Category Archives: Lawyer conduct adversely affecting fitness to practice

Ohio lawyer sentenced to 30 days in jail for pleading that “was an attempt to mislead the court, obstruct justice and prejudice the administration of justice”

Hello everyone and welcome to this Ethics Alert which will discuss the recent Court Order imposing a 30 day jail sentence on an Ohio lawyer, who is general counsel to Bowling Green State University (BGSU), for, inter alia, filing a pleading that “was an attempt to mislead the court, obstruct justice and prejudice the administration of justice”. The case is Fitzgerald vs. Fitzgerald, Case No. 2017DR0012.  The April 4, 2019 Order and Notice of Appeal are here: https://images.law.com/contrib/content/uploads/documents/292/April-5-Wood-County-decision.pdf (PDF of Order courtesy of Law.com)

According to media reports, the lawyer is employed as BGSU’s general counsel and vice president, and was representing himself in a divorce proceeding from his wife in the Wood County (Ohio) Common Pleas Court Domestic Relations Division.  He was sentenced to 30 days in jail to begin on April 8, 2019 after a series of incidents during the proceedings.  He was then placed on paid leave by the university and he was also suspended from an appointment as an assistant attorney general through that position.

According to the Order, the lawyer objected to an attorney fee request filed by a lawyer who was representing one of his sons and told the judge he would be filing a grievance against that lawyer.  The Order states that “The Court finds that (the lawyer) was untruthful.  He claims to have filed a grievance against Mr. Mohler.  That was not true, no grievance was filed.  His pleading was an attempt to mislead the court, obstruct justice and prejudice the administration of justice.  Such a grievance, if true, would “impede of eliminate Mr. Mohler from representing his client.  This situation is magnified by the fact that Mr. Mohler has practiced before courts across Ohio, including this one, with calming superior legal skills, cogent writing and impeccable integrity. If Mr. FitzGerald had a grievance, he is duty bound to file it. He did not do so.”

“By his pleadings, e-mails and exhibits, Mr. FitzGerald has, at the least, been unprofessional toward the magistrate, Ms. Heringhaus; his former lawyer, Ms. Shope; the Guardian ad Litem, Ms.Cox; and his opposing counsel, Ms.Engwert-Loyd. During the last telephone pretrial, Mr. FitzGerald attacked Ms. Engwert-Loyd twice.”  The judge also found that the pleading violated the Ohio Rules of Professional Conduct and referred the matter to the Ohio disciplinary authorities.  The lawyer appealed the Order to the Ohio Sixth District Court of Appeals.

Bottom line: this lawyer apparently engaged in the misconduct while representing himself in a divorce proceeding from his spouse.  Notwithstanding the old adage that “he (or she) who represents him or herself has a —- for a client”, according to the Order, he attacked another lawyer who the judge “had practiced before courts across Ohio with calming superior legal skills, cogent writing and impeccable integrity.”

Be careful out there.

As always, if you have any questions about this Ethics Alert or may need assistance, analysis, and guidance regarding ethics, risk management, or other issues, do not hesitate to contact me.

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Ohio lawyer suspended for 1 year for engaging in “extreme, obnoxious, and humiliating attacks” on paralegal for over 2 years is reinstated to practice

Hello everyone and welcome to this Ethics Alert which will discuss the recent Ohio Supreme Court reinstating a lawyer who was suspended for 1 year for “extreme, obnoxious, and humiliating attacks” on a paralegal lasting over 2 years. The case is Disciplinary Counsel v. Skolnick, No. 2018-OHIO-2990. The 8/1/18 suspension opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-2990.pdf and the 3/11/19 reinstatement Order is here: https://supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-ohio-821.pdf

The August 1, 2018 Ohio Supreme Court opinion suspending the lawyer described the lawyer’s conduct as follows: “(d)uring (the paralegal’s) two-and a-half year tenure, Skolnick berated her for her physical appearance, dress, education, and parenting skills. He called her a bitch, a ‘hoe’, a dirtbag, and a piece of shit, and he told her that he hoped she would die. And because (the paralegal) recorded her interactions with Skolnick on more than 30 occasions, we have had the opportunity to hear Skolnick’s outbursts for ourselves.”

“In addition, the lawyer ‘called (the paralegal) stupid, dumb, fat, ‘whorey,’ and bitch.’ Further, he remarked that she should give him ‘road head’ during a drive and falsely told an African American client that the paralegal “did not like black people.”

“The only explanation that Skolnick offered for his extreme, obnoxious, and humiliating attacks on L.D. was that he had learned the lingo from rappers and hip-hop artists while practicing entertainment law and that he believed he was using the phrases in more of a humorous than a harmful way.” In addition, “(a)lthough (the lawyer) presented some evidence that he had been diagnosed with and was being treated for cyclothymic disorder and exhibited traits of obsessive-compulsive personality disorder, the board declined to afford mitigating effect to those conditions because Skolnick did not present any evidence that they were causally related to his misconduct.”

The opinion found that the lawyer violated Ohio Rule of Professional Conduct 8.4(h), prohibiting a lawyer from “engaging in conduct that adversely reflects on the lawyer’s fitness to practice law” and suspended the lawyer for one (1) year with the final 6 months deferred; however, on March 11, 2019, the Ohio Supreme Court reinstated the lawyer. “On application for reinstatement by respondent, Howard Evan Skolnick, Attorney Registration No. 0061905, last known business address in Cleveland, Ohio. Application granted. Howard Evan Skolnick reinstated to the practice of law in Ohio.”

Bottom line: this lawyer engaged in extreme, obnoxious, and humiliating attacks” on his paralegal and tried to minimize and justify his conduct by claiming that he learned the “lingo” from “rappers and hip-hop artists” and was being treated for psychiatric disorders. The court imposed a 1 year suspension with the final 6 months deferred on August 1, 2018 and he was reinstated on March 11, 2019, approximately 7 months later.

Be careful out there.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

Joseph Corsmeier
about.me/corsmeierethicsblogs

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Florida Bar obtains emergency suspension of lawyer for “waging a personal and public war on social media”

Hello everyone and welcome to this Ethics Alert which will discuss the recent emergency suspension of a Florida lawyer for allegedly “waging a personal and public war on social media against attorneys representing clients” and “resort(ing) to terrorist legal tactics.”  The case is: The Florida Bar v. Ashley Ann Krapacs, Case No.: SC-277 Lower Tribunal No(s) 2018-50,829 (17I)FES; 2018-50,851(17I);2019-50,081(17I) and The Florida Bar’s Petition for Emergency Suspension is here: https://efactssc-public.flcourts.org/casedocuments/2019/277/2019-277_petition_72430_petition2dsuspension2028emergency29.pdf

According to the Petition, the lawyer “launched an attack of massive and continuous proportions” on social media and “(c)learly, respondent’s fury has no bounds.” The lawyer’s alleged “terrorist legal tactics” began after she moved to Florida and initiating a petition for a domestic violence injunction against a former boyfriend in Texas and lawyer Russell Williams represented the ex-boyfriend.  The lawyer dismissed the case; however, she then allegedly “began a social media blitz” on Facebook, Instagram, LinkedIn and YouTube.

The lawyer allegedly called  Williams an “old white male attorney” and a “bully attorney” who had threatened to file a motion for sanctions against her if she did not dismiss the case.  She also stated that “opposing counsel flat-out LIED” and the judge ‘didn’t bat an eye.’”.  She also allegedly used the hashtag #holymisogyny on social media when talking about the case and accused the judge of membership in the “Old Boys Club.”

The lawyer also allegedly continued the misconduct in a YouTube video posted after Williams hired lawyer Nisha Bacchus to represent him and filed a lawsuit against the lawyer for Libel, Slander, Malicious Prosecution and Injunctive Relief.  In the video, the lawyer allegedly called Williams “a moron and a sexist and a bully” and said Bacchus was “a backstabbing traitor” for representing “misogynist pigs, misogynist bullies.”  “Also, she’s a door lawyer. Which is basically a lawyer who takes anything that walks in the door in any area of law.  Because you can’t do every area of law and do them all well. You just can’t. Some people try and they end up like Nisha Bacchus who are so hard up that they’ll take anything, including shit like this. So I almost feel bad for her because he’s playing her. It is really obvious from the way that she presents herself that she’ll take anything if the price is right. Or even if it’s not.”  The lawyer also used hashtags #sellout and #womanhater for Bacchus.

The Petition states that the lawyer made multiple posts on Facebook “accusing The Florida Bar of being corruptly influenced by Nisha Bacchus. Bacchus requested a domestic violence injunction against the lawyer after she posted a Home Alone meme showing a shotgun pointed at an individual and added the caption “when opposing counsel tries to use the same exact trick you saw in your last case.”  According to the Petition, “(o)n February 1, 2019, Judge Moon granted an indefinite Final Judgment of Injunction for Protection Against Stalking against (the lawyer) as a result of her actions toward Nisha Bacchus”

The Florida Supreme Court granted the emergency petition in an Order dated February 27, 2019 with 2 of the court’s seven justices dissenting and stating that they would not grant it.  The February 27, 2019 Supreme Court Order suspending the lawyer on an emergency basis is here:  https://efactssc-public.flcourts.org/casedocuments/2019/277/2019-277_disposition_145483_d31i.pdf.  A referee will be appointed.

Bottom line:  This Petition is highly unusual and there may be a question as to whether such conduct constitutes “great public harm” under the Florida bar Rule.  It will certainly be interesting to see how this drama plays out.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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New Jersey lawyer censured for stating to nonpaying client that he would not prepare for trial and to “HAVE FUN IN PRISON”

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order imposing a a censure on a lawyer who told a client who was behind on payment of fees that he would not prepare for his criminal trial and to “have fun in prison”.  The case style is: In the Matter of Logan M. Terry, No. DRB 17-417 (November 1, 2018).  the Order and New Jersey Disciplinary Review Board’s Decision are here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1105750  and here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1098836.

According to the Disciplinary Review Board’s decision, the attorney represented a client facing criminal charges of sexual assault on four minors and:

In the days immediately prior to a jury trial scheduled for June 7, 2016, respondent communicated with his client in an attempt to collect outstanding fees, informing AM that respondent could not “provide an adequate defense” unless AM ……… paid respondent’s legal fees. Furthermore, in a text message, respondent warned AM that he would not prepare for the trial during the weekend immediately preceding it, unless he was first paid. He then wrote, “HAVE FUN IN PRISON.” The maximum sentence that AM could have received exceeded 200 years.

The lawyer had previously asked the judge to allow him to withdraw twice and the judge refused to allow the withdrawal.  At the beginning of the June 7, 2016 trial (after the jury had been picked), the client told the trial judge about the lawyer’s communications, showed the judge copies of the communications, and stated that he wanted to terminate the lawyer’s legal services.  The lawyer was then removed and the trial was continued.

The New Jersey disciplinary agency opened an investigation on the lawyer and, in a letter to the agency, the lawyer admitted that his actions had been unethical and stated that the client had not cooperated in preparing a defense to the charges and had refused a plea offer that the lawyer considered to be favorable.

The Disciplinary Review Board found that the lawyer’s actions constituted a conflict of interest because he “placed his own personal interest in receiving a legal fee above his client’s interest in receiving the best possible defense to the charges against him.”  The Board also found that the lawyer’s text was prejudicial to the administration of justice because the judge was required to release the jury and reschedule the trial.

The decision found as an aggravating factor that the trial had been previously rescheduled because the lawyer had failed to pay the annual fee to the New Jersey Lawyers’ Fund for Client Protection.  According to the decision:  “(t)o be sure, (the lawyer) was in a difficult position, having been required to continue representing an uncooperative, nonpaying client in a criminal matter. Nevertheless, (the lawyer’s) reaction to that predicament was one of defiance—to subvert the court’s directive by ‘poisoning’ the representation on the eve of trial.”

The New Jersey Supreme Court upheld the Board’s findings and imposed a censure and required the lawyer to pay the costs of the disciplinary proceeding.

Bottom line:  This lawyer clearly became frustrated with the client’s lack of cooperation and failure to pay his fee; however, the lawyer’s communications were obviously improper and he was fortunate to receive only a censure for his conduct.

Be careful out there, and don’t do this…

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida lawyer suspended for hijacking former firm’s e-mail accounts and making disparaging comments on Facebook

Hello everyone and welcome to this Ethics Alert which will discuss recent Florida Supreme Court Order suspending a lawyer for, inter alia, hijacking his former firm’s e-mail accounts and making disparaging comments on Facebook.  The Supreme Court Order is here:  9/20/18 Florida Supreme Court Order-Paul Green

According to the report of referee, which is here:  8/20/18 Green Report of Referee, the lawyer was alleged to have retaliated against his former law firm after he was terminated by hijacking the firm’s e-mail account, posting false and disparaging comments on Facebook about the lawyer who fired him, and communicating inappropriately with a client.

The referee’s report states that the lawyer was fired from his law firm after he used the firm credit card for personal matters, took unauthorized draws from the firm, missed work and took vacations without discussing them with the owner of the firm, made political comments on the firm’s Facebook page, and wrote a derogatory text message about his wife’s lawyer during his divorce. The lawyer’s text said: “Tell Dana Price I hope she dies of dirty Jew AIDS.”

After being terminated, the lawyer changed the password to his former firm’s e-mail accounts and, when the firm turned off the lawyer’s telephones, he agreed to restore the e-mail access only if the firm turned his telephones back on.  After this occurred, however, the lawyer again blocked the firm’s access to e-mail and directed the e-mails to himself.

The lawyer also posted to the law firm’s Facebook page falsely claiming that the firm owner had been “Baker Acted”, a reference to the Florida law related involuntary commitments when a person has a mental condition which poses a danger to that person or to others. The lawyer’s Facebook post also said the letters sent by the former law firm to firm clients that the firm’s e-mails were hacked were untrue.

According to the referee’s report:

“On or about September 5, 2017, Respondent posted the following on Parker & Green, P.A.’s Facebook page:

If you’re wondering what’s going on…Patricia Parker was Baker Acted last Saturday. She has sent letters to all of you clients saying everything was hacked. It wasn’t but please be careful if you decide to go with the law office of Patricia L. Parker. Nothing was hacked but she is trying to get off her suicidal thoughts and is convincing clients she is ok. Don’t worry, my email still works and I am working with the Florida Bar to make sure she gets the help she needs. If you are a client, do not pay a bill until the Florida Bar decides what they will be doing with Ms. Parker. Any correspondence by Alix Diaz who has hacked email accounts owned by Mr. Green, should also be taken with a degree of skepticism. She’s been off her meds for a few months and things have finally taken their toll. I think her impending divorce to her husband for infidelity is part of the problem. If you’re trying to reach Mr. Green, he can still be reached at pgreen@itspersonaljax.com as he owns the domain and website.”

“A short time later in a second post on the firm’s page, Respondent stated:

Everyone should make sure their loved ones don’t need any mental help. Please check. If your brother, sister, father, mother, or business partner threaten to commit suicide … please get them help, before they hurt someone, themselves, or a trusted client. Luckily, Mr. Green doesn’t have that problem. pgreen@itspersonaljax.com.”

The lawyer told the false Baker Act story to a firm client he saw at Everbank Field in Jacksonville. He also said that the other lawyer in the firm had violated ethics rules and that he would finish the client’s case for free if she would make a statement about the other lawyer. He also told the client he would like to get together for drinks to discuss the case.  The lawyer sent numerous texts to the client; however, she did not respond and she subsequently filed a Florida Bar complaint against the lawyer. After the client filed her Bar complaint, the lawyer approached her while she was working as a bartender, slammed his hand down on the bar and said, “Good luck with that complaint.”

The referee recommended a 60 day suspension, a requirement that the lawyer contact Florida Lawyers Assistance, Inc. (FLA, Inc.) within 30 days for an evaluation and comply with all requirements of the evaluation, including an FLA, Inc. contract if one is recommended, and payment of the Bar and FLA costs.  The Florida Supreme Court Order adopted the findings of the referee and suspended the lawyer for 60 days with the recommended conditions.

Bottom line: This is a lawyer who engaged in improper conduct while with a law firm and then apparently went out of control after being terminated, including posting disparaging comments on social media.  The Court has suspended the lawyer for 60 days and required that he undergo an evaluation through FLA, Inc. and, if recommended, to comply with any and all treatment requirements in an FLA contract.

Be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Florida lawyer suspended for 18 months for engaging in personal misconduct while acting pro se as a party in a dissolution proceeding

Hello everyone and welcome to this Ethics Alert which will discuss a Florida Supreme Court opinion wherein the Court imposed an 18 month suspension on a lawyer who engaged in misconduct while representing himself as a party in a dissolution and child support proceeding.  The case is The Florida Bar v. Madsen Marcellus, Jr., No. SC16-1773 and the July 19, 2018 Supreme Court opinion is here:  http://www.floridasupremecourt.org/decisions/2018/sc16-1773.pdf

According to the opinion, a 2010 Order in the dissolution matter required the lawyer to refinance the marital home, remove his ex-wife’s name from the property since he had moved out, or sell the home. Before the closing of a pending sale and the ex-wife had vacated, the lawyer moved back in and the sale fell through.

The lawyer was then unable to refinance the house and, in an attempt to obtain a modification of the mortgage, a friend of the lawyer who was a notary signed the ex-wife’s name on the application in front of the lawyer and notarized it without the ex-wife’s knowledge or consent.

The ex-wife became aware of false notarization after the lawyer failed to make payments under the modified mortgage and she was served as part of a foreclosure filing.  The ex-wife then filed a motion for contempt since her name had not been removed from the house title as ordered. The trial judge withheld a contempt finding, but did order the lawyer to pay $2,500.00 the ex-wife’s fees.

The lawyer was served with discovery requests in the dissolution matter in 2013 related to his alleged failure to pay child support.  He failed to respond and also failed to appear in court when he was ordered to do so by the judge.  The lawyer was later sanctioned and ordered to pay the ex-wife’s fees.  He also remained in violation of several family court orders throughout the disciplinary matter.

The referee rejected the lawyer’s claim he missed some court appearances because he was representing clients, and noted that he made no attempt to advise the court of any conflicts. The referee also found the lawyer was deceptive in the disciplinary process.

The opinion upheld the referee’s factual findings and the findings that the lawyer violated various Bar rules in his actions related to his dissolution and child support matters but increased the referee’s recommended discipline from a 12-month suspension to an 18-month suspension.

The opinion referred to various previous Bar cases where lawyers had committed less serious Bar rule violations and received one-year suspensions.  The opinion also stated, as it has in previous Bar discipline opinions, that “the Court has ‘moved toward imposing stronger sanctions for unethical and unprofessional conduct.’ Fla. Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015).”

In addition, “(the lawyer’s) conduct was entirely unbecoming of a lawyer, who is held within a position of trust and respect in our society, and cannot be tolerated,” the court said in its opinion. “Although [the attorney] committed this misconduct as a party to his own divorce, lawyers ‘do not cast aside the oath they take as an attorney or their professional responsibilities’ just because they are litigants in personal matters. Fla. Bar v. Cibula, 725 So. 2d 360, 365 (Fla. 1998).”

Bottom line:  This case involves a lawyer who engaged in personal ethical misconduct as a party to a personal dissolution matter.  The Supreme Court opinion points out that the Court has “moved toward imposing stronger sanctions for unethical and unprofessional conduct” and lawyers “do not cast aside the oath they take as an attorney….just because they are litigants in personal matters.”  Lawyers must comply with the Florida Bar rules, even while acting as a party in a personal civil matter.

Be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Nevada lawyer suspended for 6 months and 1 day for displaying a gun at a deposition and other “appalling behavior”

Hello everyone and welcome to this Ethics Alert which will discuss the recent 6 month and 1 day suspension of a Nevada lawyer for brandishing a gun at a deposition, using derogatory language and repeatedly making inappropriate statements, and other “appalling behavior”.  The case is In re: Discipline of James Pengilly, SC Case No. 74316.  The September 7, 2018 unpublished Nevada Supreme Court Order is here:  file:///C:/Users/jcorsmeier/Downloads/18-35030%20(1).pdf

The lawyer was representing himself as the defendant in a defamation lawsuit and the misconduct is related to the lawyer’s behavior during a deposition of the Plaintiff at his office in September 2016.  The lawyer used vulgarities while questioning the witness, called the deponent derogatory names (including “Dip Shit” and “Big Bird”), aggressively interrupted the witness and opposing counsel, answered questions for the witness, and repeatedly made inappropriate statements on the record.

At one point during the deposition, the lawyer put his hand near his hip and asked the witness if he was “ready for it”. The witness then briefly left the room and when he returned, the lawyer displayed a firearm he had in a holster on his hip to the witness and the opposing counsel.  The deposition was then terminated and the defamation litigation was put on hold.  The Plaintiff filed a Motion for Protective Order and Motion for Sanctions outlining the misconduct.  The Motion for Protective Order and Sanctions and exhibits are here: 9-29-16 Motion for Protective Order and Sanctions.  The lawyer was sanctioned for his misconduct in the litigation.

The unpublished Nevada Supreme Court Order states: “(h)aving reviewed the record on appeal, we conclude that there is substantial evidence to support the panel’s findings that Pengilly violated RPC 8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice). Indeed, the deposition transcript, coupled with the testimony at the formal hearing, demonstrates that Pengilly displayed appalling behavior toward the deponent. Additionally, the record is clear, and Pengilly admits, that he displayed a firearm. Accordingly, we agree with the hearing panel that Pengilly committed the violation set forth above.”

“Pengilly argues that his conduct should be viewed under a negligence standard, but we agree with the panel that he acted knowingly as he was consciously aware of his conduct and knew his behavior was inappropriate. His conduct caused actual injury to the proceeding as the deposition concluded early and the discovery commissioner had to issue a protective order, causing the case to be delayed. Both the deponent and his attorney testified they were afraid Pengilly was going to shoot them, and their fears were documented: they immediately called the police, filed police reports the next day, filed for a TPO, and filed bar grievances. Further, there was the potential for serious injury to every one present—the deponent, his attorney, the court reporter, Pengilly’s office staff, and even Pengilly himself–because a deadly weapon was involved.”

Bottom line:  This case involves a lawyer who was clearly lacking in emotional control and anger management, to say the least.  In addition, he was representing himself, and we know how that can go.

Be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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