Like voluntarily sticking one’s head into a lion’s den, communicating with Disciplinary Counsel can be a risky proposition. Whatever the reason for the communication, attorneys should be mindful not only about what they are saying but how they are saying it. This is not a difficult concept for most to grasp, but the Bar expects attorneys to conduct themselves in a certain way.
The expected way is to treat Disciplinary Counsel, as well as their staff (including attorneys and investigators who work for Bar Counsel), with a level of dignity and courtesy that evinces respect for their office and the power that Bar Counsel has over those members of the profession who value their law license.
And then there is Michael Rychel’s way.
Mr. Rychel, a New Jersey attorney, learned the hard way that there are some things you should never, ever say to Bar Counsel (and certainly not in writing). And an email telling the chief Disciplinary Counsel of the state where you are licensed to “Go Fuck Yourself!!!!!” is, well, frowned upon. See In re Michael E. Rychel, Dkt. No. DRB 16-250 (Decided Apr. 10, 2017), ordered, Dkt. No. D-125 (N.J. Feb. 9, 2018)
Mr. Rychel’s unfortunate situation arose not because he was the subject of an ethics investigation. Rather, Mr. Rychel himself had filed a grievance against his former employer, another lawyer. Mr. Rychel’s grievance was lodged with the New Jersey Supreme Court’s Office of Attorney Ethics (OAE), which is tasked with investigating such matters and, where appropriate, filing ethics charges against attorneys. That office is headed by Mr. Charles Centinaro. As such, Mr. Centinaro is the highest ranking attorney ethics official in The Garden State.
During the course of the investigation, Mr. Rychel sent an email to Mr. Scott Fitz-Patrick, an OAE investigator who works for Mr. Centinaro. In that first email, Mr. Rychel wrote:
Hi Scott: Given my spare time I went through
my evidence files. I had discovered
something that I did not share with you, but
may have some relevance if in [sic] the
event you’re looking to do justice. Attached
hereto you’ll find a memo that was
circulated around the office post JH’s
alleged “going crazy.” Take note that they
make fun of this guy because he opposes/es
[sic] “State Offenses, …. Insurance Fraud,
and “Ethics Violations.” Do me a big favor
and tell Director Centinaro, THANKS FOR THE
BACK UP!!!!!!!!!!!!!!!!!!!! I really
appreciate his f*****g lack of concern. THIS
IS A F*****G ATROCITY THAT AN HONEST LAW
ABIDING ATTORNEY SHOULD HAVE TO GO THROUGH
THIS S**T!!!!!! TELL CHARLES CENTINARO THAT
I SAID TO GO F**K HIM SELF [sic]!!!!!!!!
QUOTE ME IN YOUR REPORT!!!!!! NO OFFENSE
AGAINST YOU, I KNOW YOU’RE A DECENT HONEST
A few minutes later–and apparently wanting to really make sure that the top ethics attorney in the state of New Jersey received his first email, Mr. Rychel wrote a second email. This time, Mr. Rychel cut out the middleman and sent his email directly to Director Centinaro:
Hey Charlie, here’s an example of what
you’re [sic] f*****g AMBULANCE CHASING
attorneys and their minions do to honest
hardworking attorneys who comport their
conduct to the RPC’s, 2C and the IRS code.
Thanks so much for the back up [sic]. Look
personally between me and you GO F**K
As a result of these two emails, an ethics committee of the New Jersey Supreme Court (the Disciplinary Review Board) filed a disciplinary complaint against Mr. Rychel. The complaint charged Rychel for violating N.J. Rule of Professional Conduct 3.2, which states a lawyer “shall treat with courtesy and consideration all persons involved in the legal process.”
The Review Board found that both emails were unethical in that they contained “vulger, highly offensive language, directed at a significant official in the Court’s attorney discipline system.” The Board explained that “[d]isrespectful or insulting conduct to persons involved in the legal process leads to a broad range of discipline, ranging from admonition to disbarment.” Indeed, the Board’s opinion was replete with citations to other New Jersey cases in which counsel were disciplined for uncivil and unprofessional conduct. See e.g. In re Geller, 177 N.J. 505 (2003) (reprimanding attorney who characterized judge’s orders as “horseshit”; referred in a deposition to two judges as “corrupt” and labeling one of them “short, ugly, and insecure”; called his adversary “a thief”; and the opposing party “a moron,” who “lies like a rug.”).
In a split decision, the Review Board in Rychel’s matter found that his conduct warranted a reprimand–which is by no means the worst penalty an attorney could receive. See In re Vincenti, 152 N.J. 253 (1998) (disbarment for attorney with five prior disciplinary violations and who was described by court as “arrogant bully,” “ethically bankrupt” and a “renegade attorney”).
The Review Board also made clear that it “matters not that respondent did not direct his vulgarity and ire to a judge sitting on a bench or to an adversary while in the courtroom.” Indeed, the court made clear that it expects “all attorneys will interact professionally and respectfully with all persons involved in the administration of justice, regardless of whether the interaction occurs in a courtroom or simply in the context of a legally disputed matter.”
On February 9, 2018, the Supreme Court of New Jersey issued an Order (here) accepting the Review Board’s decision and reprimanding Rychel for violating New Jersey Rule 3.2 by failing to treat all persons involved in the legal process with “courtesy and respect.”
Hat tip to Legal Profession Blog for first reporting this decision.
Civility At The USPTO
The rules of civility and professionalism embodied in the various states’ codes of professional conduct also find parallels in the USPTO’s ethics rules.
As we discussed in our post (here), entitled USPTO Suspends Attorney for Six Months for Derogatory Patent Filings, attorney Andrew Schroeder got himself in ethical hot water for accusing a patent examiner of “drinking scotch and whiskey with a side of crack cocaine” while he examined patent applications and suggesting the examiner was mentally challenged.
In another office action response, Schroeder questioned the patent examiner’s competence based on national origin and compared an examiner to “athletes who participate in the Special Olympics [who] might initially make the same mistake after a wild night of cocaine and strippers in Las Vegas.”
These opinions serve as stark reminders that the duty of “zealous advocacy” has its limits. And the practice of law can be extremely stressful. But controlling that stress and channeling that anger is critical to effective representation. Indeed, many of the finest attorneys I know are filled with rage–but they have done an extraordinary job of not letting the other side (or the tribunal) know exactly how they might feel.
On the other side of the coin, telling Bar Counsel to “Go Fuck Yourself” or suggesting a Patent Examiner is a “retard” is not advocacy. It is, quite simply, bullying tactics and demonstrates an utter lack of impulse control. Such tactics are sure to backfire; they will not help your client or you.
Avoid The Angry Email
Many of the situations described in the cases that demonstrate lack of civility and unprofessional behavior can be traced back to the ease of sending emails without thinking. Psychologists offer the following tips (see article here) for how to avoid the “angry email”:
- Don’t hit send at all. Talk to the person if you can.
- Wait. Emotions are short-lived.
- Have the email read by someone else.
- Be professional.
- Be emoticon free.
- Think. Ask yourself why you are sending the email. Will it achieve your desired result? If the point is just to vent, it is probably better not to sent the email at all and find some other way to exercise your anger.