Lawyers Misbehaving From Coast To Coast

Benchslapped-01One of the fun things about being a lawyer for many years is that there is no end of lawyer hijinks to discuss. Here are two peeps with instant name recognition for most lawyers in the country, not just in the parched Golden State.

The State Bar of California has disbarred Tom Girardi, the famous-turned-infamous lawyer who ripped off settlement funds from clients and was apparently able to sweet talk the bar’s discipline system in giving him pass after pass after pass, akin to a “get out of jail free” Monopoly card. Girardi had already resigned with disciplinary charges pending, but disbarment is akin to the icing on the cake in this situation and comes with a restitution order for those swindled clients.

This is like closing the barn door after all the horses have skedaddled. My sense is that the State Bar wanted to be on record, especially with legislators and the public, that Girardi would never be able to practice again. Given that he is allegedly suffering from Alzheimer’s, the likelihood that he would ever again step foot in a courtroom, let alone a law office, is highly remote. Equally remote IMHO is the likelihood that the swindled clients will see much in recoveries. Both he and his defunct firm are in bankruptcy.

California lawyer Michael Avenatti is going to be spending more time in prison after his sentencing in the criminal case where he ripped off his client Stormy Daniels. Avenatti is already serving time for his part of the Nike extortion scheme. The California Bar has already suspended his license but given the increased legitimate scrutiny of the bar’s discipline system, I would guess that disbarment can’t be far behind.

Remember some years ago when Avenatti’s star was on the rise and there was even talk of him opposing Trump in 2020? Avenatti is Icarus, who flew too close to the sun and went down in flames. He also has a pending criminal case here in SoCal that ended in a mistrial because the prosecution failed to turn over documents. That case has been set for retrial in early July, but whether that trial date is still good is anyone’s guess, given his sentencing in the Stormy Daniels case.

There’s always a benchslap that’s worth mentioning, but is it truly a benchslap if there are no sanctions? Here in SoCal, Orange County District Attorney Todd Spitzer, who was re-elected in the June 7 primary, has been called to task for violating California’s Racial Justice Act, passed in 2020.

The act allows a defendant to challenge a criminal conviction at any stage of the proceeding in a number of different ways, including, but not limited to, a showing of racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case. The issue arose when Spitzer made comments in an office meeting about the dating habits of Black men in the context of whether to seek the death penalty in a double murder case. The defendant in this case was Black. While Spitzer was benchslapped, the court did not impose any sanctions. So, a benchslap with no sting. Is that then truly a benchslap as ATL defines it?

There are all kinds of lawyers overreaching, but this ethics complaint filed against two New York State lawyers by the D.C. Disciplinary Court is an exponential increase in chutzpah. The complaint, based on the law firm’s employment agreement in its D.C. office, lists all sorts of ways in which the two lawyers tried to enforce post-departure restrictions. The list is jaw-dropping.

Included in the list of “shall nots” — and these are just a few — is: restrictions on the rights of departing lawyers to practice law, no recruiting of firm employees, a “referral fee” to be paid by the departing lawyers to the law firm even when clients had discharged the firm, payment of the firm’s legal fees and costs if the firm initiated litigation or arbitration even if the firm lost the case.

But wait! There’s more. If lawyers left before the end of the employment term, they were responsible for liquidated damages, if they failed to meet the hourly billing requirements before leaving, they were subject to liquidated damages, and these are just some of the onerous employment conditions.

You might want to use this complaint as a checklist to make sure that your firm is not overreaching. As Legal Profession Blog said, this ethics complaint is “cutting edge.”

This is a novel way to discipline lawyers for violations of various rules of professional conduct, which the D.C. complaint enumerates in Paragraph 37. This complaint, if sustained, may well drive a stake into the heart of this kind of conduct. So much the better. It’s nice to know that California lawyers do not have a lock on bad behavior.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].