How Disciplinary Authorities Treat Attorneys Convicted Of Domestic Violence

Michael E. McCabe, Jr.Discipline, Moral turpitide1 Comment

canstockphoto12804081 domestic violenceOctober is Domestic Violence Awareness Month.  This past year featured several high profile cases of domestic violence. Who can forget the grainy footage of former Baltimore Ravens running back Ray Rice cold-cocking his wife in a casino elevator? Or charges that football star Adrian Peterson had physically abused his own child—which is even more bizarre considering that a different child he had with another woman had recently been murdered by the mother’s boyfriend, another victim of domestic violence.

Domestic violence is not limited to professional athletes.  Attorneys are not immune from such conduct, either as aggressor or victim.  Indeed, cases about domestic violence committed by lawyers are not new. A law review article published in 2010 details numerous cases in which attorneys were professionally disciplined for domestic violence.

No One Is Beyond Reproach  

In 2014, federal judge Mark Fuller was arrested for battering his wife in a hotel room in Atlanta. When police arrived they found that Mrs. Fuller had lacerations to her mouth and forehead. The attack occurred during an argument in which she had accused her husband of infidelity. The “Honorable” Judge Fuller responded by throwing his wife to the ground, kicking her, dragging her around the room, and punching her in the mouth.

A month later, after claiming he was a first-time offender, Fuller accepted an offer he could not refuse – get counseling and enter a “diversion” program that supposedly teaches abusive spouses how not to be abusive spouses. Once he completed the program, Fuller’s record was literally wiped clean.

In August 2015, Fuller resigned from the bench following a public outcry for his impeachment. But investigators are not through with him. Last week, Fuller was reportedly found to have repeatedly lied to authorities, who uncovered “substantial evidence” that he had engaged in a long-term pattern of domestic abuse of his wife.

Mark Fuller Mug ShotAs one news source reported, records from Fuller’s 2012 divorce from his first wife suggested that there were very similar incidents of physical abuse, as well as drug and alcohol abuse, involving his first wife and their children during his first marriage.  Why that information was not made known to prosecutors in 2014 is a mystery that will eventually be revealed.

A Brief History of Domestic Violence in America

For a long time in our nation’s history, violence in the home was regarded as something that was unfortunate but private, and arrests were discouraged in favor of mediation. As reported last year in the New Yorker, “It was not until the nineteen-seventies and eighties—when feminists and the battered-women’s movement brought renewed attention to the problem, introducing shelters and hot lines, and treating assault within the family as seriously as assault outside of it—that law enforcement and legislatures responded, passing mandatory arrest laws, creating domestic-violence units in prosecutors’ offices, and making it somewhat easier to obtain and enforce protection orders.”

The New Yorker further reports that, “the incidence rate of domestic violence remains high, but it has dropped markedly in the years since that movement began. According to the Justice Department, it fell by sixty-seven per cent between 1994 and 2012. To some extent, that mirrors the general decrease in violent crime in the same period.” This may be due, in part, to the increasing economic independence of women, which affords them more freedom to leave abusive relationships. “But experts also point to the reforms brought about by the greater awareness of domestic abuse—by the raised curtain that the courts once feared, and that, apparently, some federal judges still do.”

The fact that Fuller got off so easily in 2014 (albeit now facing potentially more serious charges of obstruction of justice and lying to investigators), is unusual because few jurisdictions permit attorneys to enter so-called “diversion” programs in lieu of criminal or professional discipline.

Arizona, for example, in 2011, adopted Attorney Diversion Guidelines. Cases eligible for diversion generally involved “minor misconduct” related to poor office management and supervision. Cases involving domestic violence are expressly excluded from the Arizona Supreme Court’s attorney diversion program.

Financial Fear A Factor In Attorney Domestic Violence Cases

Spousal abuse cases against attorneys may be underreported because of economic circumstances.  A spouse who is financially dependent upon an abusive lawyer husband or wife, for example, may be unwilling to come forward out of fear that if the victim makes a report, the bread-winning spouse will lose his or her job, thereby cutting off the spouse and any dependents from their main source of income.

canstockphoto0877504It is understandable in such cases that a spouse may be willing to silently “take a beating” from an abusive lawyer domestic partner simply to protect the lawyer from losing his or her job, and thus ensuring that the victim and any dependents are not forced to suffer the economic hardships that might occur if the breadwinner abusive lawyer loses his or her job because of a domestic violence charge. This dynamic, however, tends to perpetuate a cycle of abuse; the abuser can take out his or her aggression on the spouse with impunity, and the abused spouse may find it, as a practical matter, impossible to escape.

The financial dependence factor came up, for example, in a case involving a successful patent attorney who was convicted in California for domestic battery. See In re Gortler, No. D2013-06 (USPTO Dir.). Following his conviction, the California State Bar instituted disciplinary proceedings. The issues for trial were whether the conviction involved a crime of moral turpitude or other misconduct warranting discipline, and if so, the appropriate sanction.

During an evidentiary hearing, Gortler’s wife testified that her husband was “supportive” and was the family’s sole breadwinner. Gortler ended up with a public reprimand from California and a reciprocal public reprimand imposed by the USPTO. Consequently, he was able to continue to earn a living and support the family.

The Appropriate Disciplinary Sanction

Many disciplinary authorities have imposed suspensions of lawyers convicted of domestic violence. A litany of such cases is reported, for example, in Camerena, 31 Golden Gate Law Review, Forum on Law and Social Change, at 155-56 & n.2 (citing cases) (2010).

Imposing professional discipline on attorneys for their conduct outside of the practice of law is common, and domestic violence is no exception. Indeed, many state and federal bars have determined that disciplinary sanctions are warranted to protect the public, preserve the integrity and reputation of the legal profession, and enhance public confidence in attorneys. That an attorney’s misconduct is considered “private” or “personal” behavior is irrelevant to these competing interests.

While suspensions are often meted out as punishment, as is evident from the Gortler case, the decisions are non-uniform as to what is the appropriate level of discipline in any given domestic violence case. Of course, each case is different and will have its own unique set of circumstances, making application of stare decises difficult. For example, a domestic abuser attorney with a lengthy period of practicing law without any history of discipline—a significant mitigating factor—may receive a lesser punishment for identical conduct as, say, a domestic abuser attorney who only has been practicing law for a few years.

As a result, attorneys who are subject to professional discipline by a state or federal bar often will have no way of anticipating the level of discipline they will receive. One thing is for certain—because of the multitude of attorney domestic abuse cases, a skillful lawyer should be able to locate those cases that support whatever is in their client’s interest. If the lawyer is bar counsel, they will likely be able to load up on cases demonstrating that significant punishment is warranted. If the lawyer is counsel for the respondent/domestic abuser, there are an equal number of cases to support a lower level of discipline.

For attorneys who practice before the USPTO and are subject to the OED’s disciplinary jurisdiction, no precedent is considered binding.  Therefore, every case may be considered persuasvive.  Such matters may ultimately be resolved based upon the dedication of the attorney who works the hardest at finding the “best” cases for their client.

Conclusion

Domestic violence education and resources should remain in the spotlight year round.  Moreover, lawyers can be just as much a part of the solution. Indeed, there are many private lawyer-to-lawyer counseling services, such as Virginia’s “Lawyers Helping Lawyers,” that can help.  In addition, the American Bar Association Commission on Domestic and Sexual Violence seeks to increase access to justice for survivors of DV, sexual assault, and stalking.

For more information or for help, please contact the National Coalition Against Domestic Violence or the National Domestic Violence Hotline (a 24-hour support and crisis intervention service).  Many other different domestic support service organizations can be found at this link.

One Comment on “How Disciplinary Authorities Treat Attorneys Convicted Of Domestic Violence”

  1. Pingback: Disciplinary Actions Rise Against Lawyers Who Commit Acts of Domestic Violence: Know The Warning Signs | McCabe IP Ethics Law

Leave a Reply

Your email address will not be published. Required fields are marked *