Thursday, November 19, 2009
Bar Panel Urges Suspension of Bay Area Lawyer for Making Threats
By KENNETH OFGANG, Staff Writer
The State Bar Court has recommended that a Bay Area lawyer be suspended for 90 days as part of a two-year probation for violations that include threatening and disrespecting North Carolina court officials overseeing the probate of the attorney’s father’s estate.
John W. Elkins, from Kensington in the East Bay Hills and a California lawyer since 1980, engaged in conduct that was “unacceptable from anyone in society and particularly reprehensible from an attorney,” Judge Judith Epstein wrote for the Review Department. Her opinion, joined by Presiding Judge Joann M. Remke and Judge Catherine D. Purcell, was filed Tuesday and made public yesterday.
That conduct involved numerous voicemail messages to the court officials, and to an attorney appointed as executor after Elkins and his brother were relieved of responsibility because of accounting problems, in which Elkins accused them of taking bribes and threatened to seek intervention from the FBI and other authorities, Epstein said.
Elkins, who was caring for his father at the latter’s home in Winston-Salem at the time of his death, was named co-executor in August 2002. He became embroiled in the accounting dispute, the bar panel found, in 2004 and was ordered to show cause why action to remedy the situation should not be taken.
Elkins called the assistant clerk/ex officio superior court judge who issued the order, Brice Murphy, and accused him of “graft and corruption” and suggested that the office was in cahoots with a mortgage company that Elkins was suing based on allegations that it had fraudulently negotiated a usurious mortgage prior to his father’s death.
Murphy later testified that he felt threatened and feared for his safety enough to ask two bailiffs to be present for the OSC hearing, at which he ordered Elkins and his brother to remedy defects in the accounting that had been identified by the clerks. At a subsequent hearing, another judicial officer found that Murphy’s order had not been complied with, removed the Elkinses as co-executors, and named attorney Gregory D. Henshaw the new executor.
After Henshaw wrote Elkins explaining that it might be necessary to sell the house to pay the estate’s debts but offered to work with him to avoid that necessity, Elkins called, but the conversation “deteriorated so quickly” that Henshaw—according to his later testimony—found it necessary to terminate the call. Elkins subsequently left more than 20 voicemail messages for the attorney, referring to him, Murphy, and the other assistant clerk, Margaret Lortie, as “white trash” and “slime.”
After Henshaw retained a partner in his law firm to deal with Elkins, Elkins left another 19 messages on the other lawyer’s voicemail, threatening that the attorney had better “back off” and “watch your step” because Elkins was “watching you” and was prepared to go “to the state attorney general and the FBI at some point.”
He also continued to call and leave messages for Henshaw, despite being told not to communicate with him directly. Those messages “were even more harassing, demeaning, and offensive than the earlier ones,” Epstein wrote, illustrating the point in a footnote containing what the judge called “a few representative examples,” including the use of vulgarities.
The superior court subsequently issued a restraining ordering Elkins to communicate with the attorneys and their staff only in writing, not enter their office premises, and remain 100 feet away from them at all times except when attending court hearings.
Bar Court Findings
State Bar Court Hearing Judge Donald F. Miles found that Elkins violated State Bar rules and engaged in moral turpitude by threatening the attorneys, that he used threats of criminal, administrative, or disciplinary action to gain an advantage in a civil dispute, that he showed disrespect for the court officials, and that he abandoned his office for more than 30 days without notifying the State Bar of his new address.
Miles recommended the probation and 90-day suspension, and the Review Department concurred.
Epstein rejected the argument that Elkins, who represented himself in the disciplinary proceedings, engaged in conduct protected by the First Amendment. “[T]he mere act of making 53 phone calls in a short time period constitutes harassing conduct that is not protected by the First Amendment,” the presiding judge wrote, adding that the Constitution does not protect “reckless” and conjectural accusations of wrongdoing.
She emphasized that the findings of the North Carolina court and “the uncontradicted testimony of Murphy that he did not take bribes” established the falsity of Elkins’ accusations.
Epstein said the panel considered Elkins’ 24 years of discipline-free practice prior to the dispute as a mitigating factor, but that the court also had to consider that the recipients of the phone calls reasonably felt threatened, that he engaged in multiple acts of misconduct over a period of several months, that he placed a significant burden on the probate court, and that he “continues to perceive that he is the victim.”
A 90-day suspension, the jurist went on to say, would be consistent with the discipline in other cases involving harassment.
Elkins did not return a MetNews phone call.
The case is Matter of Elkins, 05-O-03819.
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