Highlights from Recent Ethics Cases – With a Special Emphasis on Civility

1. Highlights from Recent Ethics Cases – With a Special Emphasis on Civility Prof. Linda F. Smith, U of Utah SJ Quinney College of Law

2. Recent Case Highlights – Dishonesty, Theft, Misappropriation Disbarred and Suspended

3. In re: Discipline of Lundgren • 391 P.3d 1039 (UT 2017) • Attorney intentionally misappropriated client’s funds – settlement money • Attorney Disbarred – the presumptive penalty • Disbarment is presumptive sanction when attorney knowingly engages in prof’l misconduct with intent to benefit the lawyer & causes potentially serious injury or engages in serious criminal misconduct, including theft / misappropriation • Supreme Court Rules of Professional Practice 14-601 - 607 • Discussion of when there would be “truly compelling mitigating circumstances” to justify a lesser penalty

4. Matter of Discipline of Bates • 391 P.3d 1039 (UT 2017) • Attorney KNOWINGLY commingled his and client funds • Attorney NEGLIGENTLY used client’s funds (messy accounting system) • Suspension rather than disbarment was appropriate under14-605(b)

5. Matter of Discipline of Barrett • 391 P.3d 1031 (UT 2017) • Attorney misappropriated LAW FIRM fees by • Having Firm write-off bills to clients • Accepting clients’ work on Attorney’s own house in lieu of fees • Dishonest conduct in violation of Rule 8.4(c) • Five-month suspension

6. Matter of Discipline of Steffensen • 428 P.3d 1104 (UT 2018) • Attorney’s failure to file employee withholding taxes is a criminal act reflecting adversely on the lawyer’s honestly, trustworthiness or fitness as a lawyer in violation of Rule 8.4(b) • Attorney gave W-2s to employees indicating tax monies had been withheld, when they had not been, in violation of Rule 8.4(c) • Disbarment is not the required sanction for these violations – remanded to district court to determine sanction

7. Recent Case Highlights – Conduct in Litigation Uncivility leading to discipline

8. Ciardi v. Office of Professional Conduct • 379 P.3d 1287 (UT 2016) • Disruption in Court: . Mr. Ciardi was not present when the judge called his case, so the judge dismissed it. During the next roll call, Mr. Ciardi interrupted the judge's calendar and asked the court to recall his case. The judge told Mr. Ciardi not to interrupt his calendar and to sit down. Mr. Ciardi ignored these instructions and continued to argue with the judge. The judge then ordered Mr. Ciardi to leave the courtroom. As a bailiff escorted Mr. Ciardi from the courtroom, he caused a disturbance. Mr. Ciardi continued to yell and make disparaging remarks about the judge in the hallway outside the courtroom.

9. Ciardi cont. • Mr. Ciardi then went to the clerk's office and became belligerent with the clerk. The clerk found it necessary to request the assistance of a bailiff to deal with him. The bailiff asked Mr. Ciardi to leave the courthouse numerous times, but he refused and continued to yell at the bailiff and make disparaging remarks about the judge. A second, and then a third, bailiff was called to the clerk's office, where the incident lasted approximately one hour. Eventually, two bailiffs escorted Mr. Ciardi out of the courthouse while he yelled obscenities at the bailiffs in front of members of the public.

10. Ciardi cont. • Mr. Ciardi was cited for disorderly conduct and refusing a lawful order. He entered an Alford plea to the disorderly conduct charge after the prosecutor reduced it to an infraction. • Suspended for two years for violation of Rule 3.5(d) – conduct intended to disrupt a tribunal -- and Rule 8.4(d) – conduct prejudicial to the administration of justice

11. Ciardi – the discipline case • “In addition to his actions at the courthouse in June of 2011, and his statements at the Screening Panel hearing in 2012, Mr. Ciardi has filednumerous pleadings that are replete with derogatory comments about judges and the court system in Utah.” (Emphasis added). The discussion of those pleadings before the district court is fairly extensive (and, by the way, not inaccurate). The other aggravating factors listed include not only Mr. Ciardi's lengthy experience in the practice of law and his refusal to acknowledge the wrongful nature of his misconduct, but also his “obstructionist” behavior at the screening panel hearing.

12. Ciardi – the discipline case cont. • The problem lies with the fact that statements made in Mr. Ciardi's pleadings in the litigation before the district court (and they are extensive and often very offensive) have never been charged as misconduct, and his behavior and statements at the hearing are already part of the course of conduct being sanctioned, and therefore not properly treated as aggravating factors • We note that in so holding, we do not take the view that there should be no consequences for Mr. Ciardi's reckless and offensive allegations of bias, discrimination, and incompetence of Utah judges and Utah courts contained in his pleadings before the district court and this court. Should the OPC deem it advisable, these actions would certainly warrant investigation.

13. What is going on with this behavior?!? First, some other cases of uncivil litigation:

14. Gilbert v. Utah State Bar • 379 P.3d 1247 (UT 2016) • Gilbert represented disgruntled chapter heads of UDSF who spun off a new group, UDSA. They withdrew $ from chapter accounts and paid it to Gilbert. Foundation got an injunction that this stop and they and Gilbert pay the money back. Gilbert never did. • Found to have violated 1.7, 1.15 and 3.4(c) – knowingly disobeying an obligation under the rules of a tribunal – with no “open refusal.” Disbarred. • “had a duty to openly contest the order by filing a request to stay the order in court, notify the court of his receipt of the ... checks and at least hold the monies in trust until the court ruled on the issue.”

15. Rose v. Office of Professional Conduct • 424 P.3d 134 (UT 2017) • “The district court disbarred Susan Rose for violations of Utah's Rules of Professional Conduct in cases Rose handled in both federal and state courts. Her disbarment came after the district court struck her answer and entered default judgment against her. The disbarment did not come suddenly, or by surprise.” • Over the course of several years, Rose had received multiple warnings from multiple tribunals. These tribunals called her motion practice “bizarre,” “inscrutable,” “dilatory,” “frivolous,” “legally meritless,” “wholly superfluous,” “utter[ly] incomprehensibl[e],” “unresponsive, immaterial, and redundant,” and “not based in reality.” • Disbarred for violations of Rules 1.1, 1.7, 3.1, 3.2, 4.2, 8.2 and 8.4

16. Rose cont. • Moved to disqualify a state court judge in a visitation case & a federal judge • In Rose's motion to disqualify Judge Kimball, Rose emphasized Judge Kimball's apparent religious affiliation. Rose complained that “being a member of said Church and an acknowledged social leader in Utah, [if he] would have ruled to enforce the civil rights of the Navajo Court plaintiffs, Judge Kimball may have been subjected to great social and political pressures.” Rose claimed that ruling in her clients' favor would have caused Judge Kimball “political and social embarrassment.” • The case was reassigned to Judge Bruce Jenkins. Judge Jenkins dismissed several claims against the remaining defendants. Rose in turn filed motion after motion, amendments to motions, objections to rulings, and motions for reconsideration. Judge Jenkins ultimately dismissed all claims against the remaining defendants for a lack of any factual basis for any claim.

17. Rose, cont. • Even after the district court had entered its final judgment and exhaustively explained the basis for its decision, Rose continued to file motions in the federal district court. She also filed a pleading in the Tenth Circuit asking it to recuse Judge Jenkins. Judge Jenkins responded to Rose in an order stating that the motions before him were “wholly superfluous.” Judge Jenkins pronounced “enough is enough” and refused to entertain any further motions in the case until the Tenth Circuit had decided Rose's motion to recuse. • Rose appealed Judge Jenkins's decision to the Tenth Circuit, and Judge Jenkins issued another order that “no further motions may be filed in this case” pending a mandate from the Tenth Circuit. The Tenth Circuit dismissed Rose's appeal as “frivolous.”

18. Rose cont. • Rose had also violated rule 8.4(d)—providing that it is misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice,” id. 8.4(d)—in the Federal Case when she “filed numerous frivolous pleadings and claims” and “continued to file frivolous pleadings even after being warned and sanctioned.... caus[ing] significant delays and expense.”

19. Rose v. OPC • Rose continued to file motion after motion, delaying the second half of the attorney discipline process—the sanctions hearing. A sanctions hearing was finally scheduled—about four years after OPC had filed its initial Complaint. Rose, however, failed to appear. Instead, she filed an “Emergency Motion to Reschedule Sanctions Hearing,” . . . Judge Trease placed Rose's bar membership on disability status and ordered that the sanctions hearing be rescheduled to a later date. • In 2013, the second phase of the attorney discipline process commenced . . . Rose immediately began moving the court to dismiss for lack of due process, to set aside the default judgment, to dismiss for forum non conveniens, for a restraining order against all OPC prosecutions of anyone practicing in federal court, for sanctions against OPC, and for a permanent injunction, among others.

20. Matter of Discipline of LaJeunesse • 416 P.3d 1122 (UT 2018) • Charged with violating Rule 8.4(d) conduct prejudicial to the administration of justice • Workers’ Comp ALJ rejected medical panel reports and returned them to the medical panel for “charges to form and verbiage” without first providing them to the parties

21. LaJeunesse cont. • The Commission and the district court both determined that LaJeunesse “had a good faith belief that his statutory interpretation permitting the return of a signed report to a medical panel for technical revision was correct.” No written policy of the Commission expressly forbade returning the medical report to the medical panel. And, given the role of the medical panel as an ALJ’s adjunct, the district court found that the statute implicitly permits the ALJ to seek further assistance prior to deeming the report final. The district court also concluded that LaJeunesse’s only purpose in permitting the return of the medical reports was to correct errors of law or phrasing contained in the reports and to train the physicians who had prepared them.

22. La Jeunesse cont. • District Court dismissed the case • Utah Supreme Court affirmed • “We conclude that a lawyer cannot be charged with conduct prejudicial to the administration of justice for adopting a good faith but mistaken interpretation of a law that governs the lawyer’s performance of quasi-judicial authority . . .” • “An attorney who tampers with evidence or presents false testimony is not exercising good faith legal judgment. He is engaged in misconduct. That cannot be said of LaJeunesse”

23. NOT a discipline case:Hardy v. Montgomery 428 P.3d 78 (UT 2018)

24. Civility in fn. 5 of Hardy v. Montgomery • Appeal from a suit over real estate purchase contract for a home • Dispute over whether court should have ordered one party to pay attorney fees for other. Both parties ordered to pay own fees. • Fn 4 “In light of our discussion in footnote 5, infra, regarding Hardy’s intemperate briefing, Hardy is fortunate we are not assessing the Montgomerys’ attorney fees against him.”

25. Intemperate Briefing • We note that Hardy’s opening brief contains several disrespectful and offensive statements directed toward the trial court, including (1) “the lower court is either clueless, completely negligent ..., or it bears significant bias against Hardy,” and (2) “the lower court was at a minimum derelict in its duties” and was “significantly confused and erratic in its findings.” • We caution Hardy’s counsel that “personal attacks on the integrity of judges of this or any other court or statements that are generally disrespectful of the judiciary or ascribe improper motives to a court or judges ‘overstep[ ] the bounds of appropriate appellate advocacy,’ and may subject [counsel] to sanctions that can include, among other things, striking the filings in which they appear” or assessing attorney fees

26. Intemperate Briefing Cont. • Utah R. Prof’l Conduct 8.2(a) (“A lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or a candidate for election or appointment to judicial office.”). • Hardy’s reply brief also alleges that the Montgomerys acted in “bad faith” and made a “conscientious decision ... to mislead this Court.” • We stop short, in this case, of striking Hardy’s brief or otherwise sanctioning counsel, but we direct counsel to refrain from making such comments in future filings.

27. Standards of Civility Cited in Hardy • Standard 1 of the Utah Standards of Professionalism and Civility states, in relevant part, that “lawyers shall treat all other counsel, parties, judges, witnesses and other participants in all proceedings in a courteous and dignified manner.” • Standard 3 of the Utah Standards of Professionalism and Civility states, Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.

28. Egregious incivility is a ethical violation • “It is professional misconduct to: . . . .engage in conduct that is prejudicial to the administration of justice” URPC 8.4(d) • ”The Standards of Professionalism and Civility approved by the Utah Supreme Court are intended to improve the administration of justice. An egregious violation or a pattern of repeated violations of the Standards of Professionalism and Civility may support a finding that the lawyer has violated paragraph (d). Comment [3a] URPC 8.4

29. Conclusions about Civility?

30. Conclusions • You can be wrong but not obnoxious • Don’t insult the court • If you disagree with a ruling, follow it or openly object / appeal • When you appeal, don’t bad-mouth the opposing party or the court

31. Question – What is really going on here?

32. Answer: Maybe Lack of Civility Highlights Mental Health Issues?

33. Attorney Discipline • 40 – 70% of disciplinary proceedings and malpractice claims involve substance use or depression or both • D. B. Marlowe, Alcoholism, Symptoms, Causes & Treatments, in STRESS MANAGEMENT FOR LAWYERS 104-130 (AmiramElwork ed., 2d ed., 1997)

34. The Stress Begins with Law School • Law students begin law school with typical profiles of “well being” • By the end of the 1st year, as a group they have greater depression, anxiety, substance use and suicidal ideation than average people • 50% experience depression, 33% experience anxiety, • Stressors probably include workload, job insecurity, grades, course structure and Socratic method, inadequate mentoring and poor peer relations • These risk factors NEVER GO AWAY from law students as a group • Only half of law students who needed mental health services received them

35. Recent Survey of Law Student Well-Being • Survey of 15 law schools, 3300 students, released in 2016 • 17 % experienced some level of depression • 14% experienced severe anxiety • 23% had mild-moderate anxiety • 25% were at risk for alcoholism • https://jle.aals.org/home/vol66/iss1/13/Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns

36. Various Practice Practices Add Stress • Lawyers, too, are at greater than average risk for depression, anxiety, substance use and suicidal ideation • Theories about stress for lawyers include income insecurity, over-work, inadequate support on the job, the adversary system • Stimulus-response model of stress – what stressors are you exposed to? • Transactional-model of stress – stress results from how individuals handle stressors

37. CoLAP Survey: Attorney Impairment Data • https://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx • Commission on Lawyer Assistance Programs surveyed 12,825 attorneys from 19 states to assess alcohol, drug, depression, anxiety, stress • 20.6% screened positive for problem drinking • Levels of Depression were 28%, Anxiety 19 %, and Stress 23% • Younger attorneys were more severely impacted than older attorneys • Treatment was more successful when tailored to legal professionals; barriers to treatment included not wanting others to know, and concerns for privacy / confidentiality

38. RESOURCES

39. CoLAP • ABA Commission on Lawyer Assistance Programs • https://www.americanbar.org/groups/lawyer_assistance/ • Has a mission to assure every lawyer, law student, and judge has access to support and assistance when confronting alcoholism, substance use disorders or mental health issues • Supports the work of state and local Lawyer Assistance Programs • Has Resources on the web: https://www.americanbar.org/groups/lawyer_assistance/resources/

40. National Task Force on Lawyer Well-Being • Created in August 2016 by CoLAP, Nat’l Organization of Bar Counsel, & Assn. of Professional Responsibility Lawyers. Other Organizations have since joined. • Report issued 2017 • Recommendations focus on five themes: 1) ID stakeholders and roles to reduce level of toxicity in legal profession, 2) eliminate stigma of help-seeking, 3) emphasize well-being is part of lawyer’s duty of competence, 4) educate on well-being issues, 5) take small, incremental steps to change how law is practice and how lawyers are regulated to instill greater well-being in the profession

41. Path to Lawyer Well-Being: • Practical Recommendations for Positive Change • From National Task Force on Lawyer Well-Being published in 2017 • Reasons to Take Action: • Well-being contributes to organizational success – engagement, satisfaction, low turnover • Well-being is crucial for competence • Promoting well-being is the right thing to do from a humanitarian perspective

42. Path to Lawyer Well-Being Cont. • Well-Being Defined: a continuous process where one seeks to thrive in all areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health & social connections with others. • It is not limited to 1) an absence of illness, 2) feeling happy all the time, or 3) intra-individual processes • Five factors are the key elements: career, social relationships, community, health & finances

43. Path to W-B: General Recommendations • Acknowledge the Problems and Take Responsibility – all sectors must do this • Use this Report as a Launch Pad for Profession-Wide Action Plan • Leaders Should Demonstrate Personal Commitment to Well-Being • Facilitate, Destigmatize, & Encourage Help-Seeking Behaviors • Build Relationships with Lawyer Well-Being Experts • Foster Collegiality & Respectful Engagement Throughout the Profession • Promote Diversity and Inclusivity; Engage in Mentoring • Enhance Lawyers’ Sense of Control • Provide High-Quality Educational Programs about Lawyer Distress & Well-Being

44. Path to W-B: General Recommendations • Guide & Support Transition of Older Lawyers • De-Emphasize Alcohol at Social Events • Utilize Monitoring to Support Recovery from Substance Use Disorders • Begin a Dialogue about Suicide Prevention • Support a Lawyer Well-Being Index to Measure the Profession’s Progress

45. Path to W-B: Recommendations for Firms • Establish Organizational Infrastructure to Promote Well-Being • Form a Lawyer Well-Being Committee • Assess Lawyers’ Well-Being • Establish Policies & Practice to Support Lawyer Well-Being • Monitor for Signs of Work Addiction & Poor Self-Care • Combat Social Isolation & Encourage Interconnectivity • Provide Training & Education on Well-Being • Emphasize a Service-Centered Mission • Create Standards, Align Incentives & Give Feedback

46. Path to W-B: Rec’s for Liability Carriers • Actively Support Lawyer Assistance Programs • Emphasize Well-Being in Loss Prevention Programs • Incentivize Desired Behavior in Underwriting Law Firm Risk • Collect Data When Lawyer Impairment is a Contributing Factor to Claims Activity

47. Path to W-B: Rec's for Regulators • Communicate that Lawyer Well-Being is a Priority • Adjust Admissions Process to Support Law Student Well-Being • Adjust Lawyer Regulations to Support Well-Being • Implement Proactive Management-Based Programs that Include Lawyer Well-Being Components • Adopt Diversion Programs Other Alternatives to Discipline that are proven Successful in Promoting Well-Being • Add Well-Being-Related Questions to the MPRE

48. Path to W-B: Rec's for Bar Associations • Encourage Education on Well-Being Topics in Coordination with Lawyer Assistance Progs. • Sponsor Empirical Research on Lawyer Well-Being as part of Annual Member Surveys • Launch a Lawyer Well-Being Committee • Serve as an Example of Best Practices Relating to Lawyer Well-Being

49. Path to W-B: Recommendations for LAPs. • Lawyer Assistance Programs Should be Appropriately Organized and Funded • Pursue stable, adequate funding • Emphasize Confidentiality • Develop High-Quality Well-Being Programming

50. Well-Being Template for Legal Employers • CoLAP publication developed by Policy Committee of CoLAP & ABA Working Group to Advice Well-Being in the Legal Profession • Suggested guidelines for employers responding to employee impairment • Goals: 1) Early ID of impairment (including cognitive) & intervention to treat, and 2) prevent professional standards from being compromised • Encourage reporting, referral for services, leave policies, confidentiality, no retaliation, possible restriction and review of work duties, reliance on expertise for diagnosis and treatment play, possible Return to Work Agreement • Available at: https://www.americanbar.org/groups/lawyer_assistance/research/