The Value Of Blowing The Whistle On Yourself

The Georgia Supreme Court imposed a two-month suspension of an attorney who testified falsely but later saw the error of his ways

Nowell became a member of the Bar in 1979. The facts, as admitted by him and as found by the special master following a hearing, show that in May 2012 and January 2013, Nowell testified falsely in two depositions that were taken in a civil suit filed against a corporate entity and several testamentary trusts; Nowell was general counsel and/or an officer at the relevant times of the corporate entity and was trustee of the trusts. The false testimony was material to the merits of the litigation, and Nowell gave the testimony knowing it was false because he believed that truthful answers would help the plaintiff and would hurt the defendants with whom he was affiliated. Several months after the second deposition, Nowell came to experience great remorse and, in April 2013, submitted to the court an affidavit confessing to and correcting his false testimony. In May 2013, Nowell self-reported his misconduct to the State Bar. In June 2013, he was deposed again and testified truthfully. The trial court in that case ultimately granted summary judgment against the plaintiff, for reasons unrelated to Nowell’s false testimony. Nowell’s disclosure to the trial court of his misconduct was of his own volition, and but for his coming forward, his misconduct could have remained undiscovered.

This case raises the interesting enforcement consequences of the truly voluntary (i.e. detection not imminent) self-report.

I encountered the same mitigation issue in a case where the attorney had self-reported conduct that would clearly have merited disbarment otherwise

While Weiss took significant steps to mitigate his misconduct by self-reporting his theft; making efforts to ensure that the opportunity to misappropriate money from his firm and other firms will be more difficult in the future; and seeking counseling to help him address the psychological problems that led him to his ethical lapse, the fact remains that Weiss unlawfully diverted a substantial amount of money from his law firm over a significant number of years and a sanction of one year or less would be wholly inconsistent with the discipline imposed on others for comparable conduct…

Given those prior precedents and the facts of this case, the Board stated that it did not come easily to the conclusion that Weiss should not be disbarred. Ultimately, however, the fact that Weiss self-reported his violation led the Board to conclude that the sanction should be reduced from disbarment to three years suspension with one year suspended. Further, the Board, obviously influenced by the psychological evidence presented by Weiss, decided not to require a showing of fitness as a condition of Weiss resuming his law practice. Both of these accommodations by the Board are significant and were warranted under the circumstances.

Notably, the Weiss case was argued in March 2001 but not decided until December 2003. I left the Office of Bar Counsel for Georgetown Law in July 2001.

The Maryland Court of Appeals discounted the mitigation and (over a dissent) imposed disbarment as reciprocal discipline. (Mike Frisch)