Friday, May 5, 2017

The Arizona Presiding Disciplinary Judge has ordered a reprimand and two-years probation of an attorney who assaulted his handcuffed client.

The client had entered a guilty plea but written the court to complain about the attorney. The attorney took umbrage and then some.

Then

On that next day, Mr. Nicholas went to visit client who remained incarcerated. He was restrained and seated with his hands cuffed together and chained from below the table where he was seated. A video recorded visually, not audibly, what occurred. Within moments, whatever discussion was taking place ended when Mr. Nicholas rose from his seat and swung around slapping his client across his face with what he states was an unbound 33 page document and folder he was holding in his right hand. In one continuous motion Mr. Nicholas slapped his client, and followed through with a full turn and swiftly walked away. Four days later, Mr. Nicholas moved to withdraw, which was granted.

Such conduct violates Rule 41(g). The comment to Rule 41 states, “Lawyers, whether or not engaged in the practice of law, should act honorably and treat others with courtesy and respect.” The slap was an assault, a criminal act implicating, ER 8.4(b) which prohibits a lawyer from engaging in a criminal act that reflects adversely on the lawyers fitness. It also was conduct prejudicial to the administration of justice under ER 8.4(d). The comment to ER 8.4 explains, a lawyer is professionally answerable only for offenses that indicate a lack of any characteristic relevant to the practice of law. ER 8.4(d) applies when conduct manifests bias...

Although more than a year has passed since this misconduct, the trial of Mr. Nicholas has yet to occur on the single count of misdemeanor assault.

The client and his cousin did not favor the agreed-upon consent discipline

The objection by cousin states there were misleading text messages and affirms client was a heart patient. He also states Mr. Nicholas “punched” client. There is nothing relating to text messaging encompassed within the complaint. The actions recorded on the video are the main body of the complaint. As the video does not support that client was “punched” but instead slapped, cousin suggests the video “might have been altered to protect the jail.” The video shows no signs of being altered and there appears to be little likelihood of liability to the jail arising from the misbehavior of Mr. Nicholas. The blunt criticism of Mr. Nicholas by cousin is appreciated. Such criticism assists a court in its analysis of the proposed Agreement.

The objection by client is both as a victim and as a client. As a victim, client is entitled to important victim rights in the criminal prosecution of Mr. Nicholas. It appears from his comments he has also stated his positions as a victim in that prosecution. Those comments add additional insight in this proceeding.

But the judge accepted the agreement

The misconduct of Mr. Nicholas was entirely relevant to his practicing law. His action was done in spite of and in the presence of law enforcement officers within the jail. They knew he was the lawyer for the defendant-client. Viewing the video of Mr. Nicholas slapping a client whose hands were bound can bring a ready and reasonable criticism that such action was cowardly. That the slap was a breach of the most fundamental trust relationship between client and attorney is unassailable.

In The Republic, Plato held up ethics as essential to society. As Plato put it, “the community suffers nothing very terrible if its cobblers are bad and become degenerate and pretentious; but if the Guardians of the laws and state, who alone have the opportunity to bring it good government and prosperity become a mere shame, then clearly it is completely ruined.” It is an important recognition of the seriousness of the facts that the parties stipulate there was actual harm to the legal system and to the profession.

At the heart of the purpose of a lawyer practicing criminal law, whether an attorney be for the State or the defense, is to facilitate the resolution of conflicting positions without recourse to violence. Law is the alternative to violence. Engaging in violent conduct towards a client who cannot defend or even avoid the assault is antithetical to the privilege of practicing law, and such conduct generally warrants suspension from the practice of law...

However, the substantive mitigation offered by the consistent professional life of Mr. Nicholas mitigate his sanction to reprimand with creative, thoughtful and critical terms of probation. Reprimand is not a token sanction. It is a public censure with remains permanently on his record. The proposed and lengthy two years of probation include weighty requirements.

If you want to see the incident video, ABC 15 Arizona has it. The cousin is quoted characterizing the bar sanction as a "slap on the hand." (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2017/05/the-arizona-presiding-disciplinary-judge-has-an-attorney-for-misconduct-in-a-criminal-case-the-client-had-entered-a-guilty.html