Statements Draw Suspension

An Arizona Hearing Panel has ordered a one-year suspension for an attorney’s statements in defending a criminal case.

The complaint

The State Bar’s complaint alleges the following general categories of misconduct: (1) Accusations Against the Honorable Roy “Chuck” Whitehead; (2) Accusations Against the Honorable Laura M. Reckart; (3) Accusations Against the Honorable Justin Beresky; (4) Accusations Against Opposing Counsel; and (5) Respondent’s Conduct in Other Litigation.

Mr. Gagic filed an answer and counterclaim for “fraud” on August 7, 2022. Thereafter, the Presiding Disciplinary Judge (PDJ) granted the State Bar’s motion to dismiss the counterclaim.

Summary judgment on a number of the alleged violations was sought and granted on motion of the State Bar.

the PDJ granted the motion in part, ruling that, as a matter of law, Mr. Gagic “engaged in substantial and repeated violations of the Oath, the Creed, Rule 41(b)(7), ER 3.5(d), ER 8.2(a), and ER 8.4(d)” by making the following statements during his representation of a defendant in criminal proceedings pending in Maricopa County Superior Court and in his response to the bar charge filed by Judge Justin Beresky:

1. “I defy anyone to find a set of facts more extreme than the hostility and nastiness of not only Judge Reckart, but of the collective Maricopa County Superior Court judiciary has against me, Mr. Pennington’s lawyer.”

2.  “I am concerned Judge Reckart is trying to sanitize the case file and deny as many defense motions as she can before another eventually [sic] judge takes over, making denials of defense motions law of the case. It also concerns me if there are other sanitation efforts, which would be more difficult to uncover, are underway or already done. . . It is a cover up.”
3. Judge Reckart “wrote in the minute entry that my motion for cause change of judge – ‘after defense counsel attempted to remove this judge’ had been ‘quelled.’ That is most bizarre choice of words I have read in a minute entry ever and I would ask Judge Reckart to explain why she seems to believe me an insurrectionist. If my first name was not the same as the most hated man in modern American history, Vladimir Putin, would she have used the words ‘quelled’ or ‘attempted to remove this judge’? Of course not. Those words are deliberate to evoke Russiagate and the Capitol riots. It is a dogwhistle at my expense and my client’s expense.”
4. “Judge Reckart viciously insults me comparing me with a drunk, cocaine abusing derelict, who missed 30 days of court because he was in jail, and completely disdainful to his personal honor, and the honor of his profession and country. It is an insult without rival. That is Judge Reckart telling the whole world, on public court record that I am the
typical dirty, drunk, Slavic brute deserving of nothing more than cheap shots to my face and professional reputation 20 years in making. Not withstanding [sic] my untermensch name and DNA, I am a law abiding American citizen, I pay my taxes on time every time, I don’t drink and drive, I don’t hit women nor am I the least bit sexist, I brake for animals,
I am an honorably discharged US Marine and volunteered to defend this country and its laws with my life. If Judge Reckart has any respect for her office, an office temporarily loaned to her safe keeping by the people of the state of Arizona, including me and my client, she will unequivocally apologize to me and retract the filth immediately.”
5. “I write the denial [of my motion to dismiss for selective prosecution] was seemingly out of nowhere because before that minute entry denial, coming after Judge Reckart issued her infamous minute entry of 8.6.21 .  . . containing McCarthyite Red bating [sic] innuendo I am traitor and failed insurrectionist and noted my character as that of a drunk, drug abusing, and criminal, not criminal defense, but criminal lawyer who missed 30 days of court because he was in jail, there was about a 3 week period in which the case judge was, as far as I could figure out, TBD.”
6. “Judge Reckart statement that the defense filed a motion to compel the interview ‘in turn’ after the state had filed it is a flat out, unequivocal lie.”
7. “Judge Reckart is [prosecutor Fisher’s] apologist and parrots DCA Fisher’s lie the state filed the motion to compel first and I only did so ‘in turn.’ Judge Reckart’s minute entry ignores the fact of the defense’ [sic] motion to compel in entirety . . . All this is to avoid admonishing DCA Fisher for her lying to the court on 5.27.21 that the state had filed the motion first. That point is so clear and obvious a very slow and stupid child would recognize it instantly.”
8. “If I had lied as blatantly as DCA Fisher did in open court, is there any doubt Judge Reckart would have hammered me with joyful relish and it would not be the Sgt. Schultz ‘I see nothing. I hear nothing’ routine as with DCA Fisher? Of course not. I would have been sitting in jail for contempt and disbarred within the hour. But if any judge or prosecutor thinks bullying me with a threat to take my license will stop me from challenging state misconduct, molon labe.”
9. “Judge Reckart also now lays claim to being the adult in the room, but entirely ignored without apology is Judge Reckart’s conduct as firestarter and narrative engineer. The court slanders me, in no particular order, as a drunk, traitor, insurrectionisht, drug addict, jail denizen, and the all around general sleaze bag.”

10. Respondent alleged, without corroboration, “a systematic pattern of anti-Slavic ideology within Maricopa County and scheme to penalize me for, among other things, for my exercise of my 1st Amendment rights. And the easiest way to punish me is by removing me from this case, on a pretext, which is exactly what Judge Reckart tried to do.”
11. “To the surprise of no one, not one bureaucrat has given one moment of one thought to the optics of all-Anglo police officers and all-Anglo detectives and all-Anglo prosecutors, with a generous hand from allAnglo judges and indifference from an all-Anglo save one – judicial commission, manufacturing the guilt of a very black man named Jamal. That is not to mention the high school slurs directed at that very same very black man’s very non-Anglo lawyer named Vladimir. Judge Reckart’s behavior has been an anachronism, behavior that would not be believable if it was to be told in the typical over the top and self righteous John Grisham novel. But this is not the Raj of a White Man’s Burden and 2022 is not 1922.”
12. “Obviously, Beresky’s plan was to deny all the defense motions and find reasons, not necessarily good reasons but any contrived reason will do, to justify denying all defense motions after the fact. Deny then justify.”
13. “What is far worse however, is Beresky’s finding that ‘evidence . . . does in and of itself exculpate the Defendant …’. That burden of ‘in and of itself exculpate the defendant’ is far worse than even ‘clear and convincing’. While Beresky does not cite any authority for imposing that monster of a burden upon Mr. Pennington, I can only guess the source was the Spanish Inquisition or Stalin’s show trials or something else more domestic.”
14. “Judge Beresky denied the motion in his typical haughty manner.”
15. “Amusingly, in all self-important seriousness, Beresky even claimed that although he does not know what I.H. said . . . that does not prevent his keen Sherlock Holmes like insight knowing why she said it.”
16. “Why is Beresky presuming Mr. Pennington to be guilty of the crimes the state has charged him as the very means to deny Mr. Pennington’s motion to prove he is not guilty of those crimes? Did Beresky and the state have an evidentiary hearing and just not tell me about it, or is Beresky not aware that Mr. Pennington is innocent until proven guilty beyond a reasonable doubt?”
17. “So to make this simple, if judges have such contempt for me, born from whatever cause, and will glibly subvert Mr. Pennington’s rights, then at least have the courage to say that to his face like a grown man, and then let him decide what he wants to do going forward.”
18. In response to the bar charge filed against him by Judge Beresky, Respondent called a statement Judge Beresky made in a ruling “a dirty lie,” accused Judge Beresky of “brazenly” lying to the State Bar, and stated that “neither Judge Reckart nor the self-righteous Judge Beresky ever address my concerns of ethic [sic] stereotyping” and stated, “I can only conclude it is because he is full agreement [sic] with such stereotyping and ethnic race baiting.”
19. In his response to the bar charge, Respondent stated: “Beresky ought neither be a judge nor a lawyer. He does not have the ethical capacity for either, and further he is a by the numbers xenophobe.

At the bar proceeding

Mr. Gagic did not appear for the November 14, 2022 hearing, which proceeded in his absence before a hearing panel comprised of PDJ Margaret H. Downie, attorney member Stephen H. Lesher, and public member Ellen Kirschbaum. Kelly A. Goldstein appeared on behalf of the State Bar.

He had filed a number of motions

During the initial case management conference, bar counsel asked the PDJ to preclude Mr. Gagic from filing additional motions. The PDJ declined to do so on due process grounds, despite the fact that his filings were almost entirely non-meritorious, failed to comply with applicable rules, and needlessly expanded the proceedings.

ABC 15 Arizona reported on an incident where a client had assaulted the attorney

Court documents also indicate that Payne had a history of firing his attorneys and being disruptive in court. In this case, Payne wanted to let the judge know he was not happy with his attorney.

In the video, you see him trying to get Gagic’s attention a couple of times. He knocks on the desk at one point, while Gagic is looking at the judge. Gagic seems to ignore him. At another point, Payne raises his hand to get the judge’s attention, only to get a warning.

“If you continue to have outbursts, I’m going to have to remove you from the courtroom,” the judge warns Payne.

When Payne keeps talking, the judge asks deputies to remove him from the courtroom.

As Payne is gathering his papers, Gagic is not paying any attention to him. Then Payne turns and suddenly punches Gagic in the face.

“The first thing, literally the first thing I know is, ‘oh it’s salty.’ I could literally taste his knuckles, then I got up and checked my teeth,” said Gagic.

The lawyer suffered a nose bleed, but he told ABC15 what hurt more than that punch was how he felt he had been treated by the office of public defense services.

“I find out a couple of months later, a month later, that they suspended me from the contract. They never told me why; it’s because they’re cowards,” said Gagic.

The suspension from appointments led to litigation. (Mike Frisch)