Thursday, June 1, 2017

Don't Double Down Dummy!

The California State Bar Court hears complaints against attorneys. It has the authority to make recommendations to the California Supreme Court regarding punishment. Last September the Bar Court heard a case involving an attorney and recommended a suspension. The situation was interesting to me for a couple of reasons.

First, that there is a "Bar Court." Florida does not have one. I found that paradigm intriguing. I was relieved when my research revealed that California is the only state with such a court. It is always a relief to know that Florida is not an outlier. That does not mean that our process is the "best practice" just because it is more similar to a majority of states, but it is somewhat reassuring to know Florida is not unique.

But the main the order was interesting is that it involved "making statements that 'intentionally deceived' the Workers’ Compensation Appeals Board," according to WorkCompCentral.

The Bar Court noted that the disciplinary hearing was this particular attorney's third. Historically, some perceive a tendency towards leniency in some "first time offender" proceedings regarding attorney conduct. Some question whether egregious behavior would occur less frequently if the Bar more strictly dealt with the first offenders. 

In this case, the attorney was representing "two defendants" in a workers' compensation proceeding "before the Workers' Compensation Appeals Board (WCAB or Board)." The Board is the first level of appellate review of workers' compensation trial judges in California. The outcome of the proceeding was not positive and the Board imposed sanctions regarding the conduct of four attorneys at this particular attorney's firm. The Bar Court concluded that the subject attorney had been dishonest with the Board to the extent of it being "moral turpitude." The Court noted three aggravating factors: prior disciplinary proceedings, "significant harm, and lack of insight." Two mitigating factors were "cooperation and good character."

The attorney's defense, in the Bar Court, asserted that the attorney "made no misrepresentations," but was "merely zealously representing her clients." The Court disagreed and concluded that the attorney was "culpable of acts of moral turpitude." And, that "the problem was not that the attorneys zealously represented their client; it was that they did so by misleading the WCAB, by concealing material facts, and by supporting their position with half-truths," fairly damning conclusions. 

The Court noted that this attorney had exhibited "repeated acts of dishonesty," and that this behavior was similar to "earlier dishonesty before a bankruptcy court." The Court noted that this attorney "committed multiple probation violations and failed to appear at her probation revocation hearing." The attorney exhibited "a lack of insight into the seriousness of her misconduct." And, this was not a young and inexperienced attorney; she was "admitted to the practice of law in California" in 1993. She was a leader of a law firm. 

In the trial and Board proceedings, the employer/carrier repeatedly sought appointment of a medical examiner. The requests had been declined as they were incomplete and therefore not ready to be processed. In seeking a continuance of trial, the attorney "represented that the Defendant had made 'a timely and proper request for the issuance of a QME panel'" but that this had not been appointed. This was presented as argument in support of continuance, that the state had failed to perform its responsibility in assigning a panel, and that this failure was prejudicing the employer/carrier. 

The trial judge denied the continuance, and there was an appeal to the Board. The Board reversed the trial judge and granted the continuance, relying on the representations of this attorney. The Bar Court noted that the disciplined attorney did not prepare or sign the pleading that made these QME allegations, but that she knew of the representations and their falsity. Knowing them to be false, she did not inform the Board of the falsity, but "remained silent." 

Thereafter, the state "Medical Director filed a verified Petition for Reconsideration" in response to the WCAB continuance decision. This "disclosed that the Medical Unit had in fact timely responded" to each request, including granting the third request. The Director asked the WCAB to withdraw its order claiming it "was procured by (the) defendant by fraud," and "[t]he evidence does not justify the findings of fact." At that point, the facts were apparently reasonably clear. The attorney might have conceded to an error at that point and moved on. 

Instead, the attorney filed an answer to the Director's petition and denied any misrepresentation had been made. The Court noted that "the majority of her answer involved criticizing the Medical Director's attorney." The misrepresenting attorney even asked for sanctions from the Medical Director. Faced with a mistake or misstatement, this attorney went on the attack. 

In August 2010, the WCAB concluded that the attorney had "misled" the Board to obtain the continuance. Though the statement regarding issuance of a medical panel "were literally true, those statements were deceptive." The Court concluded that through the failure to inform the WCAB of the true facts, the attorney "painted an incomplete and distorted picture." The intent and effect of that distortion led to the WCAB's order that reversed the trial judge and continued the case. 

The WCAB concluded that finally in September 2010, the attorney first "disclosed the complete procedural history of the" various requests for a medical examiner (QME) panel. The attorney nonetheless argued that her earlier failure to disclose the full facts was "not at issue" and so excusable. The WCAB labelled the attorney's effort at that stage as "unapologetic and defiant." It concluded that it had been "deceived and had taken unjustified action (reversing and continuing) based on that deception." The Board specifically noted that the attorney "took no steps to enlighten us." and then "responded with hostility when the" facts were raised. 

The California Bar and Court expended significant effort in this matter. There was a four day trial regarding the allegations of misrepresentation. The Court noted that the Board was in the best position to decide if it was deceived. It therefore gave "a strong presumption of validity to this finding." 

The Court concluded the attorney was indifferent to her actions. She had previously made other misrepresentations to a bankruptcy court, and was under discipline for that action at the time this matter was heard. The Court found her "unapologetic and defiant." And, suggested that her lack of insight might signal a significant risk of recurrence of misconduct.

The Court noted the disciplinary trial judge's recommendation for an 18-month actual suspension (apparently there is a suspension that is merely "theoretical" in California) and acknowledging this sanction was "at the severe end of the disciplinary continuum." However, the Court nonetheless accepted the recommendation and imposed it. The attorney will also have to provide proof "of her rehabilitation, fitness to practice, and learning and ability in the general law;" she must comply with the Bar rules during her probation, meet with a probation deputy, and "submit written quarterly reports to the Office of Probation. Finally, she must complete the State Bars Ethics School. Overall, a significant interruption of the attorney's professional livelihood.

The Court was persuaded by the fact that the behavior before the Board "occurred over many months;" that it continued "after the Board warned (her) that she was wading into deep ethical waters," and that when facing possible sanctions," the attorney "pressed on, essentially doubling down on her efforts to justify her conduct." Her defense went "beyond tenacity to truculence."

The simple fact is that people make misstatements all the time. Human beings are fallible and imperfect. It is not uncommon for those mistakes and errors to be brought to our attention, as the misstatements in this case were. When confronted with a mistake, it is advisable to accept it, and to own it. The outcome for this attorney might have been totally different had she had not "pressed on. The lesson is that mistakes are inevitable, thought we strive to avoid them. 

In this instance, the attorney might have

Admitted that the written pleading was error at the trial level. 

Accepted the trial judge's denial of the continuance (not filed a Board appeal).

Admitted the error when the Medical Director filed the verified petition.

Responded to the verified petition with explanation rather than attack.

But, it appears from the Bar Court findings and conclusions that at each stage the attorney was entrenched and on the offense. The fact that misstatements or mistakes were made was ignored, and instead the attorney "doubled down" instead of accepting responsibility. 

When a mistake is revealed or noticed, the appropriate action is to accept it, correct it, and apologize for it. The course of pridefulness and "doubling down," the transition from "tenacity to truculence" is unlikely to work to our benefit. Sometimes admitting a mistake and regrouping may be embarrassing and uncomfortable, but it is better than responding with an attack. Admitting and regrouping is what professionals do. Acceptance of responsibility and contrition may go a long way in dealing with mistakes and misstatements. Step up and own it, don't double down dummy.