Truth Or Consequences

The Arizona Presiding Disciplinary Judge approved an agreed reprimand of an attorney for misconduct in the course of representing a client (also a lawyer) who pleaded guilty to a federal felony charge

On or about August 16, 2019, the federal government sent Bret Seltzer a target letter regarding its investigation into possible criminal activity by Seltzer.

On August 22, 2019, Seltzer retained Respondent to represent him in responding to the federal government’s letter and potential charges.

On October 24, 2019, Seltzer and Respondent signed a Plea Agreement and related documents, pursuant to which Seltzer agreed to plead guilty to misprision of a felony, in violation of 18 U.S.C. § 4.

The misconduct involved representations that Respondent and his client had reviewed the presentence report

In 2023, Seltzer was suspended from the practice of law for two years based on his felony conviction. In its Final Decision and Order, the hearing panel found, regarding the testimony from the sentencing hearing quoted in paragraph 32 above, that Seltzer “knowingly gave false answers to questions posed by the federal district court.” The hearing panel further made the following statement regarding the issue and Respondent’s advice:

[Seltzer] … blamed his attorney for giving him bad advice. But no one– particularly a lawyer – should require guidance about how to respond to a simple question posed by a judge when the true answer is abundantly clear. Concern that telling the truth might carry consequences should not affect the actions or compromise the integrity of one with a strong moral compass.

Respondent acknowledges that both his and Seltzer’s statements to the Arizona District Court regarding their review of the PSR did not fully inform the court about the extent of their review. Respondent further recognizes, in hindsight, that the statements were incomplete and could be deemed inaccurate, misleading, or both. At the time, however, Respondent genuinely believed that he and Seltzer had reviewed the material portions of the PSR, and that it was unnecessary and potentially harmful to Seltzer to engage in a discussion with the court about the limited or lack of review of other portions of the PSR. Respondent now recognizes that his belief, although genuinely held, was unreasonable in this case.

Sanction

The parties conditionally agree that upon application of the aggravating and mitigating factors the presumptive sanction of reprimand is appropriate. If Respondent submits character evidence to support the application of that mitigating factor, the mitigators will slightly outweigh the aggravating factors. Because this matter is on the line between a reprimand and a suspension, the parties agree that the mitigating factors support application of the lower sanction of reprimand.

Based on the Standards and in light of the facts and circumstances of this matter, the parties conditionally agree that the sanction set forth above is within the range of appropriate sanction and will serve the purposes of lawyer discipline.

(Mike Frisch)