Pair of Amazing Attorney Discipline Cases

Two OLR cases were decided by the Supreme Court on Friday: In the Matter of Disciplinary Proceedings Proceedings Against Sommers and In the Matter of Disciplinary Proceedings Against Humphreys.

There are several amazing things about these cases.

First, a disclaimer:  I am one of OLR’s retained counsel, although I had nothing to do with either of these cases.

Now, consider the following:

• The disciplinary case in Sommers was filed on November 17, 2006.  So, this case took well over five years!
• Despite clear findings of violations, the court in both cases violated its own rules by issuing suspensions of only thirty days.  Normally, the minimum suspension is sixty days.
• Read paragraphs 53 – 57 in Sommers.  Is there any other Supreme Court in this country who would not have given a stricter sanction – much less violated its own rule to make the sanction lighter where an attorney behaved in this manner before a court?
• In Sommers, the attorney was found to have “made statements to Judge Pekowsky known to be false or with reckless disregard as to their truth or falsity concerning the integrity of a judge.”  Apparently this is such a modest violation that it warrants deviating from the court’s own rule to make the sanction less severe.
• In Humphrey, the attorney, while serving as an Assistant D.A. in the same case which resulted in the violations by Attorney Sommers was found to have misled a court and made a false statement to a tribunal.  The SC again decided to violate its own rule to provide a lighter sanction.
• The costs in Sommers exceeded $94,000.  Given that retained counsel is paid $70 per hour – well, just do the arithmetic.  Nonetheless, the court decided to order Atty. Sommers to only pay one-half the cost which has the effect of forcing the rest of the bar to fund this litigation.
• The only justice to disagree with the decision was Justice Prosser in the Humphrey case, who thought the sanction was too severe.  Wow. In his concurrent/dissent he says:  “handling of [the Humphrey] case has been so irregular that it is unfair to the attorney and seriously undermines confidence in the lawyer regulation system, especially the actions of this court.”  Paragraph 132.
• Justice Abrahamson concurs only to express her disagreements with Justice Prosser.  In her concurrence, she states:  “The lawyer discipline system, including the work of the Office of Lawyer Regulation (OLR), the Preliminary Review Committee, the referees, and this court, like any system, has its strengths and also its opportunities for improvement.  Reasonable people can and do disagree about the virtues, the snags, and the changes needed.”  Paragraph 73.

Well, let me suggest a few changes:

• Speed up the process!  The maxim “justice delayed is justice denied” applies to the disciplinary system.
• Treat statements to a court “known to be false or with reckless disregard as to their truth or falsity concerning the integrity of a judge” as severe and warranting appropriate discipline.
• If the court is going to have internal rules, then follow them.  If there is a case for deviation, it should not be in a case where the deviation should be for more severe discipline rather than lighter discipline.

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