therefore applied the New York Times Co. v. Sullivan test, which provides:
[The First Amendment] prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice’– that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.25
The court also noted, however, that a “crucial distinction exists between false statements of
fact which receive no constitutional protection in defamation cases and ideas or opinions which by
definition can never be false so as to constitute false statements which are unprotected.”26 On this
basis, the court held that Green’s allegations against the judge did not involve false statements of
fact and instead were protected subjective opinions.27
In light of the holding in Green, Respondent argues that his remark was not a statement of
fact, but rather an idea or an opinion that is incapable of being proved false.28 The Hearing Board
agrees with Respondent that his remark did not involve a statement of fact, since the profanity he
used to describe Judge Olguin-Fresquez is, for all intents and purposes, void of real meaning and
thus can be proved neither true nor false. Indeed, Respondent’s slur was nothing more than emotive
language designed to convey disgust, disdain, and loathing-the essence of subjective opinion.
The People urge us to distinguish Green, arguing that the factual context here merits
differentiation. They reason that insofar as Green involved a lawyer’s obligation to provide a
statement of pertinent facts to the trial judge in support of his motion to recuse, Green’s accusations
served some practical purpose. The People also contend that while Green’s criticism was considered
in the context of “the principal purpose of the First Amendment [which is] safeguarding public
discussion of governmental affairs,”29 Respondent’s comment cannot be considered political speech
and is thus not entitled to the full panoply of First Amendment protections.
We acknowledge that Respondent’s statement occurred in a context radically different from
that in Green. While Green was required to provide reasons for recusal, it is difficult to envision how
Respondent’s utterance to the district attorneys could have served any proper function in defending
Curry-Elrod. We also recognize, as does Respondent, that his use of profanity in this instance does
24
Id. at 1083 (citing In re Primus, 436 U.S. 412, 432-33, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); Bates v. State Bar of
Ariz., 433 U.S. 350, 355, 365, 384, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); State v. Porter, 766 P.2d 958, 966-70 (Okla.
1988)).
25
376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
26
Green, 11 P.3d at 1084 (citing Bucher v. Roberts, 198 Colo. 1, 3, 595 P.2d 239, 241 (1979); Ge1tz v. Robert Welch,
Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)).
27
Id. at 1086.
28
Respondent relies on Gertz, 418 U.S. at 339-40 (“Under the First Amendment there is no such thing as a false idea.”)
and U.S. Dist. Court for Cent. Dist. of Cal. v. Yagmin, 55 F.3d 1430, 1438 (9th Cir. 1995) (“[S)tatements of ‘rhetorical
hyberbole’ aren’t sanctionable, nor are statements that use language in a loose, figurative sense.”) (internal citations
omitted).
29
Green, 11 P.3d at 1085.
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not constitute political speech.
Nevertheless, the People’s efforts to distinguish Green fail to sway us, since the Colorado
Supreme Court’s decision in that case was founded on an element held in common with the one
before us. Specifically, we are guided by the court’s finding of a “somewhat less compelling
government interest in disciplining Green than existed in other cases dealing with attorney discipline
for criticism of judges, all of which involved disparaging comments about judges made to a public
audience.”30 Because “Green’s statements were directed to a limited audience—the judge in question
and opposing counsel—and not to the general public,” the court held that “the possible adverse
effect on the administration of justice appears to have been minimal.”31 Likewise, in this case,
Respondent’s statement was restricted to Angel and Turner, thereby limiting the likelihood of real
prejudice to the administration of justice.32 Because we cannot materially distinguish the matter here
from the Colorado Supreme Court’s decision in Green, we are bound to follow that authority.
Accordingly, we do not find Respondent violated Colo. RPC 8.4(d).
Finally, the Hearing Board turns to the People’s fourth claim for relief—that Respondent’s
remark to the prosecutors violated Colo. RPC 8.4(g), which provides it is professional misconduct
for a lawyer to:
engage in conduct, in the representation of a client, that exhibits or is intended to
appeal to or engender bias against a person on account of that person’s race, gender,
religion, national origin, disability, age, sexual orientation, or socioeconomic status,
whether the conduct is directed to other counsel, court personnel, witnesses, parties,
judges, judicial officers, or any persons involved in the legal process.
Comment 3 to Colo. RPC 8.4 explains that “[a] lawyer who, in the course of representing a client,
knowingly manifests by word or conduct, bias or prejudice based upon ... gender ... violates
paragraph (g).”
This is a matter of first impression; Colo. RPC 8.4(g) has not yet been interpreted by any
Colorado tribunal, nor has its predecessor, Colo. RPC 1.2(f).33 At first blush, Respondent’s conduct
appears to fit squarely within the parameters of the rule. Respondent’s use of “c**t,” a gender-based
epithet, was made in reference to Judge Olguin-Fresquez, a female judge, during the course of
representing Curry-Elrod in a plea negotiation with Angel.34 The only outstanding question is
30
Id. at 1086.
31
Id. at 1086-87.
32
Cf In re Spivey, 480 S.E.2d 693, (N.C. 1997) (finding district attorney, who loudly and repeatedly referred to an
African-American as a ‘’n****r” while at a bar, constituted conduct prejudicial to the administration of justice).
33
Repealed 2007 and replaced with Colo. RPC 8.4(g), effective January 1, 2008.
34
The authority available supports the conclusion that Respondent’s statement was made while ‘’representing”
Curry-Elrod; “Representing a client” is generally read broadly to encompass any transaction in which an attorney is
dealing with others on a client’s behalf, whether or not the client approves of the attorney’s action. See, e.g., Colo. RPC
4.1, cmt. 1 (suggesting that “in the course of representing a client” equates to any interaction “dealing with others on a
client’s behalf’); In re Aitken, 787 N.W.2d 152, 160 (Minn. 2010) (finding that an attorney’s forgery of a client’s
signature on a document submitted to district court was done in the course of representing the client). Here, Respondent
called Judge Olguin-Fresquez a “c**t” in the midst of discussing a plea deal with Angel, his opponent, on behalf of his
client. He did so in a small room adjacent to the courtroom in the Clear Creek County courthouse on the date set for his
-35-
whether Respondent’s use of this slur “exhibit[ed] or [was] intended to appeal to or engender bias”
against Judge Olguin-Fresquez on account of her gender.
The evidence presented does not clearly and convincingly militate in favor of finding that
Respondent “intended to appeal to or engender bias” in his audience. Although we can envision a
scenario in which Respondent purposely referred to Judge Olguin-Fresquez as a “c**t” in order to
create an atmosphere in which the male prosecutors might sympathize with him or provide him
ammunition in his quest to recuse Judge Olguin-Fresquez, such conjecture is not solidly grounded
in the People’s evidence.
However, the People have shown by clear and convincing evidence that Respondent engaged
in conduct that exhibited bias by “knowingly manifest[ing] by word”35 gender prejudice against
Judge Olguin-Fresquez. The only definition ascribable to “c**t”-“the female pudenda, or the female
external genital organ”-inherently exhibits bias on the basis of gender and is “usually considered
‘obscene.’”36 One court has noted that ‘”c[**]t,’ referring to a woman’s vagina, is the essence of a
gender-specific slur.”37 This highly pejorative, taboo term “is properly deemed more offensive to
women than men by virtue of its intrinsicalJy degrading nature to women.’‘38 The Hearing Board
therefore concludes Respondent’s conduct falls within the ambit of Colo. RPC 8.4(g).
Although decided prior to enactment of our current Rules of Professional Conduct, the
Hearing Board considers People v. Sharpe39 as persuasive authority in support of our finding. In that
case, Sharpe, a deputy district attorney in a death penalty case, conferred with the two defendants’
counsel in a hallway outside the courtroom. During the conversation, Sharpe announced, “I don’t
believe either one of those chili-eating bastards,” which was perceived as motivated by prejudice
against Hispanics.40 Sharpe stipulated, and the Colorado Supreme Court agreed, that his remark “was
highly inappropriate, offensive, and brought disrepute upon the legal profession in genera1.”41
Sharpe was publicly censured for conduct adversely reflecting on his fitness to practice law.
Decisions of sister jurisdictions, based on similarly worded rules of professional conduct,
appearance before the court.
35
Colo. RPC 8.4, cmt. 3.
36
Smith v. Exxon Mobil Corp., No. Civ.A. 02-4425, 2005 WL 1712023, *13 n.33 (D.N.J. July 19, 2005) (quoting
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 554 (1993)).
37
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d: 798, 812 (11th Cir. 2010); see also Gallagher v. C.H. Robinson
Worldwide, Inc., 567 F.3d 263, 271 (6th Cir. 2009) (noting use of term “c**t” and other “patently degrading” terms
“evinces anti-female animus”); Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 299 (1st Cir. 2007) (describing “c**t”
and other words as “sexually degrading, gender-specific epithets”).
38
Kendel v. Local 17A United Food & Commercial Workers, --F.Supp.2d--, No. 5:09 CV 1999, 2010 WL 3665424, *5
(N.D. Ohio Sept. 16, 2010).
39
781 P.2d 659 (Colo. 1989).
40
Id. at 660.
41
Id.
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also support the Hearing Board’s finding. In re Thomsen,42 decided by the Indiana Supreme Court,
is instructive. There the court addressed application of Indiana Professional Conduct Rule 8.4(g),
which prohibits a lawyer from engaging in a professional capacity in conduct that manifests by
words or conduct bias or prejudice based on race or gender.43 Thomsen, who represented a husband
in an action for dissolution of marriage, filed a petition for custody that alleged the wife associated
herself “in the presence of a black male, and such association is causing and is placing the children
in harm’s way.”44 At a bench trial, Thomsen continued to make disparaging remarks about “the
black guy” and the “black man [the wife] had at [her] house.”45 The court found that Thomsen’s
comments did “not meet the standards for good manners and common courtesy, much less the
professional behavior we expect from those admitted to the bar,” concluding that such misconduct
“serve[s] only to fester wounds caused by past discrimination and encourage future intolerance,”
which constitutes “a significant violation [that] cannot be taken lightly.”46
The Hearing Board also looks to Idaho State Bar v. Warrick,47 a case that construes Idaho
Rule of Professional Conduct 4.4(a), which proscribes conduct intended to appeal to or engender
bias against a participant in court proceedings. In that case, Warrick visited a jail housing a
defendant whom Warrick was prosecuting for felony trafficking of methamphetamine.48 While
there, Warrick wrote the words “waste of sperm” and “scumbag” next to the criminal defendant’s
name on the inmate control board.49 The Idaho Supreme Court concluded Warrick’s conduct was
inappropriately aimed at a party he was prosecuting in a pending action.50 The court also found that
“[d]espite the fact that [the defendant] did not see the words, nor were the words conveyed to [the
defendant], their purpose could only have been to demean [the defendant] in the eyes of others” and
“had no substantial purpose other than to embarrass [the defendant] and was intended to engender
bias in the local law enforcement personnel.”51 These decisions bolster our conclusion that
42
837 N.E.2d 1011 (Ind. 2005). See also In re McCarthy, --N.E.2d--, No. 41S00-0910-DI-4372010, WL 5178048 *1
(Ind. Dec. 21, 2010) (finding violation of Indiana Professional Conduct Rule 8.4(g), which prohibits engaging in conduct
in a professional capacity that manifests bias or prejudice when,· in course of representing a client, attorney chastised
secretary of opposing counsel that he was not her· “n****r”); In re Kelley, 925 N.E.2d 1279 (Ind. 2010) (finding
violation of Indiana Professional Conduct Rule 8.4(g) when attorney gratuitously asked a company representative if he
was “gay” or “sweet”); In re Campiti, 937 N.E.2d 340 (Ind. 2009) (finding violation of Indiana Professional Conduct
Rule 8.4(g) when attorney, while representing father at child support modification hearing, made repeated disparaging
references to fact that mother was not a citizen and was receiving free legal services).
43
Id.
44
Id.
45
Id. at 1012.
46
Id.
47
44 P.3d 1141 (Idaho 2002).
48
Id. at 1142-43.
49
Id. at 1143.
50
Id. at 1146.
51
Id.
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Respondent’s similar conduct violates Colo. RPC 8.4(g).
Respondent advances the argument that the First Amendment and Green preclude application
of Colo. RPC 8.4(g). The Hearing Board, however, takes heed of its charge to make findings of fact
and to reach a decision52 in accordance with the Colorado Rules of Professional Conduct and the
Colorado Rules of Civil Procedure.53 We are vested with the limited responsibility of applying the
facts; as we find them, to the framework established by these governing authorities. This framework
includes Colo. RPC 8.4(g), which was drafted by the Colorado Supreme Court Committee on the
Colorado Rules of Professional Conduct, reviewed through a public notice and comment period, and
approved by the Colorado Supreme Court. As such, it is not within our purview, as Respondent
urge:;;, to find that Colo. RPC 8.4(g) is trumped by Respondent’s First Amendment rights as
articulated in Green: the Colorado Supreme Court alone “has the power to determine the law of this
jurisdiction as applied in disciplinary proceedings,”54 and it alone reserves plenary authority to
regulate the practice of law.55
Accordingly, we apply the language of Colo. RPC 8.4(g) as written. When we do so, we
conclude that Respondent’s conduct while negotiating with the deputy district attorney was
inappropriate in the courthouse setting and in the context of discussions with opposing counsel. His
choice of words was gratuitous; it neither advanced his client’s cause nor furthered his own ends.
Simply put, his use of this insult served no purpose other than to demean and degrade Judge
Olguin-Fresquez based upon her gender. We therefore conclude Respondent violated the plain
language of Colo. RPC 8.4(g).
SANCTIONS
The American Bar Association Standards for Imposing Lawyer Sanctions (1991 & Supp.
1992) (“ABA Standards”) and Colorado Supreme Court case law govern the selection and
imposition of sanctions for lawyer misconduct. ABA Standard 3.0 mandates that, in selecting the
52
C.R.C.P. 251.19(a).
53
See C.R.C.P. 251.16(c); C.R.C.P. 251.17(a).
54
In re Roose, 69 P.3d 43, 48 (Colo. 2003).
55
The Hearing Board does, however, perceive a tension between Colo. RPC 8.4(g) and Green. In Green, the respondent
was charged with violating: Colo. RPC 8.4(d) (1993 Version) (stating it is misconduct to engage in conduct that is
prejudicial to the administration of justice); Colo. RPC 8.4(g) (1993 Version) (stating that it is misconduct to engage in
conduct which violates accepted standards of legal ethics); and Colo. 8.4(h) (1993 Version) (stating that it is misconduct
to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law). The Colorado Supreme
Court ruled explicitly that “[t]he question we decide in this case is whether the First Amendment allows us to discipline
Green for expressing a contrary conclusion. We believe if does not. We therefore dismiss the charges that Green violated
Colo. RPC 8.4.” 11 P.3d at ‘1087. Ultimately, the Colorado Supreme Court concluded that “the First Amendment
prohibits disciplining Green on the basis of his communications with the judge because the communications did not make
or imply statements of fact.” Id. at 1080. Green thus ,appears to provide very broad protections for attorneys’ criticism
of judges unless the criticism is, or implies; a false statement of fact. The tension between Green and Colo. RPC 8.4(g)
arises because the current language of Colo. RPC 8.4(g), which earlier was found in Colo. RPC 1.2(1) (1993 Version),
was never addressed in Green. Following the Green decision, the Colorado Rules of Professional Conduct were
re-enacted, effective January 1, 2008. The new rules moved the language at issue to Colo. RPC 8.4(g) without comment
regarding how the ruling in Green might affect its application. Accordingly, Hearing Board members Stanton and Rogers
resolve this tension by recognizing that Colo. RPC 8.4(g) was reenacted subsequent to Green and by assuming that the
Colorado Supreme Court must therefore have intended the rule to be an exception to its opinion in Green.
-38-
appropriate sanction, the Hearing Board must consider the duty breached, Respondent’s mental state,
the injury or potential injury caused, and the aggravating and mitigating evidence.
ABA Standard 3.0 – Duty, Mental State, and Injury
Duty: Respondent violated his duty to the legal system and the legal profession, since he
failed to “demonstrate respect for the legal system and for those who serve it.”56 By exhibiting bias
against Judge Olguin-Fresquez on account of her gender while representing a client, Respondent
neglected his duty to “scrupulously avoid statements as well as deeds that could be perceived as
indicating that [his] actions are motivated to any extent by [gender] prejudice,”57 thereby abandoning
certain standards of conduct expected of all officers of the court.
Mental State: The Hearing Board concludes Respondent knowingly called Judge
Olguin-Fresquez a “c**t” during his negotiations with the prosecutors. Respondent testified, “I did
call her that word, and I regret it; I was extremely frustrated.” We interpret this comment as
evidencing Respondent’s conscious awareness of the nature of his conduct. As discussed above,
however, we cannot conclusively find that Respondent intended to engender bias in the prosecutors
or otherwise possessed a conscious objective to accomplish any particular result.
Injury: The practice of law demands an elevated standard of conduct from its members, as
it relies on mutual civility and respect to ensure the public’s confidence and trust in our system of
justice. Lawyers help to shape and mold public opinion of our courts, and their behavior reflects
upon the quality, integrity, and evenhandedness of our adversarial system. Thus, Respondent’s
misconduct cast a pall on a fundamental value of the legal profession and the legal system—namely,
that prejudice and bias have no place in a profession committed to justice and the rule of law.
ABA Standard 3.0 – Aggravating Factors
Aggravating circumstances are any factors that may justify an increase in the degree of
discipline to be imposed. The Hearing Board considers evidence of the following aggravating
circumstances in deciding the appropriate sanction.58
Prior Disciplinary Offenses – 9.22 (a): Respondent was publicly censured in 2007 for
conduct violative .of the Colorado Code of Judicial Conduct while serving as a magistrate in Denver
County Small Claims Court. In that case, Respondent made four ex p;:trte telephone calls to a pro
se litigant and then failed to consider her request, that he recuse himself from her case.
Substantial Experience in the Practice of Law – 9.22(i): Respondent was admitted to the Bar
of Colorado in 1984. As such, we consider in aggravation that Respondent has been licensed as an
attorney in this jurisdiction for twenty-six years.
Sanctions Analysis Under ABA Standards and Case Law
Our sanctions analysis begins with the observation that no binding authority exists to guide
our determination in this matter. The Colorado Supreme Court has never addressed sanctions for
violations of Colo. RPC 8.4(g). Likewise, the ABA Standards contain no corollary to Colo. RPC
56
Colo. RPC Preamble, ¶ 5.
57
Sharpe, 761 P.2d at 661.
58
ABA Standard 3.0 also calls for consideration of factors that mitigate Respondent’s conduct, but Respondent failed
to present any evidence in mitigation, and the Hearing Board finds none.
-39-
8.4(g) and thus do not prescribe presumptive sanctions for such misconduct. In the absence of
governing guidelines, we look to comparable ABA Standards and analogous cases from this and
other jurisdictions in imposing a sanction.
ABA Standard 7.2 provides that suspension is generally appropriate when a lawyer
knowingly engages in conduct that violates a duty owed as a professional, and causes injury or
potential injury to a client, the public, or the legal system. ABA Standard 7.3 establishes reprimand,
or public censure, as the appropriate sanction when a lawyer negligently engages in conduct that
violates a duty owed as a professional, and causes injury or potential injury to a client, the public,
or the legal system. And ABA Standard 7.4, calling for private admonition, applies when a lawyer
engages in an isolated instance of negligence that violates a duty owed as a professional, but which
causes little or no actual or potential injury to a client, the public, or the legal system.
The Hearing Board finds ABA Standard 7.2 the appropriate starting point in our analysis
because Respondent knowingly referred to Judge OlguinFresquez as a “c**t” during the course of
his negotiations with Angel. Nevertheless, the Hearing Board cannot conclude, in light of the
sanctions levied in similar cases, that suspension is appropriate in this instance. In particular, the
Colorado Supre~e Court in Sharpe, which is most influential in our sanctions decision, imposed
public censure when an attorney’s utterance while representing his client gave rise to a perception
he was motivated by racial prejudice. 59
Likewise, the Indiana Supreme Court publicly reprimanded attorneys in Thomsen,60 Kelley,61
and Campiti62 for engaging in conduct in a professional capacity that manifested bias or prejudice.
Although a case could be made that the McCarthy decision, where the Indiana Supreme Court
ordered suspension, is most on point here in light of Respondent’s prior disciplinary history and the
absence of mitigating factors,63 we consider that case somewhat distinguishable insofar as
Respondent has admitted his conduct. Given that distinction, as well as our desire to hew closely to
available Colorado precedent, the Hearing Board finds it would be more appropriate to follow
Sharpe and impose public censure. We are also swayed by the commentary to ABA Standard 7.3,
which urges public reprimand as a method of helping to “educate the respondent lawyer and deter
future violations,” as well as to “inform[] both the public and other members of the profession that
this behavior is improper.”
We add that we cannot, in good conscience, conclude that private admonition is the most suitable
59
781 P.2d at 661.
60
837 N.E.2d at 1012.
61
925 N.E.2d at 1279.
62
937 N.E.2d at 340.
63
2010 WL 5178048 at *1, In McCarthy, the Indiana Supreme Court rejected public reprimand and ordered a period of
suspension, since McCarthy vehemently denied committing any misconduct, offered no apology or other indication or
remorse, and had a prior disciplinary suspension; it contrasted that case with Kelley and Campiti, where the attorneys
admitted their misconduct, consented to discipline, had no prior disciplinary history, and apologized to the aggrieved
person.
-40-
sanction for Respondent’s conduct, since no parallel cases support a private admonition.64
Respondent’s use of the slur was not an isolated instance of negligence, a slip of the tongue, or a
phatic expression, but rather a knowing use of a charged term to demean Judge Olguin-Fresquez.
Moreover, Respondent’s conduct caused actual injury to the legal system; as discussed above, his
obloquy sullied the public’s perception of the profession and flouted the justice system’s core values
of fairness and respect for all participants in the system, untainted by bias or prejudice. Accordingly,
the Hearing Board concludes public censure is most fitting in this case.
IV.
CONCLUSION
Respondent’s impolite treatment of court personnel and his discourteous behavior during a hearing
do not rise to the level of violating the Rules of Professional Conduct, although his conduct falls
woefully short of the standards to which we hope every lawyer in this jurisdiction aspires. Indeed,
conduct such as Respondent’s should be entirely foreign to any honorable profession and is worthy
of our opprobrium.
We conclude that Respqndent’s use of a gender-based epithet to refer to Judge Olguin-Fresquez
doe13 not constitute conduct prejudicial to the administration of justice. B.ut the Hearing Board
finds his use of this insult exhibited bias or prejudice against Judge Olguin-Fresquez on the basis
of her gender in violation of Colo. RPC 8.4(g). As such, we find it appropriate to publicly censure
Respondent, underscoring for both the public and fellow members of the bar that our profession
cannot tolerate, in the performance of an attorney’s duties, expressions of bias or prejudice directed
at participants in the legal process.
VI.
ORDER
The Hearing Board therefore ORDERS:
1.
ROBERT EDWARD GILBERT, Attorney Registration No. 13603, is hereby
PUBLICLY CENSURED. The censure SHALL become public and effective
thirty-one (31) days from the date of this order upon the issuance of an “Order and
Notice of Public Censure” by the PDJ and in the absence of a stay pending appeal
pursuant to C.R.C.P. 251.27(h). Respondent SHALL file any post-hearing motion
or application for stay pending appeal on or before Friday, January 28, 2011. No
extension of time will be granted.
2.
Respondent SHALL pay the costs of these proceedings. The People shall submit a
“Statement of Costs” within fifteen (15) days from the date of this order. Respondent
shall have ten (10) days thereafter to submit a response.
DATED THIS 14TH DAY OF JANUARY, 2011.
Originally Signed
WILLIAM R. LUCERO
PRESIDING DISCIPLINARY JUDGE
64
See Warrick, 44 P.3d at 1148 (rejecting board’s recommendation of informal admonition for conduct intended to
appeal to or engender bias and imposing thirty-day suspension for violations of Idaho Rules of Professional Conduct
4.4(a) and 3.3(a)(4)).
-41-
Originally Signed
TERRY F. ROGERS
HEARING BOARD MEMBER
Originally Signed
BOSTON H. STANTON, JR.
HEARING BOARD MEMBER
Copies to:
Elizabeth E. Krupa
Via Hand Delivery
Office of Attorney Regulation Counsel
Frederick P. Bibik
Respondent’s Counsel
Via First Class Mail
Terry F. Rogers
Boston H. Stanton, Jr.
Hearing Board Members
Via First Class Mail
Via First Class Mail
Susan Festag
Colorado Supreme Court
Via Hand Delivery
-42-
EXHIBIT C
FLORIDA RULES OF PROFESSIONAL CONDUCT
RULE 4-8.4: MISCONDUCT
A lawyer shall not:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a
lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that it shall not be
professional misconduct for a lawyer for a criminal law enforcement agency or regulatory agency to advise
others about or to supervise another in an undercover investigation, unless prohibited by law or rule, and it
shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal
law enforcement agency or regulatory agency to participate in an undercover investigation, unless prohibited
by law or rule;
(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of
justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against
litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on
account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age,
socioeconomic status, employment, or physical characteristic;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law;
(g) fail to respond, in writing, to any official inquiry by bar counsel or a disciplinary agency, as defined
elsewhere in these rules, when bar counsel or the agency is conducting an investigation into the lawyer’s
conduct. A written response shall be made:
(1) within 15 days of the date of the initial written investigative inquiry by bar counsel, grievance
committee, or board of governors;
(2) within 10 days of the date of any follow-up written investigative inquiries by bar counsel,
grievance committee, or board of governors;
(3) within the time stated in any subpoena issued under these Rules Regulating The Florida Bar
(without additional time allowed for mailing);
(4) as provided in the Florida Rules of Civil Procedure or order of the referee in matters assigned to
a referee; and
(5) as provided in the Florida Rules of Appellate Procedure or order of the Supreme Court of Florida
for matters pending action by that court.
Except as stated otherwise herein or in the applicable rules, all times for response shall be calculated as
provided elsewhere in these Rules Regulating The Florida Bar and may be extended or shortened by bar
counsel or the disciplinary agency making the official inquiry upon good cause shown.
Failure to respond to an official inquiry with no good cause shown may be a matter of contempt and
processed in accordance with rule 3-7.11(f) of these Rules Regulating The Florida Bar.
(h) willfully refuse, as determined by a court of competent jurisdiction, to timely pay a child support
obligation; or RRTFB – May 1, 2013
(i) engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the
interests of the client or the lawyer-client relationship.
If the sexual conduct commenced after the lawyer-client relationship was formed it shall be presumed that
the sexual conduct exploits or adversely affects the interests of the client or the lawyer-client relationship.
A lawyer may rebut this presumption by proving by a preponderance of the evidence that the sexual conduct
-43-
did not exploit or adversely affect the interests of the client or the lawyer-client relationship.
The prohibition and presumption stated in this rule do not apply to a lawyer in the same firm as another
lawyer representing the client if the lawyer involved in the sexual conduct does not personally provide legal
services to the client and is screened from access to the file concerning the legal representation.
*
*
*
*
COMMENT
*
*
*
*
Subdivision (d) of this rule proscribes conduct that is prejudicial to the administration of justice. Such
proscription includes the prohibition against discriminatory conduct committed by a lawyer while
performing duties in connection with the practice of law. The proscription extends to any characteristic
or status that is not relevant to the proof of any legal or factual issue in dispute. Such conduct, when
directed towards litigants, jurors, witnesses, court personnel, or other lawyers, whether based on race,
ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age,
socioeconomic status, employment, physical characteristic, or any other basis, subverts the
administration of justice and undermines the public’s confidence in our system of justice, as well as
notions of equality. This subdivision does not prohibit a lawyer from representing a client as may be
permitted by applicable law, such as, by way of example, representing a client accused of committing
discriminatory conduct.
*
*
*
*
-44-
EXHIBIT D
ILLINOIS RULES OF PROFESSIONAL CONDUCT
RULE 8.4: MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another.
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a
lawyer in other respects.
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(d) engage in conduct that is prejudicial to the administration of justice.
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law.
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law. Nor shall a lawyer give or lend anything of value to a judge, official, or employee of
a tribunal, except those gifts or loans that a judge or a member of the judge’s family may receive under Rule
65(C)(4) of the Illinois Code of Judicial Conduct. Permissible campaign contributions to a judge or candidate
for judicial office may be made only by check, draft, or other instrument payable to or to the order of an entity
that the lawyer reasonably believes to be a political committee supporting such judge or candidate. Provision
of volunteer services by a lawyer to a political committee shall not be deemed to violate this paragraph.
(g) present, participate in presenting, or threaten to present criminal or professional disciplinary charges to
obtain an advantage in a civil matter.
(h) enter into an agreement with a client or former client limiting or purporting to limit the right of the client
or former client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary
Commission.
(i) avoid in bad faith the repayment of an education loan guaranteed by the Illinois Student Assistance
Commission or other governmental entity. The lawful discharge of an education loan in a bankruptcy
proceeding shall not constitute bad faith under this paragraph, but the discharge shall not preclude a review
of the lawyer’s conduct to determine if it constitutes bad faith.
(j) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex,
religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects
adversely on the lawyer’s fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer’s
fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness
of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was
part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer’s
professional activities. No charge of professional misconduct may be brought pursuant to this paragraph
until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an
unlawful discriminatory act, and the finding of the court or administrative agency has become final and
enforceable and any right of judicial review has been exhausted.
(k) if the lawyer holds public office:
(1) use that office to obtain, or attempt to obtain, a special advantage in a legislative matter for a
client under circumstances where the lawyer knows or reasonably should know that such action is
not in the public interest;
(2) use that office to influence, or attempt to influence, a tribunal to act in favor of a client; or
(3) represent any client, including a municipal corporation or other public body, in the promotion or
defeat of legislative or other proposals pending before the public body of which such lawyer is a
member or by which such lawyer is employed.
-45-
EXHIBIT E
NEW JERSEY RULES OF PROFESSIONAL CONDUCT
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct
or other law;
(g) engage, in a professional capacity, in conduct involving discrimination (except employment
discrimination unless resulting in a final agency or judicial determination) because of race, color, religion,
age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicap
where the conduct is intended or likely to cause harm.
COMMENT
This rule amendment (the addition of paragraph g) is intended to make discriminatory conduct unethical
when engaged in by lawyers in their professional capacity. It would, for example, cover activities in the court
house, such as a lawyer’s treatment of court support staff, as well as conduct more directly related to
litigation; activities related to practice outside of the court house, whether or not related to litigation, such
as treatment of other attorneys and their staff; bar association and similar activities; and activities in the
lawyer’s office and firm. Except to the extent that they are closely related to the foregoing, purely private
activities are not intended to be covered by this rule amendment, although they may possibly constitute a
violation of some other ethical rule. Nor is employment discrimination in hiring, firing, promotion, or
partnership status intended to be covered unless it has resulted in either an agency or judicial determination
of discriminatory conduct. The Supreme Court believes that existing agencies and courts are better able to
deal with such matters, that the disciplinary resources required to investigate and prosecute discrimination
in the employment area would be disproportionate to the benefits to the system given remedies available
elsewhere, and that limiting ethics proceedings in this area to cases where there has been an adjudication
represents a practical resolution of conflicting needs.
“Discrimination” is intended to be construed broadly. It includes sexual harassment, derogatory or demeaning
language, and, generally, any conduct towards the named groups that is both harmful and
discriminatory.
Case law has already suggested both the area covered by this amendment and the possible direction of future
cases. In re Vincenti, 114 N.J. 275 (554 A.2d 470) (1989). The Court believes the administration of
justice would be better served, however, by the adoption of this general rule than by a case by case
development of the scope of the professional obligation.
While the origin of this rule was a recommendation of the Supreme Court’s Task Force on Women in the
Courts, the Court concluded that the protection, limited to women and minorities in that
recommendation, should be expanded. The groups covered in the initial proposed amendment to the
rule are the same as those named in Canon 3A(4) of the Code of Judicial Conduct.
Following the initial publication of this proposed subsection (g) and receipt of various comments and
suggestions, the Court revised the proposed amendment by making explicit its intent to limit the rule
to conduct by attorneys in a professional capacity, to exclude employment discrimination unless
adjudicated, to restrict the scope to conduct intended or likely to cause harm, and to include
-46-
discrimination because of sexual orientation or socioeconomic status, these categories having been
proposed by the ABA’s Standing Committee on Ethics and Professional Responsibility as additions
to the groups now covered in Canon 3A(4) of the New Jersey Code of Judicial Conduct. That
Committee has also proposed that judges require attorneys, in proceedings before a judge, refrain
from manifesting by words or conduct any bias or prejudice based on any of these categories. See
proposed Canon 3A(6). This revision to the RPC further reflects the Court’s intent to cover all
discrimination where the attorney intends to cause harm such as inflicting emotional distress or
obtaining a tactical advantage and not to cover instances when no harm is intended unless its
occurrence is likely regardless of intent, e.g., where discriminatory comments or behavior is
repetitive. While obviously the language of the rule cannot explicitly cover every instance of possible
discriminatory conduct, the Court believes that, along with existing case law, it sufficiently narrows
the breadth of the rule to avoid any suggestion that it is overly broad. See, e.g., In re Vincenti, 114
N.J. 275 (554 A.2d 470) (1989).
-47-
EXHIBIT F
203 N.J. 343
Supreme Court of New Jersey.
In the Matter of David J. WITHERSPOON, an Attorney at Law.
Argued Dec. 1, 2009. | Decided July 29, 2010.
Synopsis
Background: Attorney disciplinary proceeding was commenced. The Disciplinary Review Board found that
attorney had violated rules of professional conduct and recommended a three-month suspension.
[Holding:] The Supreme Court, Hoens, J., held that one-year suspension was appropriate sanction for
attorney’s misconduct in offering discounted legal fees to clients in exchange for sexual favors of various
kinds.
Suspension ordered.
LaVecchia, J., dissented and filed opinion in which Albin, J., joined.
Attorneys and Law Firms
**496 John McGill, III, Assistant Ethics Counsel, argued the cause on behalf of the Office of Attorney Ethics.
Bernard K. Freamon, Newark, argued the cause for respondent.
Opinion
Justice HOENS delivered the opinion of the Court.
*344 This matter, which comes before the Court on a stipulated factual record, raises questions concerning
the appropriate level **497 of discipline to be imposed on a member of the bar who has used his license to
practice law as a means to seek sexual favors from some of his clients. As offensive as that behavior is, as
with all matters *345 of discipline, it can only be addressed by considering it in accordance with the specific
Rules of Professional Conduct (RPCs) that the attorney has violated and can only be appropriately punished
in accordance with longstanding principles that form the existing and accepted hierarchy of our attorney
disciplinary system. Applying those principles to the record before us, we reject as inadequate the disciplinary
sanction of a three-month suspension recommended by the Disciplinary Review Board. For the reasons that
follow, we instead impose upon respondent the sanction of suspension from the practice of law for the period
of one year.
I.
Although this disciplinary matter arises in the context of a three-count attorney ethics complaint, the
proceedings have focused only on the count involving sexual improprieties. For the sake of completeness,
however, we recite all of the counts prior to discussing and evaluating the questions that arise from the
stipulated record of respondent’s sexually inappropriate behavior.
The charges included in the three-count complaint can be summarized briefly. Count One charged respondent
David Witherspoon with sexual harassment, sexual discrimination and conflicts of interest, in violation of
RPC 1.7(a)(2), RPC 4.4, RPC 8.4(d), and RPC 8.4(g). Count Two charged respondent with practicing law
while ineligible based on respondent’s failure to pay the required annual assessment to the Lawyers’ Fund
for Client Protection, in violation of RPC 5.5(a)(1) and RPC 8.4(d). Count Three charged respondent with
recordkeeping violations comprised of failing to maintain fully descriptive client ledgers, failing to conduct
monthly trust account reconciliations and failing to maintain a running balance in the trust account checkbook
ledger, all in violation of Rule 1:21-6 and RPC 1.15(d).
Respondent admitted that he had practiced for more than a year while ineligible, arguing in mitigation that
this was merely due to oversight. He also conceded that he had failed to properly maintain his books and
records, offering in mitigation that he *346 rarely used the trust account because of the nature of his practice
and that no client had been harmed or had even complained about the way in which trust funds were handled.
-48-
Because respondent did not contest two of the counts charged, the proceedings were largely directed to Count
One. Even that Count, however, was the subject of a stipulated factual record, with respondent offering
explanations and arguments in mitigation. But it is Count One, and the issue as to the level of discipline
appropriate for the behavior that gave rise to its charges, that has divided the members of each panel at
virtually every level of the disciplinary process.
More to the point, it is Count One, and the discipline that it demands, that today divides this Court as well.
We are therefore constrained to discuss at some length the underlying facts, the arguments raised by
respondent by way of explanation or mitigation, and the way in which the ethical violations demonstrated
by the record fit into the larger framework of our disciplinary precedents.
A.
According to the stipulated factual record, respondent offered discounted legal fees to one client in 2001, and
on several **498 occasions late in 2005 and early in 2006 to two clients and a family member of another
client, in exchange for sexual favors of various kinds.
The first incident1 of this kind of behavior occurred in July 2001, when S.S. retained respondent to represent
her in a bankruptcy matter. During that time, he asked her “about her personal life, ask[ed] if she would go
out with him and made inappropriate sexual advances to[ward her].” S.S., who believed that respondent was
offering “to exchange sexual favors for representation *347 in her bankruptcy matter,” rejected his
importunings and sought other counsel.
In August 2005, T.B., whose father was a bankruptcy client of respondent’s, told respondent that her father
did not have the sum of $300 that he then owed for respondent’s services. According to the stipulated facts,
respondent offered to forgive that part of the debt if he could “meet T.B. in a hotel room for three hours.”
Several months later, in January 2006, T.B.’s father was again behind in his payments, at which point he
owed $200 that T.B. was not able to pay. Respondent told T.B. that she could “take care of the $200" if she
would “come to his office in a bathing suit and dance for him.” T.B. believed that these were efforts by
respondent to exchange legal services for sexual favors.
In September 2005, S.B. retained respondent to represent her in a bankruptcy matter. During one of her visits
to his office, when she was accompanied by a female friend, respondent commented that “many gay women
‘come on’ to” him. He then said that “he would like to see S.B. and her friend ‘make out’ ... [and that if they
did so] he would file the bankruptcy free of charge.” Some time later, when S.B. arrived to make a payment
toward the agreed-upon fee and told him that there was another creditor to be added to the petition,
respondent “stated that he would only add the creditor to S.B.’s bankruptcy if she lifted her skirt.” In yet
another incident thereafter, when S.B. arrived to pay a balance due for legal services, respondent told her that
she “could satisfy her outstanding legal fees by either allowing him to watch her with her female friend or
by allowing him to join in.” S.B. refused each of these suggestions, understanding them to be offers to
exchange legal services for sexual favors. She eventually retained alternate counsel to complete her
bankruptcy matter.
Finally, in September 2005, A.C. retained respondent in connection with her bankruptcy petition. When she
arrived for one of her appointments, respondent made several remarks about her sexual orientation. He said,
“Oh, so you’re the gay girl,” and “suggest[ed] that A.C.’s lesbianism was caused by a bad experience *348
with the male sex organ.” Thereafter, following an appearance with A.C. in bankruptcy court, respondent told
her that “he was a ‘breast man,’ that she was looking good that day and that if she came back to his office and
joined him on his ‘office couch,’ he would return to her $660 of the legal fees she [had] paid.” A.C. regarded
some of these remarks as “constitut[ing] a denigration of her lesbian lifestyle” and others as being “a proposal
to exchange sexual favors for legal fees.”
1
The record reflects that the grievance filed by S.S. as a result of this conduct was initially reviewed and dismissed.
Because it was so similar to the three subsequently filed grievances, it was reconsidered when the other three grievances
were filed against respondent.
-49-
B.
During the hearing on the complaint before a panel of the District VI Ethics **499 Committee (DEC),
respondent conceded that each of the grievants would testify in accordance with the foregoing stipulated facts.
In his defense, he offered a variety of explanations, rebuttals and arguments he characterized as being in
mitigation. For example, he described the atmosphere in his office as being very relaxed and a place where
conversations on all subjects of a highly personal nature are common. More to the point, he asserted that the
comments he made were purely in jest and that he never intended to insult or demean any of the grievants.
In addition, respondent offered several specific responses to the charges. He commented that S.S. is a Muslim,
describing her as someone who “wears the full garb, the full cover from head to toe,” and that, at her request,
he had gone out of his way to accompany her to a creditor’s meeting shortly after September 11, 2001. He
offered this testimony to demonstrate that, at a time when many people in this country were far from
open-minded about people of the Muslim faith, he was willing to travel openly with her and appear at her side
in public as her attorney. Although not refuting the stipulated facts as to which S.S. would testify, he
contended that her grievance was actually motivated by her dissatisfaction about the way in which her
bankruptcy matter had proceeded.
*349 As for T.B.’s grievance, respondent testified that he did not recall making the comments, asserted that
whatever he said would have been meant as a joke, and claimed that had he been aware that she was offended,
he would have immediately apologized.
Respondent’s assertions in response to the grievances filed by A.C. and S.B. are related. In short, he believes
that all of his comments to either one were in jest, and that they were, in part, initiated by S.B. He testified
that his remarks were prompted by S.B. who showed him photographs of a vacation she had just had with a
girlfriend at a resort known for nude beaches and alternate lifestyles. Furthermore, he testified that he
believed that S.B. “enticed her friend A.C. to file a complaint when S.B. did not pay the balance of her legal
fees and she got annoyed at” respondent.
As part of his testimony before the DEC, respondent offered that he never meant to insult or demean anyone
and said that, with the benefit of hindsight, he would make a different choice concerning his interactions with
clients in the future. Regarding the four grievants, respondent also stated that he would “love to get the chance
to tell them [he was] sorry if [he] insulted [them].”
The DEC found respondent’s assertion that anything he said was meant only in jest to be “entirely
unpersuasive,” and it concluded that his comments “had no substantial purpose other than to embarrass the
victims and/or clients,” were “flagrantly violative of accepted professional norms,” and constituted
discrimination based on sex or sexual orientation. The DEC therefore found that respondent had violated RPC
1.7(a)(2) (conflict of interest), RPC 4.4 (purpose to embarrass, burden or delay), RPC 8.4(d) (conduct
prejudicial to the administration of justice) and RPC 8.4(g) (sexual discrimination or harassment), all as
charged in Count One. Based on respondent’s concessions, the DEC concluded that he had violated RPC
5.5(a)(1) and RPC 8.4(d), as charged in Count Two, and Rule 1:21-6 and RPC 1.15(d), as charged in Count
Three.
The DEC unanimously *350 recommended that respondent be censured for these violations. In addition, as
to Count One, the DEC recommended that respondent be required to attend sexual harassment sensitivity
training, and as to Count Three, that **500 he be required to put certain accounting controls in place.
C.
The matter then came before the Disciplinary Review Board (DRB) for de novo review. R. 1:20-15(e)(3).
After its consideration of the record, the DRB found that the evidence was clear and convincing and agreed
with the DEC that respondent’s conduct was unethical. However, the DRB reached different conclusions in
its analysis of whether that conduct violated all of the numerous RPC s and the Court Rule that the DEC
found had been violated, and disagreed with the DEC’s recommendation of a disciplinary sanction.
In summary, as to Count One, the DRB concluded that respondent had created a conflict of interest by putting
“his own prurient interests above those of his clients, [thereby] creat[ing] the possibility that he would not
-50-
view their matters favorably if his advances were rejected.” See RPC 1.7(a)(2). The DRB also found that
respondent had violated RPC 8.4(g) by sexually harassing all four of the grievants and by discriminating
against two of them based on their sexual orientation. However, the DRB found that the evidence was not
sufficiently clear and convincing that it could find that respondent’s conduct was prejudicial to the
administration of justice, or that his purpose was to embarrass, burden or delay, as a result of which the DRB
dismissed the charges that respondent had violated RPC 8.4(d) and RPC 4.4(a). Finally, with regard to
Counts Two and Three of the complaint, the DRB found that the evidence was clear and convincing and that
respondent had violated Rule 1:21-6, and RPC s 1.15(d), 5.5(a)(1) and 8.4(d).
After a review of the factual record, including respondent’s prior disciplinary history, and after consideration
of numerous precedents, the DRB rejected the DEC’s recommendation that respondent be censured. Instead,
a majority of the DRB determined that the imposition of a three-month suspension from the practice *351
of law would be the appropriate quantum of discipline. Two members of the DRB filed a dissenting opinion
in which they contended that a three-month suspension would be an insufficient sanction. In light of
respondent’s disciplinary history, lack of contrition and poor attitude toward the ethics rules, which the
dissenting DRB members characterized as evidence of “both arrogance and a lack of moral values,” they
asserted that a six-month suspension was required.
II.
The only issue before this Court is the appropriate quantum of discipline to be imposed on respondent for his
ethical violations. Sadly, this is neither the first time that we have been required to deal with conduct of this
kind, nor is it the first time that we have had occasion to discipline this particular member of the bar.
In order to evaluate the conduct and fix the appropriate level of discipline, we begin, as we must, with a
review of our previous opinions. Published decisions addressing sexual indiscretions by members of the bar
yield a variety of appropriate disciplinary sanctions, each depending on the specific situation. Those sanctions
have ranged from reprimands to disbarment. Our review and interpretation of those precedents informs our
decision in this case.
We have in the past disbarred attorneys for sexual offenses that resulted in criminal convictions. That has
certainly been the routinely-imposed sanction in matters in which an attorney has been convicted of a criminal
sexual offense relating to children. **501 Thus, for example, we disbarred an attorney who was convicted
under federal law of sexual exploitation of a minor, see In re Thompson, 197 N.J. 464, 464, 963 A.2d 837
(2009), and we disbarred an attorney convicted of second-degree sexual assault on his three minor daughters,
see In re X, 120 N.J. 459, 463-64, 577 A.2d 139 (1990) (evaluating long period of time during which assaults
continued and seriousness of particular acts as bearing on quantum of punishment). In the same vein, we
disbarred an *352 attorney following his federal felony conviction for possession of child pornography. See
In re Sosnowski, 197 N.J. 23, 23-24, 961 A.2d 697 (2008).
Other criminal convictions arising from sexual offenses have also led us to impose the severe sanction of
disbarment. We have, for example, found it appropriate to disbar an attorney convicted of aggravated sexual
assault, see In re Wright, 152 N.J. 35, 35, 702 A.2d 830 (1997), an attorney convicted of multiple counts of
aggravated criminal sexual contact, see In re Palmer, 147 N.J. 312, 313, 687 A.2d 724 (1997), and, in a very
early case, an attorney convicted of carnal knowledge and carnal abuse, see In re Wesler, 1 N.J. 573, 573,
64 A.2d 880 (1949) (imposing discipline based on Court’s decision affirming conviction and referring to State
v. Wesler, 137 N.J. L. 311, 59 A.2d 834 (Sup.Ct.1948)).
But even a conviction for a sexual offense has not always resulted in an attorney’s disbarment. For example,
in a matter involving an attorney who admitted, as part of a guilty plea to second-degree sexual assault, see
N.J. S.A. 2C:14-2 b, that he had “purposely touched the buttocks of a ten-year-old boy who was visiting [his]
son,” we concluded that a three-year period of suspension was the appropriate discipline. In re Herman, 108
N.J. 66, 67, 71, 527 A.2d 868 (1987). In reaching that conclusion, we agreed with the DRB that although the
crime did not directly involve respondent’s practice of law, it adversely reflected on his fitness to practice,
Id. at 69-70, 527 A.2d 868 (quoting from DRB recommendation), and we concluded that it also violated his
duty to adhere to the high standards of conduct expected of members of our profession, Id. at 70, 527 A.2d
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868. Of particular note, we recognized, as a relevant consideration, the impact that respondent’s conduct had
on the victim. Id. at 69-70, 527 A.2d 868. As reported by the DRB, “[t]his was a serious crime of moral
turpitude involving a child of tender years. The young victim required weeks of counseling, but a traumatic
event such as this will long leave its scar on the victim.” Id. at 69, 527 A.2d 868. In mitigation, we noted that
respondent had an unblemished disciplinary *353 history, had cooperated with the police, and had ceased
practicing, effectively accepting a voluntary suspension, almost immediately after his arrest. Id. at 69-70, 527
A.2d 868. We therefore imposed a three-year suspension, retroactive to the date when the voluntary
suspension had begun. Id. at 70, 527 A.2d 868.
We have, in the past, imposed shorter periods of suspension as the sanction for other types of sexual criminal
convictions. See, e.g., In re Peck, 177 N.J. 249, 249, 827 A.2d 1039 (2003) (imposing one-year suspension
following federal conviction for sexual exploitation of a minor); In re Rosanelli, 176 N.J. 275, 275, 822 A.2d
606 (2003) (imposing six-month suspension following guilty plea to fourth-degree endangering welfare of
child); In re McBroom, 158 N.J. 258, 258-59, 729 A.2d 429 (1999) (imposing two-year suspension following
federal conviction for possession of child pornography); In re Pierce, 139 N.J. 433, 433, 655 A.2d 438
(1995) (imposing reprimand following conviction for lewdness); In re Ruddy, 130 N.J. 85, 86, 612 A.2d 949
(1992) (imposing two-year suspension following **502 guilty plea to endangering welfare of child); In re
Addonizio, 95 N.J. 121, 125, 469 A.2d 492 (1984) (imposing three-month suspension for conviction of
fourth-degree criminal sexual contact and concluding that behavior was “aberrational and not the product of
a diseased mind”).
Although we have cautioned that sexual offenses involving clients will be treated severely, see In re Gallo,
178 N.J. 115, 123, 835 A.2d 682 (2003), there are few published decisions addressing such matters, and
those decisions also yield a variety of disciplinary outcomes. In Gallo, supra, for example, we expressed
concern that an attorney, who entered a guilty plea to four separate fourth-degree crimes of criminal sexual
contact with three clients and an adversary pro se litigant, should have had the quantum of discipline
evaluated based on the full factual record rather than the few facts sufficient to support his guilty plea. Id. at
120-21, 835 A.2d 682. Therefore, although the attorney admitted that he had “placed his hands on the breasts
of his clients, D.W. and D.I., *354 without their consent; that he placed the hand of his client, D.B., on his
groin without her consent; and that he placed the hand of the pro se litigant, T.T., on his groin without her
consent,” we concluded that the DRB should not have relied on that limited record. Id. at 119, 835 A.2d 682.
We directed the DRB instead to look beyond the minimal factual circumstances that the attorney was required
to admit on the record in order to have his plea deal accepted. Id. at 124, 835 A.2d 682. We concluded that
we could not be confident that the DRB’s proposed retroactive three-year suspension was appropriate in light
of the limited record and we remanded for further proceedings. Ibid. Mr. Gallo subsequently consented to
disbarment. See In re Gallo, 181 N.J. 304, 304, 856 A.2d 30 (2004).
Although we expressed great concern about the fact that Gallo’s offenses were committed against clients, that
concern arose, at least in part, from the magnitude and severity of the acts that led to the underlying criminal
complaints. That is, the complaints against Gallo involved four separate victims, each of whom was
physically assaulted either at his law firm office or at a courthouse. See Gallo, supra, 178 N.J. at 120, 835
A.2d 682. Three of the women were clients, and the fourth was a pro se litigant who alleged that Gallo
assaulted her in the courthouse where she was seeking a restraining order against his client. Ibid. Those facts
were sufficiently severe and extensive that we were not inclined to permit respondent to limit his disciplinary
exposure through a bare-bones plea allocution. Id. at 123-24, 835 A.2d 682.
Nevertheless, merely because the inappropriate sexual behavior is directed at a client, or directed at someone
who is indigent, discipline has not always been enhanced. As an example, in an early case involving an
attorney’s blatantly inappropriate sexual activities directed toward an indigent client, this Court imposed a
rather modest penalty. See In re Liebowitz, 104 N.J. 175, 175-76, 516 A.2d 246 (1985).
In the Liebowitz matter, the attorney was assigned to serve as pro bono counsel for an indigent matrimonial
client involved in a *355 custody dispute and invited her to join him at a restaurant for what he described as
a meeting with attorneys and clients. Id. at 176-77, 516 A.2d 246. Thereafter, he offered her a ride home, but
drove her, with her acquiescence, to his home instead. Id. at 177, 516 A.2d 246. The client believed that they
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would be discussing her case, but Liebowitz said later that because he had assigned her matter to one of his
associates, he saw the evening as purely a social encounter. **503 Ibid. After Liebowitz and the client arrived
at the apartment, he made sexual advances toward her. Those advances included inviting her into his bedroom
to sit on his bed, asking her to engage in sexual activity, “unbutton[ing] the top front of her dress” in spite
of her verbal and physical efforts to stop him, forcibly kissing her, removing his clothing and pulling her onto
the bed, and “touch[ing] her intimate parts and plac[ing] her hand on his genital area to assist his sexual self
gratification.” Ibid. Liebowitz was charged with the criminal offense of lewdness, but was acquitted because
of the State’s failure to prove beyond a reasonable doubt that the client had not consented. Id. at 178, 516
A.2d 246.
In the disciplinary proceeding that followed, a Special Ethics Master found that the attorney had engaged in
sexual contact and that, in light of the vulnerability of the client, then fighting for custody of her children,
“she cannot be said to have truly consented to [Respondent’s] sexual advances. That such inherent coercion
was present is clear from the evidence, including her resistance to such advances.” Id. at 178-79, 516 A.2d
246. The DRB rejected respondent’s contention that he was not acting as the victim’s attorney when the
interactions took place, and found that the indigent client “could reasonably infer that a failure to accede to
Respondent’s desires would adversely impact on her legal representation.” Id. at 180, 516 A.2d 246. Even
so, the DRB recommended that Liebowitz be reprimanded, taking into consideration his long and
unblemished career, the aberrational nature of the event, the proof of his good character, his full recognition
of the seriousness of the misconduct and the fact that he “has *356 discontinued his practice of socializing
with clients.” Id. at 181, 516 A.2d 246.
Although this Court adopted that recommendation without comment, see Id. at 176, 516 A.2d 246, in our
subsequent decisions we have charted a different course. For example, we have adopted a harsher view when
imposing discipline on attorneys who have been convicted of acts of domestic violence. That approach
reflects the fact that domestic violence involves victims who are particularly vulnerable, and is in keeping
with the expression of public policy evidenced in our strict domestic violence laws. See, e.g., In re Principato,
supra, 139 N.J. 456, 463, 655 A.2d 920 (1995) (announcing rule that suspension will ordinarily be imposed
for acts of domestic violence); In re Magid, supra, 139 N.J. 449, 455, 655 A.2d 916 (1995) (same). Even in
announcing that such a conviction would ordinarily result in suspension, we gave the new rule prospective
application. Principato, 139 N.J. at 463, 655 A.2d 920; Magid, 139 N.J. at 455, 655 A.2d 916; see In re
Margrabia, 150 N.J. 198, 200-01, 695 A.2d 1378 (1997) (imposing suspension of three months on attorney
found to have committed predicate offense of simple assault on his wife in domestic violence proceeding).
But see In re Toronto, 150 N.J. 191, 197, 696 A.2d 8 (1997) (imposing three-month suspension for
conviction of simple assault on spouse committed prior to announcement of new rule based on aggravating
factors). As a result, in both Principato and in Magid, we imposed only a reprimand, in spite of the fact that
the victim in Principato was originally referred to the attorney by a battered women’s shelter and continued
to be his client during the incident leading to his conviction for assaulting her. Principato, supra, 139 N.J.
at 459-60, 655 A.2d 920.
As these precedents demonstrate, we have rarely established bright line rules that will govern disciplinary
infractions, including serious matters involving criminal offenses. The most notable exception, of course, is
our unfaltering view about the severity of the punishment to be meted out **504 to attorneys who engage in
knowing misappropriation. See *357 In re Wilson, 81 N.J. 451, 453, 409 A.2d 1153 (1979). Save for that
clear directive, all discipline is highly fact-sensitive. To be sure, crimes involving theft, because of their
relationship to the principles that lie behind the Wilson rule and their threat to the trust that must be reposed
in attorneys, usually lead to disbarment. See In re Imbriani, 149 N.J. 521, 534, 694 A.2d 1030 (1997)
(disbarring former judge for misappropriation of funds belonging to business venture). But even when the
attorney has been convicted of a theft, and even if it involved a particularly vulnerable victim, disbarment has
not been inevitable. See In re Infinito, 94 N.J. 50, 51-52, 462 A.2d 160 (1983) (imposing three-year
suspension for conviction of larceny committed on “mentally retarded” members of household).
There are some crimes, of course, that are so serious that they plainly call out for the severe sanction of
disbarment, whether directly related to the practice of law or not. This has been particularly true of such
violent crimes as murder or manslaughter. See, e.g., In re Johnson, 157 N.J. 531, 531-32, 724 A.2d 796
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(1999) (disbarring attorney convicted of first-degree murder); In re Rasheed, 134 N.J. 532, 532, 636 A.2d
67 (1994) (same; aggravated manslaughter, aggravated assault and terroristic threats); In re McAlesher, 93
N.J. 486, 487-88, 461 A.2d 1122 (1983) (same; second-degree murder). It also has generally been true that
convictions relating to distribution or sale of dangerous drugs have resulted in disbarment. See In re Valentin,
147 N.J. 499, 500, 688 A.2d 602 (1997) (conviction for sale of pound of cocaine); In re McCann, 110 N.J.
496, 497-98, 541 A.2d 1361 (1988) (federal kingpin conviction); In re Goldberg, 105 N.J. 278, 283-84, 520
A.2d 1147 (1987) (federal conviction of conspiracy to distribute narcotics). Even so, we were far less harsh
when disciplining an attorney who, although convicted of possession with intent to distribute, was principally
an abuser of drugs. See In re Kinnear, 105 N.J. 391, 392-93, 522 A.2d 414 (1987) (imposing one-year
suspension).
We have not adopted a bright line disbarment rule even in the context of crimes involving violence, see, e.g.,
*358 In re Viggiano, 153 N.J. 40, 41, 707 A.2d 147 (1998) (imposing three-month suspension for conviction
on two counts of simple assault); In re Howard, 143 N.J. 526, 533, 673 A.2d 800 (1996) (imposing
three-month suspension for death by auto); In re Predham, 132 N.J. 276, 276-77, 624 A.2d 1371 (1993)
(imposing six-month suspension for making terroristic threats, aggravated assault with deadly weapon, and
possession of weapon for unlawful purposes); In re Braun, 118 N.J. 452, 453, 572 A.2d 590 (1990)
(conviction of recklessly endangering another; three-month retroactive suspension); In re Litwin, 104 N.J.
362, 367-69, 517 A.2d 378 (1986) (imposing five-year suspension for aggravated arson; mental state at time
of crime served as important mitigating factor), or for criminal offenses with a potential for violence, see In
re Wallace, 153 N.J. 31, 32, 707 A.2d 143 (1998) (imposing three-month suspension for unlawful possession
of handgun).
[1] As we have often observed, the essential purpose of our system of attorney discipline is to protect the
public, not to punish the attorney. See In re Rigolosi, 107 N.J. 192, 206, 526 A.2d 670 (1987) (“The purpose
of a disciplinary proceeding, as distinguished from a criminal prosecution, is not so much to punish a
wrongdoer as it is to protect the public from an untrustworthy lawyer.”); Wilson, supra, 81 N.J. at 456, 409
A.2d 1153 (emphasizing that “the principal reason for discipline is to preserve the confidence of the public
in **505 the integrity and trustworthiness of lawyers in general”); In re Makowski, 73 N.J. 265, 271, 374
A.2d 458 (1977) (“The ultimate objectives of imposing a disciplinary measure are ‘the protection of the
public, the purification of the bar and the prevention of a re-occurrence.’ “ (quoting In re Baron, 25 N.J. 445,
449, 136 A.2d 873 (1957))).
[2] [3] [4] Our system of discipline, as a result, includes few bright line rules, because few indeed are the
acts for which one sanction will be invariably appropriate. Considering how best to protect the public from
a particular attorney ordinarily involves considering the ethical lapses both in comparison to our relevant
disciplinary precedents and in the context of that attorney’s history rather *359 than merely identifying the
attorney’s specific unethical act. Our evaluation of the appropriate quantum of discipline, therefore, is
necessarily fact sensitive.
III.
[5] Respondent does not come to us with an unblemished record, as a result of which we begin our
consideration of the disciplinary sanction that we will impose upon him with a brief recitation of his prior
history of discipline. Respondent was admitted to the practice of law in New Jersey in 1994. His disciplinary
history began in 2002 when he was admonished for failing to maintain a bona fide office for the practice of
law, recordkeeping violations and the improper use of letterhead. In May 2003, in a matter that proceeded
by default, he was reprimanded for failing to communicate with a client he represented in a tax appeal and
for failing to cooperate with ethics authorities. In re Witherspoon, 176 N.J. 420, 823 A.2d 803 (2003). Later
that same year, in October 2003, he was admonished for failing to communicate with another client in a tax
appeal. In February 2008, he was censured for failure to communicate with his client in still another tax
appeal. In re Witherspoon, 193 N.J. 489, 940 A.2d 297 (2008).
The acts that are the subject of the current grievances are different in kind from his earlier ethical
improprieties, for they involve not the poor practices he used for keeping his clients informed about the
progress of their matters, and not the equally poor manner in which he maintained his books and records, but
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a series of comments and communications with some of his bankruptcy clients of a sexual nature. Respondent
concedes that the grievants would have testified that they understood him to be attempting to barter his
services for various sexual favors, behavior that is plainly and unequivocally inappropriate.
The DRB recommends that respondent be suspended from the practice of law for a period of three months,
based on his behaviors and his lengthy disciplinary history. Two dissenting *360 members concluded that
a longer period, a suspension of six months, is needed, focusing in part on the number of incidents, the time
period over which they occurred, and the fact that respondent’s history demonstrates that lesser punishments
have not deterred further unethical acts. Our dissenting colleagues would not only disbar respondent, but
would create a new bright line rule of automatic disbarment of attorneys who engage in the behavior
respondent has displayed. See post at 367, 369-70, 3 A.3d at 510-11, 511-12. We do not agree with any of
these recommendations, but conclude that a one-year period of suspension is the appropriate quantum of
discipline in this matter. We do so for several reasons.
First, we rely on the stipulated factual record, which exactly matched all of the factual assertions in the
complaint and **506 which is, therefore, unlike the limited and self-serving plea colloquy that we found was
inadequate in Gallo. As offensive as respondent’s behavior was, according to that stipulated record, none of
the grievants accused respondent of forcing them to endure any unwanted physical contact or even attempting
to do so; none of them felt sufficiently pressured that she even considered giving in; none sought therapy or
treatment to overcome the experience; none has suggested the incidents were traumatic; and none pursued
criminal charges. Although they filed grievances against him, there is no evidence that any of them found him
threatening or dangerous. This record therefore lacks the severity of the unethical sexually-oriented behavior
that we have previously considered to be worthy of disbarment.
Second, nothing in the record suggests that these women, or women filing for bankruptcy in general, are
especially vulnerable or more in distress because of the nature of their legal matters than are other categories
of clients. Most clients are under stress and feel vulnerable when consulting with counsel and there are many
clients who are equally, if not more, vulnerable than people filing for bankruptcy. Compared to the clients
in Liebowitz, supra, 104 N.J. at 176, 516 A.2d 246 (indigent client in child *361 custody dispute), and
Principato, supra, 139 N.J. at 459, 655 A.2d 920 (battered woman seeking divorce and custody), and
compared to the victims in Gallo, supra, 178 N.J. at 120, 835 A.2d 682 (adversary pro se litigant seeking
restraining order against attorney’s client), and Infinito, supra, 94 N.J. at 52, 462 A.2d 160 (“mentally
retarded” household members), we see no principled ground on which to carve out women involved in
bankruptcy proceedings as particularly vulnerable and as especially in need of protection.
[6] Third, as we have previously cautioned, preying on clients will be dealt with more harshly than other acts
because it goes directly to the heart of the trust on which the attorney-client relationship is founded. But we
cannot endorse the dissenters’ automatic disbarment approach because of its broader implications. Carried
to its logical conclusion, creating the “zero tolerance” rule that they advocate based on this record would
demand that we automatically disbar attorneys involved in non-criminal, non-threatening, non-traumatizing,
purely verbal, sexual improprieties directed at other adults, simply because they are clients. In light of our
disciplinary precedents making plain that not every conviction for a sexual offense will result in disbarment,
we conclude that it would be disproportionate punishment indeed if respondent’s behavior, although boorish,
insensitive and offensive, but well shy of criminal, found itself on the far side of that bright line.
On balance, we fix the sanction in this case not only by looking at what this attorney did, but by evaluating
that conduct, along with his prior history of disciplinary infractions, against the pre-existing decision-making
matrix that guides all disciplinary matters. Viewed against our carefully considered precedents, the quantum
of discipline recommended by the DRB is insufficient to address the series of behaviors exhibited over time
by this attorney. His repeated, demeaning and offensive suggestions to his clients were not merely in jest, but
were an effort to barter his professional services for sexual favors. It is behavior that demands *362 our stern
condemnation and significant discipline. Nonetheless, we cannot impose, fairly, discipline on respondent far
harsher than the sanctions our precedents demand.
We therefore impose upon respondent the suspension from the practice of law for **507 a period of one year.
In keeping with the precedents to which we have adverted, we conclude that neither a longer period is
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required nor a shorter period will suffice. We condition respondent’s return to the practice of law on the
successful completion of an approved course in sensitivity training and the institution of appropriate
accounting controls.
Justice LaVECCHIA, dissenting.
In this disciplinary case, we deal with an attorney who attempted to barter his legal services in exchange for
sex from his vulnerable female clients. Even the bloodless, stipulated record presented in this case cannot
disguise the impact of the course of conduct undertaken by respondent, David J. Witherspoon. In an
astounding exhibition of bad taste, lack of professionalism, and overreaching of vulnerable clients who were
at the doors of bankruptcy, respondent instilled in three female clients and the daughter of another client, a
belief that a fee owed would be forgiven or abated if each would engage in some form of sexually-oriented
conduct with him. Adding insult to injury, a review of respondent’s statements made under oath at the hearing
in this matter reveals a man without remorse. That is, a man without any remorse except that he was caught
and his conduct opened him up to the four grievances filed against him.
This matter comes before us on an order to show cause issued by this Court to review the findings and
recommendation of the Disciplinary Review Board (DRB) that respondent be suspended for a period of three
months. The Court now imposes a one-year suspension. Because I am unable to agree with the quantum of
punishment to be imposed on respondent, whose outrageous behavior, I conclude, requires disbarment, I
respectfully must dissent.
*363 I.
An ethics complaint, filed against respondent under Docket Nos. XIV-06-095E and VI-07-900E,
XIV-06-096E and VI-07-901E, XIV-06-482E and VI-07-902E, XIV-06-483E and VI-07-903E, charged him
with engaging in sexual harassment, sexual discrimination, recordkeeping violations, and practicing law while
ineligible for failure to pay the New Jersey Lawyers’ Fund for Client Protection annual assessment.2 It is the
first count of this complaint against respondent that is most remarkable. It set forth allegations by four
different women who claimed that respondent sexually harassed and/or discriminated against them. All of
the women victims (three clients and one a family member of a client) were vulnerable financially and were
seeking bankruptcy protection. The District VI Ethics Committee (DEC) conducted a hearing on March 28,
2008, at which respondent testified. In lieu of court appearances by the women who filed grievances against
him, the DEC **508 accepted the following stipulations establishing the anticipated content of each woman’s
testimony.
2
In addition to the instant disciplinary charges, it should be noted that respondent had a troubling disciplinary history.
Since his admission to the New Jersey bar in 1994, respondent has been disciplined on four previous occasions. In 2002,
he was admonished for failing to maintain a bona fide office, for improper letterhead, and for recordkeeping violations.
In re Witherspoon, No. 02-050 (DRB Mar. 18, 2002). A year later, on May 6, 2003, respondent received a reprimand
for his failure to communicate with his client in a tax appeal and for failing to cooperate with ethics authorities. In re
Witherspoon, 176 N.J. 420-21, 823 A.2d 803 (2003). Later that same year, he was admonished for failing to
communicate with another tax appeal client. In re Witherspoon, No. 03-280 (DRB Oct. 24, 2003). In 2008, respondent
was censured, yet again, for failing to communicate with a tax appeal client. In re Witherspoon, 193 N.J. 489, 940 A.2d
297.
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(a) T.B. would testify that, on August 13, 2005, respondent was retained by L.B., Sr. (L.B., Sr.) to
represent him in a bankruptcy matter. L.B., Sr. was assisted by his daughter, T.B., in discussing with
respondent the fees required for handling L.B., Sr.’s bankruptcy. Respondent’s retainer agreement required
a legal fee of $700 from L.B., Sr. When T.B. advised respondent that L.B., Sr. was short $300 in legal fees,
respondent offered to meet T.B. in a hotel room for three hours, to take care of the $300. T.B. understood
respondent’s comments to constitute a proposal to exchange sexual favors for the $300 balance owed by L.B.,
Sr. in legal fees. In *364 or about January 2006, T.B. delivered documents to respondent’s office on behalf
of L.B., Sr. At that time, L.B., Sr. owed respondent a balance of $200 in legal fees, which T.B. told
respondent she was unable to remit on L.B., Sr.’s behalf. Whereupon, respondent offered that T.B. could
come to his office in a bathing suit and dance for him, to take care of the $200. T.B. understood respondent’s
comments to constitute a proposal to exchange sexual favors for the $200 balance owed by L.B., Sr. in legal
fees;
(b) S.B. would testify that, in September 2005, S.B. retained respondent to represent her in a bankruptcy
matter. On one occasion, when S.B. visited respondent’s office in the presence of her female friend,
respondent remarked that many gay women “come on” to respondent and that respondent would like to see
S.B. and her friend “make out”. At that time, respondent continued to state to S.B. that if he were permitted
to watch them “make out,” he would file the bankruptcy free of charge. S.B. understood respondent’s
comments to constitute a proposal to exchange sexual favors for the balance owed to respondent in legal fees.
Thereafter, in a second incident, S.B. came to respondent’s office to make a fee payment and to inform him
of an additional bankruptcy creditor. At that time, respondent stated that he would only add the creditor to
S.B.’s bankruptcy if she lifted her skirt, at which S.B. refused, and left respondent’s office. S.B. understood
respondent’s comments to constitute a proposal to exchange sexual favors for representation in her
bankruptcy matter. Thereafter, on another trip to respondent’s office to make payment on the balance of legal
fees owed to respondent, respondent stated that S.B. could satisfy her outstanding legal fees by either
allowing him to watch her with her female friend or by allowing him to join in, to which S.B. refused. S.B.
understood respondent’s comments to constitute a proposal to exchange sexual favors for the balance owed
to respondent in legal fees. Thereafter, S.B. retained new counsel to complete her bankruptcy matter;
(c) S.S. would testify that, on July 18, 2001, S.S. retained respondent to represent her in filing a
bankruptcy matter. During the course of respondent’s representation, he began to question S.S. about her
personal life, ask if she would go out with him and made inappropriate sexual advances to S.S., but S.S.
declined his proposals. S.S. understood respondent’s comments to constitute a proposal to exchange sexual
favors for representation in her bankruptcy matter. Thereafter, S.S. retained new counsel to complete her
bankruptcy matter; and
(d) A.C. would testify that, in September 2005, A.C. retained respondent to represent her in a bankruptcy
matter. At a subsequent appointment at respondent’s **509 law office, respondent stated to A.C., “Oh, so
you’re the gay girl”. After confirming her personal sexual orientation, respondent continued to remark about
A.C.’s sexuality, as well as suggest that A.C.’s lesbianism was caused by a bad experience with the male sex
organ. A.C. understood respondent’s comments to constitute a denigration of her lesbian lifestyle. Thereafter,
after the conclusion of a bankruptcy hearing, respondent commented to A.C. that he was a “breast man,” that
she was looking good that day and that if she came back to his office and joined him on his “office couch,”
he would return to her $660 of the legal fees she previously paid, to which A.C. refused. A.C. understood
respondent’s comments to constitute a proposal to exchange sexual favors for legal fees paid to respondent.
*365 In response to those allegations, respondent asserted that whatever comments he made were made in
jest, and that the women were retaliating against him by filing grievances. What is most notable about
respondent’s testimony before the DEC is his total lack of comprehension of any wrongfulness in his
conduct.3 When asked repeatedly whether he thought that his comments and actions were wrong, respondent
3
Inexplicably, respondent thought he might garner some sympathy from the DEC because he had represented S.S., who
was a Muslim and dressed in traditional fashion “from head to toe,” and how he had traveled with her to the bankruptcy
hearing shortly after September 11, 2001, at a time when he perceived strong anti-Muslim sentiment “going on.”
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showed no remorse, but instead appeared motivated by a desire to avoid future disciplinary complaints against
him. Indeed, when he was finally pressed to answer whether he would continue to conduct himself as he had
in the past, respondent replied, “[W]ould I do things differently, heck yeah, because I left myself wide open.”
Moreover, respondent voiced his discomfort with the inquiry:
The problem with the question and the answer, you know, if the Ethics Committee wants to write strict rules
on what we can talk about and not talk about, fine, then put it out there but the Ethics Committee has too
many rules that are generalities, appropriate behavior, appropriate conduct, whose definition? Your’s [sic],
mine, Catholic, Protestant, Muslim, you can’t tell me what’s appropriate and I can’t tell you what’s
appropriate unless you want to say this is a moral ethics course and, I’m sorry, ... I can’t-it’s hard to get boxed
in because you’re talking about freedom of speech, you’re talking about I can’t discuss what we want, talking
about free market. If clients are offended, get another attorney, maybe people in here don’t like that answer
but that’s what’s called free marketplace and if you want to be strict, then write strict rules, you know, you
need stricter rules, your rules are too general.
Ultimately, the DEC rejected respondent’s assertion that his overtures to the four females were intended in
jest, finding the defense “entirely unpersuasive.” The DEC found that respondent may have intended to trade
his legal services for sexual favors, and that, regardless of his intent, the women clearly perceived his
comments to be bartering offers. The DEC concluded that respondent violated RPC 1.7(a)(2), RPC 4.4(a),
RPC 8.4(d), and RPC 8.4(g), and it recommended a censure.
*366 On a de novo review of the record, the DRB agreed that respondent engaged in unethical conduct. It
found that, in respect of the four grievants, respondent “repeatedly made sexual propositions that they
interpreted as offers of respondent’s **510 legal services in exchange for sex.” The DRB found no support
for respondent’s claim that he was only joking, and gave “considerable weight to the clients’
interpretations—that respondent was attempting to obtain sexual favors from them.” Summarizing its findings
as to the first count, the DRB described respondent as having “preyed on his female clients.” Further, it neatly
captured the gist of respondent’s misconduct as follows:
[T]he misconduct involved four separate women, at what was arguably one of the most vulnerable
times in their lives—while under bankruptcy protection (the fourth woman was accompanying her
father, a bankruptcy client, to respondent’s office). His conduct was also spread out over a five-year
time period, between 2001 and 2006 and, for some of the women, occurred on multiple occasions.
Respondent offered discounted legal services, fee refunds—even free motion—practice-in hopes of
receiving sexual favors.
For that, the DRB found a violation of RPC 1.7(a)(2) with respect to all four grievants.4 Also, the DRB found
that respondent violated RPC 8.4(g),5 and it sustained the violation for practicing while ineligible entered
by the DEC. With respect to the allegations that respondent violated RPC s 8.4(d) and 4.4, the DRB gave
respondent the benefit of its doubt and dismissed those charges. A six-person majority of the DRB imposed
a three-month suspension, while a two-person dissent viewed respondent’s behavior more harshly, and called
for a six-month suspension. The matter came before this Court on an order to show cause to review the DRB
findings, and a majority of our Court now sees fit to increase respondent’s suspension to one year.
4
The DRB commented that respondent, “[h]aving placed his own prurient interests above those of his clients, ... created
the possibility that he would not view their matters favorably if his advances were rejected.”
5
The DRB concluded that respondent sexually harassed all four women, some on more than one occasion, and
discriminated against S.B. and A.C. based on their sexual orientation.
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*367 My difference with the DRB, and with the majority of my colleagues on the Court, arises from the
discipline to be imposed on respondent for his behavior. In my view, line drawing over the length of
suspension misses the point that respondent’s behavior violated all expected and plainly held norms of
professional behavior for an attorney at law.
II.
Respondent’s conduct is clearly and utterly inconsistent with any recognized norm of professionalism and
threatens to draw our profession into disrepute. The only appropriate measure of discipline that protects the
public from respondent’s intolerable behavior, and sends a zero-tolerance message toward lawyers who would
consider preying on their clients is disbarment.
Some thirty years ago, Chief Justice Wilentz observed that “the principal reason for discipline is to preserve
the confidence of the public in the integrity and trustworthiness of lawyers in general.” In re Wilson, 81 N.J.
451, 456, 409 A.2d 1153 (1979). Although Chief Justice Wilentz reemphasized this basic tenet in the context
of charges stemming from misappropriation of client funds, his assessment is not restricted to that application.
Because trust and integrity must pervade every level of the attorney-client relationship, I believe that it is
antiquated to afford greater protections to a client’s financial **511 interests than to his or her gender or
sexual identity. One’s bodily integrity is at least as important as the security of the finances one entrusts to
an attorney. In light of the overwhelming condemnation we, as a society, share for the type of behavior in
which respondent engaged, his own inability to recognize the wrongfulness of his conduct reveals a man who
is woefully out of touch, and certainly incapable of exercising the fitness of character required of an attorney
at law.
Although the majority recites numerous previous disciplinary decisions of this Court, the cited precedent is
readily distinguished from the rather unique issue in this case. Most of the cited cases *368 involved the
imposition of discipline as a collateral consequence of a criminal conviction that did not implicate the
attorney-client relationship. See, e.g., In re Thompson, 197 N.J. 464, 963 A.2d 837 (2009) (ordering
disbarment as collateral consequence of federal conviction for sexual exploitation of a minor).6 Only one case
cited by our colleagues is remotely analogous to the instant proceeding, and even that case arose in the
context of a criminal conviction for four counts of fourth-degree criminal sexual contact: In re Gallo, 178 N.J.
115, 835 A.2d 682 (2003); see also 181 N.J. 304, 856 A.2d 30 (2004) (memorializing subsequent voluntary
disbarment). Like Witherspoon, Gallo faced allegations of sexual misconduct from four separate women,
three of whom were clients. 178 N.J. at 118, 835 A.2d 682. Unlike the present case, however, the issue in
Gallo did not focus on the quantum of discipline to be imposed, but rather on the need to develop a record
beyond the guilty plea entered by Gallo. The case was remanded so that the Office of Attorney Ethics could
develop a thorough record in order to make a proper determination of the appropriate quantum of discipline.7
6
Although criminal convictions for such sexual offenses certainly give rise to serious concerns about an attorney’s
fitness to practice, such collateral occurrences are not “the principle reason” we exercise discipline over attorneys. See
Wilson, supra, 81 N.J. at 456, 409 A.2d 1153. Rather, our function is to protect and maintain public confidence in the
bar, and in the dignity of our profession. See ibid.
7
That holding is central to understanding the Gallo decision. Yet, although relying on Gallo, the majority today indicates
a willingness to accept the brief and targeted stipulated statements from the victims. Resting only on those statements,
the majority assumes that “none of [the grievants] felt sufficiently pressured that she even considered giving in; none
sought therapy or treatment to overcome the experience; none has suggested the incidents were traumatic; and none
pursued criminal charges.” Ante at 360, 3 A.3d at 506. The record is silent as to all those facts, and does not provide even
a modicum of support for any of those conclusions. What is clear is the extraordinary fact that four different women were
so appalled and disturbed by respondent’s conduct that they each filed a disciplinary complaint against him. The majority
is also content to conclude, on the barren record presented, that “nothing ... suggests that these women, or women filing
for bankruptcy in general, are especially vulnerable or more in distress because of the nature of their legal matters than
are other categories of clients.” Ante at 360, 3 A.3d at 506. I must respectfully disagree with that analysis because it
ignores the fact that respondent targeted his advances precisely at his clients’ vulnerability: he offered to forgive, in
exchange for sexual favors, the debts owed him for legal work by women in bankruptcy who were obviously
experiencing financial difficulty.
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Id. at 119-22, 835 A.2d 682. *369 We imposed an indefinite suspension on Gallo pending the results of that
hearing, Id. at 125, 835 A.2d 682, although Gallo thereafter consented to voluntary disbarment, 181 N.J. 304,
856 A.2d 30.
Of all the precedent discussed by the majority, Gallo is most noteworthy. It **512 clearly rejected, in
unmistakable terms, the antediluvian disciplinary paradigm that previously might have tolerated or excused
sexual misdeeds perpetrated by attorneys against clients:8
We have traveled a far way from tolerance of sexual misconduct in the workplace and in our profession. We
recognize the psychological damage that can be inflicted on the victims of sexual abuse, who silently suffer
and do not complain because they feel powerless to do so. The sexual abuse of a client is unacceptable in any
profession and in any business setting, and cannot be tolerated in our profession, which holds as sacred the
dignity of the individual.
[Gallo, supra, 178 N.J. at 123, 835 A.2d 682.]9
In fact, announcing strong deviations from previously tolerated behavior in our profession is not exceptional
for our Court. In executing our oversight of the legal profession in New Jersey, this Court has been
compelled, from time to time, to examine and recalibrate the disciplinary measures meted against attorneys
who have breached our strict ethical standards. See Wilson, supra, 81 N.J. at 459-61, 409 A.2d 1153. I would
impose the highest level of *370 discipline on respondent. I wholeheartedly reject his effort to mitigate his
behavior through the suggestion that he was merely “joking around”; it is not respondent’s perspective that
matters, but rather the perspectives of his clients, who sincerely believed that he was attempting to barter sex
for legal services. When respondent’s clients sought his assistance in financial matters, rather than providing
support and expertise, he instead exploited their vulnerability and violated their trust.
III.
Although the majority characterizes the result I reach as “a new bright line rule of automatic disbarment,” ante
at 360, 3 A.3d at 505, that description denies the fact-based approach that leads me to conclude that
disbarment is the appropriate discipline for respondent’s conduct toward clients in the context of the sanctity
of lawyer-client interactions. Furthermore, my conclusion that respondent must be disbarred is supported by
his troubling disciplinary history, and that history serves to underscore my resolve in the quantum of
discipline he should face. Respondent has obviously failed to internalize the lessons to be learned from his
past disciplinary experiences. In light of the seriousness of the current charges, respondent’s inexplicable lack
of remorse, and his grim disciplinary history, I would disbar respondent.
Any new attorney, fresh from the law school study of ethics and professional responsibility, will wonder how
any penalty short of disbarment would be appropriate discipline for respondent’s behavior. To borrow once
again from Chief Justice Wilentz, “[a]s far as [I am] concerned, the only reason that disbarment might be
necessary is that any other result risks something even more important, the continued confidence of the public
in the integrity of the bar and the judiciary.” Wilson, supra, 81 N.J. at 460, 409 A.2d 1153.
**513 For these reasons, I would disbar respondent. I therefore respectfully dissent.
*371 For Suspension 1 year—Chief Justice RABNER and Justices LONG, WALLACE, RIVERA–SOTO
and HOENS—5.
For Disbarment —Justices LaVECCHIA and ALBIN—2.
8
Notably Gallo did not refer at all to In re Liebowitz, 104 N.J. 175, 516 A.2d 246 (1985), another case cited by the
majority herein, where the punishment imposed was radically different than what modern sensibilities reasonably would
expect.
9
For completeness, we note that Gallo was decided in 2003. Although one of the grievants in the instant matter fell
victim to respondent’s sexual misconduct in 2001, the remaining three did not experience it until 2005. Thus, respondent
had the benefit of our opinion in Gallo, and should have conformed his behavior accordingly.
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Opposed —None.
ORDER
The Disciplinary Review Board having filed with the Court its decision in DRB 08-302, concluding that
DAVID J. WITHERSPOON of NEWARK, who was admitted to the bar of this State in 1994, should be
disciplined, and respondent having been ordered to show cause why he should not be disbarred or otherwise
disciplined, and good cause appearing;
It is ORDERED that DAVID J. WITHERSPOON is suspended from the practice of law for a period of one
year and until the further Order of the Court, effective August 24, 2010; and it is further
ORDERED that DAVID J. WITHERSPOON enroll in and successfully complete a course in sensitivity
training approved by the Office of Attorney Ethics, which training shall be completed prior to the filing of
a petition for reinstatement to practice; and it is further
ORDERED that respondent demonstrate to the satisfaction of the Office of Attorney Ethics that he has put
appropriate accounting controls in place in his practice and that he is in compliance with the recordkeeping
requirements of Rule 1:21-6; and it is further
ORDERED that respondent comply with Rule 1:20-20 dealing with suspended attorneys; and it is further
ORDERED that pursuant to Rule 1:20-20(c), respondent’s failure to comply with the Affidavit of Compliance
requirement of Rule 1:20-20(b)(15) may (1) preclude the Disciplinary Review Board from considering
respondent’s petition for reinstatement for a period of up to six months from the date respondent files *372
proof of compliance; (2) be found to constitute a violation of RPC 8.1(b) and RPC 8.4(c); and (3) provide
a basis for an action for contempt pursuant to Rule 1:10-2; and it is further
ORDERED that the entire record of this matter be made a permanent part of respondent’s file as an attorney
at law of this State; and it is further
ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative
costs and actual expenses incurred in the prosecution of this matter, as provided in Rule 1:20-17.
Parallel Citations
3 A.3d 496
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EXHIBIT G
WASHINGTON RULES OF PROFESSIONAL CONDUCT
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law;
(g) commit a discriminatory act prohibited by state law on the basis of sex, race, age, creed, religion, color,
national origin, disability, sexual orientation, or marital status, where the act of discrimination is committed
in connection with the lawyer’s professional activities. In addition, it is professional misconduct to commit
a discriminatory act on the basis of sexual orientation if such an act would violate this Rule when committed
on the basis of sex, race, age, creed, religion, color, national origin, disability, or marital status. This Rule
shall not limit the ability of a lawyer to accept, decline, or withdraw from the representation of a client in
accordance with Rule 1.16;
(h) in representing a client, engage in conduct that is prejudicial to the administration of justice toward
judges, other parties and/or their counsel, witnesses and/or their counsel, jurors, or court personnel or
officers, that a reasonable person would interpret as manifesting prejudice or bias on the basis of sex, race,
age, creed, religion, color, national origin, disability, sexual orientation, or marital status. This Rule does
not restrict a lawyer from representing a client by advancing material factual or legal issues or arguments.
(i) commit any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which
reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as
a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act
constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition
precedent to disciplinary action, nor shall acquittal or dismissal thereof preclude the commencement of a
disciplinary proceeding;
(j) willfully disobey or violate a court order directing him or her to do or cease doing an act which he or she
ought in good faith to do or forbear;
(k) violate his or her oath as an attorney;
(l) violate a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct in
connection with a disciplinary matter; including, but not limited to, the duties catalogued at ELC 1.5;
(m) violate the Code of Judicial Conduct; or
(n) engage in conduct demonstrating unfitness to practice law.
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*
*
*
COMMENT
*
*
*
[3] [Washington revision] Legitimate advocacy respecting the factors set forth in paragraph (h) does not
violate paragraphs (d) or (h). A trial judge’s finding that peremptory challenges were exercised on a
discriminatory basis does not alone establish a violation of this Rule.
***
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Oregon State Bar
Minimum Continuing Legal Education
Recordkeeping Form
Pursuant to MCLE Rule 7.2, every active member shall maintain records of participation in
accredited CLE activities. You may wish to use this form to record your CLE activities. Do not send
this form to the Oregon State Bar or the Oregon Law Institute. This form should be retained
in your own MCLE file.
Name:_________________________________________ Bar No.__________________
Sponsor of CLE Activity:
Oregon Law Institute
of Lewis & Clark Law School
Title of CLE Activity:
ADDRESSING DISCRIMINATION, HARASSMENT, AND
INTIMIDATION IN LEGAL PROCEEDINGS
Date and Location:
Friday, November 8, 2013
Ambridge Event Center, Portland, Oregon
Video Date and Location:
Full Credit.
3
Partial Credit.
I attended the entire program and the total authorized credits are:
Access to Justice or General
I attended _____ hours of the program and am entitled to the following
credits**:
Access to Justice or General
**Credit Calculation:
One (1) MCLE credit may be claimed for each sixty (60) minutes of actual participation. Do not
include registration or introductions. The Oregon Law Institute, Lewis & Clark Law School is
an accredited sponsor of CLE activities for the Oregon State Bar. CAVEAT: If the actual program
length varies from the credit hours approved, Bar members are responsible for making the
appropriate adjustments in their compliance reports. Adjustments must also be made for late arrival,
early departure, or other periods of absence or nonparticipation.
Please keep this copy for your records. All MCLE records are to be kept by each member for a period of
twelve months after the member’s reporting period. MCLE compliance report forms are obtained through
the OSB MCLE Administrator.