By order dated Oct. 28, 2014, the Missouri Supreme Court found petitioner guilty of misconduct as a result of violating Missouri Rules of Professional Conduct 4-4.2 and 4.8.4(d), and entered an order of indefinite suspension from the practice of law, precluding petitioner from seeking reinstatement for a full year. The Supreme Court upheld disciplinary committee findings that the lawyer violated Rule 4-4.2 by communicating with a represented party, and violated Rule 4-8.4(d) in that he sought to intimidate a party by threatening to join his employer as a defendant when he refiled litigation.
Petitioner contends the PTO erred in imposing reciprocal discipline. The PTO contends it did not so err because petitioner failed to establish by clear and convincing evidence that any of the factors in Selling v. Radford, 243 U.S. 46 (1917), pointed to a contrary result.
The administrative record reflects that reciprocal discipline was warranted here. The proceedings before the Supreme Court of Missouri provided petitioner significantly greater process than the bare minimum due process requirements. The fact that the Missouri Discipline Committee panel quashed petitioner’s subpoena for opposing counsel’s file in the earlier Missouri litigation does not amount to a due process violation because petitioner was given an opportunity to argue that he was entitled to particular files – which he failed to do – and was allowed to question both opposing counsel and the client in the Missouri litigation at the hearing. Further, petitioner’s communication with the opposing, represented party was confrontational and intimidating, as petitioner threatened to file a second civil action and to notify the party’s employer of the dispute. Contrary to petitioner’s contention, the fact that the discipline imposed here was different from the discipline imposed by the PTO in other reciprocal discipline cases does not create a grave injustice or an equal protection violation, because the numerous PTO Director suspension decisions cited by petitioner involved facts and state disciplinary proceedings different from those in issue here.
The Virginia State Bar, when presented with a reciprocal discipline action against petitioner, dismissed the action because the predicate order of suspension from Missouri was rendered under Missouri’s preponderance of the evidence standard, a lesser standard of proof than Virginia’s standard of proof. The VSB order of dismissal also made clear that the matter could later be addressed in a “misconduct action” applying the correct standard of proof. The VSB decision is irrelevant here because the PTO correctly applied its own standards – not those of the Virginia State Bar – to determine whether reciprocal discipline was appropriate. The PTO did not err in concluding that under the PTO’s standards, reciprocal discipline was appropriate here.
Chaganti v. Lee (Ellis) No. 1:15cv1138, May 11, 2016; USDC at Alexandria, Va. VLW 016-3-235, 18 pp.