Accentuate The Negative

The District of Columbia Board on Professional Responsibility has entered an order dismissing charges against a domestic relations attorney who was charged with misconduct in submitting negative and omitting positive drug test results in support of his client’s efforts to modify a prior child support order.

The majority concludes that Disciplinary Counsel did not prove an “intent to deceive.”

The client is a disbarred attorney, whose case was covered in our earlier post.

From September 1996 to 1999 or 2000, Mr. Libertelli worked as an associate at Dow Lohnes & Albertson. RX 5 at 62; RX 6 at 68; Tr. 62-63. From January 2001 through early 2005, Mr. Libertelli worked for the Federal Communications Commission. RX 5 at 62; Tr. 63-64. From March 2005 to December 2011, Mr. Libertelli worked at Skype as Senior Director of Government Affairs for the Americas. RX 5 at 61-62; Tr. 64. Between December 2011 and June 2017, he worked for Netflix as Vice-President of Global Public Policy. RX 5 at 60- 61. Since then, Mr. Libertelli has worked at various times on his own as a consultant and at other times in-house at other firms. See Tr. 65-68. Since November 2020, he has been General Counsel of Carrier Exchange d/b/a CarrierX. Tr. 60-61.

A notable dissent by Member Thomas Gilbertsen makes the substantial case for a misconduct finding

By early 2021, Respondent knew that Libertelli had repeatedly tested positive for cocaine (and marijuana) during the Fall of 2020 and thereafter, but the additional evidence he submitted with his reconsideration motion were exhibits of drug test results that included only a selection of Libertelli’s clean (or negative) drug tests from that same period: the September 2020 hair follicle test for opiates which was negative, and five urine tests from January to March of 2021 which were negative for opiates and cocaine (but positive for marijuana). FF 29, 33, 39; DCX 95 at 10-11, 16-17, 23-27.

By claiming a one-year look-back for Libertelli’s September 2020 hair follicle test, the time period which Respondents own motion put at issue was September 2019 forward. See DCX 95 at 10-11. Respondent pulled his clients failed drug tests from this same period not some earlier period. FF 33. He pulled Libertelli’s failed cocaine use tests for September and October 2020. Id.; see also FF 28. Compare DCX 90 at 3-7 with DCX 95 at 16, 23-27. Attached to the motion was Exhibit A (the September 2020 hair follicle test result), Exhibit B (the January 2021 Board Order requiring bi-monthly testing) and Exhibit C (urine test results of January 11 & 28, February 10, March 4 & March 24, 2021 which were negative for cocaine and opiates (but positive for marijuana)).

This omission was not the result of oversight nor inadvertence. The record is not disputed that Respondent intentionally pulled the urine drug tests showing cocaine use from the reconsideration motions Exhibit C because his client adamantly insisted that they not be disclosed to the court. See FF 31-37. While Respondent was vetting a draft of the reconsideration motion with his client, Libertelli angrily complained without substantiation that his failed cocaine tests from Fall 2020 were false positives and that all references to the failed drug tests should therefore be removed from the draft motion materials. FF 36-37 (quoting DCX 40 at 13).

In response to Libertelli’s request to remove the failed drug tests, Respondent buckled. Respondent pulled references to the failed cocaine tests from his draft reconsideration motion. FF 37. Before the Hearing Committee, Respondent never claimed to have done so based on his clients unsubstantiated claims that they were false positives. FF 36 n.16. Respondent filed the reconsideration motion in March 2021 with Exhibits A and C that purported to reflect his clients drug use from September 2019 onward, but without the failed cocaine use tests from this same period. FF 37; see DCX 95 (final motion). While later preparing for a hearing on the  reconsideration motion, Respondent and his then-associate, John Dame, confirmed with Libertelli over the phone, in emails, and during rehearsal for the hearing that the strategy was to offer only his clean drug tests. See FF 33-35, 43; DCX 97 at 1 (email from Dame to Libertelli).

Before the hearing on his motion, Respondent directed his associate to obtain copies of Libertelli’s full testing history directly from the lab. FF 41. In response to Dames request, the lab sent a set of Libertelli’s urine tests including the four positive results for cocaine in August to October 2020 along with a certification as to the authenticity of the attached records. FF 41; DCX 90. In response to a follow up email the next day, the lab sent Libertelli’s hair follicle test from September 2020 and a July 8, 2021 urine test that was negative for cocaine and opiates. FF 41; DCX 94. Respondent directed Dame to compile a selection of only the favorable drug test results into an exhibit for use at the hearing. FF 42. The resulting Exhibit 1 was titled on the exhibit list exchanged with Ms. Noguchi as Defendants Drug Testing History. FF 44; DCX 104. That description was false and misleading. Exhibit 1 did not portray Libertelli’s drug testing history, but only a selection of Libertelli’s drug tests from the period depicted minus his failed cocaine tests from August to October 2020 and two clean tests in October 2020. There was no  indication in Exhibit 1 that Libertelli took other drug tests which were not reflected in the Drug Testing History Respondent acknowledged that he was responsible for the contents of Exhibit 1. FF 42, 44. The last page of Exhibit 1 includes the lab s certification for the attached set of Libertelli s urine tests which referred to all tests the lab had provided, including those which Respondent pulled from Exhibit 1. FF 41; compare DCX 105 at 15, with DCX 90 at 20. In the certification, the lab director attested under penalty of perjury to the authenticity of [t]he attached records as they were maintained by the lab in the ordinary course of business. DCX 90 at 20; FF 41. But Exhibit 1 Drug Testing History attached only a subset of the records to which the certificate referred. Compare DCX 105, with DCX 90. Accordingly and precisely as intended, Exhibit 1 misleadingly portrayed Libertellis drug testing history. 

Respondent reviewed and approved Exhibit 1 before the hearing. FF 42. His associate prepared and emailed a draft script to offer Libertelli guidance about how to testify about Exhibit 1. FF 43; Tr. 1051-52. Shortly before the hearing, Respondent went over the script with Libertelli. Id. The script instructs Libertelli to identify Exhibit 1 by saying, These are my drug tests with Arc Point Labs, without disclosing that Exhibit 1 contains only some of his drug tests from that lab, or that Libertelli took other tests at the same lab which the exhibit intentionally omits. DCX 106 at 2; FF 43 n.21.

The court heard Respondents reconsideration motion on July 15, 2021. FF 40. In his opening statement, Respondent argued that the court should admit Libertellis drug test history to rebut Noguchi’s prior evidence about Libertelli’s spending on drugs. FF 47; DCX 111 at 23. When the court asked how it could be assured that the tests were authentic, Respondent represented that the drug testing lab provided an affidavit saying these are the records, his drug test records. DCX 111 at 23 (emphasis added); FF 49. Respondent then presented Exhibit 1 to the court and again vouched for the tests authenticity, stating that it has been our practice to get them directly from the drug testing people now because of what happened in the past. DCX 111 at 23-24; FF 49 n.22. Respondent emphasized that the court should admit the drug test history not just to rebut evidence about Libertelli’s spending, but also because it was

important to Mr. Libertelli that he show the Court what is going on. And that the inferences that Ms. Noguchi wants you to draw aren’t appropriate inferences. And he can be cross-examined but the reason why we filed that part of the motion and the reason why well have him testify is because we think it is important that you see this as part of your ultimate decision in this case. DCX 111 at 36-37; see also FF 47.

When Respondent examined his client on the stand at the hearing, Libertelli identified Exhibit 1 as drug tests that I took at FarPoint [sic] Labs, consistent with the prepared script. FF 49 (quoting DCX 111 at 44). Respondent did not ask (and Libertelli did not disclose) that Exhibit 1 contained only a subset of his drug tests during the period represented. To address the courts concern about reliability, Respondent had Libertelli identify the lab s certification on the last page of Exhibit 1 but again failed to disclose that Exhibit 1 omitted the August to October 2020 failed drug test results among the attached records referred to by the lab s certification. FF 49, FF 49, n.22; DCX 111 at 44-45. Compare DCX 90 at 1-20 (results from lab), with DCX 105 at 1-15 (Exhibit 1).

After the court conditionally admitted Respondents Exhibit 1 based on the certification (FF 49; DCX 111 at 45), Respondent examined Libertelli about it but did not disclose that failed cocaine test results were excluded from the exhibit. See DCX 111 at 45-48. To the contrary, after Libertelli identified Exhibit 1, Respondent asked questions suggesting that the exhibit was complete, such as how often Libertelli tested at the lab and whether he ever submitted a hair follicle test to the lab. Id. at 44. When Respondent asked about the hair follicle test, Libertelli answered, This is the most comprehensive of the tests that you can get for oxycodone. Id. at 46. But he did not mention that he tested positive for cocaine on the same day as the hair-follicle test. Respondent asked, what time period was covered by the hair follicle test, leading Libertelli to answer at least 12 months, referring to the period before the September 28, 2020 test (a look-back to September 28, 2019). Id.

When Respondent asked why it was important to have the drug test results admitted as evidence, Libertelli testified that it was his biggest project and that he believed it was necessary to restore custody to me so that I can see my boys. DCX 111 at 47; FF 50. Respondent then asked: Do you believe it goes to the issue also of any inference that you were doing drugs during the relevant period of time? FF 50 (quoting DCX 111 at 47-48) (emphasis added). Libertelli answered: Yes. I have worked very hard for these tests, and I feel the Court should consider them in the context of the allegations that I was spending money on drugs. Sorry. Id.; FF 50, n.23. Throughout the direct examination, Respondent made no distinction between legal and illegal drugs, and made no reference to the existence of positive cocaine test results during the same period. FF 52.

Libertelli was confronted with positive tests on cross, which had been put into evidence in his own disciplinary proceeding

At the hearings conclusion, Libertelli asked to address the court and cravenly denied his own role in withholding his failed drug tests from the court:

I want the Court to understand in the DC bar case it was my decision to disclose those tests. I disclosed them all so that the board would have the benefit of those tests. I love my lawyers. They made a mistake in not disclosing them here. I dont think that mistake should be attributed to me. FF 58 (quoting DCX 111 at 101).

Libertelli did not characterize the omitted drug tests as part of a nuanced strategy to show the court his current situation or progress in recovery. He told the judge that pulling the failed cocaine test results was a mistake to him personally. a mistake made by Respondent that should not be attributed to him personally.

Significantly, Respondent never mentioned the failed drug tests during the reconsideration motion hearing he offered no redirect of his client after Noguchi’s cross-examination and his closing argument did not respond to Noguchi’s argument about his clients lack of credibility. See FF 56-57. Nor did Respondent later attempt to correct his clients obviously false denial of any responsibility for withholding failed drug tests from the court. See FF 59.

The clear and convincing contemporaneous evidence therefore compels, in my view, a finding that Respondent’s willful and knowing conduct intended to mislead the court about his clients drug testing history, progress in recovery, and current situation during the period reflected in Exhibit 1.

In sum

Respondent knew about his client’s substance use problems and prior false representations to the same court about his drug test history. Respondent knew that his client had failed drug tests for cocaine during the Fall 2020. He knew that the court had limited Libertelli to supervised visitation as a result of his past impairments and drug use. Yes, Respondent resisted earlier unethical requests by Libertelli. But this time, he buckled. Respondent embarked on a conscious course of conduct to falsely suggest that his clients drug use history was unblemished since September 2019, and that Libertelli had made materially more progress in recovery than was true. 

The dissent would impose a one-year suspension

Respondents conduct most resembles the respondent in Thompson: he intentionally assisted Libertelli in presenting a false version of his Drug Test History or progress in recovery to the court, and purposefully hid Libertelli’s failed cocaine tests during the period at issue. Respondent directly vouched for the authenticity of his Exhibit 1 Drug Test History in open court, and relied on a misleading certification to get that exhibit conditionally admitted. In his examination of Libertelli, Respondent’s questions and Libertelli’s scripted answers suggested that the set of negative tests was complete and Respondent never hinted otherwise. He then asked Libertelli directly whether the set of records which Respondent purposely compiled to hide Libertelli s drug use was relevant to whether he was using drugs, prompting his client to answer that it was. Respondent s subterfuge was foiled only because unbeknownst to him or his client Noguchi was prepared with the evidence to disprove it. If the hearing had gone as Respondent planned, the court would have been left with the false impression that Libertelli had only negative cocaine test results during the period at issue. See FF 61 n.26; Tr. 550-551, 553-554 (J. Storm) (explaining how an extended period of negative testing would have generally been helpful to Libertelli). Although Respondents conduct is mitigated by his lack of prior discipline, unlike the respondents in Reback and Wilka, he has not acknowledged wrongdoing. I therefore recommend a one-year suspension.

(Mike Frisch)