An unusual Specification of Charges filed by District of Columbia Disciplinary Counsel alleges misconduct by an attorney litigant and his counsel in the attorney’s Maryland divorce case.

The attorney-litigant is facing disbarment recommended by a Hearing Committee for misconduct in his divorce

There is no dispute that, during this period, Mr. Libertelli lied on scores of occasions. He lied under oath during testimony. He lied in representations made to the Court that were not under oath. He fabricated or materially altered scores of drug tests to conceal his continued use of drugs, and scores of entries in financial records, in almost all (but not all) instances to conceal payment for drugs.

…on the existing evidence, we conclude that Mr. Libertelli did not prove by a preponderance of evidence that the addiction was a substantial cause of his wrongdoing; and, although he has made some progress, he did not prove (by the required clear and convincing evidence, or even a preponderance) that he is already substantially rehabilitated as Kersey requires. Accordingly, he should be disbarred.

The present charges involve representations made in connection with litigation concerning his support obligations

In the motion, Respondents represented that “[d]espite being under no obligation to do so, [Mr. Libertelli] submitted to drug tests on more than one occasion over the past year.” They went on to say: “Of particular significance, on September 30, 2020, [Mr. Libertelli] submitted himself for a hair follicle test with a twelve (12) month look-back. This test found no evidence of [Mr. Libertelli’s] use of fentanyl or numerous other opiates.” They attached the result of the hair follicle test taken on September 28, 2020, and stated that Mr. Liberteli had not used opiates since January 7, 2018.

Respondents further represented in the motion that on January 13, 2021, as part of his matter before the D.C. Board on Professional Responsibility, Mr. Libertelli agreed to submit to bi-monthly drug testing for opioids, cocaine, and other drugs. They further said that Mr. Libertelli had since tested negative for opiates, cocaine, and all other illegal drugs on the panel on January 28, February 10, March 4, and March 24.

On September 28, 2020, the day of the hair follicle test, Mr. Libertelli tested positive for cocaine in a separate urine test. Respondents did not disclose these results in the motion to alter or amend. Nor did they disclose that Mr. Libertelli had tested positive for cocaine on other occasions in 2020.

On July 8, 2021, Dimitrina Barzachka, the director of the laboratory where Mr. Libertelli went for testing emailed [Respondent Feldman’s] Mr. Dame the results of 17 drug tests based on urine samples, together with a Certification of Custodian of Records dated July 7, 2021.

Respondents knew that the evidence of Mr. Libertelli’s drug use and his use of funds to buy illicit drugs was relevant to the proceeding and planned to offer evidence about his drug test results at the July 15, 2021 hearing.

Respondents removed or caused to be removed six of the 17 test results that Ms. Barzachka had sent with her email and added or caused to be added two other results of hair follicle tests that Ms. Barzchaka had provided separately without a certification, to create Defendant’s Exhibit 1, captioned “Defendant’s Drug Testing History.”

The exhibit excluded all the drug test results based on urine samples from August through October 2021, including four test results showing that Mr. Libertelli had tested positive for cocaine on August 8, September 28, and October 23, and 27, 2020.

On July 14, 2021, Respondent Feldman or his associate Mr. Dame sent Ms. Noguchi copies of Mr. Libertelli’s exhibits for the hearing. There was no disclosure that the first exhibit excluded some of Mr. Libertelli’s drug test results that the lab had produced with the business records certification, including those in which he tested positive for cocaine.

As to statements made at the hearing, it is alleged

Respondents knew that Mr. Libertelli’s statements to the court were false, but no one corrected them.

In a sworn declaration signed under penalty of perjury on August 9, 2021, submitted in a D.C. disciplinary case, Mr. Libertelli represented that he understood and believed that “all of the drug tests” were included in the motion to alter or amend (or motion for reconsideration). Mr. Libertelli further represented that he believed that the drug tests from September and October 2020 [i.e., those showing he was testing positive for cocaine] were included in his Maryland court exhibit. These statements were knowingly false.

Answers filed by both charged attorneys (linked here and here) deny the allegations. 

As to counsel

The full record in this matter will establish that in light of Mr. Libertelli’s checkered history with Judge Storm, and the pending disciplinary action against him, Mr. Feldman carefully considered and was acutely sensitive to the ethical issues and obligations attendant to his representation of Mr. Libertelli. The record will further show that Mr. Feldman at all times acted honestly, ethically and consistently with the standards of care required in this challenging representation; that the representations he made to Judge Storm in writing, and during the July 2021 motions hearing, were accurate and truthful, and were not intended to mislead Judge Storm; that Judge Storm was not misled; and that the issue of Mr. Libertelli’s drug use was, as Mr. Feldman had believed, of minimal probative value to Judge Storm’s consideration of Mr. Libertelli’s child support obligations. The investigation which led to the instant charges was not initiated by a referral from Judge Storm, but rather, by a referral from Ms. Noguchi’s former divorce counsel.

(Mike Frisch)