"What Were They Thinking?” is a question Ricky Bottalico regularly asks on the Phillies pre- and post- game shows on NBC Sports Philadelphia. While Ricky’s questions relate to unusual myself asking the same questions about water; that is, the lawyers whose conduct is so egregious that courts and disciplinary authorities sanction them, or disbar or suspend them from the practice of law.
While these lawyers’ conduct causes me, and others, to wonder what they were thinking, it is also instructive to help us understand the types of actions that causes our colleagues to become the focus of proceedings designed to sanction attorneys or to cause them to lose their privilege of practicing law. Here goes, a few head shaking examples from Pennsylvania and around the country.
In re Felipe Nery Gomez (Commission No. 2020PR00064) – Three Year Suspension (Illinois): Attorney Gomez filed a lawsuit on behalf of his son and himself against Charles Schwab. Opposing counsel issued a subpoena to Bank of America that Gomez considered to be premature. In addition to advising Band of America not to respond to the subpoena, Gomez sent an email to opposing counsel, advising him that he was referring his conduct to the FBI and accusing him of “clear attempted obstruction.” He also stated that he would refer the matter to the presiding judge and that opposing counsel was “despicable.”
Gomez then sent another email to opposing counsel, copying two other attorneys. The email began with “Dear Perp: We have determined you are engaged in active tampering and obstruction,” and notice we consider you an active criminal and are impeding a federal subpoena with malice aforethought and intent to hide the Truth (sic) from your own client Arthur and the The People (sic).... I will prosecute you into bankruptcy and prison. I. Guarantee (sic). It.” From there, the barrage increased and the language became more aggressive, accusatory and offensive.
After opposing counsel notified his firm's general counsel, Gomez directed email to him, including one that stated “Dont [sic] pull your crap on me. Schmuck [sic] and your firm are scum of the Earth and need to be abated. Under RICO I am private AG and doing the abating, since you seem very cozy with the USA here and since this office seems frozen, except for letting crooks like Shock [sic] get off and then allow him to attack a fellow AUSA who wanted to do the right thing and prosecute that piece of poop.”
This is only one example of the many emails Gomez sent in this – and other matters – all of which included similarly colorful language and threats. He demonstrated no remorse during his disciplinary proceedings and offered no evidence in mitigation.
In its January 7, 2022 report, the Illinois Attorney Registration and Disciplinary Commission concluded that Gomez violated Rule of Professional Conduct 4.4(a) (by using means of communication that have no substantial purposed other than to embarrass, delay, or burden a third person), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).
Nuvasive, Inc. v. Absolute Medical, LLC (US Dist. Ct., M.D. Florida, No. 6:17-cv-2206) – Arbitration Award Vacated, Additional Sanction: In this business dispute, the matter proceeded in part to arbitration, while other aspects of the case were stayed pending the conclusion of the arbitration. It was the arbitration that led, in part, to the Court’s January 10, 2022 Order and Opinion.
Plaintiff believed that there was improper contact between the defendants during the arbitration and attempted to obtain copies of text messages between the defendants and between defense counsel and his clients. The texts ultimately revealed “clear and convincing evidence” the virtual video testimony of one defendant “was indeed being guided by [another defendant’s] messages.” The witness had also taken an “oath that he would not communicate with any unauthorized person during his testimony.”
First, the judge outlined the litany of issues and conduct that led to his Order. Then, when discussing the type of sanctions appropriate to this case, the Court explained that “In the many years that the Undersigned has practiced law and sat on the bench as a state and then a federal court judge, never has he witnessed conduct so persistently contrary to the principles of our judicial process as the actions by Defendants in this case. That misconduct must be stopped.”
After determining that the Arbitration Award must be vacated, the judge addressed the conduct of counsel, who had previously been “ordered [in this case] to show cause why sanctions should not be imposed on him for his actions relating to the Defendants’ spoliation of evidence.”
The Judge then concluded that counsel’s “complicity may run ever deeper than first anticipated. Specifically, it appears that [the defendant] was in Mr. Busch’s office with him while sending [the testifying defendant] messages, perpetrating the fraudulent arbitration. Moreover, Mr. Busch attempted to commit fraud on this Court by openly defying the Court’s discovery Order and by making legal arguments that the arbitration award that he knew was obtained fraudulently had a binding effect on the claims here.”
The matter was then appealed, and the docket is silent as to further proceedings.
Office of Disciplinary Counsel v. William H. Lynch, Jr. (No. 2722 Disciplinary Docket No. 3) – Three Year Suspension (Pennsylvania): Formerly-admitted attorney Lynch was suspended by the Pennsylvania Supreme Court on January 6, 2022 for his conduct toward a female attorney he met at a train station while commuting to work. After meeting the female attorney, Lynch began sending her sexually explicit text messages, which invited her to “start sexting.” The other attorney declined all of his advances, which persisted. The female attorney repeatedly and clearly declined all advances, which led to angry responses, including voicemails. The conduct became increasingly extreme and bizarre, and frequent.
Eventually, the female attorney notified the police, who charged Lynch with multiple offenses. Lynch eventually pleaded guilty to a variety of criminal offenses, including stalking. The court sentenced him to two days to 23 months’ imprisonment. He was imprisoned for two days.
A Disciplinary Board Hearing Committee recommended that Lynch be suspended for one year and one day, retroactive to the date on which he had been temporarily suspended. Both Disciplinary Counsel and Lynch took exceptions to the recommendation. Disciplinary Counsel asserted that the suspension was inadequate, while Lynch claimed that the recommendation did not consider mitigation or his remorse and reform.
The Disciplinary Board Report recommended a three year suspension, which the Pennsylvania Supreme Court adopted. The Disciplinary Board Report concluded that Lynch violated Pennsylvania Rule of Professional Conduct 8.4 and Pennsylvania Rule of Disciplinary Enforcement 203. Rule 8.4 is often viewed as the “catch all” provision of the Rules.
In Lynch’s case, the Board concluded that he violated Rule 8.4(a) (it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another), Rule 8.4(b), (it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects), and 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Finally, Pa.R.D.E. 203(b)(1) states that conviction of a crime shall be grounds for discipline.
In each of these cases, the question arose, “What were they thinking?” when they committed the acts that either led to discipline or sanctions. That the conduct did not always occur while the person was acting as a lawyer is not relevant because attorneys may be disciplined for conduct in their personal and their professional lives.
Yet the question persists, “What were they thinking?”
Daniel J. Siegel, a member of the Board of The Philadelphia Lawyer, is the principal of the Law Offices of Daniel J. Siegel, and chair of the Pennsylvania Bar Association Committee on Legal Ethics and Profes- sional Responsibility. He provides ethical, techno ethical and disciplinary guidance, as well as appellate, writing and trial preparation services to other attorneys. He can be reached at dan@danieljsiegel.com.
