Bad Lawyer


The First Circuit recently issued an opinion in what it described as a "simple, but important case" regarding attorney discipline.  The matter exemplifies why people don't like lawyers and why if you do something bad you should not make it worse by covering it up.  Ryan v. Astra-Tech, Docket No. 13-2251

During a deposition, defense counsel asked Ryan's client, the plaintiff, about an interrogatory answer. "After the plaintiff struggled for more than one minute to answer defense counsel's question," the defense counsel noted on the record that Ryan proceeded to write notes to his client while the question was pending.  Ryan denied doing this, and the deposition was suspended.  After 40 minutes, Ryan came back and said on the record that the only thing he had written on the notepad was the court's address.  

Hauled before the court, Ryan handed over a notepad that he said was the one he had at the deposition. The only writing on it was the address of the courthouse.

Perhaps Ryan forgot that besides his client and defense counsel, someone else was in the room – the court reporter.  She testified that the writing on the notepad that Ryan placed on the table after reentering the room was not the same as the writing on the notepad that he had moved toward the plaintiff during the deposition.

Ryan said the court reporter couldn't have seen anything.  The trial court disagreed, finding that Ryan had lied (and kept lying).  The court ordered Ryan to pay monetary sanctions consisting of fees and costs for litigating the motion for sanctions, the court reporter's time, and videotaping the plaintiff's and all subsequent depositions. The court also revoked Ryan's pro hac vice admission for flagrant violations of the Massachusetts Rules of Professional Conduct.  The First Circuit, with the opinion written by Judge Kayatta, on a panel with Judges Torruella and Thompson, affirmed.

Some observations:

First, Judge Kayatta, as when he was writing for Pierce Atwood in his former life, has a way with words.  Here are a few nuggets: 

"Ryan's account of the events and his actions during the deposition do not inspire confidence in his truthfulness."

"Nor should any lawyer confuse the combative aggressiveness manifest in much of Ryan's behavior with the professional resolve of an effective advocate."

Second, for the appellate geeks among us, in a footnote, the Court of Appeals discussed the notice of appeal, stating that it would have been better had separate ones been filed for the direct appeal of the case and the other for the sanction, and explaining that the Court would review both the monetary sanctions and the pro hac vice ruling despite the lack of reference in the notice that the latter issue was in dispute, noting that both issues had been addressed in the order identified in the notice as being appealed, as well as the First Circuit's "oft-stated policy of affording liberal construction" to the notice requirement in Federal Rule of Appellate Procedure 3. 

Finally, one issue discussed in the opinion was whether the trial court could revoke the admission under the local rule, or instead had to send the issue off to a disciplinary committee.  Apparently, in Maine, it's clear that disciplinary matters must be sent off to the overseers, D. Me. Local R. 83.3(e)(1), while the language in the Massachusetts rule can be interpreted as saying that such matters may, but need not, be dealt with only there, see D. Mass. Local R. 83.6(5).

I can see why the local rules as a general matter would want to send disciplinary matters off to the ethics folks to deal with instead of the trial court.  A lot of this opinion addresses — and rejects — Ryan's complaints that he had insufficient notice and opportunity to be heard, and before a lawyer is disciplined – something he or she likely must report for the rest of his or her career — it makes sense to have a comprehensive, established review process, with an independent body reviewing the matter.  I would also assume that judges in general would be happy not to be the ones ruling on these issues and to leave such issues to the body created to process such claims.

That said, withdrawal of the right to practice pro hac vice in a single pending matter seems a little different.  As recited in this opinion, this episode was not the first time that Ryan had abused the rules.  Should a trial judge should have the ability to manage his court room by saying this fellow must go?  I can see both sides.  

In any event, as I started this blog entry, the big takeaway here is, while it should go without saying, lawyers should not be unpleasant lying people.  And why do so many compound their transgressions by committing more in an attempt to cover up the first one?  Is it because some, lacking a moral compass, think that they are the smartest person in the room and can somehow get themselves out of a jam?  Well, whatever the reason, it doesn't work.  If you transgress, whether it's a simple mistake or misconduct, don't panic.  Get a grip, take a deep breath, and own up.  Immediately.  Life is too short to engage in this sort of behavior, or to inflict it on everyone around you.  It's not only the right thing to do, but you may avoid things like having a published First Circuit decision splashed all over until the end of time explaining what you did and chastising you for it.