The Louisville Courier-Journal (subscription) recently published A lawyer threatened to kill 2 other attorneys. Why did the Kentucky bar dismiss the case? The article raises some significant questions about public safety. The complaint was filed by an attorney, alleging that another attorney violated:
"ethics rules when he allegedly threatened to kill two 'highly respected' attorneys, one of whom represents his ex-wife and the other his children."
Despite that, the Bar has dismissed the case. Some will likely argue this is a situation where someone overreacted, and dismissal is appropriate. Others may argue that this is lackadaisical of the Bar. Still others may simply question whether the Bar was able to find evidence to substantiate the charges. The reasons for dismissal could be diverse and specific. But, as the Journal notes, the reasons for dismissal have not as yet been stated.
The story reminded me of various state's recent press to pass "red flag laws" in response to school shootings. The idea being to identify persons at risk for doing violence, and intervening before there is violence. Whether that is a viable course is up to the reader.
We have also seen persons prosecuted criminally for making threats. A man was indicted in February for making threats, according to The Hill. That was against a Congressional Representative. A man in Michigan was charged for making threats against an attorney, according to Politico. The Washington Post reports that a young man was recently charged for threats to professional and amateur athletes. Threats, in some settings are the foundation for criminal prosecution, but in others are not deemed appropriate for professional intervention. The public may struggle with that distinction.
There have been times when stress got the better of someone. We are all susceptible to stress, emotion, and specifically anger. Stress is a constant in the environment of litigation. Though this post begins with Kentucky (about which I lack foundation and knowledge), a review of the Florida process for lawyer discipline might provide illustration.
In Florida, the regulation of attorneys is delegated by the people to the Florida Supreme Court. Florida Constitution, Article V., Section 15. This authority is facilitated through the Rules Regulating The Florida Bar, resulting in a process in which The Florida Bar plays a role in investigating and prosecuting allegations of lawyer misconduct. Ultimately, the Court decides what penalties are imposed in cases that the bar elects to prosecute, and in which it is successful.
The process often involves the Court appointing a referee to hear the charges against an attorney. The referee then makes recommendations as to the finding of guilt and the appropriate discipline. Those recommendations are "persuasive" upon the Court, but not binding. The "Court has the ultimate responsibility to determine the appropriate sanction." The Florida Bar v. Temmer, 753 So. 2d 555 (Fla. 1999). When the Court finds a referee recommendation does not have "a reasonable basis in existing case law," the Court may take a different direction than the referee recommendation.
The Florida Court has explained that "the purpose of lawyer discipline is threefold." The first purpose is to "protect the public from unethical conduct but at the same time not deny the public the services of a qualified attorney." The second is to "be fair to the attorney," with the object of correcting “the wayward tendency in the accused lawyer while offering to [the lawyer] a fair and reasonable opportunity for rehabilitation.” And, the third is to "operate as an effective deterrent to other lawyers who might be prone or tempted to become involved in like violations." The Florida Bar v. Cox, 794 So. 2d 1278 (Fla 2001).
There are instances in which attorney conduct is attributed to discreet causes, or even disability. The Court has at times concluded that mitigation factors warrant imposition of a less severe sanction. The Florida Bar v. Condon, 632 So. 2d 70 (Fla. 1994); The Florida Bar v. Wells, 602 So. 2d 1236 (Fla. 1992). The Court has also sometimes concluded that efforts at rehabilitation, such as engaging in treatment, are not sufficiently mitigating to preclude imposition of serious sanction, even including disbarment. The Florida Bar v. Gross, 896 So. 2d 742 (Fla. 2005 ); The Florida Bar v. Brownstein, 953 So. 2d 502 (Fla 2007). Mitigation factors are to be considered when discipline is determined, and those factors may be rejected in a particular case. The Florida Bar v. Bloom, 972 So. 2d 172 (Fla. 2007).
The Journal article notes that the complaining lawyer believes the Bar directed the complaint to "alternative disposition." This is perhaps tied to the involvement of the Kentucky Lawyer Assistance Program, an agency that "helps lawyers with substance abuse issues and other problems." (Florida has a similar program the Florida Lawyers' Assistance Program or FLA.) The Journal notes that this attorney "has a history of alcoholism and drug addiction," and has acknowledged in the past "that he is in treatment." It is noteworthy that such programs have provided assistance for stress. They are not necessarily tied strictly to substance use issues.
So, the probability is that there may be a similar process in Kentucky. Through that process, for whatever reason, the Bar elected in this instance not to proceed with any disciplinary action. That resulted in the news media involvement, publicity, and perhaps the public having questions. The greatest downside of this situation presently is the potential tarnish it brings to the legal profession generally.
One lawyer felt strongly enough to invoke a process. It is a time when each day seemingly brings a "shouldn't someone have noticed" story. It is easy to find stories in the news of threats being perceived, investigated, and dealt with by police. And, the coverage that has been provided in this instance is inadequate to (1) inform the public of the foundation to the Bar's decision and (2) assuage any concerns that lawyers are merely treated differently. Seemingly, as a result, the issue is instead being discussed in the press.
This may or may not be troublesome in the broadest context of lawyers and the Bar. But, it is worthy of discussion. There is value in the rehabilitation of individuals in need. There is value in preventing harm and deterring threats. There is value in professionalism and cordiality in the practice of law and resolution of disputes. And, there are instances in which those values may not all perfectly align. The public is left to interpret and perceive as it will, in the absence of definitive information. It is worthy of discussion.
