Litigation Update

This article originally appeared in The Bar Examiner print edition, September 2017 (Vol. 86, No. 3), pp 45–51.

By Kellie R. EarlyCharacter and Fitness

Disrespect and insubordination toward courts; contempt of court; public reprimand; failure to take responsibility; overzealous advocacy

In re Brittain, 2017 WL 1856521 (VT 2017)

Eric S. Brittain applied for admission in Vermont in March 2015. The Vermont Character and Fitness Committee appointed a member of the committee to investigate Brittain’s character and fitness and decide whether to certify his application. The member declined to certify, citing three areas of concern: Brittain’s disciplinary history as an attorney in Wisconsin; his inappropriate activities, including speeding tickets and a conflict with a previous employer, and failure to take responsibility for those activities; and his record of financial difficulties.

The committee convened a panel to hold an evidentiary hearing in December 2015. The panel, acting on behalf of the committee, declined to certify Brittain’s application and issued a written decision setting out its findings. The committee reviewed the panel’s findings of fact. While the committee concluded that Brittain’s record of financial difficulties was not relevant to his current fitness, it concluded that his past professional conduct “demonstrates a lack of restraint in the courtroom and a disturbing trend to imprudently challenge those he perceives as obstacles to his zealous advocacy.” The committee concluded that Brittain’s conduct over several years was contrary to the state’s interest in protecting prospective clients and the system of justice. His four citations for contempt of court by three different judges, two of which resulted in his stipulating that he had violated the rules of professional conduct, demonstrated “a disturbingly self-destructive pattern of behavior” that was not likely to change. The committee placed weight on Brittain’s failure to take responsibility for his conduct; although he testified that he would change his approach in order to reduce friction with judges, he primarily saw his contempt citations and the Wisconsin disciplinary proceedings as retribution for his advocacy on behalf of indigent minority clients. The committee issued its decision that Brittain does not possess the necessary character and fitness for admission. Brittain appealed to the Vermont Supreme Court.

The Court set out in detail its review of the record of Brittain’s past conduct, starting with his suspension from the Wisconsin Public Defender’s Office in December 2005. After he had been working at the Public Defender’s Office for about two years, he had a disagreement with his employer about a policy requiring juveniles to be shackled when taken to court and wanted to file court action challenging the policy. He also urged his supervisors to take a legal stand against a particular juvenile justice program. He wrote several strongly worded e-mails to his supervisors expressing his views on these issues. After his supervisor removed him from working on the shackling policy, he wrote an e-mail to the board of directors for the Public Defender’s Office setting out his objections to his employer’s position on these two issues. His employment was suspended in December 2005, and he resigned in June 2006 to enter private practice.

Brittain was held in contempt of court in 2008 during a criminal jury trial after being admonished by the judge three times during opening argument for talking about his personal life experiences, vouching for his client, and then giving his remarks in a first-person narrative, as if he were his client. Brittain then renewed an earlier motion for the judge’s recusal and stated in front of the jury that the judge was biased. The judge excused the jury to speak with the lawyers, during which Brittain challenged the judge’s rulings and denied that his statements during his opening argument were inappropriate. He accused the judge of acting as a prosecutor and preventing his client from receiving a fair trial. After being instructed again by the judge to refrain from giving first-person remarks, vouching for the credibility of his client, and stating personal opinions, Brittain responded that he would advocate for his client in the way he believed he had to. When the jury returned and Brittain resumed his opening argument, he told the jury that his client was facing “a lot of obstacles,” and then turned away from the jury to look back at the judge for three to five seconds. The judge concluded that Brittain was suggesting to the jury that the court was interfering with his client’s right to a fair trial, and held him in contempt. The appellate court upheld the contempt order. Based in part on this incident, the Wisconsin Office of Lawyer Regulation brought disciplinary charges against Brittain in 2012, and a stipulated resolution was reached that included a public reprimand.

In a 2009 criminal case, Brittain disagreed with another judge’s position on some discovery matters during a pretrial proceeding. Brittain said, in a raised voice, “You[r] Honor, I believe your behavior is inappropriate.” The discovery matters subsequently came before that same judge in a pretrial hearing, during which Brittain’s behavior caused the judge to terminate the hearing and leave the bench. When the court reconvened that afternoon, the judge stated the time at which the court had adjourned the hearing in the morning. Brittain objected to the judge’s characterization of the end of the morning proceeding as an adjournment and moved for recusal of the judge. The judge stated that she had left the bench because she had been frustrated by Brittain’s behavior. During the subsequent exchange between the judge and Brittain, he called the judge’s statements about his conduct “ridiculous” and questioned whether the judge had a “physical issue” or “some other health issue that has affected [the judge’s] ability to be appropriate.” This incident resulted in disciplinary charges being brought against Brittain again; he again stipulated to the facts and agreed to a public reprimand.

Brittain was held in contempt a second time in 2010 during another criminal jury trial. The court gave three reasons for its contempt citation: (1) Brittain ignored the judge’s repeated order to not refer to the defendant by his first name; (2) Brittain claimed in front of the jury that the court was biased against him; and (3) Brittain acted disrespectfully when the court issued an unfavorable ruling. Brittain stated that he was only being a zealous advocate and was not trying to offend the court.

Brittain was held in contempt two more times during a criminal case in April 2011. While arguing a motion, Brittain said that he “would expect a prosecutor of [15] years to know” a tenet of Brittain’s argument. The court admonished Brittain for personally attacking the prosecutor, which caused Brittain to become argumentative with the judge. Brittain again asserted that he was simply being a zealous advocate and accused the court several times of being biased. The court found him to be in contempt but did not impose a fine. He was found to be in contempt a second time during the same hearing due to his behavior following the court sustaining the prosecutor’s objection to Brittain’s use of an unrelated newspaper headline during voir dire. The judge ruled on the objection during a sidebar with counsel, after which Brittain said to the potential jury members, “I’m sorry, folks. I guess I’ve been—It’s been ruled that I can’t use that. I’ve been doing this 10 years, and this is the most trouble I’ve ever had talking to a group.” The court found that Brittain’s statement suggested that the court was acting improperly and that by his repeated failure to comply with the court’s order during the proceeding he had impaired the dignity of the court. The judge held him in contempt and imposed a fine.

Brittain disclosed in his application that he had been detained at the Milwaukee airport in 2011 for failing to comply with TSA directives, which was a violation of a municipal ordinance.

On the basis of the above factual record, the Court concluded that Brittain’s history shows that he does not possess the necessary character for admission to the Vermont bar. The Court stated that it was primarily concerned with Brittain’s pattern of disrespect and insubordination toward courts, as well as his failure to take responsibility for that misconduct. The Court further explained that the instances of misconduct, taken alone, would not lead to the same decision, but that taken together, the instances establish a pattern of misconduct involving different cases and different judges spanning between 2008 and 2012. The Court stated, “In each of the cases described above, [the] applicant demonstrated disrespect toward the court by willfully disregarding court orders or interrupting or inappropriately arguing with the judge about those orders; he showed very little understanding of the bounds of proper courtroom demeanor, particularly in the presence of a jury; and he frequently responded to the court’s admonitions by asserting that the judge was biased against him.”

Additionally, the Court noted that Brittain has not shown any evidence of rehabilitation, such as “remedial coursework, work with a mentor, counseling, or other steps . . . to learn about proper courtroom behavior.” Nor has he shown that he has practiced law within the bounds of decorum since the time these incidents occurred because he has not practiced law since 2012.

Compounding Brittain’s troubling history is his failure to take responsibility for his behavior. Although he told the Character and Fitness Committee that he took responsibility, he added that he was still proud of his actions in many ways. During the hearing before the committee, he also referred to the Wisconsin disciplinary actions as “silly” and repeated his claims that the judges were biased and retaliating against him for exposing police and prosecutor wrongdoing. His refusal to recognize that he had acted wrongly suggested to the Court that he would continue to misbehave in Vermont courts if he were to be admitted to the bar.

The Court emphasized that its decision was not based on the Wisconsin courts’ findings of contempt or the disciplinary sanctions, but rather on Brittain’s underlying conduct that resulted in those consequences. “His conduct was out of bounds whether or not any judge found him in contempt, and regardless of whether any individual judge was predisposed to find him in contempt.” The Court affirmed the committee’s decision not to certify Brittain’s character and fitness for admission.

One justice dissented and cited the following four factors as leading to his decision. First, there is no evidence that any of Brittain’s clients were injured by his behavior, that Brittain was dishonest or untrustworthy, or that he was an incompetent lawyer. The cases in which he was held to be in contempt involved overzealous representation rather than inadequate representation. Second, Wisconsin imposed a relatively light disciplinary sanction of a public reprimand. Vermont has a limited understanding of the culture and circumstances in which the contempt citations arose and is weighing Brittain’s misconduct more heavily than did the Wisconsin disciplinary authority, which was much closer to the events and circumstances. Third, Brittain has taken responsibility for his inappropriate tactics but continues to assert that the circumstances required zealous advocacy. “This is a fine line, and in my view the difficulty in walking it has caused much of the Board’s and majority’s view that [the] applicant continues to assert that what he did was proper.” Although there is some risk that Brittain will again engage in such misbehavior, it is not likely he will do so because he now has better insight and has matured. Fourth, Brittain has a passion for justice in an area of law where more zealous and skilled advocates are needed. “I am not endorsing professional misconduct or suggesting that we should lower character and fitness admission standards to admit passionate advocates. I am suggesting that we not confuse passion and zealous advocacy with character flaws.”

Failure to provide specific information requested in application; failure to cooperate; lack of candor; disrespect for the judiciary

In re Application of Coll, 150 Ohio St. 3d 183, 2017 WL 2403354 (OH 2017)

Shamir Lee Coll applied to take the February 2016 bar examination in Ohio. Two members of the Toledo Bar Association bar admissions committee interviewed Coll in November 2015 and provisionally approved his character and fitness for admission. The Board of Commissioners on Character and Fitness subsequently announced that it would exercise its sua sponte authority to further investigate Coll’s character and fitness. A panel of the board held a hearing in April 2016 and recommended that Coll’s application be disapproved but that he be allowed to reapply for the July 2019 examination. The panel found that Coll had not provided complete information on his history of traffic violations and that he had made “provocative statements” in a supplement to his application. The board adopted the panel’s findings and recommendations. Coll appealed to the Supreme Court of Ohio.

The application includes a question asking whether the applicant has been “charged with any moving traffic violations that were not alcohol- or drug-related during the past [10] years.” If so, the applicant is instructed to complete a Form 5T, which requests specific information for each violation, including the law enforcement agency, date and location of the incident, original charge(s), date of disposition, charge(s) at the time of disposition, disposition, and a description of the incident. Coll answered affirmatively and provided a Form 5T on which he reported his full name, Social Security number, and current Ohio driver’s license number, and wrote that he had violations in “Many Cities, Many Counties, OH” but listed only one incident date and one disposition date for a single 2012 speeding charge.

An Ohio bar admissions specialist notified Coll that the board requested that he provide information for each of his prior moving violations on separate Form 5Ts, explaining that the information he had included in his application was “not specific enough” and indicating that not providing the information could affect his ability to take the examination. Coll responded by providing a single Form 5T containing only his name, Social Security number, and Ohio driver’s license number, and attaching an abstract driver record from the Ohio Bureau of Motor Vehicles reflecting that he had no violations in the previous three years.

The bar admissions specialist again notified Coll that the information he had provided was insufficient, citing that he had not reported any specific violations and that the abstract covered only 3 of the preceding 10 years requested by the application question. In response to this second request to provide the information called for in the application, Coll submitted two Form 5Ts that reported four traffic violations and provided some, but not all, of the requested information. He omitted the charges levied against him, the dates of disposition, and the dispositions. He also failed to provide Form 5Ts for violations that occurred in May and July 2009, which he revealed in the subsequent hearing before the panel.

Additionally, Coll failed to update his answer to the application question asking whether he had “ever been cited, arrested, charged, or convicted for any violation of any law including as a juvenile (except traffic violations)”. He had been cited for two fourth-degree misdemeanor charges of undersize fishing and fishing in a closed zone. These charges were pending at the time of his hearing in April 2016. He subsequently supplemented his application on June 3, 2016, to disclose that he had been convicted of these charges and sentenced to 10 days in jail (suspended) and two years of probation for each offense, to be served consecutively.

At the hearing before the panel, Coll argued that his application was complete because he had provided his identifying information on Form 5T and it was the responsibility of the Court or its agents to investigate his past conduct based upon that information. He claimed that the board had “breached its contract with him” because he “had paid the application fee in exchange for an investigation that, in his view, did not occur.” He claimed, in the alternative, that his driving record was immaterial in determining his character, particularly since his driver record abstract revealed no offenses in the preceding three years, reflecting his “rehabilitation” from earlier violations. The board found Coll’s conduct and his reasons for failing to provide the requested traffic violation information to be violations of an applicant’s duty to cooperate in the board’s investigation and to provide accurate and complete information. The board further found that Coll “willfully and deliberately chose not to answer the questions at issue and unilaterally decided which questions were pertinent.” The board concluded that Coll’s failure to understand his responsibilities as an applicant and the Court’s role in the investigation process “demonstrated an inability to understand the simplest terms of [the court rules] and the instructions for completing the application.” Lastly, the board believed that Coll’s behavior reflected “a degree of arrogance and disdainfulness for the Court that brings into serious question [his] maturity and judgment.”

On appeal to the Court, Coll argued that his disclosures of the traffic violations were sufficient and timely and that he had met his burden to demonstrate that he has the required character and fitness for admission. He further argued that the board abused its discretion by not considering the factors set out in the court rules in assigning weight and significance to his prior conduct, and that the recommendation that he not be allowed to reapply until the July 2019 examination was overly harsh in comparison to reported cases involving other applicants who omitted more serious information from their applications.

The Court found that Coll chose not to disclose the requested information, and, even more troubling, repeatedly and emphatically insisted that he had no duty to make the disclosures, instead declaring that the board, and by extension the Court, had failed to discharge its duty to investigate his background. He “adamantly refused to yield to the interpretation” of the rules and instructions established by the Court and advanced by the panel. The plain language of the rules, as well as the Court’s jurisprudence, makes clear that an applicant’s failure to provide requested information or to cooperate in proceedings before the board may be grounds for disapproval. The admissions process relies upon the applicant’s honesty and candor in disclosing information “to narrow the focus of our inquiry from every jurisdiction in the country (or beyond) to those jurisdictions that may actually possess relevant information.”

Coll’s omissions impeded the investigation into his past conduct. His omissions “also raise significant questions about his cognitive capacity to learn, to recall what has been learned, to reason and to analyze, and to exercise good judgment and act in accordance with the law and the rules governing the practice of law—not only in his own professional affairs but also in the affairs that clients will one day entrust to him.” His disrespect for the Court calls into doubt his ability to comply with the Rules of Professional Conduct, to conduct himself diligently and reliably, and to conduct himself professionally and in a manner that engenders respect for the law and the profession.

In assessing the weight and significance of Coll’s conduct, the Court noted that his omissions were recent, occurring when he was a third-year law student, even though the underlying traffic violations occurred years ago. And he readily admitted that he could have provided the omitted information but chose not to. Similarly, he chose not to disclose the two misdemeanor fishing charges, at the same time that he was being questioned under oath about his failure to disclose the traffic violations. The Court concluded that only 3 of the 10 factors enumerated in the court rule weighed in favor of approving Coll’s application: (1) the unlikelihood that the traffic violations would have raised significant concerns about his character, if they had been properly disclosed; (2) his present willingness to submit properly completed Form 5Ts; and (3) his recent service as a victim’s advocate at municipal court.

The Court overruled Coll’s objections to the board’s findings and denied his application. The Court considered Coll’s argument that the board’s recommendation that he not be allowed to reapply until July 2019 was too harsh in comparison to similar cases. The Court reviewed three past cases involving nondisclosure and concluded that the offenses Coll failed to disclose were not as serious as the offenses in the cited cases. Nevertheless, the Court remained troubled by Coll’s insistence that he had no obligation to disclose the requested details about the traffic violations and that it was the duty of the board and the Court “to independently discover each of those violations based on minimal identifying information.” Therefore, the Court overruled Coll’s request to apply for the July 2017 examination. The Court held that Coll could apply for the July 2018 examination, provided that he submits a new application and undergoes a complete character and fitness investigation.

Two justices concurred in disapproving Coll’s current application, but dissented from the decision to allow him to reapply for the July 2018 examination and would instead permanently preclude him from applying for admission in Ohio. The basis for their opinion was the importance of an applicant’s cooperation and participation in the character and fitness process because of the nature of the proceedings. The dissent explained:

We view such proceedings as being different from the adversary contest associated with, for example, disciplinary cases. A hearing to determine character and fitness should be more of a mutual inquiry for the purpose of acquainting this court with the applicant’s innermost feelings and personal views on those aspects of morality, attention to duty, forthrightness and self-restraint which are usually associated with the accepted definition of “good moral character.” Such a view commands the utmost in cooperation between the applicant and the board, and leaves little room for the employment of doctrines which work to keep relevant information from the board. [Italics in original.]

Although the Court had decided other cases involving failure to disclose information, “none equate with a deliberate or persistent refusal to disclose the description of prior offenses combined with an explanation that the duty to uncover those details somehow belonged to this [C]ourt.” Coll demonstrated a lack of candor and a disrespect for the judiciary that indicates that he cannot abide by the oath taken by all Ohio lawyers to “show respect toward judges, court staff, clients, fellow professionals, and all other persons,” and he does not have the professional judgment demanded of all lawyers. Accordingly, the dissent would permanently prohibit Coll from applying for admission in Ohio.

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