The Disciplinary Board of the Supreme Court of Pennsylvania is scheduled to issue a public reprimand next month of an attorney who filed a Third Circuit brief containing comments the panel described as “unprofessional.”
According to a news report today, a Wilkes-Barre lawyer will appear on January 7 for the Board’s public reprimand. The lawyer reportedly acknowledged that his statements were inappropriate and consented to the reprimand.
The Third Circuit’s 2017 non-precedential opinion , authored by Chief Judge Smith, catalogs the offending statements in a footnote:
See Appellant’s Br. at 13 (“The District Court . . . smugly contradicted itself”); 14 (“If, as the District Court so proudly recited”); 15 (“a genuine issue of fact was clearly and intentionally overlooked by the District Court” and the District Court’s analysis is “quite frankly, outright false”); 16 (“evidences the District Court’s clear lack of understanding of Pennsylvania Tax Sale Law,” “seemingly in an effort to bolster a legal position that really does not exist, the District Court misstated the status of the law,” and the “Court chose to omit that crucial language to avoid giving Swinka their opportunity in court”); 17 (“two (2) distinct problems with the District Court’s unsubstantiated position”); 19 (“the District Court grossly erred in its ruling”); 19 n.1 (“the District Court has acted far outside its bounds”), 20 (“The District Court . . . was once again, wrong.”); 21 (“This issue presents the Third Circuit with one of the more shocking decisions and questionable reasoning by the District Court. The District Court astonishingly claims”); 22 (“[i]t is not only disingenuous for the District Court” and “the District Court misstates, and clearly misunderstands”); 23 (asserting the Court “padded its opinion with irrelevant citations to cases”); 24 (“The District Court has gone to great lengths to deprive Swinka of its rights”); 25 (“most egregiously, the District Court seeks to deprive Swinka of its rights” and “clearly feels that Swinka’s rights are secondary to everyone else merely because of the values involved”) .
The panel’s view of these statements was scalding:
Swinka appeals the dismissal of all of its claims, except the breach of contract action. In doing so, Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel.[ When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.
I can’t tell who actually referred the matter to the Disciplinary Board, but the opinion included a pointed note that counsel is a member of the PA bar bound by ethics rule 8.2(a) (“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”).
So, lawyers: don’t do that.
[UPDATE: I included the lawyer’s name in my original post, but I’ve removed it (not at anyone’s request) because I decided it wasn’t necessary to include.]