I WILL CALL THE SECOND CASE FOR
DISCIPLINE ACTION AGAINST JAMES
NICKITAS.
MR. HOWE THERE CHECK-IN?
COME ON UP.
IF YOU WOULD LIKE HIM TO COME
YES.
HE DOESN'T HAVE TO BUT WHATEVER
ALL RIGHT, WELL COUNSEL ARE
GETTING READY WE WILL GIVE EACH
OF YOU 3 MINUTES OF TIME
UNINTERRUPTED AT THE BEGINNING
OF YOUR ARGUMENT THEN AT THE
THREE MINUTE MARK I WILL
INTERRUPT AND SEE IF MEMBERS OF
THE COURT HAVE QUESTIONS.
MS. FRANK YOU RESERVE 5 MINUTES
FOR REBUTTAL?
ALL RIGHT YOU CAN PROCEED WHEN
YOU'RE READY.
THANK YOU.
>> THANK YOU, CHIEF JUSTICE.
MAY IT PLEASE THE COURT,
COUNSEL, NICOLE FRANK ON BEHALF
OF THE DIRECTOR'S OFFICE.
AT ITS CORE, THIS CASE INVOLVES
A PROFOUND LACK OF PROFESSIONAL
JUDGMENT AND SELF-REGULATION.
THAT RESULTED IN THE RESPONDENT
REPEATEDLY CROSSING THE ETHICAL
LINES AND ENGAGING IN MISCONDUCT
DURING TELEPHONE CONVERSATIONS
WITH COURT ADMINISTRATION STAFF
AND IN WRITTEN CORRESPONDENCE TO
DISTRICT COURT JUDGES.
RESPONDENT'S MISCONDUCT
CULMINATED BY HIM IMPUGNING THE
INTEGRITY OF A DISTRICT COURT
JUDGE IN A LETTER ADDRESSED TO
THAT VERY JUDGE FILED INTO THE
COURT RECORD AND WITH A COPY TO
THE CHIEF JUDGE OF THE SECOND
JUDICIAL DISTRICT.
THE ONLY ISSUE LEFT TO DECIDE IS
THE APPROPRIATE LEVEL OF
DISCIPLINE.
THE NATURE OF MISCONDUCT, PAIRED
WITH THE PRESENCE OF MULTIPLE
AGGRAVATING FACTORS, DEMANDS THE
SANCTION BE IN A DEFINITE
SUSPENSION FOR A MINIMUM OF 120
DAYS, AND A RULE 18
REINSTATEMENT HEARING.
THE SANCTION IS CONSISTENT WITH
THE COURT'S VERY RECENT
PRECEDENT IN ITS 2021 DECISION
IN RAY McDONALD, IT'S ALSO IN
LINE WITH THE REFEREE'S
RECOMMENDATION.
THE REFEREE RECOMMENDED A 120
DAY SUSPENSION WITH A
REINSTATEMENT HEARING, AND
SUGGESTED THAT ONLY IF
PRACTICABLE, THAT SUSPENSION
WOULD BE STAGGERED.
BECAUSE OF STAGGERED SUSPENSION
IS NEITHER CONTEMPLATED BY THE
RULES, NOR PRACTICABLE, THE
SUSPENSION MUST BE CONTINUOUS.
IT IS UNDENIABLE THAT
RESPONDENT'S MISCONDUCT IS
SERIOUS.
JUDGES REVIEWING THE LETTERS
VIEWED THEM AS ATTEMPTS AT
INTIMIDATION.
OR WORSE, ATTEMPTS TO INVITE THE
CHIEF JUDGE IN THE SECOND
JUDICIAL DISTRICT TO INTERVENE
ON THE MATTER OF SPENDING FOR
ANOTHER JUDGE.
IT IS HARMFUL TO THE PROFESSION.
MULTIPLE CONCERNING THIS CONDUCT
IS NOT NEW.
RESPONDENT SIGNIFICANT
DISCIPLINARY HISTORY OF FAITH TO
OF CONDUCT THAT INVOLVED HIGHLY
VOLATILE THREATENING AND
INTIMIDATING BEHAVIOR TOWARDS
OPPOSING COUNSEL AFTER AN
ARBITRATION.
RESPONDENT ALSO HAS SIGNIFICANT
EXPERIENCE WITH MORE THAN 30
YEARS OF PRACTICE.
COUNSEL, LET ME JUST AS KEY TO
POSITIVE MEMBERS OF THE COURTS.
SPEAK WITH MS. I NOTED THAT
RESPONDENT SENT A LETTER TO THE
DIRECTOR'S OFFICE IN JUNE OF
2018 BASICALLY ACKNOWLEDGING
THAT HE HAS SOME ANGER ISSUES
AND STATING THAT I THINK HE WAS
SEEKING COUNSELING AT THE VA
CENTER IN MINNEAPOLIS.
I GUESS AM WONDERING IS THERE
ANYTHING IN THE RECORD THAT
SUGGESTS THAT THE RESPONDENT IS
A VETERAN OR HAS ANY TYPE OF
SERVICE RELATED DISABILITY OR
IMPAIRMENT OR DIAGNOSIS THAT
COULD BE RELEVANT TO DISCUSSION
OF MITIGATING FACTORS?
>> THAT'S AN EXCELLENT QUESTION,
JUSTICE MOORE.
THE EXTENT OF WHAT IS DOCUMENTED
IN THE RECORD, IT IS REFERENCE
OF THE VERY FACT.
ALONG WITH THE RESPONDENT'S
MENTION OF IT DURING TESTIMONY.
DURING DISCOVERY, AND PRIOR TO
THAT IN THE INVESTIGATION, THE
DIRECTOR ATTEMPTED TO ENGAGE IN
DISCOVERY LIST TO VERY ISSUE.
IN ORDER TO DO SO PROPERLY THE
DIRECTOR NEEDS AUTHORIZATIONS
FOR ACCESS TO RECORDS.
THAT WAS NOT PROVIDED.
TO THE DIRECTOR WAS NOT ABLE TO
EXPLORE THE FULL EXTENT OF THAT
COUNSELING.
WHETHER THERE IS A DIAGNOSIS
IT'S NOT RAISED AS FORMAL
MITIGATION.
>> BUT THE AUTHORIZATIONS WERE
SOUGHT BY THE DIRECTOR TO SEEK
THAT INFORMATION?
>> ON MORE THAN ONE OCCASION.
DURING THE INVESTIGATION AND
DISCOVERY.
>> THANK YOU.
CAN YOU SEE WHY --
>> I DO NOT SEE ANY BASIS IN THE
PRECEDENT OR IN POLICY ARGUMENTS
FOR THIS COURT TO CARVE OUT
EXCEPTIONS AND ATTORNEY
DISCIPLINE BASED ON THE VALOR OR
MERIT OF AN ATTORNEY'S POSITION
POST MISCONDUCT.
THAT IS THE TYPE OF EVIDENCE
THAT COULD BE INTRODUCED DURING
A RULE 18 REINSTATEMENT HEARING.
IT DOES NOT MITIGATE AGAINST
CONDUCT BEFORE THAT, NOR CAN IT
ABSOLVE A MISCONDUCT, SKIP A
REINSTATEMENT HEARING, OR CHANGE
THE GOALS OF DISCIPLINE.
>> THEY MENTION McDONALD AS AN
AUTHORITY.
THERE WAS A 60 DAY SUSPENSION IF
I'M NOT MISTAKEN NOT MISTAKEN.
>> YES, YOUR HONOR, THERE ARE
TWO McDONALD DECISIONS THAT
GUIDE OR INFORM THIS MATTER.
THE FIRST IS 2018.
>> THAT WAS 30 DAYS.
>> THAT WAS 60 DAYS.
THE SUBSEQUENT 2021 DECISION WAS
A 120 DAY CONSULT THE SAME
SANCTION THAT US OUT HERE.
>> OKAY, THANKS.
>> COUNSEL, STAGGERED SENTENCES
CAN BE USED EFFECTIVELY IN THE
DISTRICT COURTS OF OUR STATE TO
ENCOURAGE DEFENDANT BEHAVIOR.
I NOTE THE DIRECTOR IS CONCERNED
ABOUT THE REFEREE'S
RECOMMENDATION THAT THIS 120
DAYS BE BROKEN UP INTO DISCRETE
SEGMENTS SORT OF LIKE A
STAGGERED SENTENCE FRANKLY.
IT SEEMS LIKE THERE WAS AN
EFFORT BY THE REFEREE HERE TO
REALLY BE SENSITIVE ABOUT THE
LEGAL AID REPRESENTATION MAY BE
PART OF THAT.
AS THE DIRECTORS OBJECTION TO
THE REFEREE'S BASED ON THIS IS
IT TO PUT AN UNDUE BURDEN IN
TERMS OF MONITORING THE
CONDITIONS OF BAD OR IS THERE
CONCERN THAT THERE IS SOMEHOW
UNDER PLAYS OR DIMINISHES THE
SERIOUSNESS OF THE CONDUCT OR
EXCUSES THAT IN SOME WAY?
AM CURIOUS ABOUT --
>> THERE ARE MULTIPLE LAYERS OF
CONCERN.
I WOULD PLACE OF THE HIGHEST
CONCERN WE DEPEND ON CONSISTENCY
AND THE CONCERN THAT WITHOUT
EVIDENCE COME OF THAT FOR
STAGGERED THIRTY-DAY SUSPENSIONS
WOULD NOT BE INCREDIBLY
DISRUPTIVE TO THE CLIENTS AND
THEIR MATTER SENT TO THE
TRIBUNALS BEFORE WHOM THE LAWYER
APPEARS.
IT WOULD ACTUALLY DO MORE HARM
THAN GOOD.
THE SUGGESTION IN THE
RECOMMENDATION ITSELF TO OFFER
BEYOND THAT IT WOULD BE
DIFFICULT.
THERE IS NO TESTIMONY OFFERED AS
TO WHETHER THAT ACCOMMODATE FOR
THIRTY-DAY SUSPENSIONS.
AND THE DIRECTOR IS
UNDERSTANDING THAT THAT IS
IMPRACTICABLE AND WHAT ACTUALLY
BE MORE HARMFUL THAN HELPFUL TO
THAT OFFICE.
IN ADDITION TO THOSE
CONSIDERATIONS THERE ARE
PRACTICAL CONSIDERATIONS WITHIN
THE RULES OF PROCEDURE THAT WE
FOLLOW WITH IMPOSING THIS
DISCIPLINE.
MOST NOTABLY THERE'S A LOT OF
FINDINGS DUE TO LACK OF REMORSE
AND LACK OF BINDING.
A DIRECTOR AGREES TO REINSTATE
THE STATEMENT IS IMPORTANT FOR
THE REFEREE RECOMMENDED A
REINSTATEMENT HEARING.
IF YOU HAVE FOR STAGGERED
SUSPENSIONS IT BEGS THE QUESTION
WHERE DOES THAT HEARING GO?
DOES IT GO AT THE BEGINNING?
IF IT DOES THAT'S ALREADY AN
INDEFINITE SUSPENSION GO TO
BECAUSE OF THE YOU ARE
ESSENTIALLY PERMITTING THAT
LAWYER TO PRACTICE FOR INTERIMS
BETWEEN THE SUSPENSIONS ON ONLY
PROBATION WITHOUT HAVING
UNDERGONE THE REQUISITE HEARING.
THIS TELLS THE ISSUE OF HOW TO
HANDLE THE ONLY GUN OFF AGAIN
NATURE OF IT WHICH THE DIRECTOR
COULD UNDERTAKE.
IT WOULD BE CHALLENGING BUT
THAT'S NOT THE PRIMARY
CONSIDERATION.
>> KIND OF IN THAT REGARD SO THE
REFEREE ABOUT THOUGHT I HUNDRED
AND 20 DAYS WAS APPROPRIATE,
THEN ALSO SEEM TO THINK THAT AT
LEAST THE THERE WASN'T A THREAT
TO THE PUBLIC IN THE SENTENCE IF
HE WAS ABLE TO PRACTICE AFTER 30
DAYS.
SO WHAT DO WE MAKE OF THAT IN
TERMS OF BIKE IF ONE OF THE
ISSUES HERE IS TO PROTECT THE
PUBLIC SUPPORT REFEREE AT SOME
LEVEL THOUGHT THAT THERE WAS NOT
REALLY AN ISSUE BECAUSE THEY
SAID TO GO BACK TO PRACTICE.
>> I DON'T READ THE FINDINGS AND
CONCLUSIONS DID NOT SEE A DANGER
TO THE PUBLIC.
AND THAT'S NOT REFLECTED IN THE
FACT THAT THIS IS A RECURRENCE
OF SIMILAR PAST MISCONDUCT DID
HOWEVER WITH THE REFEREE WAS
TRYING TO ACCOMPLISH AS HE
STATES IN THIS RECOMMENDATION,
IS TO PROVIDE THE RESPONDENT
WITH OPPORTUNITIES IN A
LONG-TERM AND SHORT-TERM BASIS
TO CONSIDER AND THINK ABOUT THE
MISCONDUCT AND DURING THOSE
PERIODS OF PRACTICE BETWEEN
SUSPENSIONS STRUCTURED TO BE IN
A STRUCTURED PROBATION TO
PROVIDE THING PROTECTING THE
PUBLIC.
HE DID NOT AGREE THERE WAS NO
THREAT TO THE PUBLIC.
>> FAIR ENOUGH.
BUT HE CLEARLY THOUGHT THAT THE
PUBLIC WOULD BE -- WILL
CLEARLY -- IT SEEMS TO SUGGEST
THAT YOU THOUGHT THE PUBLIC
COULD BE PROTECTED IF HE WAS
UNDER SOME KIND OF SUPERVISED
PROBATION WHILE HE WAS WORKING.
THE REFEREE SEEMS TO BE SENDING
SOME MIXED SIGNALS IN THIS
REGARD.
I DON'T KNOW WHAT TO DO WITHOUT.
>> LAWYER READ HOLISTICALLY THE
FINDINGS IS NOT IT WAS MORE
DIRECTED AT AN OBSERVANCE OF THE
FACT OF THE CLIENTS WERE AN
UNDERSERVED POPULATION.
THE STRUGGLES FILLING POSITIONS
AND A DESIRE TO NOT WHICH A
REINSTATEMENT HEARING WILL DO.
WHAT'S REALLY IMPORTANT TO KEEP
IN MIND IS THAT THE REFEREE WAS
UNEQUIVOCAL IN THE LENGTH OF THE
SUSPENSION IS A HUNDRED AND 20
DAYS.
UNEQUIVOCAL IN THE FACT THAT OUT
OF THAT IF PRACTICABLE TO
SUSPENSION BE STAGGERED.
A WEAVE A STAGGERED POST IT IS
NOT PRACTICAL.
>> COUNSEL, I DO THINK THE
McDONALD'S CASES ARE PROBABLY
THE BEST COMPARATOR CASES BUT I
WONDER IF IT MAKES ANY
DIFFERENCE OR IF SUIT WE SHOULD
MAKE ANY THEY CAN ABOUT IT
DIFFERENTLY IN TERMS OF THE
SERIOUSNESS OF THE CONDUCT GIVEN
THAT IN McDONALD HER
STATEMENTS ABOUT THE JUDGE WERE
VERY PUBLIC.
MADE ON THE RADIO AND I THINK
IT'S FAIR TO SAY FAIRLY WELL
KNOWN IN THE LEGAL COMMUNITY.
THIS SEEMS A BIT DIFFERENT.
CLEARLY THESE STATEMENTS WERE
INAPPROPRIATE, HAD AN
INTIMIDATING NATURE TO THEM,
DISPARAGING IN TERMS OF THE
JUDGMENT THE KNOCKERS COMPETENCY
AND INTEGRITY IN ALL OF THAT.
BUT IT WAS CONFINED IF YOU WILL,
YOU DON'T HAVE THE SORT OF BROAD
DISSEMINATION THAT WE HAD A
McDONALD'S.
DOES THAT MAKE A DIFFERENCE IN
HOW WE THINK ABOUT IF WE WENT
WITH THE SUSPENSION THE LENGTH
OF THAT SUSPENSION?
>> PERHAPS HE COULD MAKE A
DIFFERENCE IN ANOTHER SET OF
FACTS.
HERE -- AND THE FACTS ARE ALWAYS
GOING TO COMPARE AND CONTRAST IN
DIFFERENT WAYS.
HERE THE STATEMENTS WERE STILL
MADE PUBLICLY BECAUSE THEY WERE
FILED PUBLICLY INTO THE COURT
RECORDS.
THEY MAY NOT BE AS BROAD OF AN
AUDIENCE IF YOU CAN TO CONSIDER
McDONALD HOWEVER THEY WERE
STILL PUBLICLY MADE AND MADE
WITH CONNECTION WITH PROVISION
OF LEGAL SERVICES.
ALSO WE CANNOT DISCOUNT IN THE
REFEREE WAS VERY CLEAR THAT HE
WAS FOCUSED ON THIS DISCIPLINARY
HISTORY AND REPEATED SIMILAR
MISCONDUCT.
THE MOST RECENT SUSPENSION
WITHIN THIS DECADE WAS 2013 WAS
RELATING TO VERY CONCERNING AND
VITRIOL.
SO THAT IT'S A VERY STRONG
MITIGATING FACTOR IN THE
CONSIDERATION OF WHAT IS THE
APPROPRIATE DISCIPLINE.
I CAN ALSO SAY THE PERHAPS MORE
IMPORTANT ON THE LAKE OF THE
MINIMUM SUSPENSION.
THAT IS SOMETHING THAT IS
ESSENTIAL.
THE MINIMUM PAIRED WITH THAT IS
90 DAYS.
120 DAYS IS CONSISTENT WITH THE
McDONALD'S CASE IN
CONSIDERATION OF THE YEARS OF
PRACTICE FOR LACK OF REMORSE THE
DISCIPLINARY HISTORY.
RESPONDENT SUGGESTS THAT THIS
COURT IMPOSE PROBATION ONLY
WITHOUT CITING TO ANY LEGAL
AUTHORITY.
A TERM OF PROBATION WOULD
TOTALLY DISPENSE WITH THE
REINSTATEMENT HEARING.
ONE OF THE FINDINGS THAT
SUPPORTS YOUR REINSTATEMENT
HEARING IS I BELIEVE 109.
WHEN IT COMES OUT THAT IN
DESCRIBING HIS MISCONDUCT TO A
SUPERVISING ATTORNEY, THE
RESPONDENT REDUCED TO THE
FAILURE TO FILL OUT A FORM
CORRECTLY, WHICH COMPLETELY
OVERLOOKS THE TRUE NATURE AND
SERIOUSNESS OF THE MISCONDUCT.
FOR THAT REASON A REINSTATEMENT
IS REQUIRED AND AN INDEFINITE
SUSPENSION IS NECESSARY.
I WILL ALSO SAY THAT IN
ARGUMENTS, RESPONDENTS PAINTS
HIS CURRENT POSITION AS A
MITIGATING FACTOR.
THE RECORD IS CLEAR THAT IT IS
NOT A MITIGATING FACTOR.
IT WAS CONSIDERED BUT IT IS NOT
MITIGATION.
AND FOR GOOD REASON.
EMPLOYMENT WITH THE LEGAL AID
OCCURRED AFTER THE MISCONDUCT
HAD ALREADY HAPPENED.
IT CANNOT MITIGATE AGAINST
MISCONDUCT.
>> SHOULD THAT EVER MITIGATE?
EVEN IF HE WAS --
>> LIKELY NOT.
GOOD POINT, YOUR HONOR.
>> THERE HAVE BEEN INSTANCES
WHERE A LAWYER'S PRO BONO WORK
HAS CONSTITUTED MITIGATION.
LOOKING FOR A LEGAL AID IS NOT
PRO BONO WORK PRODUCTS IS NOT
THE SAME AS ELSEWHERE.
IF THE COURT HAS NO FURTHER
QUESTIONS AT THIS TIME I WILL I
WILL COME BACK AND ADDRESS ANY
QUESTIONS ON REBUTTAL.
>> THANK YOU, COUNSEL.
THAT'S EVEN MR. HUDLER.
>> THANK YOU.
MAY IT PLEASE THE COURT,
COUNSEL.
I'M HERE TODAY TO PLEAD FOR MY
CLIENTS LIVELIHOOD.
WE'VE APPEALED THIS MATTER
BECAUSE OF THE CLIENTS WITHOUT
AN APPLICATION TO BE PROCESSED
BY THE BOARD WITH THAT IN MIND I
WOULD LIKE TO DIRECT THE COURT
TO THE STANDARD HERE, THE
STANDARD IS NOT TO PUNISH THE
ATTORNEY, TO SUSPENSION THAT HAS
BEEN SUGGESTED ALONG WITH THE
DISCIPLINE AND THE EXTENDED
NATURE AND THE NEED TO REAPPLY
WILL CAUSE MY CLIENT TO LOSE HIS
JOB.
THE PURPOSE OF DISCIPLINE IS NOT
TO PUNISH THE ATTORNEY, THAT IS
WHAT WHAT HAPPENED IN THIS
INSTANCE.
RATHER TO PROTECT THE PUBLIC BY
THE DISCIPLINE ATTORNEY AS WELL
AS QUAIL THEIR PARTNER IN
PARTNER IN A SPIRIT >> COUNSEL
COULD YOU KEEP THE MICROPHONE
CLOSE TO DO SO WE CAN MAKE SURE
WE CAN HEAR YOU?
THANK YOU.
>> THE COURT IS TO PLACE GREAT
WEIGHT ON THE REFEREE'S
RECOMMENDED DISCIPLINE, BUT THE
ULTIMATE RESPONSIBILITY FOR
DETERMINING THE APPROPRIATE
SANCTION BELONGS WITH THIS COURT
COURT.
THERE'S FOUR THINGS THAT THE
COURT LOOKS AT THE HARM TO THE
PUBLIC AND THE HARM TO THE LEGAL
PROFESSION.
THEY ALSO CONSIDER MITIGATING OR
AGGRAVATING CIRCUMSTANCES.
HOWEVER, I KNOW THIS SOUNDS
BROKE BUT THIS IS THE STANDARD
OF THE COURT.
AND THIS CASE HAS UNIQUE
CIRCUMSTANCES THAT HAVE NOT BEEN
ADDRESSED IN ANY OTHER CASES I
HAVE COME ACROSS.
NOW THE MATTER AROSE OUT OF THE
SITUATION WITH IN FORMA PAUPERIS
ADDITIONS.
IN BOTH INSTANCES THE MINIMAL
WAS PROVIDED IN THE APPLICATIONS
ACCORDING TO THE STATUTE -- NOW
IN THE FINDINGS COME WITH THE
REFEREE SEEMS TO INDICATE THAT
STANDING ON PRINCIPLE REGARDING
THE STATUTE IS TANTAMOUNT TO
REMORSE.
AND I DON'T SEE ANY AUTHORITY
FOR THAT FINDINGS, EVEN THOUGH
IT IS THEY ARE.
>> LET ME STOP YOU FOR ONE
SECOND AND SEE IF MEMBERS OF THE
COURTS HAVE -- JUSTICE THISSEN?
>> I GET YOUR POINT STANDING ON
PRINCIPLE BUT IT WASN'T JUST
ABOUT STANDING ON THE LEGAL
PRINCIPLE HERE IT WAS ALSO HOW
IT WAS DONE, RIGHT?
SO THE LACK OF REMORSE IS NOT --
THE REFEREE WAS A BIT UNCLEAR I
WILL ADMIT FROM MY READING AND
SAYING THAT LACK OF REMORSE IS
SHOWN BY THE FACT THAT HE WAS
PERHAPS STANDING ON PRINCIPLE.
ON THE COPPIN DIXIE KIND OF
STUFF.
THE REFEREE WENT ON TO SAY THAT
THE WAY HE WENT ABOUT STANDING
ON LEFT PRINCIPLE BY USING
OBSCENE LANGUAGE AND YELLING AT
COURT CLERK SEVEN SENDING
DISPARAGING JUDGE AND TRYING TO
INTIMIDATE A JUDGE IN THE MAKING
A DIFFERENT DECISION BY MAKING
THE CHIEF JUDGE ALL OF WHICH YOU
CAN'T DISPUTE BECAUSE HE DIDN'T
ORDER THE TRANSCRIPT.
ALL OF THOSE FINDINGS CANNOT BE
DISPUTED.
HE DIDN'T SHOW ANY REMORSE FOR
THESE THINGS.
THAT IS ABOUT REMORSE FOR HIS
WAY OF GOING ABOUT DOING HIS
BUSINESS, RIGHT?
>> I AGREE WITH THAT AND SO DOES
MY CLIENT.
HE DOES ACCEPT THAT.
WE HAVE NOT APPEALED THOSE
FINDINGS.
>> BUT YOU ARE SAYING -- I THINK
THE REFEREE SAID HE DIDN'T SHOW
ANY REMORSE WITH REGARD TO THAT
CONDUCT.
>> MY POSITION IS THAT BY
SKIMMING A LEGAL PRINCIPLE, THAT
DOES NOT MEAN THAT YOU DON'T
SHOW REMORSE.
IT'S NOT INDICATION ALONE IS A
LACK OF REMORSE.
THAT IS HER POSITION.
>> OKAY.
BUT TO THE EXTENT THE REFEREE
FOUND THE LACK OF REMORSE FOR
ALL THESE OTHER THINGS THEN YOU
ARE CONCEDING THAT?
>> WE DIDN'T APPEAL THOSE
MATTERS.
MY CLIENT ACCEPTS RESPONSIBILITY
FOR THE FINDINGS --
>> LET ME PHRASE THE QUESTION A
LITTLE BIT DIFFERENTLY.
I DON'T KNOW IF THIS HELPS OR
NOT, BUT WHY GIVEN THE GIVEN THE
CONDUCT THAT OCCURRED HERE, WHY
SEND A HUNDRED AND 20 DAY
SUSPENSION -- WISE INTO
SUSPENSION THAT ROAD REQUIREMENT
THAT THIS IS WISE AND THAT THE
APPROPRIATE DISCIPLINE HERE?
>> A COUPLE OF REASONS FOR SURE.
FIRST THIS EVENT IN MY TIMELINE
INDICATES HAPPENED THREE YEARS
AGO.
HAPPENED IN 2020 -- END OF 2018
AND BEGINNING OF 2019.
EARLY 2019.
THREE IS A PAST SUN SLAB AND
THERE HAVE BEEN NO OUTBURSTS
SIMILAR TO THAT.
NOW YOU MIGHT SAY WHAT DOES THAT
MEANS?
SINCE SEPTEMBER OF 2019 AND I
WENT TO THE FOURTH YEAR
MR. NIKITA'S HAS BEEN PRACTICING
IN A MUCH DIFFERENT ENVIRONMENT.
HE'S NOT IN PRIVATE PRACTICE
ANYMORE.
HE HAS A CONTROLLED FLOW OF
CLIENTS TO HIM, THE INDICATION
IS A CASELOAD OF ABOUT 70,000.
HE HAS CONTACT WITH THE COURT
AND WITH CLIENTS.
ON A MUCH MORE INTENSIVE IN THIS
PROCESS UP UNTIL 2019, 2018.
HE MUST HAVE AT LEAST 3-5
CONTACT IN FIVE DAYS AT LEAST
THREE CONTACTS WITH COURT
PERSONNEL, WITH CLIENTS.
THE AIR WITH TRADITIONAL
OFFICERS ON THE SAME AND AN
INTENSE LEVEL AND NONE OF THESE
EVENTS HAVE TAKEN PLACE.
AND AT THE TIME OF THE HEARING
DISMISSED JOHNSON, HIS
SUPERVISOR, DID SAY THAT SHE
NEVER EXPERIENCED REVIEW OF THE.
AND ALSO INDICATED THAT HE WAS A
VERY GOOD WORKER, HE'S AN
EXCELLENT LAWYER, HE TOOK ON
DIFFICULT CASES, HE FELT THAT HE
WAS IN DIFFERENT SETTING
ALTOGETHER WHERE MISCONDUCT DID
NOT ARISE EVER AGAIN.
IT HASN'T.
I DON'T THINK IT WOULD ARISE
AGAIN, I JUST DON'T.
IN THIS SITUATION -- I INTEND TO
GO FURTHER INTO THIS, THIS --
THE CASES CITED AREN'T REALLY ON
POINT.
ALL OF MR. NICK NICKITAS'
CLIENTS ARE PRESENTLY SCREENED
BY AN OFFICE AND GIVEN TO THEM
FOR REPRESENTATION.
SO.
THIS IS IN DIRECT CONTACT ALL
THE TIME WITH THE OFFICE THAT
REFERS THESE CASES TO THEIR
LAWYERS.
ALSO AS WAS INDICATED BELOW ONE
OF THE REASONS FOR THIS
STAGGERED DISCIPLINE PROCESS.
WE STOP PRACTICING ON THIS ON
THE WAY THAT HE WAS PRACTICING
ON HIS OWN BEFORE.
HE WAS RESPONSIBLE TO HIMSELF
ANY OF THE STRESSES OF PRIVATE
PRACTICE TRYING TO EARN A LIVING
WITH CLIENTS WITH MINIMAL
WHEREWITHAL.
>> WHY ISN'T THAT AN ARGUMENT
FOR REINSTATEMENT.
WHY -- WHAT AUTHORITY IS THERE
FOR US TO CONSIDER ANY OF THIS
IN TERMS OF THE LEVEL OF
DISCIPLINE THAT WE IMPOSE
AFTER-THE-FACT ANALYSIS?
>> CAN BE BOTH AN ARGUMENT FOR
REINSTATEMENT AND AN ARGUMENT
FOR NOT IMPOSING THE DISCIPLINE
BECAUSE TO GIVE THE
RECOMMENDATION OBVIOUSLY THE
RECOMMENDATION FOUND THAT THERE
WAS AN IMPORTANT ROLE FOR
MR. NICKITAS TO PLAN A
CONTINUOUS BASIS.
OBVIOUSLY DIDN'T THINK THAT HE
WAS AS -- YOUR HONOR -- THERE
WASN'T AN AVID ENDANGERED TO THE
PUBLIC.
THAT PUT A SHOULD BE PERMITTED
TO CONTINUE PRACTICING ON THE
STAGGERED BASIS.
FOR MINIMAL 30 DAY PERIODS AFTER
THAT.
EXTENDED APPEARANCE AFTER
SUSPENSION 90 AND HUNDRED 20 DAY
PERIODS FOR THE 30 DAY PERIOD.
IT'S STAGGERING, THE PRACTICE'S
COVERAGE WAS OVER 41 DAYS WHERE
HE WOULD CONTINUE TO PRACTICE.
MY ARGUMENT IS TO GIVE THE
EFFECT -- WHY IT SHOULD -- IT
COULD BE AN ARGUMENT FOR
REINSTATEMENT, BUT IT'S ALSO AN
ARGUMENT TO INDICATE THAT THERE
IS MITIGATING CIRCUMSTANCE FOR
THAT IF HE WAS SUCH A DANGER TO
THE PUBLIC WHY WOULD HE BE
ALLOWED TO CONTINUE PRACTICING?
>> BECAUSE THERE WAS NO
TRANSCRIPT ORDERED I DON'T KNOW
EXACTLY -- WAS THIS ARGUMENT
ABOUT HIM BEING IN THIS
DIFFERENT PRACTICE AND THAT
SHOULD HAVE AN IMPACT ON HOW THE
REFEREE LOOKED AT THE CASE?
WAS THAT MADE TO THE REFEREE?
>> I THINK IN SOME WAYS IT WAS.
BUT MAYBE A CUT UP -- IF I
WOULD'VE BEEN MORE STUDENT MAYBE
I SHOULD'VE MADE A STRONGER
ARGUMENT ON THAT.
MAYBE THAT'S MY FAULT.
>> WE DON'T KNOW WHAT EXACTLY --
IT DOESN'T GET INTO THAT VERY
MUCH ONE WAY OR ANOTHER.
LET ME ASK YOU ABOUT THE
STAGGERED TERMS.
YOUR POSITION IS THAT STAGGERED
TERMS KIND OF DON'T WORK AND
PROBATION SHOULD BE SHOULD BE
THE SITUATION HERE ALLOWING THEM
TO CONTINUE TO PRACTICE AS I
UNDERSTAND IT.
BUT IF WE WERE TO DETERMINE SOME
KIND OF SUSPENSION IS NECESSARY
WHEN YOUR ARGUMENT ABOUT
STAGGERING BE THE SAME?
LIKE DO YOU -- WOULD YOU STILL
TAKE THE POSITION THAT WE SHOULD
NOT STAGGER BECAUSE OF THIS
IMPRACTICAL?
BECAUSE IF WE DECIDE THERE HAS
TO BE AT LEAST SOME SUSPENSION
HERE?
>> I HAVE DISCUSSED THIS WITH
MISS JOHNSON, CARRIE JOHNSON WHO
IS AN ATTORNEY AND A SUPERVISING
ATTORNEY.
WHEN THE SUSPENSION PERIOD
BEGINS THERE IS ALL KINDS OF
ADMINISTRATIVE MATTERS THAT I
HAVE TO PLACE AT THE OFFICE.
INSURANCE, RETIREMENT, THERE
WILL BE PERIODS OF NO PAY.
THERE IS NOT A WAY TO KEEP
MR. NICKITAS ON THE PAYROLL SO
HE WILL GO ON AND OFF.
THIS WILL AFFECT THEIR
ADMINISTRATION.
>> SO YOUR ARGUMENT IS THAT IF
WE SHOULD DECIDE TO SUSPEND WE
SHOULD TO SUSPEND WITHOUT THE
STAGGERED BECAUSE OF THE
PRACTICAL --
OF THINGS THAT YOU'RE TALKING
ABOUT IS THE RECORD SO I DON'T
KNOW IT IF WE CAN CONSIDER ALL
OF THAT BUT WHAT I'M TRYING TO
ASK IS IF, IN FACT, WE ARE GOING
TO SUSPEND YOUR CLIENT, IS YOUR
POSITION THAT WE SHOULDN'T
STAGGERED THE SUSPENSION THE
SAME?
SO WE SHOULD JUST IMPOSE A
STRAIGHT UP SUSPENSION?
>> IF THERE'S GOING TO BE A
SUSPENSION THERE SHOULD BE A 30
DAY WITHOUT A REQUIREMENT OF
REPLY SO WE CAN GO BACK TO A
STOP.
THAT'S OUR POSITION.
>> YOU ARE NOT ARGUING FOR
STAGGERING UNDER ANY
CIRCUMSTANCES.
>> I WOULD HAVE TO SAY I DON'T
THINK IT WOULD WORK.
AND ALSO IT'S DISRUPTIVE TO THE
CLIENT.
IT JUST WILL NOT WORK.
I WAS NOT THAT WE ARE TRYING TO
AVOID SOMETHING.
I'M TRYING TO LOOK OUT FOR THE
SITUATION TO MAKE IT MORE
PRACTICAL.
AND ALSO TO GIVE FULL EFFECT OF
THE REFEREE FINDING.
I'VE NEVER SEEN AN ORDER LIKE
THIS.
I DON'T KNOW IF ANYBODY ELSE HAS
HAS.
BUT I THINK THE GIVE VALUE AND
TO GIVE WAY TO THE IDEA, THAT
THIS IS HOW IT SHOULD BE DONE TO
MOTHER THIS IS THE PURPOSE OF
THIS WAS TO MAKE SURE THAT
MR. NICKITAS CONTINUED -- WAS
ABLE TO SERVE HIS COMMUNITY.
AND THAT'S WHAT HE'S DONE FOR
THE PAST THREE -- EASE INTO HIS
FOURTH YEAR NOW.
WITHOUT ANY PROBLEMS OR ISSUES.
THERE ARE NOT ANY DIFFICULTIES
THERE.
SO I DON'T BELIEVE THAT ANY WILL
ARISE.
HE IS UNDER VERY STRICT
SUPERVISION.
NOW GOING ON TO THE CASES THAT
WERE CITED AS NONE OF THEM
INVOLVE --
>> COUNSEL BEFORE YOU GO THERE
CAN ASK JUST TWO QUESTIONS.
ONE YOU STARTED YOUR COMMENT
SAYING THAT THIS CASE WAS UNIQUE
IN THAT YOU WERE UNAWARE OF ANY
OTHER CIRCUMSTANCES LIKE THIS.
I'M JUST WONDERING COULD YOU
ELABORATE MORE ON THAT?
WHAT IS SO UNIQUE ABOUT THIS
CASE?
WHAT WERE YOU REFERENCING?
>> THERE WASN'T A QUESTION
RAISED WHEN OPPOSING COUNSEL WAS
HERE ABOUT WHETHER OR NOT THERE
WAS A SIMILAR SITUATION WITH HOW
SHOULD'VE THE FLY WITH A PUBLIC
OR PUBLICLY EMPLOYED ATTORNEY.
AND THAT'S WHAT WE HAVE HERE.
I DON'T SEE ANY OF THIS
INDICATED.
I SEE IN SOME CASES WHERE THERE
WAS A PUBLIC DEFENDER MAYBE GO
HIDE NOT FOLLOWED THROUGH ON ALL
OF THE APPEALS.
OR THERE WAS A LITTLE BIT NOT
DILIGENT ON THAT.
BUT FOR A FULLY EMPLOYED PUBLIC
VOID ATTORNEY WHERE THEY WERE
SALARIED, SUPERVISED WITH
CLIENTELE COMING IN AND OUT --
OUT -- --
>> THAT SEEMS TO GO BACK TO
JUSTICE THISSEN'S POINT IT'S A
LITTLE BIT CONCERNING TO ME THAT
WE WOULD BEGIN TO DRAW LINES
ABOUT WHAT IS APPROPRIATE
BEHAVIOR OR WHAT WE MIGHT
CONDONE DEPENDING ON WHETHER YOU
ARE A PUBLIC ATTORNEY OR PRIVATE
ATTORNEY.
THAT SEEMS A DANGEROUS ROAD TO
TRAVEL.
WHY WOULD WE START DRAWING THOSE
KINDS OF LINES?
WHERE WOULD THAT STOP?
>> I DON'T KNOW HOW THAT
CONCLUSION WOULD BE MADE THAT IT
WOULD BE A DIFFICULT ROAD TO
TRAVEL.
IT WOULD START IT'S PRETTY
SLIPPERY SLOPE TOWARDS DRAWING
THE LINE OF ATTORNEYS WITH THIS
TYPE.
I DON'T SEE THAT.
I SEE MORE SITUATION WHERE
YOU'RE NOT CONDONING CONDUCT
BECOME YOUR FASHIONING
DISCIPLINE ACCORDING TO EACH
UNIQUE CIRCUMSTANCE OF THE CASE
AND THAT'S HOW IT WOULD BE
EXPLAINED.
THE UNIQUE CIRCUMSTANCES ARE
THAT NICKITAS DOESN'T HAVE A
SHINGLE OUT.
HE HAS A SET CLIENTELE.
>> I THINK THERE'S AN ARGUMENT
FOR THE OPPOSITE IN THAT HE IS
REPRESENTING CLIENTS WHO ARE
UNDERSERVED BUT ALSO DON'T HAVE
A LOT OF CHOICES.
AND THAT COULD LEAD TO THE
ABILITY TO TAKE ADVANTAGE OR
THAT THEY ARE GOING TO ACCEPT
THE BEHAVIOR OR CONDUCT BECAUSE
THEY CAN'T AFFORD TO HIRE
WHOEVER IT IS THEY WANT TO HIRE.
I'M NOT SURE THAT ARGUMENT HELPS
YOU ANYWAY.
>> WELL I WOULD POINT OUT THAT
THE CLIENTELE ARE IN THE
CONSTANT CONTACT WITH THE OFFICE
WHERE THEY GET ACCESS TO THE
ATTORNEYS.
IT IS ALL REGULATED.
I DON'T KNOW IF YOU'VE SEEN
OTHER -- I'M SURE YOU HAVE --
OTHER LEGAL AID SOCIETY YOU FILL
OUT FORMS, YOU HAVE AN
ADMINISTRATIVE INTAKE.
THERE IS ADMINISTRATIVE
MONITORING OF THE CASES.
THE CLIENTELE ALWAYS HAVE ACCESS
TO AN ADMINISTRATOR THAT IS
INVOLVED WITH THE CASE.
AND IN MANY INSTANCES THESE
PEOPLE GET ACCESS TO THE
ATTORNEY THROUGH THE
ADMINISTRATIVE OFFICES.
>> WHAT YOUR WILL ALSO APPLY IN
A PRIVATE PRACTICE WHERE THE
LAWYER AS MAY BE 23 YEARS
OUTCOME UP UNDER SUPERVISION OF
THE PARTNER BECAUSE THEY HAVE TO
DISCUSS THE CASES WITH THEM.
IN THOSE CASES WOULD WE ALSO
KIND OF CONSIDER THAT IN TERMS
OF TERMS OF IMPOSING LESS
DISCIPLINE?
>> WELL I THINK THAT IT DEPENDS
ON THE FACTS AND CIRCUMSTANCES
OF EACH CASE.
IF IT WAS COMPLETELY SIMILAR YOU
MIGHT LOOK AT THAT.
I DON'T SEE WHY -- AGAIN IF YOU
LOOK AT ALL THE CASES CITED TO
COME I THINK THERE WERE 37 CITED
BY THE DIRECTOR.
EVERY ONE OF THEM WAS SOMEONE
WHO WAS IN PRIVATE PRACTICE.
NONE WERE IN A GROUP PRACTICE.
THE TYPE OF MISCONDUCT WAS MUCH
MORE REPEATED BECAUSE THERE WERE
NOT IN A COLLEGIATE SUIT SETTING
OR A LEGAL AID OFFICE.
>> KIND OF WHAT YOU ARE SAYING
THEN IS THAT SOLO OR SMALL FIRM
PRACTITIONERS ARE GOING TO BE
SUBJECT TO GREATER DISCIPLINE
THAN PEOPLE IN BIG FIRMS OR
LEGAL AID?
>> THAT'S ONE WAY TO LOOK AT IT.
ANOTHER WAY TO LOOK AT IT IS
THAT THEY ARE NOT SOLO
PRACTITIONERS AND ARE NOT IN A
SETTING USUALLY WHERE THEY ARE
IN A COLLEGIATE ATMOSPHERE WHERE
THEY CAN -- WHERE THEIR CONDUCT
IS CHECKED AND REGULATED AND HAS
MORE GUIDANCE.
WE DO SEE FEWER DISCIPLINE CASES
BEFORE THE COURT THAT ARE
REPORTED.
MOST OF THEM ARE NOT FROM LARGE
FIRMS.
MOST OF THEM ARE FROM
INDIVIDUALS, SOLO PRACTITIONERS,
WHO ARE STRUGGLING.
MOST OF THEM ARE STRUGGLING
LAWYERS.
MANY OF THEM ARE STRUGGLING
LAWYERS.
I MEAN BUT --
>> WHY WOULD WE -- WHY WOULD
THAT FACT -- BECAUSE IT'S HARD
TO BE A SOLO PRACTITIONERS --
MEAN WE SHOULD IMPOSE GREATER
DISCIPLINE ON THEM?
>> I DON'T UNDERSTAND THE
QUESTION?
>> YOUR ARGUMENT IS THAT THERE
SHOULD BE LESS DISCIPLINE
BECAUSE SOMEBODY'S EITHER IN
LEGAL AID OR BECOME THIS A BIG
FIRM.
THE OPPOSITE OF THAT -- WHAT YOU
ARGUING FOR COME IS THAT PEOPLE
IN SMALL FIRMS IN THESE TOUGH
PRACTICES SHOULD FACE GREATER
DISCIPLINE.
IF THE OTHERS ARE GOING TO FACE
DISCIPLINE THAN THE SOULS HAVE
TO FACE GREATER DISCIPLINE.
I DON'T GET.
>> TO LOOK AT IT THAT WAY.
I LIKE IT MORE OF A TAILORING TO
THE UNIQUE FACTS AND
CIRCUMSTANCES OF THE CASE.
IT'S A DIFFICULT DILEMMA BUT I
DO NOT BELIEVE THAT IT'S SAYING
YOU WILL BE IN THIS INSTANCE
WILL BE OF GREATER DISCIPLINE.
THE SITUATION HERE IS THAT HE IS
DEALING WITH THE UNDERSERVED
COMMUNITY NOT WELL-HEELED
CLIENTS, THERE IS A SHORTAGE OF
THE COMMUNITY.
THESE WITH A MINORITY
ORGANIZATION THAT SERVE NEGATIVE
PEOPLE.
THAT'S DIFFERENT THAN THE LARGE
FIRM.
AND WARRANT FASHIONING THE SAME
SORT OF DISCIPLINE.
I DON'T BELIEVE THAT JUST
BECAUSE YOU DO IT IN THIS
INSTANCE MAKE SOME SORT OF RULE
FOR ALL INSTANCE YOU HAVE TO BE
CONSISTENT IMPOSE DISCIPLINE OF
EACH CASE AND I WOULD ALSO REFER
IT ALMOST SOUNDS LIKE THE
SUGGESTION WOULD BE THAT PEOPLE
IN THESE SETTINGS SHOULDN'T BE
PUNISHED AS MUCH.
I DON'T KNOW IF THAT'S WHAT WERE
SUPPOSED TO BE DOING HERE.
WE ARE SUPPOSED TO BE
FASCINATING FASHIONING THE
DISCIPLINE THAT FITS THE CASE
AND NOT PUNISHING.
JUST BECAUSE YOU ARE FROM A
LARGER FIRM AND YOU HAVE PEOPLE
AROUND YOU, OR JUST BECAUSE
YOU'RE IN A SITUATION LIKE
MR. NIKITA'S WORRIES WITH AN
ORGANIZATION THAT CONTROLS ALL
OF HIS WORK, HE HAS TO REPORT
CONSTANTLY, AND HE'S BEEN DOING
IT FOR THREE YEARS NOW WITHOUT
AN OUTBURST, ALL OF THESE THINGS
TOGETHER -- NOT JUST ONE ITEM,
BUT ALL OF THESE THINGS
TOGETHER, INCLUDING THE
RECOMMENDATION THAT WAS NOTABLE
BY THE RECTORY.
SOMETHING WAS THERE THAT MADE
HIM SAY THIS SHOULD BE
STAGGERED.
OBVIOUSLY THEY SAW --
>> COULD I ASK YOU A QUESTION,
REALLY THE SAME QUESTION I ASKED
MRS. FRANK ABOUT YOUR CLIENT
SERVICE RELATED HISTORY.
HE WROTE A LETTER TO THE
GOVERNOR INDICATING THAT HE WAS
IN COUNSELING FOR THESE ANGER
ISSUES RELATED TO THESE
OUTBURSTS OF THE VETERANS
ADMINISTRATION FACILITY IN
MINNEAPOLIS.
FIRST OF ALL DO YOU AGREE THAT
THERE IS NO EVIDENCE IN THE
RECORD REGARDING HIS SERVICE
HISTORY AND SOURCE OF THAT
REQUEST AND THEN MISS FRANK ALSO
INDICATED THAT RELEASES WERE
SOUGHT BY THE DIRECTOR TO
INQUIRE INTO THAT ISSUE AND WERE
NOT RESPONDED TO.
DO YOU DISAGREE WITH THAT
ASSERTION?
>> THEY -- THE RELEASES WERE
OFFERED AND BECAUSE OF THE
NATURE OF THE COUNSELING WE DID
NOT RESPOND TO THAT, BECAUSE IT
WAS BROADER IN NATURE.
NOT JUST RELATED TO CERTAIN
ANGER ISSUES.
THERE WAS NOT A DESIRE TO EXPOSE
ALL FAMILY ISSUES.
PAST FAMILY ISSUES HE WANTED TO
EXPOSE AT THIS TIME.
BUT HE WAS THAT SHE DID STATE
HE'S IN COUNSELING AND HE HAD
TESTED TO THAT NEH CONTINUES TO
BE IN COUNSELING.
THAT'S NOT ON THE RECORD, MAYBE
I SHOULD HAVE MADE MORE EMPHASIS
AND INSISTED THAT HE PUT THAT IN
THERE, BUT I DIDN'T.
>> SO THAT WAS NOT REALLY
OFFERED US A MEDICATION FACTOR
AT ALL FOR THE REFEREE TO
CONSIDER?
>> WE DIDN'T OFFER IT AS A
MITIGATION FACTOR.
I DIDN'T EMPHASIZE IT AS A
MITIGATION FACTOR.
AGAIN THAT MIGHT HAVE BEEN MY
ERROR NOT SEEING THIS.
>> SO, ANYWAY, TO GET AHEAD HERE
WITH THE GOING BACK TO THE
ACTUAL ISSUE ON POINT -- AND
IT'S NOT TO INDICATE THAT MY
CLIENT'S CONDUCT WAS JUSTIFIED,
BUT THERE'S TWO RECENT APPELLATE
COURT DECISIONS THAT SUPPORTED
THE POSITION MY CLIENT TOOK IN
THIS CASE.
THEY CAME OUT OF RAMSEY COUNTY,
AND I CAN CITE THEM FOR THE
COURT.
INVOLVED IN FOR MISS POPP'S
POSITION THAT WAS NOT FULLY
FILLED OUT.
THE MATTER WAS APPEALED.
ON APPEAL THE APPELLATE COURT
RULED IN FAVOR OF AGAINST THE
STANDARDS THAT ARE IN
RAMSEY COUNTY JUDICIAL DISTRICT.
>> COUNSEL, YOUR TIME IS EXPIRED
COULD YOU DECIDE TO DO CASES
QUICKLY?
>> AND TRYING FIND THEM.
OR IF THEY ARE NOT CITED IN THE
BRIEF ALREADY YOU COULD SEND US
A LETTER WITH YOUR TWO
CITATIONS.
>> K AND I ALSO HAVE A RECENT
LETTER FROM HIS REFEREE, FROM
HIS SUPERVISOR, MISS JOHNSON, I
ASK FOR AN UPDATE ON HIS CONDUCT
AND I HAVE THAT ALSO.
I CAN SEND THAT IN.
>> THE LEGAL CITATIONS WOULD BE
APPROPRIATE.
IT'S NOT APPROPRIATE TO
SUPPLEMENT THE RECORD WITH
FACTUAL INFORMATION AT THIS
POINT.
THANK YOU VERY MUCH, YOUR TIME
IS EXPIRED.
LET'S SEE MRS. FRANK, YOU HAVE .
>> THINK YOU COME, YOUR HONOR.
IN THE BEGINNING, I WILL NOTE
THAT AT LEAST ONE OF THE CASES I
BELIEVE COUNSEL WAS REFERENCING
IS ADDRESSED IN BRIEFING TO THE
REFEREE.
IT'S IN THE DIRECTOR'S REPLY
BRIEF TO THE REFEREE.
ESSENTIALLY ALL GO BACK TO THE
POINT THAT THE RECORD IS NOT TO
DO WITH THE SUBSTANCE OR
VALIDITY OF THE RESPONDENTS
LEGAL ARGUMENT.
AS IT RELATES TO THE INFORMAL
POPP BURRUSS APPLICATION OR
WHETHER IT CONFORMS TO THE
STATUTE.
RATHER IT IS HIS OUTRAGEOUS
BEHAVIOR AND HIS CONDUCT,
VERBALLY WITH COURT STAFF AND IN
WRITING TO JUDGES THAT IS AT
ISSUE.
OF PARTICULAR NOTE IS FINDING
THE FACT 81.
THAT FINDING OF FACT OUTLINES
THE VERY SALIENT POINT THAT EVEN
IF CHIEF JUSTICE COFFMAN ED
REESE AGREED WITH RESPONDENT'S
LEGAL ARGUMENTS WITH RESPECT TO
THE STATUTE ON INFORMAL POPP
BURRIS APPLICATIONS
JUDGE KAUFMAN WOULD STILL HAVE
SUBMITTED HIS COMPLAINT OF
MISCONDUCT.
AND THAT IS BECAUSE IT PERTAINS
NOT TO LEGAL ARGUMENT, BUT TO
THE SUBSTANCE OF RESPONDENT'S
BEHAVIOR.
THERE IS A QUESTION ABOUT
WHETHER RESPONDENT'S ARGUMENT
WAS MADE TO THE REFEREE.
IT WAS MADE TO THE REFEREE
THROUGH TESTIMONY, THROUGH
ARGUMENT, AND THE REFEREE
ACKNOWLEDGES HIS CONSIDERATION
OF THE ARGUMENT IN HIS
RECOMMENDATION.
RESPONDENT'S ARGUMENT AS TO HIS
CHANGED CIRCUMSTANCES NOW IS IN
AUTHORITY OF ME LACKS -- IF YOU
GO TO THIS ADDENDUM THE FINDINGS
AT PAGE 20 9:30.
PART D OF THE EXPLANATION OF THE
RECOMMENDATION SAYS THAT IT
WOULD ALLOW -- AND THIS IS AGAIN
WHAT IS RECOMMENDED, ALLOW
RESPONDED TO CONTINUE SERVE HIS
CURRENT EMPLOYER IN THIS
UNDERSERVED CLIENTELE CONSISTENT
WITH TESTIMONY TO RESPONDENT
SUPERVISED AIR.
IT WAS CONSIDERED AND FACTORED
IN IT WHAT THEY CONSIDERATION
THE REFEREE QUALIFIED THIS DAY
GOOD SUSPENSION TO ONLY IF
PRACTICABLE.
>> THAT LANGUAGE ABOUT WORK
AROUND THE 30 DAY SUSPENSION
PERIOD, THAT ONLY HAS TO DO IF
THERE WAS 1:30 DAY SUSPENSION
PERIOD?
>> THE TESTIMONY THAT IT COULD
WORK WITH A 30 DAY SUSPENSION,
THAT TESTIMONY ASSUMED ONLY ONE.
THERE IS NO EVIDENCE OR
TESTIMONY ON THE RECORD AS TO
WHETHER WHAT IS SUGGESTED WITH
FOUR INSTALLMENTS OF 30 DAYS.
>> IS THERE ANY FINDING OF THE
RECORD ABOUT THE VA AND ANY
FINDINGS -- NOT IN THE RECORD,
IS THERE ANY FINDINGS ABOUT THE
COUNSELING ON THE VA?
>> GOING OFF MEMORY I DON'T
RECALL THAT THERE IS.
>> I COULDN'T REMEMBER EITHER.
>> THE DIRECTOR HOWEVER WILL
CONCEDE THAT THERE IS AN EXHIBIT
IN THE RECORD WHERE THE
RESPONDENT MAKES THIS POINT --
AND I BELIEVE JUSTICE MOORE HAD
IDENTIFIED THE EXISTENCE OF THAT
EXHIBIT.
THE NUMBER ESCAPES ME.
>> AND FOLLOWING UP ON JUSTICE
MOORE'S QUESTIONS, THE RESPONSE
WAS WELL WE DIDN'T AUTHORIZE THE
RELEASE IS BECAUSE THEY WERE TOO
BROAD.
WAS THERE DISCUSSION ABOUT THAT?
HOW DID THAT GET WORKED OUT?
>> DURING THAT INVESTIGATION
THAT CONCERN WAS RAISED.
AGAIN IN THE INVESTIGATION THE
OFFEROR BY RESPONDENT AND
CONCESSION WAS FOR RESPONDENT TO
SUMMARIZE HIS ATTEMPTS AT
COUNSELING.
THE DIRECTOR COULD NOT
LEGITIMATELY WHEN ALL IS OFFERED
UP AS THE SUMMARY OF THE EFFORTS
AT SEEKING COUNSELING OF THE
PROGRESS.
WE NEED AN OBJECTIVE LOOK AT
WHAT IS TAKING PLACE.
OR FOR THE RESPONDENT --
>> DID THE DIRECTOR OFFERED AND
NOT JUST GET INTO THE FAMILY
ISSUES BUT TO GET INTO THE
SERVICE RELATED?
MAYBE THEY ARE INEXPLICABLE
BUT --
>> I DON'T RECALL THE EXACT
CONVERSATION AROUND IT BUT IT
WAS A DETERMINANT THAT WE WOULD
NEED TO SEE RECORDS TO EVALUATE
IT.
AND OFFERING MITIGATION IS TO
RESPONDENT'S BURDEN OF PROOF.
THE RESPONDENT ALWAYS HAS THE
OPTION TO OFFER A WITNESS AND
OFFER EXPERT TESTIMONY ON THIS
ISSUE.
AND DEAL WITH IT IN DISCOVERY.
WE VISITED IT IN DISCOVERY AND
ARRIVED AT THE SAME PLACE, I
BELIEVE THAT AUTHORIZATIONS JUST
WERE NOT COMPLETED AND THERE WAS
NO OFFER AT A SUMMARY AT THE
TIME.
>> THANK YOU, COUNSEL, YOUR
RED LIGHT IS ON.
THANKS TO BOTH COUNSEL FOR THE
HELP YOU PROVIDED TO THE COURT
IN THIS CASE.
THIS IS SUBMITTED.
WE WILL ISSUE A DECISION IN DUE
COURSE, WE ARE IN RECESS.