Opinion No. 129
from the Professional Conduct Board of the Idaho State Bar.
decision of the Hearing Committee of the Professional Conduct
Board is affirmed.
Hawley, Troxell, Ennis & Hawley, LLP, Boise, for
Petitioner. Merlyn W. Clark argued.
State Bar, Boise, for Respondent. Bradley G. Andrews argued.
JONES, CHIEF JUSTICE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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. 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
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.
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.
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.
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.
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. ...