The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
By Samson Habte
A lawyer's disruptive conduct and refusal to abide by a judge's “repeated warnings” to tone down his behavior violated several ethics rules but not the one that prohibits disobedience of “an obligation under the rules of a tribunal,” the Kentucky Supreme Court decided April 25 (Kentucky Bar Ass'n v. Blum, Ky., No. 2012-SC-000825-KB, 4/25/13).
The ruling emphasized the narrow scope of Kentucky Rule of Professional Conduct 3.4(c). That provision, the court noted, is implicated only “where an attorney violates a court order, a rule of civil procedure, or a local rule; fails to appear for a client or respond despite numerous requests for a response; or continues practicing after being suspended from the practice of law.”
Accordingly, although lawyer Jeffrey M. Blum “acted contrary to repeated warnings, admonitions, and directions” of a trial judge, he did not violate Rule 3.4(c), the court said in an opinion signed by Chief Justice John D. Minton Jr.
Citing the black letter of Rule 3.4(c), the court explained: “'Obligation under the rules of a tribunal' means just that. It does not encompass violations of warnings, admonitions, or other statements made by a trial judge in an attempt to urge an attorney to conform his conduct to the recommended courtroom practice.”
“The court speaks through its orders,” it added, “and [Rule] 3.4(c) is intended to discipline attorneys who do not comply.”
However, Blum did violate at least three other ethics rules, the court found in ordering the lawyer's suspension from practice for 181 days.
According to the court, Blum's disciplinary charges arose out of his “nearly decade-long handling of a teacher termination dispute, which was litigated in various state and federal forums.” Blum's client was David H. Dixon, a high school teacher and part-time photographer who allegedly took inappropriate pictures of a female student.
Dixon was terminated after an administrative tribunal heard charges against him in 1996. Several years later, the supreme court said, a court “ordered the case remanded to the tribunal upon a finding that the instructions given to the tribunal by the hearing officer were erroneous and that additional mitigating factors should be considered in determining the penalty.”
Dixon's termination was upheld, however, and Blum subsequently filed an unsuccessful civil rights complaint in federal court on behalf of his client.
According to the opinion, Blum's behavior throughout those proceedings led to a five-count ethics complaint that charged the attorney with violating:
• Rule 3.4(c) for making “unrelenting personal attacks on the hearing officers, opposing counsel, and the U.S. District Court,” for “repeatedly pressing legal claims and filing pleadings that contained inappropriate language, claims and assertions,” and for “persisting in instructing opposing counsel and the [court] as to the proper procedures, despite being warned by the court that his actions were improper”;
• Rule 3.4(f) for “threatening to present disciplinary charges solely to obtain an advantage in his client's case”;
• Rule 3.5(c) for “making allegations that were unsubstantiated or unrelated to the case and by multiplying the proceedings unreasonably and vexatiously”;
• Rule 3.1 for “pursuing [a] case based on unsubstantiated, frivolous, and baseless allegations”; and
• Rule 8.2(a) for alleging that administrative officials “conspired against” and attempted to “frame” his client by “rigg[ing]” his hearing.
Bar authorities found Blum guilty on all counts except the fourth and recommended that he receive a 181-day suspension from the practice of law. The supreme court adopted that recommended sanction but rejected the finding that Blum violated Rule 3.4(c).
Under Rule 3.4(c), which governs fairness to opposing parties and counsel, an attorney is prohibited from “knowingly disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”
According to the opinion, bar authorities contended that Blum violated that rule “by disregarding various warnings and instructions” issued by the federal judge who presided over the civil rights lawsuit that Blum filed on Dixon's behalf after the teacher's termination was upheld by the second tribunal.
The supreme court disagreed. Blum's conduct “was highly inappropriate,” the court conceded, “but because [he] did not disobey an obligation under the rules of a tribunal, we find him not guilty.”
The court acknowledged that Blum pressed “specious legal claims,” and filed pleadings that included “inappropriate language.” As an example, it cited an appellate brief in which Blum belittled a defendant's arguments by stating: “If a judge or hearing officer calls a plaintiff into his chambers saying, 'your trial is about to begin' and rapes her and states she has 'prevailed,' the fact that he calls it 'a trial' will hardly allow him to invoke quasi-judicial immunity.”
The facts of Blum's case present us with little to no evidence that Blum actually violated any obligation under the rules of a tribunal. We concede that Blum acted contrary to repeated warnings, admonitions, and directions of the trial court. And we recognize that disregarding a judge's admonition may be contumacious conduct that warrants sanction. But without further action by the District Court, e.g. an order, we do not find the judge's admonitions to be sufficient to fall under the scope of [Rule] 3.4(c).
The supreme court did, however, rule that Blum violated Rule 3.4(f) (threatening criminal or disciplinary charges to obtain advantage in matter), Rule 3.5(c) (conduct intended to disrupt tribunal), and Rule 8.2(a) (false statements concerning qualifications or integrity of judge or legal officer).
Blum breached Rule 3.4(f), the court said, when he sent discovery requests in which he expressed concern about alleged ethics violations committed by two defendants who acted as attorneys for the school board in the administrative proceedings against his client.
The court dismissed Blum's argument that his professed good faith belief that the attorneys had acted unethically precluded a finding that the threats were improper. “In our view,” the court said, “it is 'only marginally consequential whether the target lawyer has in fact behaved unethically.' Rather, the 'focal point here is the purpose of the threat and not the conduct of the lawyer being threatened.'”
“Throughout his representation of Dixon, Blum engaged in saber-rattling as a technique of advocacy,” the court added. “The Rules of Professional Conduct do not allow such behavior.”
The court also rejected the argument that Rule 3.5, which prohibits “conduct intended to disrupt a tribunal,” did not apply to behavior intended to “delay” a proceeding. “The evidence presented against Blum … reveals [a] clear pattern of burdening the judicial process with repetitive and extraneous motions, all filled with unnecessary and inappropriate comments,” the court noted. That sort of conduct, it explained, is sufficient to find a violation of Rule 3.5(c).
Finally, the court found that Blum violated Rule 8.2(a), which prohibits false or recklessly made statements concerning the qualifications or integrity of a judge or adjudicatory officer.
Blum argued that some violative statements identified by the bar were not factual assertions about a judge's qualifications, and that others were factual assertions necessary to prove required elements of the federal complaint he filed on Dixon's behalf.
The court rejected Blum's arguments and his invocation of Berry v. Schmitt, 688 F.3d 290, 28 Law. Man. Prof. Conduct 466 (6th Cir. 2012).
“In Berry,” the court said, “the Sixth Circuit held that the KBA's disciplining of an attorney for his post-proceeding speech, as a private citizen, was improper because it was a statement of opinion based on articulable facts.” But that case “is clearly not applicable,” it added, because the holding “does not apply to an attorney speaking during judicial proceedings.”
“When an attorney speaks during a judicial proceeding, as Blum did here through various motions and filings, he 'cannot seek refuge within [his] own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults which raise doubts as to a judge's impartiality,'” the court explained.
The bar was represented by Deputy Bar Counsel Steven T. Pulliam, Frankfort, Ky. Blum, of Louisville, Ky., appeared pro se.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-97fnd9.
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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