Nazi Reference Violates Ethics Rules

The Kansas Supreme Court has indefinitely suspended an attorney for, among other things, calling a deposition videographer a Nazi. 

The findings relate to a document that had been improperly withheld and sprung at an out-of-state deposition and dishonest conduct in the fallout

[The respondent] told Defendant’s counsel he had the document in June, two months before the deposition and it is clear he had used the document prior to that time when he drafted the Petition for Damages. Then [the respondent] sent the incomplete and misleading PDF attachment to [FNBO’s counsel] the day before he was scheduled to inspect all of the requested documents at [the respondent]’s office. [The respondent], a very experienced courtroom lawyer, told the Court he did not think he had to produce the document because he was going to use it for cross-examination. His conduct appears, therefore, to have been calculated and intentional.

And an issue I did Nazi coming

During a March 22, 2016, deposition of G.O., the respondent called the deposition videographer, D.M., a ‘Nazi.’ From a previous encounter, the respondent had come to learn that D.M. had German ancestry. D.M. did nothing to provoke this attack and was offended by the respondent’s comment. During this same deposition, the respondent intentionally gestured using his middle finger toward J.W., a[n] FNBO representative. Both J.W. and D.M. witnessed this gesture. J.W. was offended by the respondent’s gesture.

Consequently, on April 20, 2016, FNBO filed a motion asking the court to hold the respondent in indirect contempt of court. While the respondent filed a memorandum in opposition to FNBO’s motion to hold the respondent in indirect contempt on May 9, 2016, the respondent failed to address the allegations that on March 22, 2016, he called D.M. a Nazi and he gestured using his middle finger to J.W. The respondent complained that FNBO’s counsel was ‘going after’ the respondent ‘for allegations that occurred two years ago.’ However, the allegations regarding the respondent’s conduct at the deposition occurred just less than one month prior to the filing of the motion.

On June 27, 2016, [Judge Vano] took up the respondent’s motion to alter or amend as well as FNBO’s motion to hold the respondent in indirect contempt. During that hearing, the respondent testified that he did not recall calling D.M. a Nazi, that he gestured using his middle finger toward J.W. after being provoked, and that he apologized to J.W. According to J.W., he did not provoke the respondent and the respondent never apologized to him. The district court concluded that there ‘seems to be a continuing lack of civility on the part of [the respondent].’ However, the court concluded that because he did not previously adopt civility guidelines, he did not make a contempt finding.

The court 

Respondent’s exceptions, overall, share the incoherence of his shifting position on the discovery violation. As a result, they are almost entirely unavailing to prevent our adoption of the hearing panel’s findings of fact and conclusions of law. We have only two reservations, but the respondent’s victories on these points are ultimately hollow for the reasons we now detail.

This also did not lend credence to his cause

As discussed above, the respondent sought a continuance of oral argument before this court, insisting that he must have additional time to obtain new counsel to assist him. Although his previous multiple pro se filings seemed to indicate otherwise, in an abundance of caution, this court granted the continuance. It is now evident that the respondent never intended to obtain new counsel. At oral argument, on questioning from this court, he admitted he never sought such counsel, giving a new cost-based excuse. Thus we now know the respondent made a frivolous request for a continuance. He took advantage of this court’s grace, wasting judicial and Disciplinary Administrator resources, and violated both Rule 3.1 and Rule 8.4(d) a second time.

Sanction

The respondent’s failure to grasp the seriousness of his misconduct and his repeated dishonesty when that misconduct became the focus of the district court, the hearing panel, and this court persuade us that a severe sanction is necessary to force him to reflect and reform. Simply put, up until now, the respondent does not appear to have learned from his mistakes. He apparently still believes that, as long as he can convince himself he is a well-meaning, zealous advocate for the downtrodden, he can flout the rules of the court and the conventions of basic civility at will. His brief states that a “punch in the snout” would have been better medicine than a vulgar gesture for J.W. His oral argument was a textbook illustration for how to show zero understanding of what he did wrong or why he should be punished. He merely continued to urge the members of this court to “look over there,” that is, anywhere but at his misconduct, the root of his disciplinary predicament.

Under these circumstances, an indefinite suspension from the practice of law iswarranted.

Textbook illustration linked here. (Mike Frisch)