Turn In Your Playbook

A 30-day suspension with fitness has been imposed by the District of Columbia Court of Appeals based on findings that the attorney violated Rules 3.1 and 8.4(d) through a pattern of baseless and frivolous litigation.

Because there was no harm to the client, the court rejected findings that the attorney had provided incompetent representation.

The attorney had represented the complaining witness in a criminal assault case. The defendant was acquitted at a bench trial.

The frivolous litigation came in the acquittal’s wake.

He filed a post-verdict motion for mistrial on behalf of the complainant. He moved fpr reconsideration after the motion was denied. Throughout the litigation, he repeatedly sought recusal of the judge.

He appealed the verdict.

The Court of Appeals affirmed and referred both the attorney and defense counsel to Bar Counsel for investigation.

The same court here found that the litigation itself and the voluminous motions were frivolous in light of the Double Jeopardy clause.

The behavior violated the defendant’s right “to be free of further legal entanglement with respect to the charged assault.”

When the bar investgated on the court’s referral, the pattern persisted.

The attorney sought to remove the disciplinary case to federal court. He sought recusal of Assistant Bar Counsel Hamilton “Phil” Fox.

After the Board on Professional Responsibility issued its report , he sued the BPR, its Executive Attorney, Assistant Bar Counsel Fox and the Clerk of the D.C. Court of Appeals in federal court seeking injunctive relief.

While the court did not consider the litigation brought against the disciplinary system as free-standing misconduct, it treated the pattern as highly significant to its determination to impose a fitness requirement.

The court noted that the attorney was “still using the same playbook” after receiving “considerable feedback” about his over-the-top litigation tactics. Fitness was required because the “ingrained pattern of [his] litigation tactics” had burdened local and federal courts.

A hearing committee had found no misconduct because the attorney was misguided but sincere in his beliefs. According to the attorneys on the hearing committee

In litigation, half of the lawyers are always wrong. In many cases, their arguments may even approach the laughable. By and large, lawyers simply are not sanctioned for being wrong, no matter how wrong they may be. As the quoted material above indicates, even being very wrong must be accompanied by something more, namely some malevolent purpose.

Notably, the non-attorney member of the hearing comittee got it right in dissent (my blog post linked here).

The BPR found violations and recommended a 90-day suspension with fitness.

The case is also notable with respect to the history of Phil Fox. It’s the first decision he has gotten from the court in a disciplinary case.

Phil started at Bar Counsel in March 2011. He’s an active and diligent litigator who promptly investigates and prosecutes his cases.

It is a sad reflection on the glacial pace of D.C. bar discipline that it took more than 3 1/2 years for him to move a single case from soup to nuts. (Mike Frisch)