TRT, Inc. CLE Blog

 

A lawyer was suspended for 120 days by the Nebraska Supreme Court for offering to stay quiet about what he believed to be illegal conduct by a prosecutor in return for the dismissal of charges against the  lawyer's  client (State ex rel. Counsel for Discipline v. Koenig, Neb., No. S-08-128, 7/31/09).  The  lawyer's  threat exceeded the bounds of proper plea negotiations, the court concluded, noting that his behavior prejudiced the administration of justice and implied that he could improperly influence a public official.  The court also concluded that the lawyer did not violate the ethics rule that makes it professional misconduct to commit a crime that reflects adversely on a  lawyer's  fitness to practice law.  It noted the lawyer had never been charged or convicted of any crime in connection with the threat.  While representing a client, Dustin Garrison, who was charged with driving without a valid registration or proper proof of insurance, Lyle J. Koenig notified the prosecutor handling the case, Rick Schreiner, that the newly elected county attorney was in violation of the same registration law.  In his letter to the prosecutor, Koenig included a photograph of the allegedly expired license plate and a copy of a motion to appoint a special prosecutor, which he said he would file if the charge against Garrison were not dismissed.  “Obviously, these motions are only proposed, Koenig wrote, ending with, “Can't you dismiss [this case]? Our lips, of course, are forever sealed if [Garrison's] case gets dismissed.”   A few days later, Koenig sent a second letter to Schreiner, asking, “Does this case have any settlement possibility before we file the enclosures?”  Attached to the letter was a motion to dismiss for selective prosecution which alleged that the county attorney, “at least until recently, was operating his motor vehicle without proper registration.”  But rather than dismissing the charges against Garrison, the state moved for appointment of a special prosecutor.  Garrison pleaded no contest to the expired plate charge, and the no proof of insurance charge was dismissed.  Koenig never filed any of the motions and never published any information about the county attorney's vehicle registration.  In the disciplinary case against Koenig, he characterized the sealed lips remark as a joke, saying he thought Schreiner would realize that he “was trying to inject a little humor” into the situation. Applying a clear and convincing evidence standard, the Nebraska Supreme Court concluded that Koenig's actions prejudiced the system of justice (Nebraska Rule of Professional Conduct 8.4(d)), stated or implied an ability to exert improper influence on a  government  official or to achieve results by unethical means (Rule 8.4(e)), and thereby violated professional conduct rules (Rule 8.4(a)).  Koenig's tactics could not be justified as zealous advocacy, the court found.  “While Koenig's conduct might be considered zealous advocating of his client's position, it does not fall within the ethical bounds of our adversary system,” the court observed.  As for Koenig's attempt to paint his conduct as a joke, the court pointed out that the prosecutors and the referee in the disciplinary hearing did not see it that way.  A reasonable person in Schreiner's position could not help but take the threats seriously, and the “joke” resulted in the appointment of a special prosecutor.  The court noted, however, that Koenig did not violate Rule 8.4(b), which makes it professional misconduct to commit a criminal act that reflects adversely on a  lawyer's  fitness, or Rule 3.5(a), which forbids  lawyers  to try to influence officials through means prohibited by law.  Although the referee concluded that Koenig committed attempted bribery, the court pointed out that Koenig had not been charged with any offense in connection with the letters.  “We decline to determine or hypothesize whether Koenig's misconduct in this case would constitute a criminal act — i.e., an act that is deemed criminal, beyond a reasonable doubt,” the court stated.  On the question of an appropriate sanction, the court pointed out, as aggravating factors, that Koenig had been disciplined on two previous occasions and that he was unwilling to acknowledge the wrongfulness of his conduct.  Several mitigating factors were considered: his cooperation during the disciplinary proceeding, his continuing commitment to the legal profession, and the lack of any harm to clients.  All considered, the court rejected the referee's recommended one-year suspension and instead suspended Koenig from the practice of law for 120 days.