Monday, May 27, 2013

The Intern, the Horror Movie and the Email

As I explained in a recent post, the Supreme Court in each state is in charge of disciplining attorneys who violate the relevant rules of professional conduct.  That post dealt with a disciplinary opinion issued by the Supreme Court of Ohio.  This post examines a recent disciplinary opinion issued by the Supreme Court of Indiana.

The opinion is In re Usher, __ N.E.2d __, 2013 WL 2145636 (Indiana Supreme Court 2013), and it involves conduct by Arthur J. Usher IV.  According to the opinion, the events that led to Usher’s facing allegations of attorney misconduct began in the summer of 2006, when he “became acquainted” with Jane Doe, who was a student at the Indiana University McKinney School of Law in Indianapolis.  In re Usher, supra.  A “social relationship developed between them “after she returned to law school for her third year”; by then, Usher had left Bose and  “become a partner at the law firm of Krieg DeVault LLC (`Krieg DeVault’).”  In re Usher, supra. 

The opinion explains that while Usher “expressed an interest in having a romantic relationship with Doe, she consistently declined, telling him she wished to remain only friends.” In re Usher, supra. Their relationship “began to deteriorate” as a result Usher’s “continued pursuit of a romantic relationship.”  In re Usher, supra.  In July of 2008 he

asked the producer of a horror movie in which Doe had appeared to help him obtain a clip from another movie in which [she] also appeared. The producer sent [Usher] a clip . . . that appeared to show Doe in a state of undress. . . After [he] advised Doe of his meeting with the producer, [she] decided to end their friendship. [Usher] then began attempting to humiliate Doe and interfere with her employment prospects.

In August of 2008, [Usher] sent the clip to an attorney at Bose, where Doe had accepted a job offer. [He] attempted to convince the attorney that Doe's appearance in a horror film in a state of undress would have an adverse effect on [Bose’s] ability . . . to retain and/or attract clients. Suspicious of [Usher’s] motives, the attorney did not take [his] suggestion to send the clip to the firm's executive committee. Doe commenced her employment with Bose despite [Usher’s] s efforts to interfere.

On September 17, 2008, [he] sent Doe an email accusing her of lying to and misleading him regarding her affections. Doe responded with an email stating: `Leave me alone. Do not contact me. You have been harassing me for months now. If you do not stop harassing me, I will file for a restraining order.’

In re Usher, supra. 

Usher “decided to publish the clip to a much wider audience” and “drafted a fictitious email thread intended to appear to be an exchange of opinions among lawyers and other fictitious persons”.  In re Usher, supra. The email included the following excerpts:

[Subject line:] Firm slogan becomes `Bose means Snuff Porn Film Business’ w/addition of [Jane Doe]

. . . . I think you are failing to understand how harmful [Doe]'s behavior was to all female professionals, and the incredible stupidity in acting in such a film. A friend happened to wander into a movie theater on the east side . . . and bought a ticket and the DVD for this movie this past summer. . . .The DVD came to me with a note about `When can we expect to see you getting naked in court?’

Having now seen the entire film, what is really troubling from a feminist perspective was that a female lawyer played the central role or otherwise blessed a film project in which the entire plot lines a woman being repeatedly brutalized by a man. . . .

Quite frankly, I can not [sic] believe Bose McKinney employs this woman.

There are legions of plain faced big breasted blondes who are such hacks as actresses that they are gladly shedding their clothes (or doing anything else) to get in front of a camera. It is troubling that someone you would think would know better after making it through law school is such a bundle of insecurities that they would make such a film. Who knows, maybe she is not that bright and took a similar approach to getting hired?

Free speech rights aside, professional women . . . do not need the [Jane Does] of the planet eroding their hard earned respect in the marketplace.

So, given that you told me that your company does about one to one and a half million dollars a year of work with outside counsel, the solution is simple. Refuse to do business with the Bose firms of the world when they employ such people. Moreover, encourage other female in-house counsel to adopt a similar approach.

That firm is free to hire idiots who participate in films demeaning to women. And we female in-house counsel are free to never use the Bose firm when they employ sexists. . . . So I am forwarding this e-mail chain to you to explain the situation and hope you will embrace what is basically my invitation to jot down a note to yourself not to use this firm or similar firms.

In re Usher, supra. The email included “a link to a site where the movie could be purchased on DVD, with the suggestion that copies be sent to in-house counsel.” In re Usher, supra. 

Usher also “recruited his paralegal at Krieg DeVault, `KB,’ to disseminate the email.” In re Usher, supra. Bose had fired KB, who was “very loyal” to Usher. In re Usher, supra.  
Usher gave KB “a flash drive containing the email contents and the clip” and “suggested” to her that the “recipients of the email include attorneys at Bose, that it be sent from a location that would avoid it being traced back to them, that [it] appear to have originated from somebody with `clout’ at Bose” and . . . be sent after Usher left” for vacation over “the upcoming Thanksgiving holiday.” In re Usher, supra.  KB would later deny “any knowledge of the contents of the email or acquaintance with Jane Doe” and claimed she thought it was “some sort of prank.”  In re Usher, supra. 

On November 28, 2008, KB took the flash drive to a Kinko's in Indianapolis, “created an email account using the name of the managing partner at Bose” and used it to send the email and clip to fifty-one persons, a large number of whom were from Bose.” In re Usher, supra.  She also sent it to other law firms in Indianapolis. In re Usher, supra. When Respondent returned to his office in December of 2008, he was “confronted with a protective order Jane Doe had obtained against him, to which the email was attached.” In re Usher, supra.  He “complied with Krieg DeVault's demand that he resign” and since 2009 “has practiced as a sole practitioner.”  In re Usher, supra. 

Doe “takes pride in her acting and does not hide the fact she has appeared in a number of films.” In re Usher, supra.  In one of the scenes in the clip, her “character undresses, but a body-double was used in the part showing nudity.” In re Usher, supra.  It says Usher knew that, but did not “disclose this in the email, leaving the impression” that Doe “appeared topless in the movie.”  In re Usher, supra. 

On February 27, 2009, Doe filed a grievance with the Indiana Supreme Court Disciplinary Commission against Usher.  In re Usher, supra. As a result of the grievance and what I am assuming is an investigation, the Disciplinary Commission charged Usher with violating these Indiana Rules of Professional Conduct:

3.3(a)(1): Knowingly making a false statement of fact to a tribunal.

8.1(a): Knowingly making a false statement of material fact to the Disciplinary Commission in connection with a disciplinary matter.

8.1(b): Failure to disclose a fact necessary to correct a misapprehension known by the person to have arisen in a disciplinary matter.

8.4(a): Knowingly assisting another to violate the Rules of Professional Conduct, or violating the rules through the acts of another.

8.4(b): Committing a criminal act (identity deception) that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.

8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

8.4(d): Engaging in conduct prejudicial to the administration of justice.

8.4(g): Engaging in conduct that was not legitimate advocacy, in a professional capacity, manifesting bias or prejudice based upon gender.

In re Usher, supra. 

A hearing officer appointed by the Disciplinary Commission held an evidentiary hearing and, on November 14, 2012, filed a report which found that Usher had  “violated all of the above rules except Rule 8.4(b) and 8.4(g).” In re Usher, supra.  Usher then filed a petition with the Indiana Supreme Court, asking it to review (and presumably reverse) the report.  In re Usher, supra. 

The Court found Usher violated Rule 3.3(a)(1) by submitting “false responses” to requests for admissions (RFA) Doe sent him as part of a civil suit she filed against him.  In re Usher, supra.  It noted that in the disciplinary proceeding Usher claimed he was

justified in denying a RFA that he `composed’ the email because he interpreted `composed’ to mean preparing the email that was actually transmitted, that he was justified in denying that he asked or directed another person to send the email because he did not select the recipients or the email account name, and was justified in denying he knew who sent the email because KB might have asked someone else to send it. 

In re Usher, supra. 

It found Usher had violated Rule 8.1(a) because in his answer to the Disciplinary Commission’s complaint he “falsely” denied he “had drafted the subject line of the email”, but when he testified at the hearing he admitted he had drafted it.  In re Usher, supra.  The Court also found he had violated Rule 8.1(b) because in this response to the complaint he “was less than entirely forthcoming about his involvement with the email”, a response which the court said “seems crafted to create misapprehensions rather than to dispel them.”  In re Usher, supra. 

The Court found Usher violated Rule 8.4(a) “by procuring the aid of KB in disseminating the email.”  In re Usher, supra.  As to Rule 8.4(b), which prohibits engaging “in a criminal act that reflects adversely on the lawyer’s honesty, truthworthiness, or fitness as a lawyer”, the Disciplinary Commission charged Usher with violating this rule by “committing identity deception” in violation of Indiana Code § 35-43-5-3.5 “in connection with the email.”  In re Usher, supra.  The hearing officer found the Commission had not met its burden of proof on this charge and so did not find Usher violated it; the Court deferred to the hearing officer’s conclusion.  In re Usher, supra. 

The Court also found that Usher violated Rule 8.4(c), which bars a lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation”.  In re Usher, supra.  The Court noted it had already found Usher made misrepresentations in his responses to the RFAs. In re Usher, supra.  It also found he had engaged in misrepresentation and dishonesty in his conduct involving the email, i.e., “by giving it the false appearance of consisting of actual communications between female attorneys and other professionals, by including statements and implications he knew to be false, and by telling KB that the email was just a prank when it was actually a personal and professional attack on Jane Doe.”  In re Usher, supra. 

As to Rule 8.4(d), the Court found Usher violated this rule “which prohibits conduct prejudicial to the administration of justice, by obstructing the civil action and this disciplinary action through knowingly making false statements of fact in those proceedings.”  In re Usher, supra.  And, finally, as to Rule 8.4(g), “which prohibits an attorney from engaging in conduct that is not legitimate advocacy, in a professional capacity, manifesting bias or prejudice based upon gender” the hearing officer found the Commission had not met its burden of proof on this charge and the Court agreed. In re Usher, supra.  It noted that the evidence supported “a finding that the email was motivated by personal anger at Jane Doe in particular rather than by bias or prejudice against women in general.”  In re Usher, supra. 

The Court then took up the issue of discipline.  In re Usher, supra.  It explained that its analysis of the appropriate discipline involved “consideration of the nature of the misconduct, the duties violated by [Usher], any resulting or potential harm, [Usher’s] state of mind, our duty to preserve the integrity of the profession, the risk to the public should we allow [him] to continue in practice, and matters in mitigation and aggravation.”  In re Usher, supra. 

As to the aggravating factors, the hearing officer found that Usher “(1) has not clearly shown that he appreciates the harm he has done to Jane Doe, and he still believes that the email was, in some way, justified; (2) [his] email was the result of a carefully crafted plan; and (3) [he]  used a trusting subordinate to distance himself from the email and shield himself from the consequences.” In re Usher, supra. 

As to factors mitigating the severity of the violation, the hearing officer found that Usher “(1) has no disciplinary history; (2) expressed some remorse, but only about involving KB in his plan to humiliate Jane Doe; and (3) was dealing with news that his sister had been diagnosed with cancer.”  In re Usher, supra. Usher claimed “depression” contributed to “deficiencies in his initial response to the grievance” but the Court noted that depression is relevant is a mitigator when misconduct is due to “neglect or oversight.”  In re Usher, supra. “[Usher’s] misconduct was deliberate and dishonest.”  In re Usher, supra. 

The Court therefore held that Usher “should be suspended for a period of at least three years and any possibility of reinstatement thereafter be available only upon satisfaction of Indiana's rigorous standards for reinstatement, which require clear and convincing evidence of the petitioner's remorse, rehabilitation, and fitness to practice law.”   In re Usher, supra.  It therefore imposed that sanction.  In re Usher, supra. 

If you would like to read a little more about the facts in the case, and see a photo of Usher, check out this news story.

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