No Beauty Or Culture In These Arguments
An attorney who is not regularly engaged in the practice of law but rather serves as chief financial officer of the Charleston Academy of Beauty Culture (“CABC”) was suspended for three months by the West Virginia Supreme Court of Appeals.
The misconduct involved arguments made on behalf of CABC in an appeal brief that attacked an administrative law judge.
The underlying case involved the allegations of two former students that CABC had engaged in race discrimination. The claims were filed with the state Human Rights Commission.
The ALJ was African-American.
The attorney asserted, among other things
[ALJ] Phyllis H. Carter failed to execute her duties as ALJ for the HRC in a fair an (sic) impartial manner by, and in direct conflict with the Code of Judicial Conduct, exhibiting clear bias and having personal knowledge of the matters appearing before her; refusing to disclose the same; and ruling against that which she personally knew to be false…
In an outlandish display of tyrannical inclination, ALJ Carter found that Respondents discriminated because they were unable to force other companies and trade groups to provide instruction and product knowledge at the Respondents’ school. . . . ALJ Carter basing her Decision upon the absence of such an outlandish forced coercion, as she obviously did, indicates not only that ALJ Carter is deluded into thinking that this is a Communist country where companies are forced to perform services for others, but is under the deluded impression that Respondents have the power and authority to compel others to do its bidding. For the foregoing reasons, Respondents recommend that ALJ Carter seek professional psychiatric help, or be required to attend a forced reeducation camp . . . oops . . . wrong country…
The court rejected a number of contentions, concluding that Rule 8.2 applies to statements about administrative law judges and that the statements were not protected by the First Amendment.
The court
An attorney is obligated to present the most effective argument for his client within the Rules of Professional Conduct and to pursue his client’s interests in a lawful manner. Attorneys are encouraged to present zealous advocacy and pursue all available avenues of relief on the client’s behalf. Dissatisfaction with adverse rulings, however, does not justify unwarranted attacks upon the credibility and personal values of the adjudicatory officer. Such irresponsible behavior is injurious to the client’s interests and to the attorney’s obligation to the legal system.
The [Hearing Panel Subcommittee] also properly ruled upon the second factor under the Rule 3.16 [sanction] analysis. Mr. Hall acted intentionally and knowingly; his violations were made in writing after deliberation. Moreover, he presented his statements in two separate appeals and has remained steadfast in his assertion that his statements regarding ALJ Carter were justified.
The attorney also must take a CLE ethics course. (Mike Frisch)