In the matter of an Attorney

National Labor Relations Board - Board Decisions

Jun 17, 1992

307 N.L.R.B. 913 (N.L.R.B. 1992)

913
307 NLRB No. 150
IN THE MATTER OF AN ATTORNEY
1 Pursuant to the provisions of the settlement stipulation, all ref-
erences to the name of the Respondent and/or his law firm shall be
redacted from any publication or other public disclosure by the
Agency of this Order or other documents constituting the record
herein.
In the Matter of an Attorney1
June 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On May 20, 1992, Respondent Attorney and counsel
for the Board entered into a settlement stipulation, sub-
ject to the Board’s approval, providing for the entry of
a consent order by the Board. The parties waived all
further and other proceedings before the Board to
which they may be entitled under the National Labor
Relations Act and the Board’s Rules and Regulations.
The settlement stipulation is approved and made a
part of the record, and the proceeding is transferred to
and continued before the Board in Washington, D.C.,
for the entry of an order pursuant to the provisions of
the settlement stipulation.
In approving the settlement, we do not dispute our
dissenting colleague’s view that publication of a dis-
ciplined attorney’s name may be important in deterring
future misconduct. Neither do we preclude publishing
a disciplined attorney’s name in an appropriate future
case. Under the unique circumstances here, however,
including among other things that this is the first for-
mal Board disciplinary proceeding against the Re-
spondent, that the Board does not now have any rules
concerning attorney misconduct at hearings that would
place an attorney on notice concerning the extent of
disciplinary action for inappropriate conduct, and that
the alleged conduct occurred more than 2 years ago,
the advantages of an immediate disciplinary consent
order outweigh any additional deterrent effect that
might be gained from publication of the attorney’s
name after a hearing. Further, contrary to our dis-
senting colleague, we believe that publication of this
Decision and Order, even with the attorney’s name re-
dacted, will be sufficient to alert Board personnel and
the labor bar that such conduct need not and will not
be tolerated.
We also disagree with our dissenting colleague’s
view that the settlement’s additional provision that the
Board will not seek further disciplinary action against
the Respondent by referral of the matter to the appro-
priate state bar(s) is inappropriate. While referral of a
disciplinary matter to the state bar may be proper, we
do not believe it is in every circumstance required. We
note, for example, that this is not a case involving con-
duct that causes harm to third parties, such as mis-
appropriation of client funds.
The Board’s primary statutory interest and obliga-
tion is in protecting its administrative processes. In our
view, the settlement accomplishes this purpose by sus-
pending the Respondent, an attorney with a substantial
NLRA practice, from appearing or practicing before
the Agency for a significant period.
ORDER
Upon the basis of the settlement stipulation, and the
entire record thereof, pursuant to Section 102.66(d)(2)
of the Board’s Rules and Regulations, the National
Labor Relations Board orders that the Respondent shall
be
(a) reprimanded for using profanity and verbally ad-
dressing the opposing counsel and witness in a rude,
vulgar and/or profane manner during the course of the
representation hearing in Case 32–RC–3207; and
(b) suspended, beginning the date of this Order,
from appearing or otherwise practicing before the
Agency for 1 year for this conduct; provided that 6
months of this 1-year suspension shall be stayed for a
period of 3 years, such stay to be lifted and the re-
maining 6 months immediately imposed upon any fur-
ther like or related misconduct by Respondent in any
proceeding before the Agency.
MEMBER RAUDABAUGH, dissenting.
I would not approve the settlement. It is deficient in
several respects.
First, it forbids the Board from referring this matter
to appropriate state bars. Although the Board has an
interest in regulating the conduct of attorneys who ap-
pear before it, the state bars have at least as great an
interest in these matters. State bars are the traditional
guardians against attorney misconduct. Their interest in
these matters is deeply rooted. It is regrettable and in-
appropriate for the Board to be a party to an arrange-
ment to keep the state bars in the dark as to the alleg-
edly improper conduct involved herein.
Second, I would not redact the name of the Re-
spondent from the publication of this Decision and
Order. A purpose of publication is to apprise other at-
torneys that misconduct will not be tolerated and can
result in sanctions. The hope is that these attorneys
will thereby be deterred from engaging in misconduct.
It is clear to me that publication of the name of the
Respondent herein is essential to the goal of deter-
rence. By such publication, other attorneys would be
made aware that misconduct will result in suspension
and that names, misconduct, and penalty will be pub-
lished nationally. That kind of publicity can affect not
only an attorney’s reputation and that of his or her law
firm but also the ability to get referrals. With that in
mind, attorneys and their firms are apt to be very care-
ful with respect to their conduct. On the other hand,
an anonymous suspension has a far lesser impact. Con-
cededly, in that situation, the attorney cannot practice
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although Respondent has not previously been sanctioned by this
Board, he has engaged in unprofessional conduct that incurred the
wrath of a circuit court. Respondent was criticized for his failure to
apprise the court of a material factual change that occurred while the
case was being appealed and for his procrastination in obeying the
court’s orders.
before the Board for a period of time. However, if,
like many practitioners, the attorney does not do a lot
of Board work, this impact is minimal. More impor-
tantly, the anonymity of the suspension will leave in-
tact the attorney’s reputation and the capacity for refer-
rals. Hence, in order to achieve the goal of deterrence,
I would put attorneys on notice that, if they engage in
misconduct, their names will not be kept secret.
Third, a further purpose of publication is to alert
Board personnel of our commitment to ensuring appro-
priate conduct and taking action to correct abuse. By
full publication of sanctions, we would send a clear
message to our personnel that they need not suffer or
tolerate inappropriate conduct. By contrast, a publica-
tion that sweeps the name of the offender under the
rug sends the mixed signal that misconduct will be
punished but not in a manner designed to put a stop
to such behavior.
I recognize that, in a settlement, each party often
gets less than it originally sought. However, I note
that, in the instant case, the Board has already given
up one-half of the actual suspension time that it
sought. In addition, although there are always risks in
litigation, I note that the alleged misconduct in this
case was on the record and thus could not be factually
disputed.
In support of their acceptance of the redaction of
Respondent’s name, my colleagues note that this is the
first formal disciplinary proceeding against the Re-
spondent.1 However, if an attorney engages in ‘‘aggra-
vated’’ misconduct, even for the first time, Section
102.66 provides for suspension or disbarment. The rule
does not condition these penalties on a prior violation.
Nor does the rule permit a free bite of the apple. The
purpose of the rule is to prevent such misconduct from
occurring at all, i.e., even for a first time. Since, as
discussed above, publication of the Respondent’s name
is an important part of such deterrence, I would not
permit redaction simply because the attorney did not
previously engage in aggravated misconduct.
My colleagues also assert that the Board does not
have any rules that would place an attorney on notice
concerning the extent of disciplinary action. I disagree.
Section 102.66 expressly and specifically provides for
suspension or disbarment. In any event, the issue be-
fore us is not the extent of disciplinary action; the
issue is whether a name will be redacted. Ordinarily,
a published decision of the Board will contain the
names of the parties. There is nothing in the rule that
requires or even suggests that there be a departure
from this normal procedure.
With respect to notification of the state bar, my col-
leagues speculate that the state bar may not be con-
cerned about a case that does not involve harm to third
parties or misappropriation of client funds. I would not
speculate as to whether the state bar would or would
not be concerned about the instant matter. The issue is
whether the state bar officials should be informed so
that they, and not we, can decide on the extent of their
concern. I would inform them and let them make the
appropriate judgment.