The Punching Bag

A bar discipline matter scheduled to be argued May 20 before the Missouri Supreme Court involves, in part, an appeal of a “no misconduct” finding as recounted in the brief of Disciplinary Counsel

Client Effie Barrett’s personal injury case was assigned to Judge James Vano in the District Court of Johnson County, Kansas. The Panel found that Respondent “was agitated with opposing counsel and believed that Judge Vano was being a little unfair in accepting opposing counsel’s representations.” R. at p. 3708 (with reference to Tr. 928). The Information alleges:

Respondent made clear his disdain for the trial judge assigned to the Barrett case. He printed out pictures of the judge and his son, defaced them with devil horns and a knife stabbed through the judge’s head. He tied them to a punching bag in the office in full view of all the firm’s employees and possibly clients.

R. at p. 7 (Information); p. 392 (Ex. 10). Respondent testified that he “made a photocopy, put it on a bag, threw a couple punches in fun” and he was only “blowing off steam[.]” He denied defacing the photos and suggested that perhaps his eleven-year-old daughter had gotten the photo(s) out of the trash, drawn on them, and put them back up on the punching bag. Tr. 2976-80. The Panel decision states:

[T]his is not the behavior that an attorney should engage in. Behaving in this manner, even in a private firm, disrespects the judiciary and reflects poorly on the legal system. While the Panel concludes that this conduct did not violate the Rule per se, it believes that is should be considered an aggravating factor. R. p. 3724-25.  However, the Panel was wrong to conclude that this was not a violation.

Respondent’s conduct demonstrated a “failure to show restraint and respect for the judicial system even while disagreeing strongly with it or its decision.” In re Disciplinary Action against Michael, 836 N.W.2d 753, 765 (Minn. 2013) (holding that “Disrespectful conduct directed at a tribunal can be prejudicial to the administration of justice.”) (internal citations omitted).

Disciplinary Counsel supports an indefinite suspension with a right to reapply after six months but stayed in favor of probation for two years.

From Respondent’s brief

This case primarily focused on accusations from three short-term non-attorney employees of [Kansas City Accident Injury Attorneys]. Those employees – whose employment with KCAIA all began and ended between March 2018 and March 2019 – falsely alleged Mr. Roswold was a drunk racist who worked only “two or three hours a week,” instead constantly interrupting KCAIA’s operations, ignored clients, and mishandled numerous cases. Through counsel, Mr. Roswold repeatedly asked Informant, the Office of Chief Disciplinary Counsel, and the Hearing Panel to narrow or dismiss the false charges against him. Informant refused, and the Hearing Panel responded that it lacked the necessary authority.

Over eleven days of hearings – more than eight for Mr. Roswold’s case – Mr. Roswold then demolished these three complainants’ credibility and their perjurious accusations, using testimony from ten witnesses (including four lawyers) and thousands of pages of contemporaneous evidence – even Skype messages (which are like texts) from the complainants themselves – that show Mr. Roswold is a high-energy, efficient and effective lawyer and hypervigilant law firm manager. Mr. Roswold also demonstrated the three former employee complainants wanted to punish him by weaponizing the discipline system, by filing – in one complainant’s words – a “huge can bar complaint.” Ultimately, the Hearing Panel rejected the vast majority of the charges but found enough questions to recommend Mr. Roswold should receive a reprimand. Because the Informant had actually proved no violations, Mr. Roswold rejected the Hearing Panel’s Decision and asks this Court to impose no sanction.

The punching bag issue

Informant also asks this Court to hold Mr. Roswold violated Rule 4-8.4(d) – engaging in conduct prejudicial to the administration of justice – by making a photocopy of a judge’s picture, placing (actually taping) that picture on a punching bag in his office, and throwing a “couple of punches in fun” at the picture to “blow off steam.” (Informant’s Brief at 17)

Mr. Roswold admits, and the evidence proves, that on a Saturday evening at approximately 5:30 PM, Mr. Roswold placed a picture of a judge and the judge’s adult son on a punching bag. (Tr. 927, 1076-1077 (Grubaugh); 2316, Tr. 2976-79, 2982) Mr. Roswold then took down the pictures within 10 minutes and threw them away. (Tr. 2976- 77, 2982, 2984) Mr. Roswold did not say anything at all about the judge at the time. (Tr. 594, 653; 928, 933-34, 1076-77, 1191) Mr. Roswold “never dreamed it would become anything other than private.” (Tr. 2979)

There was no indication on the picture whom the picture showed, or that it showed a judge. (Tr. 237-38 (Gardner admitted no names and no judicial attire); Tr. 931 (Grubaugh); Tr. 2317 (Roswold))

Also, the punching bag was hanging in a part of the office where, the overwhelming weight of the evidence supported, no client would be able to see it. (Tr. 932 (Grubaugh); Tr. 1191, 1257 (Jim Brady); Tr. 1329 (Christy Griffin); Tr. 1554, 1700 (Robert Adams); Tr. 1787 (Sharon Ratzlaff); Tr. 1924 (Mieke Bruce); Tr. 2316-17, 3045 (Roswold)) Only Mr. Roswold, Mr. Grubaugh, and Mr. Roswold’s daughter saw the photos on the punching bag. (Tr. 933 (Mr. Grubaugh said that he, Mr. Roswold, and Robert Adams did); Tr. 1554, 1699-1700 (Mr. Adams correcting that he was not present); Tr. 2976-77, 3044 (Mr. Roswold’s daughter was present)) There was no evidence any non-employee saw it. (Tr. 193 (complainant Gardner did not know if any client saw any picture on the punching bag))

Purely private conduct – particularly First Amendment-protected conduct – not seen by any client or anyone outside the firm besides Mr. Roswold’s then-11-year-old daughter cannot constitute conduct prejudicial to the administration of justice. Accordingly, Informant has failed to prove Mr. Roswold violated Rule 4-8.4(d) with regard to the placing of images on a punching bag by a preponderance of the evidence, as Rule 5.15(g) requires.

Briefs