Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doe v. Idaho State Bar

Supreme Court of Idaho

November 3, 2016

JOHN DOE (2016-20), Petitioner,
v.
IDAHO STATE BAR, Respondent.

         2016 Opinion No. 129

         Appeal from the Professional Conduct Board of the Idaho State Bar.

         The decision of the Hearing Committee of the Professional Conduct Board is affirmed.

          Hawley, Troxell, Ennis & Hawley, LLP, Boise, for Petitioner. Merlyn W. Clark argued.

          Idaho State Bar, Boise, for Respondent. Bradley G. Andrews argued.

          J. JONES, CHIEF JUSTICE.

         This is a petition for review of the decision of a hearing committee of the Professional Conduct Board of the Idaho State Bar affirming Bar Counsel's imposition of a private reprimand against John Doe.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         John Doe was counsel for Plaintiffs in a class action, Gibson v. Credit Suisse, CV 10-1-EJL-REB, filed in the United States District Court for the District of Idaho on January 3, 2010. Defendants in the action filed a motion to dismiss Plaintiffs' Second Amended Complaint. United States Magistrate Judge Ronald E. Bush issued a Report and Recommendation dismissing some of Plaintiffs' claims, which was adopted in part by United States District Judge Edward J. Lodge. Discovery was stayed pending resolution of Defendants' motion to dismiss. While the Report and Recommendation was pending before Judge Lodge, Plaintiffs filed a motion for an order to issue a subpoena for Michael Miller, the Senior Director of the appraisal division of defendant Cushman & Wakefield ("C&W"). Attached to the motion was an affidavit sworn by Doe in which he stated that Miller had provided incriminating testimony about Credit Suisse and C&W in front of Doe and other attorneys on March 19, 2011. A transcript of the alleged testimony was appended as Attachment A to Doe's Affidavit, entitled "Declaration of Michael L. Miller, MAI." This declaration was not signed by Miller. Doe represented to the court that Miller was unwilling to sign an affidavit for fear of retaliation by Defendants. Judge Bush denied the motion.

         Plaintiffs were granted leave to amend their complaint as to certain claims dismissed without prejudice by Judge Lodge. Plaintiffs filed their Third Amended Complaint on April 21, 2011. The Third Amended Complaint included several references to statements from Miller's unsigned declaration. Also on April 21, 2011, Plaintiffs filed a motion to amend their pleadings, seeking to include a breach of fiduciary duty claim against C&W, relying on Miller's unsigned declaration. Over the next year, Plaintiffs continued to rely on Miller's unsigned declaration in defending against Defendants' Motion to Dismiss the Third Amended Complaint and in support of their Motion to Amend and Motion for Partial Summary Judgment. Judge Bush issued a Report and Recommendation on February 17, 2012, granting Plaintiff's motion to amend, concluding that Miller's statements revealed a conspiracy to support the breach of fiduciary claim, and denying Defendants' renewed motion to dismiss. Judge Lodge adopted in part and rejected in part the Report and Recommendation on March 30, 2012.

         Plaintiffs had been relying on Miller's unsigned declaration from March 2011 through February 2012. However, Miller had signed an affidavit on May 9, 2011, and Miller's counsel sent that affidavit to Doe shortly thereafter.[1] As noted in Bar Counsel's findings, Miller's signed affidavit differed from the unsigned declaration in a number of respects. Doe did not disclose the existence or the contents of Miller's signed affidavit to the district court or Defendants.

         On April 27, 2012, defendant C&W received a copy of Miller's signed affidavit from Miller's counsel. C&W then submitted Miller's signed affidavit to the district court and moved for reconsideration of Judge Lodge's March 30, 2012 order. C&W also filed a motion for sanctions, arguing that Plaintiffs and their counsel committed misconduct by relying on Miller's unsigned declaration for over a year while Doe knew of the existence of the signed affidavit and failed to disclose it to the court. Judge Bush imposed sanctions against Plaintiffs and counsel, finding in part that counsel violated Idaho Rule of Professional Conduct ("I.R.P.C.") 3.3. Judge Lodge affirmed the order on October 17, 2014.

         On September 13, 2013, Bar Counsel asked Doe to respond to the issues raised in Judge Bush's order imposing sanctions. After an investigation, Bar Counsel issued a letter to Doe detailing Bar Counsel's conclusion that Doe violated I.R.P.C. 3.3 by knowingly making a false statement of fact to a tribunal or failing to correct a false statement of material fact. Bar Counsel found that after Doe received the signed declaration his "representations to the Court that Miller refused to provide sworn testimony absent a deposition were no longer true. Moreover, [he] continued to rely, and allowed the Court to consider, statements by Miller as set forth in his Unsigned Declaration that Miller omitted in the Signed Affidavit." In the letter, Bar Counsel also concluded that Doe's conduct was prejudicial to the administration of justice in violation of I.R.P.C. 8.4(d) because his "actions unnecessarily and unreasonably multiplied the proceedings, and required the expenditure of 'additional resources' by the parties and the Court." Bar Counsel imposed a private reprimand for the above violations and informed Doe that he may seek review by a hearing committee of the Professional Conduct Board.

         Doe requested reconsideration from Bar Counsel, which was denied on September 30, 2015. Doe then filed a written request for review by the Professional Conduct Board on October 14, 2015, and a hearing committee was appointed. A hearing was held before the appointed Hearing Committee ("the Committee") on March 7, 2016. The Committee issued a decision that day, affirming the decision of Bar Counsel. The Committee's decision did not include findings of fact or conclusions of law.

         Doe sought reconsideration of the Committee's decision, arguing that the Committee was required to make independent findings of fact and conclusions of law when reviewing Bar Counsel's decision and that there was not clear and convincing evidence supporting Bar Counsel's finding that Doe violated I.R.P.C. 3.3 and 8.4(d). The Committee issued an order denying reconsideration on May 16, 2016, concluding that it was not required to make independent findings of fact and conclusions of law when conducting a review hearing. Doe then filed a petition for review by this Court.

         II.

         STANDARD OF REVIEW

         This Court "bears the ultimate responsibility for determining what sanctions should be imposed on an attorney." Wilhelm v. Idaho State Bar, 140 Idaho 30, 34, 89 P.3d 870, 874 (2004). In reviewing a hearing committee's decision the Court looks to see if the hearing committee's decision was clearly erroneous or arbitrary and capricious. Id. This Court "gives the hearing committee's findings of fact great weight, " but the Court "independently reviews the record and assesses the evidence." Id. "The misconduct must be proven by clear and convincing evidence." Id. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.