Thursday, January 20, 2005
State Bar Court Review Department Urges Lawyers Be Suspended for Role in Tribal ‘Coup’ Attempt
By a MetNews Staff Writer
A pair of Bay Area attorneys who participated in a dissident group’s attempt to take over governance of an Indian reservation violated ethical rules and should be suspended from practice, the State Bar Court has concluded.
In an opinion made public yesterday, the Review Department said Patrick J. Maloney Jr. and Thomas S. Virsik “wove a tapestry of deception in their over-zealous efforts to effectuate a legal strategy” on behalf of the Round Valley Nation.
That group sought to replace the Round Valley Indian Tribes as the governing authority for the Round Valley Indian Reservation in Mendocino County, but was rebuffed by the Bureau of Indian Affairs and the Department of the Interior’s Office of Self-Government.
State Bar Court Hearing Judge Pat McElroy found that the attorneys sought “to perfect [a] coup” against the tribal authority by sending a letter to the attorney for the tribe’s bank, claiming control of the tribal accounts; and by persistently purporting to act as counsel for the tribe in an attempt to dismiss a suit brought by the tribe against a dissident who was in fact Maloney and Virsik’s client.
That client, Carlino Bettega, was sued for harassing tribal employees, and filed a cross-complaint. The action was filed on the tribe’s behalf by Stephen Quesenberry of California Indian Legal Services, which has represented the tribe for 30 years.
McElroy cited seven documents in which Maloney and/or Virsik misrepresented themselves or their clients, including a joint dismissal request, which the court would not process, signed by them as attorneys for Bettega and by Debbie Freeman, whom they identified to the court as head of the plaintiff’s “interim government” without disclosing that she and the interim government were also their clients; a second dismissal request in which they purported to represent the plaintiff and its “interim tribal counsel,” and a declaration in support of dismissal in which they asserted that they represented the newly elected tribal government, without mentioning that the election was contested by the existing governing body, the BIA, and the Office of Self-Government.
The Superior Court judge ultimately determined that they had attempted to perpetuate a fraud on the court and ordered them to pay $2,000 in sanctions.
McElroy rejected their contention that they had done nothing worse than make a good-faith factual and legal error, since they sincerely believed that the new council had been validly elected. She found them culpable on a charge of misrepresentation constituting moral turpitude, and recommended a one-year suspension for each of them, stayed with conditions including actual suspension of 45 days for Maloney and 90 days for Virsik.
The Review Department, in an opinion by Judge Judith Epstein, agreed with the culpability finding and stayed suspension, but modified the recommended period of actual suspension to 90 days for Maloney and 60 days for Virsick.
Epstein agreed with the hearing judge that the lawyers acted in bad faith. While “attorneys have a duty to zealously represent their clients and assert unpopular and novel positions in advancing their clients’ legitimate objectives,” Epstein wrote, Maloney and Virsick could not have believed that they were acting ethically in repeatedly failing to disclose that their view of the election’s validity was being vigorously contested by multiple authorities, conduct found to be “egregious” by the Review Department judge.
“Given the magnitude of their deception and the breadth of their actual knowledge about the true state of affairs surrounding the intra-tribal battle, we find no basis on this record to conclude that respondents had an honest or reasonable belief in the truth and accuracy of their statements to the Superior Court,” Epstein wrote.
Epstein acknowledged the testimony of a number of character witnesses who testified in support of the attorneys, including former Oakland Mayor Elihu Harris, and his wife, former State Bar Board of Governors member Kathy Neal, and the lawyers’ lack of prior discipline and demonstrated devotion to the community.
But the court was also required to consider the attorneys’ “evasive and inconsistent” testimony before the hearing judge, and the “steadfast[ness]” of their failure to recognize the conflicts of interest inherent in their purported recognition of the tribe while they continued to represent the dissident group, Epstein said.
The hearing judge was in error, however, in concluding that Virsick’s conduct warranted a longer suspension, she concluded. Since Maloney, who had been practicing for about 30 years at the time of the events in question, compared to Virsick’s three years, was primarily responsible for the matters, it is appropriate to impose greater discipline, Epstein wrote.
“As [the partner in charge of the litigation tactics here in question] Maloney must bear more responsibility than Virsick,” Epstein wrote. Maloney’s long experience and senior position, she reasoned, gave him a greater opportunity to keep both himself and Virsick out of trouble.
The case is Matter of Maloney and Virsick, 00-O-14000.
Copyright 2005, Metropolitan News Company