In re New River Dry Dock, Inc., No. 06-13274, 2011 BL 240117 (Bankr. S.D. Fla. Sept. 20, 2011) An en banc panel of the United States Bankruptcy Court for the Southern District of Florida sanctioned an attorney for “shockingly sarcastic and unprofessional” statements contained in pleadings filed with the court, as well as his attempt to engage in an ex parte communications with a presiding bankruptcy judge. Ultimately, the panel suspended the attorney from practicing before the bankruptcy court for a period of 60 days and referred the matter to the Florida bar for additional sanctions.
Judge Olsen Issues Show-Cause Order against Attorney GleasonKevin C. Gleason (“Gleason”), a bankruptcy attorney, represented a real estate sales agent who was engaged to sell the assets of a chapter 11 debtor, New River Dry Dock, Inc. (“Debtor”). In this capacity, Gleason filed a claim of exemption on behalf of his client (“Claim”) asserting that a commission received from a real estate sale was exempt from attachment or garnishment under Florida law and, therefore, it not subject to disgorgement in Debtor’s case. In response, a creditor filed both, a motion to strike the Claim and a motion for sanctions. Judge Olson, the presiding bankruptcy judge, denied the request for sanctions, but ordered Gleason to show cause why non-monetary sanctions should not be imposed (“Show-Cause Order”).
Attorney Gleason’s Professional MisconductGleason filed a response to the Show-Cause Order, boldly alleging that it was "obvious” that Judge Olson had “not reviewed the record in the case" and had issued the Show-Cause Order “without citation to any authority for the propositions that: your jurisdiction is never ending and without geographic bounds, your unconditional releases are meaningless, and pronouncements of the United States Supreme Court are mere suggestions.” Continuing with this derogatory tone, the response further stated that Judge Olson’s conclusions could “only be from the ether,” that the court had “blundered” in issuing the Show-Cause Order, and that Judge Olson’s decision was based on “half-baked findings.” Shortly thereafter, Gleason filed a second response (collectively with the first response, the “Responses”), wherein he memorialized that he had delivered a bottle of wine to Judge Olson’s chambers with a note reading: “Dear Judge Olson, A Donnybrook ends when someone buys the first drink. May we resolve our issues privately?” In response to Gleason’s statements, a panel of judges comprising the United States Bankruptcy Court for the Southern District of Florida convened en banc and held a hearing to consider whether Gleason’s actions constituted professional misconduct warranting the imposition of sanctions.
Panel Concludes Gleason Engaged in Professional MisconductThe panel resolved that Gleason’s “shockingly sarcastic and unprofessional” statements to the court were not only discourteous, but they violated an attorney’s duty to maintain the integrity of the court by demonstrating respect for the legal system and for judges. Further, Gleason’s “hostile, undignified and insulting tirade" was particularly unjustified in light of the many other alternatives he had before him, including filing a motion for reconsideration or an appeal, seeking Judge Olsen's recusal, or filing a judicial misconduct complaint. Moreover, the panel also found that Gleason's conduct in delivering the bottle of wine and note to Judge Olson’s chambers constituted an ex parte communication prohibited by both Federal Rule of Bankruptcy Procedure 9003 and Florida Bar Rules of Professional Conduct Rule 4-3.5. While Gleason took the position that his gesture to Judge Olson was “probably misunderstood” and that it would be for “another court, another day, to dispassionately consider the record and determine who owes an apology to whom,” the Panel decided that it was Gleason who owed a sincere apology, not just to Judge Olson but to the bankruptcy court as an institution. Consequently, finding that Gleason’s conduct violated his duties as an officer of the court and as a member of the court’s bar, the panel held that Gleason had engaged in sanctionable misconduct.
Panel Imposes Sanctions on GleasonFinally, the panel relied on the Florida Bar Standards for Lawyers Sanctions to determine the appropriate sanctions to impose upon Gleason. Upon examination of the duty violated, Gleason’s mental state, the injury caused by his misconduct, and the existence of any mitigating or aggravating factors, the panel reiterated that the disrespectful tone and the content of the Responses violated Gleason’s duties as an officer of the court. With respect to his mental state, the Court rejected Gleason’s argument that his Responses were a justified response to having his name appear in the published Show-Cause Order. TO that end, the panel explained that whether he was right or wrong under the facts or law, no order entered by a court is an invitation to “fight back” in the wholly irresponsible, disrespectful and unprofessional manner chosen by Gleason. Also weighing the aggravating or mitigating factors in favor of sanctions, the panel determined that Gleason’s apology at the en banc hearing was merely an attempt to justify his conduct and that his substantial experience in the practice of law led to the conclusion that he should have known better than to engage in this type of behavior. As a result, the panel concluded that Gleason’s disrespectful statements were knowing and intentional and, therefore, constituted bad faith. Accordingly, based on these factors, the Panel ruled that Gleason’s misconduct warranted his suspension from the practice of law before the bankruptcy court for a period of 60 days and referred the matter to the Florida Bar for additional sanctions.
Panel Suspends Gleason from the Practice of Law and Refers to the Matter to the Florida BarUltimately, the panel suspended Gleason from the practice of law before the court for a period of sixty days commencing November 1, 2011 and referred the matter to the Florida Bar for the imposition of any additional sanctions deemed appropriate.
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