Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Idaho State Bar Professional Conduct Board’s public reprimand of a lawyer who filed a motion to withdraw and stating that the judge was “either biased toward them, prejudiced against Counsel, too lazy to actually listen to the recording of the relevant interview, or too incompetent to reach the correct conclusion from the facts. Therefore, Counsel lacks faith in this Court’s ability to objectively and competently serve as a fact-finder in this case.” The case is Idaho State Bar v. Eric J. Scott, ISB No. FC-12-08 (October 4, 2012). A summary of the Order is here: http://isb.idaho.gov/bar_counsel/public_discipline.html.
According to the Order and summary of the disciplinary matter, the lawyer represented a criminal defendant charged with possession of an open container and battery. A magistrate named Thomas Watkins was assigned to the case and stated in an order that the test for determining whether a suspect was in custody “is a subjective one and the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Following the magistrate’s decision denying the pre-trial motions, the lawyer filed a motion to withdraw as counsel.
In the motion to withdraw, the lawyer stated that the magistrate had erroneously applied a subjective test rather than an objective test in analyzing whether the defendant was in custody. The lawyer described the magistrate’s statement of the test as “stunningly nonsensical” and stated that “[w]ith all due respect to this Court, this statement makes no sense.” Regarding the open container charge, the lawyer stated that the magistrate erroneously concluded that the defendant admitted to an officer that he had consumed alcohol in a public theater. The lawyer concluded the motion to withdraw by stating, in part:
“The Court’s errors in this case were so inexplicable and so great in number that Counsel has formed the belief that this Court is:
(d) prejudiced; or
[(e)] all or some of the above.
With all due respect, Counsel simply cannot escape this belief. There is no explanation for this Court’s ‘finding’ of a ‘fact’ that did not exist. It would be understandable if this Court overlooked a fact, but this Court made up a fact. It just so happens that this Court made up facts to the advantage of his former employer, the Boise City Prosecutor’s Office. Therefore, this Court is either biased toward them, prejudiced against Counsel, too lazy to actually listen to the recording of the relevant interview, or too incompetent to reach the correct conclusion from the facts. Therefore, Counsel lacks faith in this Court’s ability to objectively and competently serve as a fact-finder in this case.
For the reasons set forth above, Counsel also has no faith in this Court’s ability to competently and objectively interpret the law in this case. The Court’s stunningly nonsensical statement of the ‘test’ for determining custody speaks for itself….”
The magistrate denied the motion to withdraw after a hearing and the lawyer was subsequently served with a written charge of criminal contempt. Following another hearing, the lawyer was found guilty of contempt, and the guilty finding was pending on appeal on the date of the public reprimand. The defendant in the underlying case was found not guilty of the battery charge and the open container charge was dismissed after the state rested its case.
The Professional Conduct Board of the Idaho State Bar initiated an investigation of the lawyer after a complaint was filed on June 29, 2012. The lawyer declined to file and answer because of the pending contempt case with criminal implications. On September 24, 2012, the Committee of the Professional Conduct Board conducted a hearing on the Idaho State Bar’s Motion to Deem Admissions for Failure to Answer and for Imposition of Sanction. Following the hearing, the committee entered an Order finding that the lawyer violated I.R.P.C. 8.2(a), by making a statement concerning the qualifications or integrity of a judge that a reasonable attorney, considered in light of all his professional functions, would not have made under the circumstances.
The Professional Conduct Board ‘s 10/4/12 Order imposed a public reprimand along with probation and the condition that he complete a one-year mentoring program facilitated by the Idaho State Bar. The lawyer had begun the mentoring program voluntarily before the disciplinary case was filed and was given credit for 5 months toward the one-year requirement.
Bottom line: Wow…is there something in that fresh mountain air in Idaho? Do I even need to say that lawyers should think before they write and file a motion like this, particularly if it is a motion to withdraw?
Be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and/or guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
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