John Doe Reprimanded In Idaho
The Idaho Supreme Court affirmed the imposition of a private reprimand of an attorney for misconduct in a federal court proceeding.
The attorney had relied (and persuaded the court to rely) on an unsigned witness statement but
Plaintiffs had been relying on Miller’s unsigned declaration from March 2011 through February 2012. However, Miller had signed an affidavit on May 9, 2011, and Miller’s counsel sent that affidavit to Doe shortly thereafter. As noted in Bar Counsel’s findings, Miller’s signed affidavit differed from the unsigned declaration in a number of respects. Doe did not disclose the existence or the contents of Miller’s signed affidavit to the district court or Defendants.
On April 27, 2012, defendant C&W received a copy of Miller’s signed affidavit from Miller’s counsel. C&W then submitted Miller’s signed affidavit to the district court and moved for reconsideration of Judge Lodge’s March 30, 2012 order. C&W also filed a motion for sanctions, arguing that Plaintiffs and their counsel committed misconduct by relying on Miller’s unsigned declaration for over a year while Doe knew of the existence of the signed affidavit and failed to disclose it to the court. Judge Bush imposed sanctions against Plaintiffs and counsel, finding in part that counsel violated Idaho Rule of Professional Conduct (“I.R.P.C.”) 3.3. Judge Lodge affirmed the order on October 17, 2014.
Bar Counsel issued a private reprimand, which was reviewed and affirmed by a hearing committee. The attorney was granted review by the Court.
The court outlined the procedures
Where Bar Counsel determines a violation has occurred, he or she has the option of imposing an “informal” sanction—such as a private reprimand—or filing “formal charges.” When Bar Counsel takes the former approach, a hearing committee’s role is to review such a decision for error, not to make independent findings. Nothing in I.B.C.R. 509(d) requires a hearing committee to issue independent findings of fact or conclusions of law when approving Bar Counsel’s imposition of a private reprimand. By contrast, when Bar Counsel pursues formal charges, he or she files a formal complaint and the case is assigned to a hearing committee. I.B.C.R. 511(b)–(c). Then, a hearing is held before the hearing committee, and upon conclusion of the proceedings, “the Hearing Committee shall issue its findings of fact, conclusions of law and recommendations.” I.B.C.R. 511(g)–(h). If the hearing committee finds a violation, it may recommend a public reprimand, public censure, suspension, or disbarment. I.B.C.R. 511(i)–(j)…
Accordingly, we conclude that the Committee did not err by failing to issue independent findings of fact and conclusions of law when approving Bar Counsel’s imposition of a private reprimand.
The court rejected the attorney’s “no duty to correct” contention
The record discloses that there were substantial differences between the two documents. Even if every difference was not material, where a lawyer has presented the court with an affidavit or declaration that is not signed and tells the court that the declarant or affiant is unwilling to sign the document, when the lawyer receives a signed declaration or affidavit from the individual, it is not clear why the lawyer would not feel compelled to immediately advise the court that the reluctant affiant or declarant has changed his or her mind and put signature to paper…
In ruling on Defendants’ renewed motion to dismiss and Plaintiffs’ motion to amend, Judge Bush and Judge Lodge relied on Miller’s statements from the unsigned declaration. The court and Defendants did not become aware of the signed affidavit until Miller’s counsel emailed the affidavit to C&W’s counsel, who then filed the affidavit with the court. Doe failed to disclose the existence of the signed affidavit for almost a year. During that time, the court ruled on several of the parties’ motions, relying in part on information in the unsigned declaration. The parties and the court spent substantial time considering and responding to false information presented by Doe. The proceedings were multiplied as a result, including necessitating reconsideration of Judge Lodge’s order on Defendants’ motion to dismiss and Plaintiffs’ motion to amend after Defendants learned of the existence of the signed affidavit.
The foregoing provides substantial evidence to support Bar Counsel’s conclusion that Doe’s failure to disclose the signed affidavit for a prolonged period was prejudicial to the administration of justice.
LAW360 reported on the underlying class action litigation. Their additional coverage is linked here. (Mike Frisch)